-----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, LmXQKXRsgpr25SRUjVvP5OlqfR6K3dkjE5Rc20xvNdaUipYFcA9Wts9CFmKDIodm 1wgTTzDosYtw7geX2NLuCA== 0000912057-01-002438.txt : 20010124 0000912057-01-002438.hdr.sgml : 20010124 ACCESSION NUMBER: 0000912057-01-002438 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20010122 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20010123 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: 8-K SEC ACT: SEC FILE NUMBER: 001-13703 FILM NUMBER: 1513070 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 8-K 1 a2036093z8-k.txt FORM 8-K ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT - January 22, 2001 (Date of Earliest Event Reported) SIX FLAGS, INC. ------------------------------------------------------------------------------ (Exact name of registrant as specified in its charter) Commission File No. Delaware 13-3995059 ----------------------- -------------------- (State of Incorporation) (I.R.S. Employer Identification No.) 11501 Northeast Expressway, Oklahoma City, Oklahoma 73131 - ------------------------------------------ ------------------------ (Address of principal Zip Code executive offices) Registrant's telephone number, including area code: (405) 475-2500 ================================================================================ ITEM 5. OTHER EVENTS. OFFERING OF DEPOSITARY SHARES On April 20, 1999, Six Flags, Inc. (the "Registrant") registered $1.0 billion of undesignated securities pursuant to a shelf registration statement on Form S-3 (File No. 333-76595) (the "Registration Statement"). The Registration Statement was declared effective by the Securities and Exchange Commission on May 7, 1999. On January 17, 2001, the Registrant filed a Prospectus Supplement to the Registration Statement, pursuant to Rule 424(b)(2), with respect to an offering for up to 11,500,000 Preferred Income Equity Redeemable Shares ("PIERS") (including 1,500,000 PIERS that may be issued to the underwriters upon the exercise of an over-allotment option), each PIERS representing one one-hundredth of a share of 7 1/4% convertible preferred stock of the Registrant. The Registrant is filing herewith certain exhibits in connection with its offering of the PIERS and providing information concerning a recent development in a lawsuit involving certain subsidiaries of the Registrant. LEGAL PROCEEDINGS Reference is made to the description of the litigation captioned SIX FLAGS OVER GEORGIA, LLC ET AL v. TIME WARNER ENTERTAINMENT COMPANY L.P. ET AL contained in the Registrant's Form 10-K dated March 27, 2000 and Form 10-Q dated November 14, 2000. On January 18, 2001, the Georgia Supreme Court denied Time Warner Entertainment Company L.P's petition for certiorari. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (c) Exhibits. 1.1 Underwriting Agreement among the Registrant, Six Flags Operations Inc. and Six Flags Theme Parks Inc., and Lehman Brothers Inc., Allen & Company Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and Salomon Smith Barney Inc., dated January 17, 2001. 4.1 Certificate of Designation, dated January 22, 2001, setting forth the terms of the Registrant's 7 1/4 % Convertible Preferred Stock ("Convertible Preferred Stock"). 5.1 Opinion of James M. Coughlin, General Counsel of the Registrant, as to the legality of the Convertible Preferred Stock and the PIERS, dated January 22, 2001. 2 10.1 Form of Deposit Agreement among the Registrant, The Bank of New York, as Depositary, and owners and holders of depositary receipts, dated as of January , 2001. 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. SIX FLAGS, INC. By: /s/ JAMES M. COUGHLIN ------------------------------------ Name: James M. Coughlin Title: General Counsel Dated: January 22, 2001 4 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION 1.1 Underwriting Agreement among the Registrant, Six Flags Operations Inc. and Six Flags Theme Parks Inc., and Lehman Brothers Inc., Allen & Company Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and Salomon Smith Barney Inc., dated January 17, 2001. 4.1 Certificate of Designation, dated January 22, 2001, setting forth the terms of the Registrant's 7 1/4 % Convertible Preferred Stock ("Convertible Preferred Stock"). 5.1 Opinion of James M. Coughlin, General Counsel of the Registrant, as to the legality of the Convertible Preferred Stock and PIERS, dated January 22, 2001. 10.1 Form of Deposit Agreement among the Registrant, The Bank of New York, as Depositary, and owners and holders of depositary receipts, dated as of January , 2001. 5 EX-1.1 2 a2036093zex-1_1.txt UNDERWRITING AGREEMENT EXHIBIT 1.1 EXECUTION COPY 10,000,000 PIERS SIX FLAGS, INC. PREFERRED INCOME EQUITY REDEEMABLE SHARES ("PIERS") UNDERWRITING AGREEMENT January 17, 2001 Lehman Brothers Inc. Allen & Company Incorporated Merrill Lynch, Pierce Fenner & Smith Incorporated Morgan Stanley & Co. Incorporated Salomon Smith Barney Inc. c/o Lehman Brothers Inc. Three World Financial Center New York, New York 10285 Dear Sirs: Six Flags, Inc., a Delaware corporation (the "Company"), proposes to sell to the Underwriters named in Schedule 1 hereto (the "Underwriters"), and the Underwriters propose, severally and not jointly, to purchase 10,000,000 PIERS (the "Firm Securities") consisting of depositary shares (the "PIERS"), each representing one one-hundredth of a share of the Company's 7 1/4% convertible preferred stock (the "Convertible Preferred Stock"). In addition, the Company proposes to grant to the Underwriters an option to purchase up to an additional 1,500,000 PIERS on the terms and for the purposes set forth in Section 2 (the "Option Securities"). The Firm Securities and the Option Securities, if purchased, are hereinafter collectively called the "Securities". This is to confirm the agreement concerning the purchase of the Securities from the Company by the Underwriters. A prospectus supplement relating to the Securities is to be used in connection with the offering (the "Offering") of the Securities. 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND CERTAIN OF THE SUBSIDIARIES. The Company, Six Flags Operations Inc. ("SFO") and Six Flags Theme Parks Inc. ("SFTP") represent, warrant and agree, jointly and severally, that: (a) A registration statement on Form S-3 (file number 333-76595) relating to certain securities to be issued from time to time by the Company and a prospectus supplement pursuant to Rule 424 of the United States Securities Act of 1933 (the "Securities Act") specifically relating to the Securities, the Convertible Preferred Stock and the Company's Common Stock (the "Common Stock") issuable upon conversion or tender for purchase of the Convertible Preferred Stock or as dividends on the Convertible Preferred Stock, have each (i) been prepared by the Company in conformity in all material respects with the requirements of the Securities Act (and the rules and regulations (the "Rules and Regulations") of the United States Securities and Exchange Commission (the "Commission") thereunder, (ii) been filed with the Commission under the Securities Act and (iii) in the case of the Registration Statement, become effective under the Securities Act. Copies of such registration statement and prospectus supplement and amendments thereto have been delivered by the Company to you as the Underwriters. Upon your written request, but not without your agreement, the Company will also file a Rule 462(b) Registration Statement in accordance with Rule 462(b). As used in this Agreement, "Registration Statement" means such registration statement, as amended at the Effective Time, including any documents incorporated by reference therein at such time and all information contained in the final prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 5(a) hereof and deemed to be a part of the registration statement as of the Effective Time pursuant to paragraph (b) of Rule 430A of the Rules and Regulations and, in the event any Rule 462(b) Registration Statement becomes effective prior to the First Delivery Date, also means such registration statement as so amended, unless the context otherwise requires; "Basic Prospectus" means the related prospectus in the form first used to confirm sales of the Securities; "Prospectus" means the Basic Prospectus as supplemented by the prospectus supplement specifically relating to the Securities in the form first used to confirm sales of the Securities; "Preliminary Prospectus" means any preliminary form of Prospectus previously filed with the Commission pursuant to Rule 424; "Effective Time" means the date and the time as of which the Registration Statement, the most recent post-effective amendment thereto, if any, or any Rule 462(b) Registration Statement became or becomes effective; "Effective Date" means the date of the Effective Time; and "Rule 462(b) Registration Statement" means any registration statement and any amendments thereto filed pursuant to Rule 462(b) of the Rules and Regulations relating to the offering covered by the initial Registration Statement (file number 333-76595). Reference made herein to any Preliminary Prospectus or to the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus. (b) The Registration Statement conforms, and the Prospectus, any further amendments or supplements to the Registration Statement or the Prospectus and any Rule 462(b) Registration Statement will, when they become effective or are filed with the Commission, as the case may be, conform in all material respects to the requirements of the Securities Act and the Rules and Regulations and do not and will not, as of the applicable Effective Time (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; PROVIDED that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter specifically for inclusion therein. (c) The documents incorporated by reference in the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (d) The Company and each of the Six Flags Subsidiaries (as defined in Section 15) have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation; each of the Six Flags Partnerships (as defined in Section 15) is validly existing as a limited partnership in good standing under the laws of their respective jurisdictions of formation; the Company and each of the Subsidiaries (as defined in Section 15) are duly qualified to do business and are in good standing as