-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Sb7yzGY+taufmwp32VMHdHCggbC0cw/22i49f5pTl/9XnP+vIIIH5rccZ+G5pkoG BBn5qPmiI+kKOkbs2ZFiHg== 0000912057-00-053207.txt : 20001214 0000912057-00-053207.hdr.sgml : 20001214 ACCESSION NUMBER: 0000912057-00-053207 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001212 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SIX FLAGS INC CENTRAL INDEX KEY: 0000701374 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS AMUSEMENT & RECREATION [7990] IRS NUMBER: 736137714 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-51716 FILM NUMBER: 788075 BUSINESS ADDRESS: STREET 1: 11501 NE EXPWY CITY: OKLAHOMA CITY STATE: OK ZIP: 73131 BUSINESS PHONE: 4054752500 MAIL ADDRESS: STREET 1: 122 EAST 42ND STREET 49TH STREET CITY: NEW YORK STATE: NY ZIP: 10168 FORMER COMPANY: FORMER CONFORMED NAME: TIERCO GROUP INC/DE/ DATE OF NAME CHANGE: 19920703 S-3 1 a2032924zs-3.txt S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 12, 2000 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- SIX FLAGS, INC. (FORMERLY PREMIER PARKS INC.) (Exact name of registrant as specified in its charter) DELAWARE 13-3995059 (State or jurisdiction (I.R.S. Employer incorporation or Identification No.) organization)
11501 NORTHEAST EXPRESSWAY OKLAHOMA CITY, OKLAHOMA 73131 (405) 475-2500 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) -------------------------- COPY TO: JAMES M. COUGHLIN, ESQ. SIX FLAGS, INC. 122 EAST 42ND STREET NEW YORK, NEW YORK 10168 (212) 599-4690 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / -------------------------- CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM OFFERING PRICE PER PROPOSED MAXIMUM AMOUNT TO BE SECURITY OR PER AGGREGATE OFFERING TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE Common Stock, $.025 par value per share... 1,339,223 $15.1875 $20,339,450 AMOUNT OF TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTRATION Common Stock, $.025 par value per share... $5,369.61
(1) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based upon the closing price of the Common Stock on the New York Stock Exchange on December 11, 2000. ------------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. Subject to Completion dated December 12, 2000 PROSPECTUS 1,339,223 SHARES SIX FLAGS, INC. COMMON STOCK --------------------- These shares are being sold by the selling stockholder identified under the caption "Selling Stockholder" or by donees, transferees, pledgees or other successors in interest of such stockholder that receive shares in a non-sale related transfer. The selling stockholder acquired these shares in connection with our acquisition on December 6, 2000 of Enchanted Village, a children's ride park and water park located near Seattle, Washington. We will not receive any proceeds from the sale of these shares. The prices at which the selling stockholder may sell the shares in this offering will be determined by the prevailing market price for the shares or in negotiated transactions. Our common stock is listed on the New York Stock Exchange under the trading symbol "PKS". On December 11, 2000, the closing sale price of the common stock was $15 3/16. CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 8 IN THIS PROSPECTUS. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------ THE DATE OF THIS PROSPECTUS IS DECEMBER , 2000 You should rely only on the information contained in or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus is accurate as of any date other than the date on the front of this prospectus. ------------------------ TABLE OF CONTENTS
PAGE -------- WHERE YOU CAN FIND MORE INFORMATION......................... 3 SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS.................. 4 PROSPECTUS SUMMARY.......................................... 5 RISK FACTORS................................................ 8 USE OF PROCEEDS............................................. 13 SELLING STOCKHOLDER......................................... 13 PLAN OF DISTRIBUTION........................................ 14 LEGAL MATTERS............................................... 15 EXPERTS..................................................... 15
2 WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy any document we file at the SEC's public reference rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public at the SEC's web site at http://www.sec.gov. Our Common Stock is listed on the New York Stock Exchange. Our reports, proxy statements and other information can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. This prospectus is part of a Registration Statement on Form S-3 filed with the SEC under the Securities Act of 1933. This prospectus omits some of the information contained in the Registration Statement. You should refer to the Registration Statement for further information with respect to Six Flags, Inc. and the securities offered by this prospectus. Any statement contained in this prospectus concerning the provisions of any document filed as an exhibit to the Registration Statement or otherwise filed with the SEC is not necessarily complete, and in each case you should refer to the copy of the document filed for complete information. The SEC allows us to "incorporate by reference" the information we file with it, which means we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until all of the securities covered by this prospectus are sold by the selling stockholder. 1. Our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2000. 2. Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2000. 3. Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2000. 4. Our Annual Report on Form 10-K for the fiscal year ended December 31, 1999. 5. The description of our common stock contained in our registration statement on Form 8-A filed pursuant to Section 12 of the Securities Exchange Act. 6. The description of the Rights relating to the shares of common stock contained in our registration statement on Form 8-A filed pursuant to Section 12 of the Securities Exchange Act. 7. Our Current Report on Form 8-K dated November 8, 2000. You may request a copy of these filings, at no cost, by writing or telephoning us at the following address: Six Flags, Inc. 11501 Northeast Expressway Oklahoma City, Oklahoma 73131 Attention: Richard Kipf, Corporate Secretary Telephone: (405) 475-2500 Looney Tunes characters, names and all related indicia are trademarks of Warner Bros. -C- 2000, a division of Time Warner Entertainment Company, L.P. ("TWE"). Batman and Superman and all related characters, names and indicia are copyrights and trademarks of DC Comics -C- 2000, Cartoon Network and logo are trademarks of Cartoon Network -C- 2000, Six Flags and all related indicia are federally registered trademarks of Six Flags Theme Parks Inc. -C- 2000, our subsidiary. 3 SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS Some of the statements contained in or incorporated by reference in this prospectus discuss our plans and strategies for our business or state other forward-looking statements, as this term is defined in the Private Securities Litigation Reform Act. The words "anticipates," "believes," "estimates," "expects," "plans," "intends" and similar expressions are intended to identify these forward-looking statements, but are not the exclusive means of identifying them. These forward-looking statements reflect the current views of our management; however, various risks, uncertainties and contingencies could cause our actual results, performance or achievements to differ materially from those expressed in, or implied by, these statements, including the following: - the success or failure of our efforts to implement our business strategy - the other factors discussed under the heading "Risk Factors" and elsewhere in this prospectus We assume no obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise. For a discussion of important risks of an investment in our securities, including factors that could cause actual results to differ materially from results referred to in the forward-looking statements, see "Risk Factors." You should carefully consider the information set forth under the caption "Risk Factors." In light of these risks, uncertainties and assumptions, the forward-looking events discussed in or incorporated by reference in this prospectus might not occur. 