foreign entities in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires, as applicable, such qualification, except where the failure to so qualify would not have in the aggregate a material adverse effect on the consolidated financial position, stockholders' equity (or partners' equity, as applicable), results of operations, business or prospects of the Company and the Subsidiaries taken as a whole (a "Material Adverse Effect") and have all corporate, partnership or equivalent power and authority, as the case may be, necessary to own or hold their respective properties and to conduct the businesses in which they are engaged; none of the subsidiaries (as defined in Rule 405 of the Rules and Regulations) of the Company (other than the Subsidiaries) is a "significant subsidiary", as such term is defined in Rule 405 of the Rules and Regulations; and the assets, liabilities and operations of such other subsidiaries are immaterial to the assets, liabilities, operations and prospects of the Company and the Subsidiaries taken as a whole. (e) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus. All of the issued shares of capital stock of each Six Flags Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims except for liens, encumbrances, equities or claims arising under the $1.2 billion credit facility (the "Six Flags Credit Facility") entered into by SFTP in November 1999, the Co-Venture Parks Agreements (as defined in Section 15) and the subordinated indemnity agreement among the Company and certain of its affiliates, SFO and certain of its affiliates and Time Warner Inc. and certain of its affiliates (the "Subordinated Indemnity Agreement") dated as of April 1, 1998. 100% of the partnership interest in the Six Flags Partnerships, except for the 99% limited partnership interest in Six Flags Over Georgia II, L.P. (the "Georgia Co-Venture Partnership") indirectly held by investors in Six Flags Fund, Ltd. (L.P.), of which approximately 75% of the units are held by persons who are not affiliated with the Company, and the 99% limited partnership interest in Texas Flags, Ltd. (the "Texas Co-Venture Partnership") indirectly held by investors in Six Flags Fund II, Ltd. (L.P.), of which approximately 66% of the units are held by persons who are not affiliated with the Company, are held directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims except for liens, encumbrances, equities or claims under the Six Flags Credit Facility and the Co-Venture Parks Agreements (as defined in Section 15) and the Subordinated Indemnity Agreement. (f) At the First Delivery Date, assuming due execution and delivery of the depositary receipts relating to the Securities by the Depositary pursuant to the Deposit Agreement, such depositary receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement, subject to applicable (1) bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws now or hereafter in effect relating to creditors' rights generally and (2) general principles of equity, including principles of commercial reasonableness, good faith and fair dealings (regardless of whether at law or in equity). At the First Delivery Date, the unissued shares of Convertible Preferred Stock to be issued as contemplated by this Agreement and the Deposit Agreement (as defined below) will be duly and validly authorized and, when issued and delivered to the Depositary in connection with the issuance and sale of the Securities to the Underwriters as contemplated by this Agreement and the Deposit Agreement, against payment therefor will be duly and validly issued, fully paid and non-assessable. The shares of Common Stock issuable upon the conversion of the Convertible Preferred Stock, have been duly and validly authorized and reserved for issuance upon such conversion and will be validly issued, fully paid and non-assessable. (g) This Agreement has been duly authorized, executed and delivered by the Company, SFO and SFTP. At the First Delivery Date, the Deposit Agreement relating to the Securities (the "Deposit Agreement") will be duly authorized, executed and delivered by the Company and the Depositary named therein (the "Depositary"). (h) The execution, delivery and performance of this Agreement and the Deposit Agreement by the Company and each of the Subsidiaries that are parties hereto, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws or other constitutive documents of the Company or any of the Subsidiaries or, assuming that all consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state and foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters and the exchange of the Convertible Preferred Stock for depositary receipts by the Depositary are obtained, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries or any of their properties or assets except, in each case, breaches, violations or defaults which, in the aggregate, are not reasonably likely to have a Material Adverse Effect; and except for the registration of the Securities, the Convertible Preferred Stock and the Common Stock issuable upon conversion or tender for purchase of the Convertible Preferred Stock or as dividends on the Convertible Preferred Stock, and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state and foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters and the exchange of the Convertible Preferred Stock for depositary receipts by the Depositary, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Deposit Agreement by the Company or any of the Subsidiaries that are parties hereto and the consummation of the transactions contemplated hereby and thereby. (i) Except as disclosed in the Prospectus and as to those rights which have been duly and validly waived, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. (j) The Company has not sold or issued any shares of capital stock or options during the six-month period preceding the date of the Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act, other than shares of Common Stock or options for such Common Stock issued in connection with the Company's acquisition of Enchanted Parks, Inc., pursuant to the Company's employee benefit plans, qualified stock options plans or other employee compensation plans or pursuant to outstanding options, rights or warrants, which, in each case, are disclosed in the Prospectus. (k) Neither the Company nor any of the Subsidiaries has sustained, since the date of the latest audited financial statements included in the Prospectus, any loss or interference with its business from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, except losses or interferences which will not, in the aggregate, have a Material Adverse Effect; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of the Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity (or partners' equity, as applicable) or results of operations of the Company and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus. (l) The historical financial statements (including the related notes and supporting schedules) filed as part of the Registration Statement or included or incorporated by reference in the Prospectus present fairly the financial condition and results of operations of the entities purported to be shown thereby at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved. The pro forma financial statements included in the Prospectus have been prepared on a basis consistent with such historical financial statements, except for the pro forma adjustments specified therein, and comply in all material respects with Regulation S-X under the Securities Act, and the pro forma adjustments have been properly applied to historical amounts in the compilation of such pro forma financial statements. (m) KPMG Peat Marwick LLP, who have certified certain consolidated financial statements of the Company, whose reports appear in the Prospectus or are incorporated by reference therein and who have delivered the initial letter referred to in Section 7(g) hereof, are independent public accountants as required by the Securities Act and the Rules and Regulations. (n) The Company and each of the Subsidiaries have good and marketable title to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except for such liens arising under the Six Flags Credit Facility or contemplated in Section 1(e) hereof, as are described in the Prospectus or such as would not have a Material Adverse Effect; and all real property and buildings held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions as would not have a Material Adverse Effect. (o) The Company and each of the Subsidiaries carry, or are covered by insurance in such amounts and covering such risks (including the risk of earthquakes) as the Company has reasonably concluded, based on its experience, is adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries. (p) The Company and each of the Subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights and licenses necessary for the conduct of their respective businesses as presently conducted and have no reason to believe that the conduct of their respective businesses will conflict with, and have not received any notice of any claim of conflict with, any such rights of others with such exceptions as would not have a Material Adverse Effect. (q) Except as otherwise disclosed in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiaries is a party or of which any property or assets of the Company or any of the Subsidiaries is the subject which, if determined adversely to the Company or any of the Subsidiaries, might reasonably be expected to have a Material Adverse Effect or are otherwise required to be disclosed in the Prospectus; and to the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (r) The conditions for use of Form S-3 for the Registration Statement, as set forth in the General Instructions thereto, have been satisfied. (s) There are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been described in the Prospectus or filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations. (t) No relationship, direct or indirect, exists between or among the Company or any Subsidiary on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any Subsidiary on the other hand, which is required to be described or incorporated by reference in the Prospectus which is not so described or incorporated by reference. (u) No labor disturbance by the employees of the Company or any Subsidiary exists or, to the knowledge of the Company, is imminent which might be reasonably expected to have a Material Adverse Effect. (v) The Company is in compliance in all material respects with all presently and then applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for which the Company would have any material liability; the Company has not incurred and the Company does not expect to incur material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the "Code"); and each "pension plan" for which the Company would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which might reasonably be expected to cause the loss of such qualification. (w) The Company and each of the Subsidiaries are in compliance in all respects with (i) all presently applicable provisions of the Occupational Safety and Health Act of 1970, as amended, including all applicable regulations thereunder and (ii) all presently applicable state and local laws and regulations relating to the safety of its theme park and water park operations, with such exceptions as would not have a Material Adverse Effect. (x) The Company has filed all federal and all material state and local income and franchise tax returns required to be filed through the date hereof, other than those filings being contested in good faith. The Company has paid all taxes of which it has notice are due thereon, other than those being contested in good faith and for which adequate reserves have been provided to the extent required or those currently payable without penalty or interest; and no tax deficiency has been determined adversely to the Company or any of the Subsidiaries which has had, nor does the Company have any knowledge of any tax deficiency which, if determined adversely to the Company or any of the Subsidiaries, might be reasonably expected to have, a Material Adverse Effect. (y) Since the date as of which information is given in the Prospectus through the date hereof, and except for dividends paid on the Company's 7 1/2% Mandatorily Convertible Preferred Stock (the "Mandatorily Convertible Preferred Stock") and as may otherwise be disclosed in the Prospectus, the Company has not (i) issued or granted any securities or (ii) declared or paid any dividend on its capital stock, and neither the Company nor any of its Subsidiaries has (i) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations which were incurred in the ordinary course of business or (ii) entered into any material transaction not in the ordinary course of business. (z) The Company and each of its Subsidiaries (i) make and keep accurate books and records and (ii) maintain internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management's authorization, (B) transactions are recorded as necessary to permit preparation of their financial statements in conformity with generally accepted accounting principles in the United States and to maintain accountability for their assets, (C) access to their assets is permitted only in accordance with management's authorization and (D) the recorded accountability for their assets is compared with existing assets at reasonable intervals. (aa) Neither the Company nor any of the Subsidiaries (i) is in violation of its charter or by-laws (or its partnership agreement, as applicable), (ii) is in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is in violation in any respect of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except, in the case of clauses (ii) and (iii), for defaults, events of default, violations and failures which do not, individually or in the aggregate, have or would have a Material Adverse Effect. (ab) Neither the Company nor any of the Subsidiaries nor, to its knowledge, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of the Subsidiaries, has used any corporate or partnership funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. (ac) There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous substances by the Company or any of the Subsidiaries (or, to the knowledge of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by the Company or the Subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action which would not have, or could not be reasonably likely to have, singularly or in the aggregate with all such violations and remedial actions, a Material Adverse Effect; there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of the Subsidiaries or with respect to which the Company or any of the Subsidiaries have knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not have or would not be reasonably likely to have, singularly or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse Effect; and the terms "hazardous wastes", "toxic wastes", "hazardous substances" and "medical wastes" shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection. (ad) Neither the Company nor any Subsidiary is an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder. (ae) At the First Delivery Date, (i) no default or event which, with notice or lapse of time or both, would constitute such a default shall have occurred and be continuing, or shall result from the transactions contemplated hereby to occur prior to, concurrently with or immediately following the consummation of the Offering, under (A) the indentures relating to any of the Company's 10% Senior Discount Notes due 2008, the Company's 9 3/4% Senior Notes due 2007, SFO's 9 3/4% Senior Notes due 2007, the Company's 9 1/4% Senior Notes due 2006 and SFO's 8 7/8% Senior Notes due 2006, (B) the Six Flags Credit Facility or (C) the Deposit Agreement. (af) The statements set forth in the Prospectus under the captions "Business-Recent and Proposed Acquisitions", "Business-Licenses", "Description of Indebtedness", "Description of PIERS" and "Description of Depositary Arrangements", insofar as they describe the terms of the agreements and securities referred to therein, are accurate and fairly present the information required to be shown. 2. PURCHASE OF THE SECURITIES BY THE UNDERWRITERS. On the basis of the representations and warranties contained in, and subject to the terms and conditions of, this Agreement, the Company agrees to sell 10,000,000 shares of the Firm Securities to the several Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase the number of shares of the Firm Securities set opposite that Underwriter's name in Schedule 1 hereto. In addition, the Company grants to the Underwriters an option to purchase up to 1,500,000 shares of Option Securities. Such option is granted solely for the purpose of covering over-allotments in the sale of Firm Securities and is exercisable as provided in Section 4 hereof. Shares of Option Securities shall be purchased severally and not jointly for the account of the Underwriters in proportion to the number of Firm Securities set opposite the name of such Underwriters in Schedule 1 hereto. The price of both the Firm Securities and any Option Securities shall be $24.21875 per share. The Company shall not be obligated to deliver any of the Securities to be delivered on the First Delivery Date or the Second Delivery Date (as hereinafter defined), as the case may be, except upon payment for all the Securities to be purchased on such Delivery Date as provided herein. 3. OFFERING OF SECURITIES BY THE UNDERWRITERS. The several Underwriters propose to offer the Firm Securities for sale upon the terms and conditions set forth in the Prospectus. 4. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and payment for the Firm Securities shall be made at the office of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, at 10:00 A.M., New York City time, on the fourth full business day following the date of this Agreement or at such other date or place as shall be determined by agreement between the Underwriters and the Company. This date and time are sometimes referred to as the "First Delivery Date." On the First Delivery Date, the Company shall deliver or cause to be delivered certificates representing the Firm Securities to the Underwriters for the account of each Underwriter against payment to or upon the order of the Company of the purchase price by wire transfer in immediately available funds. Time shall be of the essence (except that the Company will not be responsible for any delay resulting from any action or inaction of any Underwriter) and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligations of each Underwriter hereunder. Upon delivery, the Firm Securities shall be registered in such names and in such denominations as the Underwriters shall request in writing not less than two full business days prior to the First Delivery Date. For the purpose of expediting the checking and packaging of the certificates for the Firm Securities, the Company shall make the certificates representing the Firm Securities available for inspection by the Underwriters in New York, New York, not later than 2:00 P.M., New York City time, on the business day prior to the First Delivery Date. At any time on or before the thirtieth day after the date of this Agreement, the option granted in Section 2 may be exercised by written notice being given to the Company by the Underwriters. Such notice shall set forth the aggregate number of shares of Option Securities as to which the option is being exercised, the names in which the shares of Option Securities are to be registered, the denominations in which the shares of Option Securities are to be issued and the date and time, as determined by the Underwriters, when the shares of Option Securities are to be delivered; PROVIDED, HOWEVER, that this date and time shall not be earlier than the First Delivery Date nor earlier than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised. The date and time the shares of Option Securities are delivered are sometimes referred to as the "Second Delivery Date" and the First Delivery Date and the Second Delivery Date are sometimes each referred to as a "Delivery Date". Delivery of and payment for the Option Securities shall be made at the place specified in the first sentence of the first paragraph of this Section 4 (or at such other place as shall be determined by agreement between the Underwriters and the Company) at 10:00 A.M., New York City time, on the Second Delivery Date. On the Second Delivery Date, the Company