4 PROSPECTUS SUMMARY THE COMPANY We are the largest regional theme park operator in the world, based on estimated 2000 attendance of approximately 45 million. We operate 37 regional parks, including 15 of the 50 largest theme parks in North America, based on 1999 attendance, the largest paid admission theme park in Mexico and seven theme parks in Europe. We also manage the development and construction of a new theme park in Spain. Our theme parks serve the 10 largest metropolitan areas in the United States. We estimate that approximately two-thirds of the population of the continental United States live within a 150-mile radius of one of our theme parks. In 1998, we acquired Six Flags, which has operated regional theme parks under the Six Flags name for nearly forty years and has established a nationally recognized brand name. We have worldwide ownership of the "Six Flags" brand name. To capitalize on this name recognition, since the 1998 season we have rebranded nine of our parks as "Six Flags" parks, including two of our international parks. We hold exclusive long-term licenses for theme park usage throughout the United States (except the Las Vegas metropolitan area), Canada, Europe and Latin and South America (including Mexico) of certain Warner Bros. and DC Comics characters. These characters include BUGS BUNNY, DAFFY DUCK, TWEETY BIRD, YOSEMITE SAM, BATMAN, SUPERMAN and others. In addition, our European and Latin and South American licenses include the Hanna-Barbera and Cartoon Network characters. We use these characters to market our parks and to provide an enhanced family entertainment experience. Our license includes the right to sell merchandise featuring the characters at our parks, and to use the characters in our advertising, as walk-around characters, in theming for rides and attractions and in retail outlets. We believe using these characters promotes increased attendance, supports higher ticket prices, increases lengths-of-stay and enhances in-park spending. Our 37 parks are located in geographically diverse markets across North America and Europe. Our parks are individually themed and provide a complete family-oriented entertainment experience. Our theme parks generally offer a broad selection of state-of-the-art and traditional "thrill rides," water attractions, themed areas, concerts and shows, restaurants, game venues and merchandise outlets. In the aggregate, our theme parks offer more than 800 rides, including over 100 roller coasters, making us the leading operator of thrill rides in the industry. Since 1989, under our current management we have assumed control of 35 parks and have achieved significant internal growth. We believe that our parks benefit from limited direct competition, since the combination of a limited supply of real estate appropriate for theme park development, high initial capital investment, long development lead-time and zoning restrictions provides each of our parks with a significant degree of protection from competitive new theme park openings. Based on our knowledge of the development of other theme parks in the United States, we estimate that it would cost at least $200 million and would take a minimum of two years to construct a new regional theme park comparable to one of our Six Flags parks. Our senior and operating management team has extensive experience in the theme park industry. Our senior executive officers have over 150 years aggregate experience in the industry and our general managers have an aggregate of in excess of 440 years experience in the industry, including in excess of 320 years at our parks. STRATEGY Our strategy for achieving growth includes pursuing internal growth opportunities at existing parks, expanding our parks, and making selective acquisitions. 5 We believe there are substantial opportunities for continued internal growth at our parks. We seek to increase revenue by increasing attendance and per capita spending, while also maintaining strict control of operating expenses. The primary elements we use to achieve these objectives are: - adding rides and attractions and improving overall park quality - enhancing marketing and sponsorship programs - increasing group sales, season passes and other pre-sold tickets - using ticket pricing strategies to maximize ticket revenues and park utilization - adding and enhancing restaurants and merchandise and other revenue outlets - adding special events Our approach is designed to exploit the operating leverage inherent in the theme park business. Once parks achieve certain critical attendance levels, operating cash flow margins increase because revenue growth through incremental attendance gains and increased in-park spending is not offset by a comparable increase in operating expenses, because a large portion of these expenses is relatively fixed during any given year. We have expanded several of our parks by adding complementary attractions, such as campgrounds, lodging facilities and new water parks, in order to increase attendance and per capita spending. For example, since 1998, we have added hotels or other lodging facilities to Six Flags Darien Lake, Six Flags Ohio and Six Flags Holland. Further, we added a water park to Six Flags St. Louis for the 1999 season and to Six Flags Great Adventure (located between New York City and Philadelphia) for the 2000 season. In addition, we own 400 acres adjacent to Six Flags America which are zoned for entertainment, recreational and residential uses and are available for complementary uses. In addition, we own over 1,500 undeveloped acres adjacent to Six Flags Great Adventure suitable for additional complementary purposes. We also own additional acreage which is suitable for development at several of our other parks. The regional theme park industry is highly fragmented. We believe that there are numerous acquisition opportunities, both in the U.S. and abroad, through which we can expand our business. Although we will continue to pursue acquisitions of regional parks with annual attendance between 300,000 and 1.5 million, we will also consider acquisitions of larger parks or park chains. We believe we have a number of competitive advantages in acquiring theme parks. Operators of destination or large regional park chains, other than Cedar Fair L.P., have not generally been actively seeking to acquire parks in recent years. Additionally, as a multi-park operator with a track record of successfully acquiring, improving and repositioning parks, we believe we have numerous competitive advantages over single-park operators in pursuing acquisitions and improving the operating results at acquired parks. These advantages include our ability to: - exercise group purchasing power (for both operating expenses and capital assets) - use the Six Flags brand name and the characters licensed from Warner Bros. and DC Comics - achieve administrative economies of scale - attract greater sponsorship revenue and support from sponsors with nationally-recognized brands and marketing partners - recruit and retain superior management - use our access to capital markets as well as our common stock as all or a portion of future acquisition consideration 6 ADDRESS Our executive offices are located at 11501 Northeast Expressway, Oklahoma City, Oklahoma 73131, (405) 475-2500, and at 122 East 42nd Street, New York, New York 10168, (212) 599-4690. THE OFFERING Common stock offered by selling stockholder........................ 1,339,223 shares Common stock outstanding as of December 6, 2000................... 80,043,826 shares New York Stock Exchange symbol....... PKS Use of proceeds...................... We will not receive any proceeds from the sale of the common stock sold by the selling stockholder.
The purpose of this offering is to register the resale of the shares of common stock owned by the selling stockholder. The selling stockholder acquired these shares in connection with our acquisition on December 6, 2000 of Enchanted Village, a children's ride park and water park near Seattle, Washington. The selling stockholder is required to deliver a copy of this prospectus in connection with any sale of these shares. 7 RISK FACTORS YOU SHOULD CAREFULLY CONSIDER EACH OF THE FOLLOWING RISKS AND ALL OF THE OTHER INFORMATION SET FORTH IN THIS PROSPECTUS BEFORE DECIDING TO INVEST IN OUR COMMON STOCK. SOME OF THE FOLLOWING RISKS RELATE PRINCIPALLY TO OUR BUSINESS IN GENERAL AND THE INDUSTRY IN WHICH WE OPERATE. OTHER RISKS RELATE PRINCIPALLY TO THE SECURITIES MARKETS AND OWNERSHIP OF OUR SECURITIES. THE RISKS AND UNCERTAINTIES DESCRIBED BELOW ARE NOT THE ONLY ONES FACING OUR COMPANY. ADDITIONAL RISKS AND UNCERTAINTIES NOT PRESENTLY KNOWN TO US OR THAT WE CURRENTLY BELIEVE TO BE IMMATERIAL MAY ALSO ADVERSELY AFFECT OUR BUSINESS. IF ANY OF THE FOLLOWING RISKS AND UNCERTAINTIES DEVELOP INTO ACTUAL EVENTS, OUR BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS COULD BE MATERIALLY ADVERSELY AFFECTED. SUBSTANTIAL LEVERAGE--OUR HIGH LEVEL OF INDEBTEDNESS AND OTHER MONETARY OBLIGATIONS REQUIRE THAT A SIGNIFICANT PART OF OUR CASH FLOW BE USED TO PAY INTEREST AND FUND THESE OTHER OBLIGATIONS. We have a high level of debt. As of September 30, 2000, Six Flags and its subsidiaries owed a combined total of approximately $2,224.2 million. We will pay total interest on our debt in 2000 of approximately $189.9 million ($12.9 million of which we will pay with funds already deposited in escrow). Through April 2001, we also have to pay quarterly dividends of $5.8 million on our mandatorily convertible preferred stock, although we can pay these dividends either in cash or shares of common stock. At September 30, 2000, we had approximately $65.7 million of unrestricted cash and cash equivalents and $90 million of restricted cash. In addition to making interest payments on debt and dividend payments on our preferred stock, we must satisfy the following obligations with respect to Six Flags Over Georgia and Six Flags Over Texas: - We must make annual distributions to our partners in such parks, which will amount to approximately $48.6 million in 2000 (of which we will be entitled to receive $14.8 million due to our current ownership interest in such parks) with similar amounts (adjusted for changes in cost of living) payable in future years. - We must spend a minimum of approximately 6% of each park's annual revenues over specified periods for capital expenditures. - Each year we must offer to purchase a specified maximum number of partnership units from our partners in such parks, which in 2000 resulted in an aggregate payment by us of approximately $3.3 million. We will use cash flow from the operations at these parks to satisfy the first two obligations before we use any of our other funds. In addition, we have deposited in escrow approximately $75.0 million which can be used to satisfy these obligations. The obligations relating to Six Flags Over Georgia continue until 2027 and those relating to Six Flags Over Texas continue until 2028. Our high level of debt and other obligations could have important negative consequences to us and investors in our securities. These include: - We may not be able to satisfy all of our obligations. - We could have problems obtaining necessary financing in the future for working capital, capital expenditures, debt service requirements, refinancing or other purposes. - We will have to use a significant part of our cash flow to make payments on our debt, to pay the dividends on preferred stock (if we choose to pay them in cash), and to satisfy the other obligations set forth above, which may reduce the capital available for operations and expansion. - Adverse economic or industry conditions may have more of a negative impact on us. 8 We expect to be able to meet all of our obligations with existing cash, cash generated from the parks, and our current committed lines of credit. We believe that funds from these sources will be sufficient to meet our obligations and operating needs for the next several years and beyond. However, our business is subject to factors beyond our control, such as economic conditions, weather and competition. We cannot be sure that income from our parks will be as high as we expect. We may have to refinance all or some of our debt or secure new financing. We can not be sure that we will be able to obtain such refinancing or new loans on reasonable terms or at all. We have agreed in our credit agreement and the indentures covering certain of our outstanding notes to limit the amount of additional debt we will incur. If we can not meet all of our obligations, the market value and marketability of our common stock will likely be adversely affected. In addition, if we become the subject of bankruptcy proceedings, our creditors and preferred stockholders will be entitled to our assets before any distributions are made to common stockholders. RESTRICTIVE COVENANTS--OUR FINANCIAL AND OPERATING ACTIVITIES ARE LIMITED BY RESTRICTIONS CONTAINED IN THE TERMS OF OUR PRIOR FINANCINGS. The terms governing our and our subsidiaries' indebtedness impose significant operating and financial restrictions on us. These restrictions may significantly limit or prohibit us from engaging in certain transactions, including the following: - incurring additional indebtedness - creating liens on our assets - paying dividends - selling assets - engaging in mergers or acquisitions - making investments Our failure to comply with the terms and covenants in our and our subsidiaries' indebtedness could lead to a default under the terms of those documents, which would entitle the lenders to accelerate the indebtedness and declare all amounts owed due and payable. Moreover, the instruments governing our indebtedness contain cross-default provisions so that a default under any of our indebtedness will be considered a default under all other indebtedness. If a cross-default occurs, the maturity of almost all of our indebtedness could be accelerated and become immediately due and payable. If that happens, we would not be able to satisfy all of our debt obligations, which would have a substantial material adverse effect on the value of our common stock and our ability to continue as a going concern. We cannot assure you that we will be able to comply with these restrictions in the future or that our compliance would not cause us to forego opportunities that might otherwise be beneficial to us. Further, certain of our subsidiaries are required to comply with specified financial ratios and tests, including: - interest expense - fixed charges - debt service - total debt - secured debt 9 We are currently in compliance with all of these financial covenants and restrictions. However, events beyond our control, such as weather and economic, financial and industry conditions, may affect our ability to continue meeting these financial tests and ratios. The need to comply with these financial covenants and restrictions could limit our ability to expand our business or prevent us from borrowing more money when necessary. MANAGEMENT OF GROWTH STRATEGY--WE MAY NOT BE ABLE TO MANAGE OUR RAPID GROWTH OR INTEGRATE ACQUISITIONS. We have experienced significant growth through acquisitions and will continue to consider acquisition opportunities that arise. Such acquisitions could place a future strain on our operations. Our ability to manage future acquisitions will depend on our ability to evaluate new markets and investments, monitor operations, control costs, maintain effective quality controls and expand our internal management and technical and accounting systems. To fund future acquisitions, we may need to borrow more money or assume the debts of acquired companies. In taking on any debt, we must comply with the restrictions described above with respect to our existing indebtedness. If these restrictions are not met and we do not receive necessary consents or waivers of such restrictions, we may be unable to make certain acquisitions. In the past, in certain circumstances we have used shares of our common stock to fund all or a portion of the price of acquisitions. In the future, we may again fund all or part of acquisitions by issuing new shares of our common stock or other securities which can be converted into common stock. Issuing such additional shares or convertible securities may cause a decrease in the per share market price of our common stock. If we do purchase additional businesses, it may negatively affect our earnings, at least in the short term. Further, we cannot guarantee that any future acquisition will generate the earnings or cash flow we expect. As with any expansion, unexpected liabilities might arise and the planned benefits may not be realized. RISK OF ACCIDENTS--THERE IS THE RISK OF ACCIDENTS OCCURRING AT OUR PARKS WHICH MAY REDUCE ATTENDANCE AND EARNINGS. Almost all of our parks feature "thrill rides." While we carefully maintain the safety of our rides, there are inherent risks involved with these attractions. An accident or an injury at any of our parks may reduce attendance at that and other parks, causing a drop in revenues. On March 21, 1999, a raft capsized in the river rapids ride at Six Flags Over Texas, resulting in one fatality and injuries to ten others. As a result, a case entitled JERRY L. CARTWRIGHT, ET AL. VS. PREMIER PARKS INC. D/B/A SIX FLAGS OVER TEXAS, INC. was commenced seeking unspecified damages. The park is covered by our existing insurance and we don't believe that this incident or this lawsuit will have a material adverse effect on our financial position, operations or liquidity. We maintain insurance of the type and in amounts that we believe is commercially reasonable and that are available to businesses in our industry. We maintain multi-layered general liability policies that provide for excess liability coverage of up to $100.0 million per occurrence. We have no self-insured retention, except that the self-insurance portion of claims arising out of occurrences prior to July 1, 1998 at our U.S. parks owned prior to the Six Flags acquisition is $50,000 per occurrence. 