shall deliver or cause to be delivered the certificates representing the Option Securities to the Underwriters for the account of each Underwriter against payment to or upon the order of the Company of the purchase price by wire transfer in immediately available funds. Time shall be of the essence (except that the Company will not be responsible for any delay resulting from any action or inaction of any Underwriter), and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligations of each Underwriter hereunder. Upon delivery, the Option Securities shall be registered in such names and in such denominations as the Underwriters shall request in the aforesaid written notice. For the purpose of expediting the checking and packaging of the certificates for the Option Securities, the Company shall make the certificates representing the Option Securities available for inspection by the Underwriters in New York, New York, not later than 2:00 P.M., New York City time, on the business day prior to the Second Delivery Date. 5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees: (a) To prepare the Prospectus in a form approved by the Underwriters and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or to the Prospectus and to file no Rule 462(b) Registration Statement except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Underwriters with copies thereof; upon your request, to cause the Rule 462(b) Registration Statement, properly completed, to be filed with the Commission pursuant to Rule 462(b) and to provide evidence satisfactory to the Underwriters of such filing; to advise the Underwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal; (b) To furnish reasonably promptly to each of the Underwriters and to counsel for the Underwriters a conformed copy of the Registration Statement as originally filed with the Commission, each amendment thereto and any Rule 462(b) Registration Statement filed with the Commission, including all consents and exhibits filed therewith; (c) To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission, each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) and any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and (iii) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a Prospectus is required at any time after the Effective Time in connection with the offering or sale of the Securities or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriters and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance; (d) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Underwriters, be required by the Securities Act or requested by the Commission; (e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus, any Prospectus pursuant to Rule 424 of the Rules and Regulations or any Rule 462(b) Registration Statement, to furnish a copy thereof to the Underwriters and counsel for the Underwriters and obtain the consent of the Underwriters to the filing; (f) As soon as practicable after the Effective Date (it being understood that the Company shall have until at least 410 days after the end of the Company's current fiscal quarter), to make generally available to the Company's security holders and to deliver to the Underwriters an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158); (g) For a period of five years following the Effective Date, to furnish to the Underwriters copies of all materials furnished by the Company to its public shareholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the PIERS may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder; (h) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Securities for offering and sale (or obtain an exemption from registration) under the securities laws of such jurisdictions as the Underwriters may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities; provided, however, that the Company shall not be required to qualify as a foreign corporation or a dealer in securities or to execute a general consent to service of process in any jurisdiction in any action other than one arising out of the offering or sale of the Securities; (i) For a period of 90 days from the date of the Prospectus, not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exchangeable for or any rights to acquire, Common Stock or any other capital stock (other than the Securities, the Common Stock issuable upon conversion or tender for purchase of the Convertible Preferred Stock or as dividends on the Convertible Preferred Stock or the Mandatorily Convertible Preferred Stock, the Convertible Preferred Stock, shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights or upon the conversion of the Convertible Preferred Stock or the Mandatorily Convertible Preferred Stock, and other than shares issued by the Company as consideration to any seller of assets or stock that the Company or any of the Subsidiaries is acquiring, provided that any shares so issued to such seller or sellers, in the aggregate, do not exceed one-fifth of the total equity of the Company outstanding at the time of the first such issuance, and further provided that such seller or sellers contemporaneously with any such issuance or issuances enter into an agreement with the Underwriters in substantially the same form as the agreement described in this paragraph (i) for the remainder of the 90 day period) or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the grant of options pursuant to option plans existing on the date hereof or as otherwise disclosed in the Prospectus) or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case without the prior written consent of Lehman Brothers Inc.; AND to cause (i) each executive officer and director of the Company and (ii) Windcrest Partners; to furnish to the Underwriters, prior to the First Delivery Date, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which each such person shall agree, subject to any specified exceptions, not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any securities convertible into or exchangeable for or any rights to acquire, Common Stock or any other capital stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of Lehman Brothers Inc.; (j) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder; (k) To cause an authorized officer to execute this Agreement on behalf of the Subsidiaries that are parties hereto; and (l) To use its reasonable best efforts to list for quotation the PIERS and the Common Stock issuable upon conversion or tender for purchase of the Convertible Preferred Stock or as dividends on the Convertible Preferred Stock, on the New York Stock Exchange, Inc. (the "NYSE"). 6. EXPENSES. The Company agrees to pay (a) the costs incident to the authorization, issuance, sale and delivery of the Securities and any taxes payable in that connection; (b) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement and any amendments and exhibits thereto; (c) the costs of distributing the Registration Statement as originally filed and each amendment thereto and any post-effective amendments thereof (including, in each case, exhibits), any Preliminary Prospectus, the Prospectus and any amendment or supplement to the Prospectus or any document incorporated by reference therein, all as provided in this Agreement; (d) the costs of producing and distributing this Agreement, the Deposit Agreement and any other related documents in connection with the offering, purchase, sale and delivery of the Securities; (e) the filing fees incident to securing any required review by the National Association of Securities Dealers, Inc. (the "NASD") of the terms of sale of the Securities; (f) listing or other fees incident to the inclusion of the PIERS and the Common Stock issuable upon conversion or tender for purchase of the Convertible Preferred Stock or as dividends on the Convertible Preferred Stock, for listing on the NYSE; (g) the fees and expenses, if applicable, of qualifying the Securities under the securities laws of the several jurisdictions as provided in Section 5(h) and of preparing, printing and distributing a Blue Sky Memorandum (including related fees and expenses of counsel to the Underwriters); (h) if one is required pursuant to the rules of the NASD, all fees and expenses of a qualified independent underwriter; (i) all other costs and expenses incident to the performance of the obligations of the Company or any of the Subsidiaries under this Agreement; and (j) all fees and expenses of the Depositary; PROVIDED that, except as provided in this Section 6 and in Section 11, the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel, any transfer taxes on the Securities which they may sell and the expenses of advertising any offering of the Securities made by the Underwriters. 7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Subsidiaries that are parties hereto contained herein, to the performance by the Company and each of the Subsidiaries that is a party hereto of its obligations hereunder, and to each of the following additional terms and conditions: (a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a); no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with. (b) No Underwriter shall have discovered and disclosed to the Company on or prior to such Delivery Date that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Cravath, Swaine & Moore, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) James M. Coughlin shall have furnished to the Underwriters his written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form reasonably satisfactory to the Underwriters, to the effect that: (i) The Company and each of the Subsidiaries that is a party hereto have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation; each of the Six Flags Subsidiaries (other than the Subsidiaries that are parties hereto) have been duly organized and, to such counsel's knowledge and without independent verification, are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation; each of the Six Flags Partnerships have been duly organized and, to such counsel's knowledge and without independent verification, is validly existing as a limited partnership in good standing under the laws of its jurisdiction of formation; and the Company, the Subsidiaries that are a party hereto and, to such counsel's knowledge and without independent verification, the Subsidiaries (other than the Subsidiaries that are