10 FACTORS IMPACTING ATTENDANCE--LOCAL CONDITIONS, DISTURBANCES, EVENTS AND NATURAL DISASTERS CAN ADVERSELY IMPACT PARK ATTENDANCE. Lower attendance may also be caused by other local conditions or events. For example: - In 1994, fewer people attended our Six Flags Magic Mountain park because of the Los Angeles County earthquake, and the earthquake also significantly interrupted operation of the park. - Six Flags Over Georgia suffered a drop in attendance in 1996 as a result of the 1996 Summer Olympics. In addition, since some of our parks are near major urban areas and appeal to teenagers and young adults, there may be disturbances at one or more parks which negatively affect our image. This may result in lower attendance at the affected parks. We work with local police authorities on security-related precautions to prevent such occurrences. We can make no assurance, however, that these precautions will be able to prevent any such disturbances. We believe that our ownership of many parks in different geographic locations reduces the effects of such occurrences on our consolidated results. ADVERSE WEATHER CONDITIONS--BAD WEATHER CAN ADVERSELY IMPACT ATTENDANCE AT OUR PARKS; OUR OPERATIONS ARE SEASONAL. Because most of the attractions at our theme parks are outdoors, attendance at our parks is adversely affected by bad weather. The effects of bad weather on attendance are more pronounced at our water parks. Bad weather and forecasts of bad or mixed weather conditions can reduce the number of people who come to our parks, which negatively affects our revenues. Although, we believe that our ownership of many parks in different geographic locations reduces the effect that adverse weather can have on our consolidated results, we believe our 2000 operating season results were adversely affected by abnormally cold and wet weather (particularly in June and July) at a large number of our U.S. parks. Our operations are seasonal. More than 90% of our annual park attendance occurs during the spring, summer and early autumn months. By comparison, most of our expenses for maintenance and costs of adding new attractions are incurred when the parks are closed in the mid to late autumn and winter months. For this reason, a quarter to quarter comparison is not a good indication of our performance or of how we will perform in the future. However, the market price of our common stock may still fluctuate significantly in response to changes in our quarterly results of operations. COMPETITION--THE THEME PARK INDUSTRY COMPETES WITH NUMEROUS ENTERTAINMENT ALTERNATIVES. Our parks compete with other theme, water and amusement parks and with other types of recreational facilities and forms of entertainment, including movies, sports attractions and vacation travel. Our business is also subject to factors that affect the recreation and leisure industries generally, such as general economic conditions and changes in consumer spending habits. The principal competitive factors of a park include location, price, the uniqueness and perceived quality of the rides and attractions, the atmosphere and cleanliness of the park and the quality of its food and entertainment. KEY PERSONNEL--THE LOSS OF KEY PERSONNEL COULD HURT OUR OPERATIONS. Our success depends upon the continuing contributions of our executive officers and other key operating personnel, including Kieran E. Burke, our Chairman and Chief Executive Officer, and Gary Story, our President and Chief Operating Officer. The complete or partial loss of their services or the services of other key personnel could adversely affect our business. Although we have entered into employment agreements with Mr. Burke and Mr. Story (which end on December 31, 2003), we cannot be certain that we will be able to retain their services during that or any subsequent period. 11 INTERNATIONAL OPERATIONS--OUR INTERNATIONAL OPERATIONS HAVE ADDITIONAL RISKS. We operate eight parks in Europe and Mexico. We also manage the development and construction of a new European park. We also may acquire additional parks in international locations. There are risks to which we are subject that are inherent in operating abroad. Some examples of these risks can include: - problems in staffing and managing foreign operations - fluctuations in currency exchange rates - political risks - unexpected changes in regulatory requirements - potentially detrimental tax consequences in many locations with different tax laws During the first nine months of 2000, reported revenues from our European parks as translated into U.S. dollars were adversely impacted by a decline in the value of European currencies. SHARES ELIGIBLE FOR FUTURE SALE--THE PRICE OF OUR COMMON STOCK MAY DECLINE DUE TO POSSIBLE SALES OF SHARES. As of December 6, 2000, there were 80,043,826 shares of our common stock outstanding, all of which are transferable without restriction or further registration under the Securities Act of 1933, except for any shares held by our affiliates. In addition, we have reserved and registered under the Securities Act approximately 7.8 million shares for currently outstanding management-held options, 2.2 million shares for future option issuances, up to 11.5 million shares issuable in April 2001 pursuant to our mandatorily convertible preferred stock, and approximately 110,000 shares for currently outstanding consultant-held options. In addition, other stockholders who own approximately 6.5 million shares of common stock have the right to require us to register their shares for sale under the Securities Act. If future revenues at certain of our European parks reach certain levels, we will be required to issue additional shares of common stock. We may also issue additional shares of common stock to pay quarterly dividend payments through April 2001 on our mandatorily convertible preferred stock (which remaining dividends total $11.6 million). The sale or expectation of sales of a large number of shares of common stock or securities convertible into common stock in the public market at any time after the date of this prospectus might negatively affect the market price of the common stock. ANTI-TAKEOVER PROVISIONS--ANTI-TAKEOVER PROVISIONS LIMIT THE ABILITY OF STOCKHOLDERS TO EFFECT A CHANGE IN CONTROL OF SIX FLAGS. Certain provisions in our Certificate of Incorporation and in our debt instruments and those of our subsidiaries may have the effect of deterring transactions involving a change in control of Six Flags, including transactions in which stockholders might receive a premium for their shares. Our Certificate of Incorporation provides for the issuance of up to 5,000,000 shares of preferred stock with such designations, rights and preferences as may be determined from time to time by our board of directors. The authorization of preferred shares empowers our board of directors, without further stockholder approval, to issue preferred shares with dividend, liquidation, conversion, voting or other rights which could adversely affect the voting power or other rights of the holders of our common stock. If issued, the preferred stock could be used to discourage, delay or prevent a change of control of Six Flags. 12 In addition, we have a rights plan which gives each holder of our common stock the right to purchase a share of junior preferred stock in certain events which would constitute a change of control. The rights plan is designed to deter third parties from attempting to take control of Six Flags. In addition, we are subject to the anti-takeover provisions of the Delaware General Corporation Law, which could have the effect of delaying or preventing a change of control of Six Flags. Furthermore, upon a change of control, the holders of substantially all of our outstanding indebtedness are entitled at their option to be repaid in cash. These provisions may have the effect of delaying or preventing changes in control or management of Six Flags. All of these factors could materially adversely affect the price of our common stock. We hold the exclusive right to use certain Warner Bros. and DC Comics characters in our theme parks in the United States (except in the Las Vegas metropolitan area), Canada, Europe and Latin and South America. Warner Bros. can terminate these licenses under certain circumstances, including the acquisition of Six Flags by persons engaged in the movie or television industries. This could deter certain parties from seeking to acquire us. DIVIDENDS--WE ARE NOT LIKELY TO PAY CASH DIVIDENDS ON OUR COMMON STOCK. We have not paid dividends on our common stock during the last three years, and we do not anticipate paying any cash dividends on such stock in the foreseeable future. Our ability to pay cash dividends is restricted under the indentures relating to our notes. USE OF PROCEEDS The selling stockholder will receive all of the net proceeds from the sale of the shares of common stock offered under this prospectus. We will not receive any proceeds from the sale of the selling stockholder's shares of common stock. SELLING STOCKHOLDER EPI Realty Holdings, Inc., which is the selling stockholder, may from time to time offer and sell pursuant to this prospectus any or all of the shares of common stock offered under this prospectus. The selling stockholder received the shares of common stock covered by this prospectus as a portion of the purchase price of our acquisition of Enchanted Village, a children's ride park and water park in December 2000. If the selling stockholder sells shares of common stock offered by this prospectus during a specified period and the proceeds received by the selling stockholder is less than designated levels, we have agreed to deliver cash or additional shares to the selling stockholder in the amount of such deficiency. In connection with the acquisition of Enchanted Village, we agreed to file the registration statement of which this prospectus forms a part. The following table sets forth information with respect to the ownership by the selling stockholder of our shares of common stock.