parties hereto) are each duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification and have all corporate, partnership or equivalent power and authority necessary to own or hold their respective properties and conduct the businesses in which they are engaged as described in the Prospectus; (ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company now outstanding (including the shares of the Convertible Preferred Stock) have been duly and validly authorized and issued, are fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; the shares of Convertible Preferred Stock to be issued on such Delivery Date as contemplated by this Agreement and the Deposit Agreement have been duly authorized and, when issued and delivered to the Depositary in connection with the issuance and sale of the Securities to the Underwriters as contemplated by this Agreement and the Deposit Agreement, dated as of January 23, 2001, among the Company, The Depositary and all Owners and Holders from time to time of Depositary Receipts issued thereunder (the "Deposit Agreement"), against payment therefor will be validly issued, fully paid and non-assessable under the laws of the State of Delaware (the jurisdiction in which the Company is incorporated), and the shares of Convertible Preferred Stock will entitle the holders thereof to the benefits in the certificate of designation therefor; the shares of Common Stock issuable upon the conversion of the Convertible Preferred Stock have been duly and validly authorized and reserved for issuance upon such conversion, and, when issued in accordance with such certificate of designation, will be validly issued, fully paid and nonassessable; such Common Stock conforms in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge, all of the issued shares of capital stock of each Six Flags Subsidiary have been duly and validly authorized and issued and are fully paid, non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for liens, encumbrances, equities or claims arising under the Six Flags Credit Facility, the Co-Venture Parks Agreements and the Subordinated Indemnity Agreement; and 100% of the partnership interest in each of the Premier Partnerships and each of the Six Flags Partnerships is held directly or indirectly by the Company, except for the 40% general partnership interest in Fiesta Partnership held by Fiesta Texas Theme Park, Ltd., the 99% limited partnership interest in the Georgia Co-Venture Partnership indirectly held by investors in Six Flags Fund, Ltd. (L.P.), of which approximately 75% of the units are held by persons who are not affiliated with the Company, and the 99% limited partnership interest in the Texas Co-Venture Partnership indirectly held by investors in Six Flags Funds II, Ltd. (L.P.), of which approximately 66% of the units are held by persons who are not affiliated with the Company, free and clear of all liens, encumbrances, equities or claims, except for liens, encumbrances, equities or claims arising under the Six Flags Credit Facility and the Co-Venture Parks Agreements and the Subordinated Indemnity Agreement; (iii) There are no preemptive or other rights to subscribe for or to purchase any shares of the Securities or the Convertible Preferred Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel; (iv) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of the Subsidiaries is a party or of which any property or assets of the Company or any of the Subsidiaries is the subject which, if determined adversely to the Company or any of the Subsidiaries, would have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are contemplated by governmental authorities or by others; (v) Based solely upon oral confirmation from the staff of the Commission, the Registration Statement was declared effective under the Securities Act as of the date and time specified in such opinion; (vi) The Registration Statement and the Prospectus and any further amendments or supplements thereto made by the Company prior to such Delivery Date (except for the financial statements and notes thereto and other financial, statistical and accounting data included therein (or incorporated by reference) as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations; and the documents incorporated by reference in the Prospectus (except for the financial statements and notes thereto and other financial, statistical and accounting data included therein (or incorporated by reference) as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; (vii) There are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been described or filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations; (viii) The execution, delivery and performance of this Agreement by the Company, Six Flags Operations Inc. and Six Flags Theme Parks Inc. has been duly authorized by all necessary corporate action on the part of the Company, Six Flags Theme Parks Inc. and Six Flags Operations Inc.; this Agreement has been duly executed and delivered by the Company, Six Flags Operations Inc. and Six Flags Theme Parks Inc.; (ix) The Deposit Agreement relating to the Securities has been duly authorized, executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the Depositary named therein, constitutes a valid and binding instrument enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, and similar laws affecting creditors' rights and remedies generally and general principles of equity, including principles of commercial reasonableness, good faith and fair dealings (regardless of whether at law or in equity) and except to the extent that rights to contribution and indemnification thereunder may be limited by Federal or state securities law or public policy relating thereto); assuming payment of the purchase price by the Underwriters, each of the Securities represents a one one-hundredth interest in a validly issued, outstanding, fully paid and nonassessable share of Convertible Preferred Stock; and the Securities, when issued under the Deposit Agreement, assuming due authorization, execution and delivery of the Deposit Agreement by the Depositary, in accordance with the provisions of the Deposit Agreement, will be validly issued, and, assuming due execution and delivery of the Depositary Receipts representing the Securities by the Depositary pursuant to the Deposit Agreement, such Depositary Receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement; (x) The issue and sale of the shares of the Securities, the issue of the shares of Convertible Preferred Stock and the exchange of the shares of Convertible Preferred Stock for the Securities, in each case on such Delivery Date by the Company, the issuance of Common Stock upon the conversion of or as dividends on the Convertible Preferred Stock and the performance by the Company of its obligations under this Agreement and the Deposit Agreement will not conflict with or constitute a default under any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, nor will such actions result in any violation of the provisions of the charter or by-laws or other constitutive documents of the Company or any of the Subsidiaries or, assuming that all consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters, the exchange of the Convertible Preferred Stock for depositary receipts by the Depositary and the issuance of Common Stock upon the conversion of or as dividends on the Convertible Preferred Stock are obtained, any Federal or New York State statute, the General Corporation Law of the State of Delaware, or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries or any of their properties or assets; and, except for the registration of the Securities and the Convertible Preferred Stock and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and distribution of the Securities by the Underwriters and the exchange of the Convertible Preferred Stock for depositary receipts by the Depositary, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Deposit Agreement by the Company or any of the Subsidiaries that is a party hereto and the consummation of the transactions contemplated hereby and thereby; (xi) No holder of securities of the Company has rights which have not been duly and validly waived to require the Company to include such securities with the Securities or the Convertible Preferred Stock registered pursuant to the Registration Statement; and (xii) The statements in the Prospectus under the captions "Business-Recent and Proposed Acquisitions", "Business-Licenses", "Description of Indebtedness", "Description of PIERS", "Description of Depositary Arrangements" and "Description of Common Stock", in each case insofar as such statements constitute summaries of the terms of the agreements and securities referred to therein, fairly present the information called for with respect to such agreements and securities and fairly summarize the matters referred to therein in all material respects. In rendering such opinion, such counsel may state that his opinion is limited to matters governed by the Federal laws of the United States of America, the laws of the State of New York and the General Corporation Law of the State of Delaware and that such counsel is not admitted in any state other than New York; and, in respect of matters of fact, may rely upon certificates of officers of the Company or the Subsidiaries, PROVIDED that such counsel shall state that it believes that both the Underwriters and it are justified in relying upon such certificates. (e) Weil, Gotshal & Manges LLP shall have furnished to the Underwriters its written opinion, as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in form reasonably satisfactory to the Underwriters, to the effect that: (i) The shares of Convertible Preferred Stock to be issued on such Delivery Date as contemplated by this Agreement and the Deposit Agreement have been duly authorized and, when issued and delivered to the Depositary in connection with the issuance and sale of the Securities to the Underwriters as contemplated by this Agreement and the Deposit Agreement, dated as of January 23, 2001, among the Company, The Depositary and all Owners and Holders from time to time of Depositary Receipts issued thereunder (the "Deposit Agreement"), against payment therefor will be validly issued, fully paid and non-assessable under the laws of the State of Delaware (the