COMMON STOCK COMMON STOCK OWNED PRIOR TO OWNED AFTER NAME OFFERING SHARES OFFERED OFFERING - ---- -------------- -------------- ------------ EPI Realty Holdings, Inc............................ -- 1,339,223 --
13 PLAN OF DISTRIBUTION The shares offered hereby are being offered on behalf of EPI Realty Holdings, Inc., which is the selling stockholder. We will not receive any proceeds from the selling stockholder's sale of the shares of common stock or by donees, transferees, pledgees or other successors in interest of such stockholder that receive shares in a non-sale related transfer. The selling stockholder will act independently of the Company in making decisions with respect to the timing, manner and size of each sale. Any distribution of the shares covered by this prospectus by the selling stockholder may be effected from time to time in one or more of the following transactions: - through brokers, acting as agent in transactions (which may involve block transactions), in special offerings, in the over-the-counter market, or otherwise, at market prices obtainable at the time of sale, at prices related to such prevailing market prices, at negotiated prices or at fixed prices; - to dealers or underwriters who acquire shares for their own account and resell them in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale (any public offering price and any discount or concessions allowed or reallowed or paid to other dealers may be changed from time to time); - directly or through brokers or agents in private sales at negotiated prices; - to lenders pledged as collateral to secure loans, credit or other financing arrangements and any subsequent foreclosure, if any, under those arrangements; or - by any other legally available means. Also, offers to purchase shares covered by this prospectus may be solicited by agents designated by the selling stockholder from time to time. Dealers, underwriters or agents participating in an offering made pursuant to this prospectus and the related registration statement may receive underwriting discounts or commissions under the Securities Act of 1933, discounts or concessions may be allowed or reallowed or paid to dealers, and brokers and agents participating in such transactions may receive brokerage or agent's commissions fees. Six Flags has been advised by the selling stockholder that it has not, as of the date of this prospectus, entered into any arrangement with an underwriter, agent or broker-dealer for the sale of its shares covered by this prospectus. The selling stockholder may also sell all or a portion of the shares covered by this prospectus pursuant to Rule 144 under the Securities Act of 1933, to the extent that such sales may be made in compliance with that Rule. The selling stockholder and any agents or broker-dealers that participate with the selling stockholder in the distribution of any of the shares covered by this prospectus may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, and any discount or commission received by them and any profit on the resale of shares covered by this prospectus purchased by them may be deemed to be underwriting discounts or commissions under the Securities Act of 1933. In connection with a sale of shares covered by this prospectus, the following information will, to the extent then required, be provided in a prospectus supplement relating to such sale: - the number of shares to be sold, - the purchase price, - the public offering price, - the name of any underwriter, agent or broker-dealer, and - any commissions, discounts or other items constituting compensation to underwriters, agents or broker-dealers with respect to the particular sale. 14 Six Flags has agreed to pay up to a maximum of $2,500 of the expenses incident to the registration, offering and sale of the shares to the public other than selling commissions or discounts of underwriters, broker-dealers or agents. An investor may only purchase the shares being offered hereby if such shares are qualified for sale or are exempt from registration under the applicable state securities laws of the state in which such prospective purchaser resides. All or a portion of the shares offered by this Prospectus may be offered for sale from time to time on the New York Stock Exchange. LEGAL MATTERS Our general counsel and an employee, James M. Coughlin, will issue an opinion to us on certain legal matters relating to the shares of common stock. EXPERTS The consolidated financial statements of Six Flags, Inc. and subsidiaries as of December 31, 1999 and 1998 and for each of the years in the three-year period ended December 31, 1999, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. 15 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION Six Flags, Inc. will pay up to a maximum of $2,500 of the expenses related to the offering and sale to the public of the securities being registered. Such expenses are set forth in the following table. All the amounts shown are estimates, except the SEC registration fee. SEC Registration Fee........................................ $ 5,370 Legal Fees and Expenses..................................... 1,500 Miscellaneous............................................... 630 Total....................................................... $ 7,500
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Certificate of Incorporation of Six Flags, Inc. ("Six Flags") provides that it will to the fullest extent permitted by the General Corporation Law of the State of Delaware (the "GCL"), as amended from time to time, indemnify all persons whom it may indemnify pursuant to the GCL. Six Flags' By-laws contain similar provisions requiring indemnification of Six Flags' directors and officers to the fullest extent authorized by the GCL. The GCL permits a corporation to indemnify its directors and officers (among others) against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by them in connection with any action, suit or proceeding brought (or threatened to be brought) by third parties, if such directors or officers acted in good faith and in a manner they reasonably believe to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. In a derivative action, i.e., one by or in the right of Six Flags, indemnification may be made for expenses (including attorneys' fees) actually and reasonably incurred by directors and officers in connection with the defense or settlement of such action if they had acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of Six Flags, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged liable to Six Flags unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses. The GCL further provides that, to the extent any director or officer has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in this paragraph, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. In addition, Six Flags' Certificate of Incorporation contains a provision limiting the personal liability of Six Flags' directors for monetary damages for certain breaches of their fiduciary duty. Six Flags has indemnification insurance under which directors and officers are insured against certain liability that may incur in their capacity as such. Section 145 of the GCL which covers the indemnification of directors, officers, employees and agents of a corporation is hereby incorporated herein by reference. ITEM 16. EXHIBITS. See Exhibit Index II-1 ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrants pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for the purpose of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act (and, where applicable, each filing of any employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 15 (other than the provisions relating to insurance), or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on December 11, 2000. SIX FLAGS, INC. By: /s/ KIERAN E. BURKE ----------------------------------------- Kieran E. Burke CHAIRMAN AND CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below under the heading "Signatures" constitutes and appoints Kieran E. Burke, Gary Story and James F. Dannhauser, each as his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) and supplements to this Registration Statement and any related Registration Statement filed pursuant to Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite and necessary to be done in connection with the above premises, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
NAME TITLE DATE ---- ----- ---- /s/ KIERAN E. BURKE Chairman of the Board and Chief -------------------------------------- Executive Officer (Principal December 11, 2000 Kieran E. Burke Executive Officer) /s/ GARY STORY -------------------------------------- President, Chief Operating December 11, 2000 Gary Story Officer and Director /s/ JAMES F. DANNHAUSER Chief Financial Officer and -------------------------------------- Director (Principal Financial December 11, 2000 James F. Dannhauser and Accounting Officer) /s/ PAUL A. BIDDELMAN -------------------------------------- Director December 11, 2000 Paul A. Biddelman /s/ MICHAEL E. GELLERT -------------------------------------- Director December 11, 2000 Michael E. Gellert /s/ FRANCOIS LETACONNOUX -------------------------------------- Director December 11, 2000 Francois Letaconnoux /s/ STANLEY S. SHUMAN -------------------------------------- Director December 11, 2000 Stanley S. Shuman
II-3 EXHIBITS INDEX The following exhibits are filed as a part of this Registration Statement:
EXHIBIT NO. DESCRIPTION - ----------- ------------------------------------------------------------ 3.1 Certificate of Incorporation of Six Flags, Inc. (a) Certificate of Incorporation of Registrant dated March 24, 1981--incorporated by reference from Exhibit 3 to Form 10-Q of Registrant for the quarter ended June 30, 1987. (b) Plan and Agreement of Merger of Registrant and Tierco, a Massachusetts business trust, dated March 31, 1981--incorporated by reference from Exhibit 3 to Form 10-Q of Registrant for the quarter ended June 30, 1987. (c) Certificate of Amendment of Certificate of Incorporation of Registrant dated April 14, 1985--incorporated by reference from Exhibit 3 to Form 10-Q of Registrant for the quarter ended June 30, 1987. (d) Certificate of Amendment of Certificate of Incorporation of Registrant dated May 8, 1987--incorporated by reference from Exhibit 3 to Form 10-Q of Registrant for the quarter ended June 30, 1987. (e) Certificate of Amendment of Certificate of Incorporation of Registrant dated June 11, 1987--incorporated by reference from Exhibit 3 to Form 10-Q of Registrant for the quarter ended June 30, 1987. (f) Certificate of Amendment of Certificate of Incorporation of Registrant dated April 30, 1991--incorporated by reference from Exhibit 3(f) to Form 10-K of Registrant for the year ended December 31, 1991. (g) Certificate of Amendment of Certificate of Incorporation of Registrant dated June 30, 1992--incorporated by reference from Exhibit 3(g) to Form 10-K of Registrant for the year ended December 31, 1992. (h) Certificate of Amendment of Certificate of Incorporation of Registrant dated June 23, 1993--incorporated by reference from Exhibit 3(a) to Form 10-Q of Registrant for the quarter ended June 30, 1993. (i) Certificate of Amendment to Certificate of Incorporation dated October 7, 1994--incorporated by reference from Exhibit 3(i) to Form 10-K of Registrant for the year ended December 31, 1994. (j) Certificate of Designation of Series A Junior Preferred Stock of Registrant--incorporated by reference from Exhibit 2(1.C) to Registrant's Registration Statement on Form 8-A dated January 21, 1998. (k) Certificate of Amendment to Certificate of Incorporation dated June 16, 1997--incorporated by reference from Exhibit 3(n) to Form 10-k of Registrant for year ended December 31, 1997. (l) Certificate of Designation, Rights and Preferences for 7 1/2% Mandatorily Convertible Preferred Stock of Registrant-incorporated by reference from Exhibit 4(s) to Registrant's Registration Statement on Form S-3 (No. 333-45859) declared effective on March 26, 1998. (m) Certificate of Amendment of Certificate of Incorporation of Registrant dated July 24, 1998--incorporated by reference from Exhibit 3(p) to Form 10-K of Registrant for the year ended December 31, 1998.
EXHIBIT NO. DESCRIPTION - ----------- ------------------------------------------------------------ (n) Certificate of Amendment of Certificate of Incorporation of Registrant dated June 30, 2000--incorporated by reference from Exhibit 3.1 to Form 10-Q of Registration for the quarter ended June 30, 2000. 4.1 Registration Rights Agreement 4.3 Amended and Restated Rights Agreement between Six Flags, Inc. and Bank One Trust Company, as Rights Agent--incorporated by reference from Exhibit 4.1 to the Registrant's Current Report on Form 8-K dated December 15, 1997, as amended. 5.1 Opinion of James M. Coughlin. 23.1 Consent of KPMG LLP. 23.2 Consent of James M. Coughlin (included in Exhibit 5.1). 24.1 Power of Attorney (included on the signature page hereto).
EX-4.1 2 a2032924zex-4_1.txt EXHIBIT 4.1 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of December 6, 2000, by and among SIX FLAGS, INC., a Delaware corporation (the "Company"), and EPI REALTY HOLDINGS, INC., a Washington corporation ("EPI" or "Holder"). The Company, EPI and certain other parties have executed and delivered a Stock Purchase Agreement dated December 6, 2000 (the "Purchase Agreement"), pursuant to which the Company has agreed to purchase from EPI all of the issued and outstanding shares of capital stock of Enchanted Parks, Inc. in accordance with the terms of the Purchase Agreement. Pursuant to the Purchase Agreement, the Company shall issue to EPI shares of its Common Stock, and the Company has agreed to register such shares of Common Stock under the Securities Act. Therefore, the parties, intending to be legally bound, agree as follows: 1. DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below: ADDITIONAL SHARES has the meaning set forth in the Purchase Agreement. ADDITIONAL SHELF REGISTRATION has the meaning set forth in Section 2.2 hereof. AFFILIATE means, with respect to any specified person, any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control," when used with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms "affiliated," "controlling" and "controlled" have meanings correlative to the foregoing. AGREEMENT means this Registration Rights Agreement, as the same may be amended, supplemented or modified from time to time in accordance with the terms hereof. BUSINESS DAY means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in the State of Washington are authorized or obligated by law or executive order to close. CLOSING SHARES has the meaning set forth in the Purchase Agreement. COMMON STOCK means the common stock, $0.25 par value per share, of the Company. 1 COMPANY INDEMNITEE has the meaning set forth in Section 5.3 hereof. CONTROLLING PERSON has the meaning set forth in Section 5.1 hereof. EFFECTIVE PERIOD has the meaning set forth in Section 2.1 hereof. EFFECTIVE DATE means the date the Registration Statement filed in connection with the Initial Shelf Registration is declared effective by the SEC. EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC pursuant thereto. HOLDER means EPI or any Affiliate of EPI that is a transferee of Registrable Shares. INDEMNIFIED PERSON has the meaning set forth in Section 5.1 hereof. INITIAL SHELF REGISTRATION has the meaning set forth in Section 2.1 hereof. PROCEEDING means an action, claim, suit or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened. PROSPECTUS means the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Shares covered by such Registration Statement, and all other amendments and supplements to any such prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference, if any, in such prospectus. PURCHASE AGREEMENT has the meaning set forth in the recitals at the beginning of this Agreement. REGISTRABLE SHARES means the Transaction Shares; provided, that such shares shall cease to be Registrable Shares to the extent such shares (I) are sold pursuant to a Registration Statement, (II) are sold pursuant to Section 4(1) of the Securities Act, or (III) are eligible for resale pursuant to Rule 144(k). REGISTRATION STATEMENT means any registration statement of the Company that covers any of the Registrable Shares pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement. 2 RULE 144, RULE 158, RULE 174, RULE 415, and RULE 424 each mean the rule of like number, respectively, promulgated by the SEC pursuant to the Securities Act, as each such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC as a replacement for any of such Rules and having substantially the same effect as such Rule. SEC means the United States Securities and Exchange Commission. SECURITIES ACT means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder. SHELF REGISTRATION means the Initial Shelf Registration and any Additional Shelf Registration. TRANSACTION SHARES means the Closing Shares and the Additional Shares. Any other capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Purchase Agreement. 2. SHELF REGISTRATION 2.1 Within five Business Days following the Closing Date, the Company shall file with the SEC a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the Closing Shares (the "Initial Shelf Registration"). The Initial Shelf Registration shall be on Form S-3 under the Securities Act or an appropriate successor form. The Company shall use its reasonable best efforts, as described generally in Section 3 hereof, to cause the Initial Shelf Registration to be declared effective as soon after the date of filing as practicable, and to keep the Initial Shelf Registration continuously effective under the Securities Act (and pursuant to the provisions of Section 3.1.10 and subject to the limitations set forth therein, register or qualify the shares to be sold in such offering under such other securities or "blue sky" laws of such jurisdictions as is applicable to any seller) for twenty-four (24) months following the Effective Date (subject to extension as set forth herein) (the "Effective Period"), or such shorter period ending when there ceases to be any outstanding Registrable Shares. 2.2 In the event the Company delivers to EPI any Additional Shares, within five business days thereafter, the Company shall file with the SEC a Registration Statement covering such Additional Shares (an "Additional Shelf Registration"). Any Additional Shelf Registration shall be on Form S-3 under the Securities Act or an appropriate successor form, and the provisions set forth in Section 2.1 above with respect to the Initial Shelf Registration shall also apply to an Additional Shelf Registration. 2.3 In accordance with Section 3 hereof, the Company shall use its reasonable best efforts to keep any Shelf Registration continuously effective by supplementing and amending such Shelf Registration (I) as required by the Securities Act or by any rules, 3 regulations or instructions applicable Form S-3 (or successor form), or (II) as reasonably requested by any underwriter of Registrable Shares; provided, that the Effective Period shall be extended as required to permit dealers to comply with the applicable prospectus delivery requirements of Rule 174 and as otherwise provided herein. 3. REGISTRATION PROCEDURES 3.1 COMPANY OBLIGATIONS. In connection with the Company's registration obligations hereunder, the Company shall effect such registration or registrations on Form S-3 (or appropriate successor form), and pursuant thereto the Company shall as expeditiously as possible take the actions specified in this Section 3.1. 3.1.1 The Company shall furnish each Holder with copies of each Registration Statement or Prospectus or any amendment or supplement thereto and any other documents to be filed (other than any document that would be incorporated or deemed to be incorporated therein by reference), a reasonable period of time in advance of such filing, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of the Holders. The Company shall cause its officers and directors, outside counsel and independent certified public accountants to respond to such inquiries as shall be necessary in connection with such Registration Statement, in the opinion of counsel to the Holders, to conduct a reasonable investigation within the meaning of the Securities Act; provided, that the Company shall not be deemed to have kept a Registration Statement effective during the applicable period if it voluntarily takes or fails to take any action that results in selling Holders of the Registrable Shares covered thereby not being able to sell such Registrable Shares pursuant to Federal securities laws during that period. The Company shall not file any such Registration Statement or related Prospectus, or any amendments or supplements thereto, to which the Holders of a majority of the Registrable Shares shall reasonably and timely object. 3.1.2 The Company shall (I) prepare and file with the SEC such amendments, including posteffective amendments, to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the Effective Period, (II) cause the related Prospectus to be supplemented by any required Prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424, and (III) comply with the provisions of the Securities Act and the Exchange 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 by the sellers thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented. 3.1.3 The Company shall notify Holders of Registrable Shares to be sold at least two Business Days prior to the time a Prospectus or any Prospectus supplement or post-effective amendment is proposed to be filed, and with respect to a Registration Statement or any post-effective amendment, immediately when the same has become effective. The Company shall promptly notify Holders of Registrable Shares to be sold (I) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for 4 additional information, (II) of the issuance by the SEC, any state securities commission, any other governmental agency or any court of any stop order, order or injunction suspending or enjoining the use or the effectiveness of a Registration Statement or the initiation of any Proceedings for that purpose, (III) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose, and (IV) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of a Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Upon the occurrence of any event contemplated by clause (iv) above, the Company shall as expeditiously as possible prepare a post-effective amendment to such Registration Statement and/or a supplement to the Prospectus and/or an amendment to any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. 