jurisdiction in which the Company is incorporated), and the shares of Convertible Preferred Stock will entitle the holders thereof to the benefits in the certificate of designation therefor; the shares of Common Stock issuable upon the conversion of the Convertible Preferred Stock have been duly and validly authorized and reserved for issuance upon such conversion, and, when issued in accordance with such certificate of designation, will be validly issued, fully paid and nonassessable; such Common Stock conforms in all material respects to the description thereof contained in the Prospectus; (ii) There are no preemptive or other rights to subscribe for or to purchase any shares of the Securities or the Convertible Preferred Stock pursuant to the Company's charter or by-laws; (iii) The Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) of the Rules and Regulations specified in such opinion on the date specified therein and such counsel is not aware of the issuance of any stop order suspending the effectiveness of the Registration Statement, and to the knowledge of such counsel, no proceedings therefor have been initiated or threatened by the Commission; (iv) The Registration Statement and the Prospectus and any further amendments or supplements thereto made by the Company prior to such Delivery Date (except for the financial statements and notes thereto and other financial, statistical and accounting data included therein (or incorporated by reference) as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations; (v) The execution, delivery and performance of the Agreement by the Company, Six Flags Operations Inc. and Six Flags Theme Parks Inc. has been duly authorized by all necessary corporate action on the part of the Company, Six Flags Theme Parks Inc. and Six Flags Operations Inc.; the Agreement has been duly executed and delivered by the Company, Six Flags Operations Inc. and Six Flags Theme Parks Inc.; (vi) The Deposit Agreement relating to the Securities has been duly authorized, executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the Depositary named therein, constitutes a valid and binding instrument enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium, and similar laws affecting creditors' rights and remedies generally and general principles of equity, including principles of commercial reasonableness, good faith and fair dealings (regardless of whether at law or in equity) and except to the extent that rights to contribution and indemnification thereunder may be limited by Federal or state securities law or public policy relating thereto); assuming payment of the purchase price by the Underwriters, each of the Securities represents a one one-hundredth interest in a validly issued, outstanding, fully paid and nonassessable share of Convertible Preferred Stock; and the Securities, when issued under the Deposit Agreement, assuming due authorization, execution and delivery of the Deposit Agreement by the Depositary, in accordance with the provisions of the Deposit Agreement, will be validly issued, and, assuming due execution and delivery of the Depositary Receipts representing the Securities by the Depositary pursuant to the Deposit Agreement, such Depositary Receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement; (vii) The issue and sale of the shares of the Securities, the issue of the shares of Convertible Preferred Stock and the exchange of the shares of Convertible Preferred Stock for the Securities, in each case on such Delivery Date by the Company, the issuance of Common Stock upon the conversion of or as dividends on the Convertible Preferred Stock and the performance by the Company of its obligations under this Agreement and the Deposit Agreement will not conflict with or constitute a default under (i) the indentures (the "Indentures") relating to any of the Company's 10% Senior Discount Notes due 2008, the Company's 9 3/4% Senior Notes due 2007, SFO's 9 3/4% Senior Notes due 2007, the Company's 9 1/4% Senior Notes due 2006 and SFO's 8 7/8% Senior Notes due 2006 or (ii) the credit agreement relating to the Six Flags Credit Facility; and (viii) The statements in the Prospectus under the captions "Business-Recent and Proposed Acquisitions", "Business-Licenses", "Description of Indebtedness", "Description of PIERS", "Description of Depositary Arrangements" and "Description of Common Stock", in each case insofar as such statements constitute summaries of the terms of the agreements and securities referred to therein, fairly present the information called for with respect to such agreements and securities and fairly summarize the matters referred to therein in all material respects. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the Federal laws of the United States of America, the laws of the State of New York and the General Corporation Law of the State of Delaware and that such counsel is not admitted in any state other than New York; and, in respect of matters of fact, may rely upon certificates of officers of the Company or the Subsidiaries, PROVIDED that such counsel shall state that it believes that both the Underwriters and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Underwriters a written statement, addressed to the Underwriters and dated such Delivery Date, to the effect that such counsel has participated in conferences with directors, officers and other representatives of the Company and representatives of the independent public accountants for the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed, and, although we have not independently verified and are not passing upon and assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except to the extent specified in the foregoing opinion), no facts have come to our attention which lead us to believe that the Registration Statement, as of the Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading or that the Prospectus, on January 18, 2000 or on the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that we express no view with respect to the Incorporated Documents, or the financial statements and related notes, the financial statement schedules and the other financial, statistical and accounting data included or incorporated by reference in the Registration Statement or Prospectus). (f) The Underwriters shall have received from Cravath, Swaine & Moore, counsel for the Underwriters, such opinion or opinions and such statement or statements, dated such Delivery Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably require, and the Company and the Subsidiaries shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (g) At the time of execution of this Agreement, the Underwriters shall have received from KPMG Peat Marwick LLP a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings. (h) With respect to the letter of KPMG Peat Marwick LLP referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Underwriters a letter from KPMG Peat Marwick LLP (the "bring-down letter") addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of the bring-down letter, the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (i) The Company shall have furnished to the Underwriters a certificate, dated such Delivery Date, of its Chairman of the Board, its President or a Vice President and its Chief Financial Officer stating that: (i) The representations, warranties and agreements of the Company and each of the Subsidiaries that are parties hereto are true and correct as of such Delivery Date; the Company and each of the Subsidiaries that is a party hereto have complied in all material respects with all their agreements contained herein; and the conditions set forth in Sections 7(a) and 7(j) have been fulfilled; and (ii) They have carefully examined the Registration Statement and the Prospectus and, in their opinion (A) the Registration Statement, as of the Effective Date, and the Prospectus, as of such Delivery Date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since the Effective Date no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus. (j) Since the date of the latest audited financial statements included or incorporated by reference in the Prospectus there shall not have been any change in the capital stock (or partners' equity, as applicable) or long-term debt of the Company or any of the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity (or partners' equity, as applicable) or results of operations of the Company and its Subsidiaries, taken as a whole, otherwise, in each case, than as set forth or contemplated in the Prospectus, the effect of which, in any such case, is, in the judgment of the Underwriters, so material (to the Company and its Subsidiaries, taken as a whole) and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus. (k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations, (ii) the PIERS shall have been rated "Caa" or higher by Moody's Investor Service and "B-" or higher by Standard & Poor's Corporation and (iii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities. (l) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the NYSE or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of a majority in interest of the several Underwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus. (m) The Six Flags Credit Facility shall be in effect and available for borrowing. (n) No default or event which, with notice or lapse of time or both, would constitute such a default shall have occurred and be continuing, or would result from the transactions contemplated hereby to occur prior to, concurrently with or immediately following the consummation of the Offering, under (i) the Indentures, (ii) the credit agreement relating to the Six Flags Credit Facility or (iii) the Deposit Agreement (other than a default by any party to the Deposit Agreement other than the Company or any of the Subsidiaries). (o) The Deposit Agreement shall have been entered into by the parties thereto with the provisions described in the Prospectus. (p) An authorized officer shall have executed this Agreement on behalf of each of the Subsidiaries that are parties hereto. (q) The PIERS shall have been approved for listing, subject to official notice of issuance, on the NYSE. The Common Stock issuable upon conversion or tender for purchase of the Convertible Preferred Stock or as dividends on the Convertible Preferred Stock, shall have been duly listed for quotation on the NYSE. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and scope reasonably satisfactory to counsel for the Underwriters. 8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the Subsidiaries that are parties hereto, jointly and severally, shall indemnify and hold harmless each Underwriter (including any Underwriter in its role as qualified independent underwriter pursuant to the rules of the NASD), its officers and employees and each person, if any, who controls any Underwriter within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Securities), to which that Underwriter, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Preliminary Prospectus, the Registration Statement or the Prospectus or in any amendment or supplement thereto or (B) in any blue sky application or other document prepared or executed by the Company (or based upon any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Securities under the securities laws of any jurisdiction (any such application, document or information being hereinafter called a "Blue Sky Application"), (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky Application any material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Securities or the Offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon matters covered by clause (i) or (ii) above (PROVIDED that the Company and the Subsidiaries that are parties hereto shall not be liable under this clause (iii) to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Underwriter through its gross negligence or willful misconduct), and shall reimburse each Underwriter and each such officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER, that the Company and the Subsidiaries that are parties hereto shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any such amendment or supplement, or in any Blue Sky Application, in reliance upon and in conformity with written information concerning any Underwriter furnished to the Company by any Underwriter specifically for inclusion therein; and PROVIDED FURTHER that with respect to any such untrue statement or omission made in the Preliminary Prospectus, the indemnity agreement contained in this Section 8(a) shall not enure to the benefit of the Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased the Securities concerned if, to the extent that such sale was an initial sale by such Underwriter and any such loss, claim, damage or liability of such Underwriter is a result of the fact that both (A) a copy of the Prospectus was not sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person, and (B) the untrue statement or omission in the Preliminary Prospectus was corrected in the Prospectus unless, in either case, such failure to deliver the Prospectus was a result of noncompliance by the Company with Section 5(c). The foregoing indemnity agreement is in addition to any liability which the Company or any of the Subsidiaries that are parties hereto may otherwise have to any Underwriter or to any officer, employee or controlling person of that Underwriter. (b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company and the Subsidiaries that are parties hereto, each of their respective officers and employees, each of their respective directors, and each person, if any, who controls the Company or any Subsidiary that is a party hereto within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any Subsidiary that is a party hereto or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Preliminary Prospectus, the Registration Statement or the Prospectus or in any amendment or supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky Application any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company by that Underwriter specifically for inclusion therein, and shall reimburse the Company, any such Subsidiary and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Company, any such Subsidiary or any such director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company, any such Subsidiary, or any such director, officer, employee or controlling person. (c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure and, PROVIDED FURTHER, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that the Underwriters shall have the right, upon written notice to the Company, to employ counsel to represent jointly the Underwriters and their respective officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company and the Subsidiaries that are parties hereto under this Section 8 if, in the reasonable judgment of the Underwriters, it is advisable for the Underwriters, officers, employees and controlling persons to be jointly represented by separate counsel, and in that event the reasonable fees and expenses of such separate counsel shall be paid, jointly and severally, by the Company and the Subsidiaries that are parties hereto. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm of attorneys (in addition to any local counsel) at any one time for all such indemnified party or parties. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(c) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company and the Subsidiaries that are parties hereto on the one hand and the Underwriters on the other from the offering of the Securities 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 the Subsidiaries that are parties hereto on the one hand and the Underwriters on the other with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Subsidiaries that are parties hereto on the one hand and the Underwriters on the other with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased under this Agreement (before deducting expenses) received by the Company on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Securities purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the shares of the Securities under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. For purposes of the preceding two sentences, the net proceeds deemed to be received by the Company shall be deemed to be also for the benefit of the Subsidiaries that are parties hereto and information supplied by the Company shall also be deemed to have been supplied by the Subsidiaries that are parties hereto. The Company, the Subsidiaries that are parties hereto and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section shall be deemed to include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public was offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute as provided in this Section 8(d) are several in proportion to their respective underwriting obligations and not joint. (e) The Underwriters severally confirm and the Company and the Subsidiaries that are parties hereto acknowledge that the statements with respect to the public offering of the Securities by the Underwriters set forth in the first paragraph and the last sentence on the cover page of the prospectus supplement specifically relating to the Securities, the Convertible Preferred Stock and the Common Stock, and the statements under the caption "Underwriting" in the prospectus supplement specifically relating to the Securities, the Convertible Preferred Stock and the Common Stock, constitute the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in the Registration Statement and the Prospectus. 9. DEFAULTING UNDERWRITERS. If, on either Delivery Date, any Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriter shall be obligated to purchase the Securities which the defaulting Underwriter agreed but failed to purchase on such Delivery Date; PROVIDED, HOWEVER, that the remaining non-defaulting Underwriter shall not be obligated to purchase any of the Securities on such Delivery Date if the total number of shares of the Securities which the defaulting Underwriter agreed but failed to purchase on such date exceeds 9.09% of the total number of shares of the Securities to be purchased on such Delivery Date, and the remaining non-defaulting Underwriter shall not be obligated to purchase more than 110% of the number of shares of the Securities which it agreed to purchase on such Delivery Date pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the remaining non-defaulting Underwriter, or those other underwriters satisfactory to the non-defaulting Underwriter who so agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Securities to be purchased on such Delivery Date. If the remaining Underwriter or other underwriters satisfactory to the remaining Underwriter do not elect to purchase the shares which the defaulting Underwriter agreed but failed to purchase on such Delivery Date, this Agreement (or, with respect to the Second Delivery Date, the obligation of the Underwriters to purchase, and of the Company to sell, the Option Securities) shall terminate without liability on the part of the non-defaulting Underwriter or the Company, except that the Company will continue to be liable for the payment of expenses to the extent set forth in Section 6. As used in this Agreement, the term "Underwriter" includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to this Section 9, purchases Securities which a defaulting Underwriter agreed but failed to purchase. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company for damages caused by its default. If other underwriters are obligated or agree to purchase the Securities of a defaulting or withdrawing Underwriter, either the non-defaulting Underwriter or the Company may postpone the Delivery Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement. 10. TERMINATION. The obligations of the Underwriters hereunder may be terminated by the Underwriters by notice given to and received by the Company prior to delivery of and payment for the Firm Securities if, prior to that time, any of the events described in Section 7(j), 7(k) or 7(l) shall have occurred or if the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement. 11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall fail to tender the Securities for delivery to the Underwriters by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by the Company is not fulfilled, (other than by reason of any events described in Section 7(l) except for the suspension of trading or minimum prices of the securities of the Company), the Company will reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of counsel) incurred by the Underwriters in connection with this Agreement and the proposed purchase of the Securities, and promptly following demand the Company shall pay the full amount thereof to the Underwriters. If this Agreement is terminated pursuant to Section 9 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account of those expenses. 