3.1.4 The Company shall use its reasonable best efforts to avoid the issuance of, or if issued, to obtain the withdrawal of, any order enjoining or suspending the use or effectiveness of a Registration Statement, or to obtain the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Shares for sale in any jurisdiction, at the earliest practicable moment. 3.1.5 The Company shall, if requested by the Holders of a majority of the Registrable Shares being sold in connection with such offering, (I) promptly incorporate in a Prospectus supplement or post-effective amendment such information as such Holders agree should be included therein, and (II) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, that the Company shall not be required to take any action pursuant to this Section 3.1.5 that would, in the opinion of counsel for the Company, violate applicable law. 3.1.6 The Company shall furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits, unless requested in writing by such Holder). 5 3.1.7 The Company shall deliver without charge to each Holder of Registrable Shares as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such persons reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each selling Holder of Registrable Shares in connection with the offering and sale of the Registrable Shares covered by such Prospectus and any amendment or supplement thereto. 3.1.8 Prior to any public offering of Registrable Shares, the Company shall (I) use its reasonable best efforts to register or qualify such Registrable Shares for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, and (II) keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Shares covered by the applicable Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it (X) to general service of process in any such jurisdiction where it is not then so subject or (Y) to any tax in any such jurisdiction where it is not then so subject. 3.1.9 In connection with any sale or transfer of Registrable Shares that will result in such securities no longer being Registrable Shares, the Company shall cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Shares to be sold, and to enable such Registrable Shares to be in such denominations and registered in such names as the Holders may request at least two Business Days prior to any sale of Registrable Shares. 3.1.10 The Company shall use its reasonable best efforts to cause the offering of the Registrable Shares covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States (except as may be required as a consequence of the nature of such selling Holder's business), and cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Shares; provided, that the Company shall not be required to register the Registrable Shares in any jurisdiction that would require it to qualify to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it (X) to general service of process in any such jurisdiction where it is not then so subject or (Y) to any tax in any such jurisdiction where it is not then so subject. 3.1.11 The Company shall provide, prior to the effective date of the first Registration Statement relating to the Registrable Shares, a CUSIP number for the Registrable Shares. 6 3.1.12 The Company shall comply with applicable rules and regulations of the SEC and make generally available to its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act), no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter after the effective date of a Registration Statement, which statement shall cover said period, consistent with the requirements of Rule 158. 3.1.13 The Company shall cause all such Registrable Securities to be listed on each securites exchange on which similar securities issued by the Company are then listed. 3.1.14 The Company shall provide a transfer agent and registrar for all Registrable Securities not later than the effective date of such Registration Statement. 3.2 SELLER INFORMATION. The Company may require each seller of Registrable Shares as to which any registration is being effected to furnish to the Company such information regarding the distribution of such Registrable Shares as is required by law to be disclosed in the applicable Registration Statement, and the Company may exclude from such registration the Registrable Shares of any seller who fails to furnish such information within a reasonable time after receiving such request. 3.3 IDENTIFICATION. If any Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (I) the insertion therein of language, in form and substance reasonably satisfactory to such Holder, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the Company's securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Company, or (II) in the event that such reference to such Holder by name or otherwise is not required by the Securities Act or any similar Federal statute then in force, the deletion of the reference to such Holder in any amendment or supplement to such Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. 3.4 CERTAIN EVENTS. Each Holder of Registrable Shares agrees by acquisition of such Registrable Shares that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1.3(ii), 3.1.3(iii), or 3.1.3(iv) hereof, such Holder will forthwith discontinue disposition of such Registrable Shares covered by such Registration Statement or Prospectus until such Holder's receipt of the copies of a supplemented or amended Prospectus, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus. If so requested by the Company, each Holder shall deliver to the Company all copies, other than permanent file copies, of the Prospectus covering such Registrable Shares then in such Holder's possession. 7 4. REGISTRATION EXPENSES 4.1 Except as otherwise provided herein, all fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by it whether or not any Registration Statement is filed or becomes effective and whether or not any securities are issued or sold pursuant to any Registration Statement. 4.2 The fees and expenses referred to in Section 4.1 above shall include, without limitation, (I) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with the National Association of Securities, Dealers, Inc. and (B) in compliance with federal or state securities laws), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Shares and of printing or reproducing Prospectuses, (III) messenger, telephone and delivery expenses, (IV) Securities Act liability insurance, if the Company desires such insurance, and (V) fees and expenses of all other persons retained by the Company. 4.3 The Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, and the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange. 4.4 Notwithstanding the foregoing or anything in this Agreement to the contrary, each Holder shall pay all discounts, commissions, selling fees or other payments to of any underwriters, brokers or similar persons with respect to any Registrable Shares sold by it. The Company shall not be liable for (I) any stock transfer taxes in connection with any resale of Registrable Shares by a Holder or (II) the fees and expenses of any counsel retained by any Holder. 5. INDEMNIFICATION 5.1 The Company agrees to indemnify and hold harmless (I) each Holder, (II) each person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, referred to herein as a "Controlling Person") any Holder, and (III) the respective officers, directors, partners, employees, representatives and agents of the Holders or any Controlling Person (any person referred to in clauses (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified Person"), from and against any and all losses, claims, damages, liabilities and judgments caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or form of Prospectus or in any amendment or supplement thereto or in any preliminary Prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except (A) insofar as such losses, claims, damages, liabilities or judgments are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Indemnified Person furnished in writing 8 to the Company by or on behalf of such Indemnified Person expressly for use therein, or (B) where the Holder from whom the Indemnified Person derives its right of indemnification hereunder has failed to comply with (1) the prospectus delivery requirements under the Securities Act and the rules and regulations promulgated thereunder or (2) the provisions of Section 3 hereof. 5.2 In case any action shall be brought or threatened against any Indemnified Person with respect to which indemnity may be sought against the Company pursuant to Section 5.1, such Indemnified Person shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person and payment of all fees and expenses. Any Indemnified Person shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person, unless (I) the employment of such counsel shall have been specifically authorized in writing by the Company, (II) the Company shall have failed to assume the defense and employ counsel or (III) the named parties to any such action (including any impleaded parties) include both such Indemnified Person and the Company and such Indemnified Person shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Company, in which case the Company shall not have the right to assume the defense of such action on behalf of such Indemnified Person; provided, that the Company shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for all such Indemnified Persons, which firm shall be designated in writing by such Indemnified Persons. The Company shall not be liable for any settlement of any such action effected without its written consent, but if settled with the written consent of the Company, the Company agrees to indemnify and hold harmless any Indemnified Person from and against any loss or liability by reason of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding. 5.3 In connection with any Registration Statement in which a Holder is participating, such Holder of Registrable Shares agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, officers, employees, agents, representatives and any Controlling Person of the Company ("Company Indemnitees") to the same extent as the foregoing indemnity in Section 5.1 from the Company to each Indemnified Person, but only with respect to (I) untrue statements, alleged untrue statements, omissions or alleged omissions relating to such Holder or an Indemnified Person who derives its right of indemnification hereunder from such Holder, furnished by such Holder or such Indemnified Person to the Company expressly for use in a Registration Statement or Prospectus, or any amendment or supplement thereto, (II) any failure by such Holder to comply with the prospectus delivery requirements under the 9 Securities Act and the rules and regulations thereunder, and (III) any failure by such Holder to comply with the provisions of Section 3 hereof. In the event that any action shall be brought against any Company Indemnitee and in respect of which indemnity may be sought hereunder from any Indemnified Person, the Indemnified Person shall have the rights and duties given to the Company (except that if the Company shall have assumed the defense thereof, such Indemnified Person shall not be required to do so, but may employ separate counsel therein and participate in defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person), and the Company Indemnitees shall have the rights and duties given to the Indemnified Person, in Section 5.2 hereof. 5.4 If the indemnification provided for in this Section 5 is unavailable to an indemnified party in respect of any losses, claims, damages, liabilities or judgments referred to therein, then each 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 and judgments: (I) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and each Indemnified Person on the other hand from the offering of the Registrable Shares or (II) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and each such Indemnified Person in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or judgments, as well as any other relevant equitable considerations. The relative fault of the Company and each such Indemnified Person shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Company or such Indemnified Person and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. No person guilty of fraudulent misrepresentation (within the meaning of Subsection 11(f) of the Securities Act) shall be entitled to contribution from any person who is not guilty of such fraudulent misrepresentation. 6. RULE 144 The Company shall use its reasonable best efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner, and if at any time it is not required to file such reports but in the past had been required to or did file such reports, it will upon the request of any Holder of Registrable Shares make available other information as required by, and so long as necessary to permit, sales of its Registrable Shares pursuant to Rule 144. 7. TRANSFER OF REGISTRATION RIGHTS The registration rights granted to EPI under this Agreement may not be transferred without the prior written consent of the Company, provided that such registration rights may be transferred, in whole or in part, without such prior written 10 consent upon written notice to the Company in connection with the transfer of Registrable Shares to Jeff Stock and any other Affiliate of EPI. 8. MISCELLANEOUS 8.1 COOPERATION. The Company and Holder shall cooperate with each other in supplying such information as may be necessary for any of such parties to complete and file any information reporting forms presently or hereafter required by the SEC or any similar authority administering the securities laws of any jurisdiction where the Registrable Shares are proposed to be sold. 8.2 OTHER DOCUMENTS. Promptly following the filing thereof with the SEC, the Company shall deliver to each of the Holders, if so requested, a copy of each of the Company's reports, documents and other filings made pursuant to Section 13 or 15(d) of the Exchange Act. 8.3 NO INCONSISTENT AGREEMENTS. The Company shall not enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. 8.4 REMEDIES. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, the non-breaching party, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. 8.5 AMENDMENTS AND WAIVERS. No provision of this Agreement may be amended, modified or supplemented, and no waiver or consent to departures from the provisions hereof may be given, without the written consent of the Company and Holders of a majority of the Registrable Shares. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Shares whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other Holders of Registrable Shares may be given by Holders of a Majority of the Registrable Shares being sold by such Holders pursuant to such Registration Statement; provided, that the provisions of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of the immediately preceding sentence. 8.6 NOTICES. All notices and other communications provided for herein shall be made in writing by hand-delivery, next-day air courier, certified first-class mail, return receipt requested, or by facsimile or electronic mail: (i) if to the Company, as provided in the Purchase Agreement; (ii) if to Holder, as provided in the Purchase Agreement; or 11 (iii) if to any other person who is then the registered Holder of any Registrable Shares, to the address of such Holder as it appears in the Common Stock register of the Company. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given (I) when delivered by hand, if personally delivered, (II) one Business Day after being timely delivered to a next-day air courier, (III) five Business Days after being deposited in the mail, postage prepaid, if mailed, and (IV) when receipt is acknowledged following facsimile or electronic mail transmission. 8.7 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each Holder. The Company may not assign its rights or obligations hereunder without the prior written consent of each Holder. Notwithstanding the foregoing, no transferee of a Holder shall have any of the rights granted under this Agreement until such transferee shall acknowledge its rights and obligations hereunder by a signed written statement of such transferee's acceptance of such rights and obligations. 8.8 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington, as applied to contracts made and performed within such state without regard to its principles of conflicts of laws. 8.9 SEVERABILITY. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. 8.10 HEADINGS. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. All references made in this Agreement to "Section" and "paragraph" refer to such Section or paragraph of this Agreement, unless expressly stated otherwise. 8.11 ATTORNEYS' FEES. In any action or proceeding brought to enforce any provision of this Agreement, or where any provision hereof is validly asserted as a defense, the prevailing party, as determined by the court, shall be entitled to recover its reasonable attorneys' fees in addition to any other available remedy. 8.12 COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so 12 executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Agreement. [SIGNATURE PAGES FOLLOW] 13 IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed as of the date first written above. COMPANY: SIX FLAGS, INC., a Delaware corporation By:________________________________ Name: Title: HOLDER: EPI REALTY HOLDINGS, INC., a Washington corporation By: ____________________________ Name: Title: [SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT] EX-5.1 3 a2032924zex-5_1.txt EXHIBIT 5.1 December 11, 2000 Six Flags, Inc. 11501 Northeast Expressway Oklahoma City, Oklahoma 73131 Re: SIX FLAGS, INC.; REGISTRATION STATEMENT ON FORM S-3 Ladies and Gentlemen: I act as counsel to Six Flags, Inc., a Delaware corporation (the "REGISTRANT"), in connection with the preparation and filing with the Securities and Exchange Commission (the "COMMISSION") of the above-captioned Registration Statement on Form S-3 (the "REGISTRATION STATEMENT") under the Securities Act of 1933, as amended (the "ACT"), relating to the resale by the holder named therein (the "SELLING STOCKHOLDERS") of an aggregate of 1,339,223 shares of common stock, $.025 par value per share, of the Registrant (the "SHARES"). In connection therewith, I have examined the Certificate of Incorporation and the By-Laws of the Registrant, resolutions of the Board of Directors of the Registrant and the Registration Statement. I also have made such inquiries and have examined originals or copies of other instruments as I have deemed necessary or appropriate for the purpose of this opinion. For purposes of such examination, I have assumed the genuineness of all signatures on and the authenticity of all documents submitted to me as originals, and the conformity to the originals of all documents submitted to me as certified or photostatic copies. Based upon the foregoing, I am of the opinion that the Shares are duly authorized, validly issued, fully paid and non-assessable shares of common stock of the Registrant. I hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference therein to me under the caption "Legal Matters." In giving the foregoing consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, James M. Coughlin General Counsel EX-23.1 4 a2032924zex-23_1.txt EXHIBIT 23.1 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors Six Flags, Inc.: We consent to the incorporation by reference in the registration statement on Form S-3 of Six Flags, Inc. of our report dated March 14, 2000, relating to the consolidated balance sheets of Six Flags, Inc. and subsidiaries as of December 31, 1999 and 1998, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 1999, which report appears in the December 31, 1999 annual report on Form 10-K of Six Flags, Inc. and to the reference to our firm under the heading "Experts" in the Prospectus. KPMG LLP Oklahoma City, Oklahoma December 11, 2000 -----END PRIVACY-ENHANCED MESSAGE-----