12. NOTICES, ETC. All statements, requests, notices and agreements hereunder shall be in writing, and: (a) if to the Underwriters, shall be delivered or sent by mail, telex or facsimile transmission to Lehman Brothers Inc., Three World Financial Center, New York, New York 10285, Attention: Syndicate Department (Fax: 212-526-6588), with a copy, in the case of any notice pursuant to Section 8(c), to the Director of Litigation, Office of the General Counsel, Lehman Brothers Inc., 3 World Financial Center, 10th Floor, New York, NY 10285; (b) if to the Company or any of the Subsidiaries, shall be delivered or sent by mail, telex or facsimile transmission to 122 East 42nd Street, 49th Floor, New York, NY 10168, Attention: Kieran E. Burke (Fax: 212-949-6203); PROVIDED, HOWEVER, that any notice to a Underwriter pursuant to Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its acceptance telex , which address will be supplied to any other party hereto by the Underwriters upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters by Lehman Brothers Inc. on behalf of the Underwriters. 13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, the Subsidiaries that are parties hereto and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities and agreements of the Company and the applicable Subsidiaries contained in this Agreement shall also be deemed to be for the benefit of the officers and employees of each Underwriter and the person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained in Section 8(b) of this Agreement shall be deemed to be for the benefit of directors of the Company, officers of the Company who have signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 13, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. 14. SURVIVAL. The respective indemnities, representations, warranties and agreements of the Company, the applicable Subsidiaries and the Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them. 15. DEFINITION OF THE TERMS "BUSINESS DAY","SIX FLAGS SUBSIDIARY", "SIX FLAGS PARTNERSHIP" AND "SUBSIDIARY" AND "CO-VENTURE PARKS AGREEMENTS". For purposes of this Agreement, (a) "business day" means any day on which the NYSE is open for trading, (b) "Six Flags Subsidiary" means each of SFO, SFTP, Enchanted Parks, Inc., Premier Operations, Walibi, GP Holdings, Inc., a Delaware corporation, Funtime Parks, Inc., an Ohio corporation, Funtime, Inc., an Ohio corporation, Wyandot Lake, Inc., an Ohio corporation, Darien Lake Theme Park and Camping Resort, Inc., a New York corporation, Tierco Maryland, Inc., a Delaware corporation, Tierco Water Park, Inc., an Oklahoma corporation, Frontier City Properties, Inc., an Oklahoma corporation, Stuart Amusement Company, a Massachusetts corporation, Premier Waterworld Concord Inc., a California corporation, Premier Waterworld Sacramento Inc., a California corporation, Premier Parks of Colorado Inc., a Colorado corporation, Great Escape Holding Inc., a New York corporation, Great Escape LLC, a New York limited liability company, Great Escape Theme Park LLC, a New York limited liability company, Riverside Park Enterprises, Inc., a Massachusetts corporation, Riverside Park Food Services, Inc., a Massachusetts corporation, KKI, LLC, a Delaware limited liability company, Park Management Corp., a California corporation, Indiana Parks, Inc., an Indiana corporation, Aurora Campground, Inc., an Ohio corporation, Ohio Campgrounds Inc., an Ohio corporation, Premier International Holdings, Inc., a Delaware corporation, PP Data Services Inc., a Texas corporation, Six Flags Over Georgia, Inc., a Delaware corporation, Premier Parks Holdings Inc., a Delaware corporation, SF Splashtown GP Inc., a Delaware corporation, SF Splashtown Inc., a Delaware corporation, MWM Holdings Inc., a Delaware corporation, Ohio Hotel LLC, a Delaware limited liability company, SFOT II Holdings, LLC, a Delaware limited liability company, SFT Holdings, Inc., a Delaware corporation, SFG Holdings, Inc., a Delaware corporation, Fiesta Texas, Inc., a Delaware corporation, Walibi Holding LLC, a Delaware limited liability company, Reino Aventura S.A. de C.V., a Mexican corporation, Ventas y Servicios al Consumdior S.A. de C.V., a Mexican corporation, MWM Ancillary Services s.l., a Spanish corporation, Movie World Holding GmbH, a German corporation, Movie World GP GmbH, a German corporation, Immoflor S.P.R.L., a Belgian corporation, Gespark S.P.R.L., a Belgian corporation, Historium S.A., a Belgian corporation, Cofilo S.A.R.L., a French corporation, Bellewaerde N.V., a Belgian corporation, Parc Lorrain S.A.R.L., a French corporation, Flevo Attractiepark B.V., a Netherlands corporation, Andis B.V., a Netherlands corporation, Avenir Land S.A.R.L., a French corporation, Parc Agen S.A.R.L., a French corporation, SFTP, SFTP Inc., a Delaware corporation, SFOG II, Inc., a Delaware corporation ("SFOG II"), SFOG II Employee, Inc., a Delaware corporation ("SFOG II Employee"), Six Flags Over Texas, Inc., a Delaware corporation ("Six Flags Over Texas"), SFOT Employee, Inc., a Delaware corporation ("SFOT Employee Inc."), SFTP San Antonio GP, Inc., a Delaware corporation, SFTP San Antonio, Inc., a Delaware corporation, and, with respect to references to Six Flags Subsidiaries which are a party to this Agreement, also includes Six Flags San Antonio, L.P., a Delaware limited partnership ("Six Flags San Antonio") and SF Partnership, a Delaware limited partnership ("SF Partnership"), (c) "Six Flags Partnership" means each of Frontier City Partners, Limited Partnership, an Oklahoma limited partnership, Elitch Gardens, L.P., a Colorado limited partnership, Movie World GmbH & Co. KG, a German limited partnership, Six Flags Splashtown L.P., a Delaware limited partnership, Fiesta Partnership, the Georgia Co-Venture Partnership, the Texas Co-Venture Partnership, Six Flags San Antonio and SF Partnership, (d) "Subsidiary" means each of the Six Flags Subsidiaries and the Six Flags Partnerships and "Co-Venture Parks Agreements" means (i) the Overall Agreement, dated as of February 15, 1997, among Six Flags Fund, Ltd. (L.P.), Salkin Family Trust, SFG, Inc., SFG-I, LLC, SFG-II, LLC, Six Flags Over Georgia, Ltd., SFOG II, Inc., SFOG II Employee, Inc., SFOG Acquisition A, Inc., SFOG Acquisition B, L.L.C., Six Flags Over Georgia, Inc., Six Flags Services of Georgia, Inc., SFTP and SFEC and the Related Agreements (as defined therein), (ii) the Overall Agreement, dated as of November 24, 1997, among Six Flags Over Texas Fund, Ltd., Flags' Directors, L.L.C., FD-II, L.L.C., Texas Flags, Ltd., SFOT Employee, Inc., SFOT Acquisition I, Inc., SFOT Acquisition II, Inc., Six Flags Over Texas, Inc., SFTP and SFEC and the Related Agreements (as defined therein), and (iii) the Lppease Agreement with Option to Purchase, dated as of March 9, 1996, among Fiesta Texas Theme Park, Ltd., a Texas Limited Partnership, San Antonio Theme Park, L.P., and Six Flags San Antonio, L.P. and the Transaction Documents (as defined therein), in each case, as the same may be modified or amended from time to time. 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK. 17. COUNTERPARTS. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. 18. HEADINGS. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. If the foregoing correctly sets forth the agreement among the Company and the Underwriters, please indicate your acceptance in the space provided for that purpose below. Very truly yours, Six Flags, Inc. By_________________________________ Name: Kieran E. Burke Title: Chairman of the Board and Chief Executive Officer Six Flags Operations Inc. By_________________________________ Name: Kieran E. Burke Title: Chairman of the Board and Chief Executive Officer Six Flags Theme Parks Inc. By_________________________________ Name: Kieran E. Burke Title: Chairman of the Board and Chief Executive Officer Accepted: Lehman Brothers Inc. Allen & Company Incorporated Merrill Lynch, Pierce Fenner & Smith Incorporated Morgan Stanley & Co. Incorporated Salomon Smith Barney Inc. By Lehman Brothers Inc. By ____________________________ Authorized Representative SCHEDULE 1 NUMBER UNDERWRITERS OF FIRM SHARES - ------------ --------------- Lehman Brothers Inc............................... 7,000,000 Allen & Company Incorporated...................... 750,000 Merrill Lynch, Pierce, Fenner & Smith Incorporated...................................... 750,000 Morgan Stanley & Co. Incorporated................. 750,000 Salomon Smith Barney Inc.......................... 750,000 ---------- .............................................Total 10,000,000 ========== EX-4.1 3 a2036093zex-4_1.txt EXHIBIT 4.1 EXHIBIT 4.1 CERTIFICATE OF DESIGNATION OF 7 1/4% CONVERTIBLE PREFERRED STOCK OF SIX FLAGS, INC. ------------- Pursuant to Section 151 of the General Corporation Law of the State of Delaware ------------- SIX FLAGS, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Company"), does hereby certify that the following resolution was duly adopted by the Board of Directors of the Company (the "Board") by unanimous written consent, dated as of January 17, 2001: RESOLVED, that pursuant to the authority conferred upon the Board by the provisions of the Company's Restated Certificate of Incorporation (the "Certificate") and in accordance with Section 151 of the General Corporation Law of the State of Delaware, the Board hereby creates, from the 500,000 shares of preferred stock, $1.00 par value per share (the "Preferred Stock"), of the Company, authorized to be issued pursuant to the Certificate, a series of Preferred Stock consisting of 115,000 shares of 7 1/4% Convertible Preferred Stock and hereby fixes the voting powers, designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions of such preferences and/or rights, of the shares of that series as follows: Section 1. DESIGNATION. (a) The shares of the series will be designated as the 7 1/4% Convertible Preferred Stock (the "Convertible Preferred Stock"). The total number of authorized shares of the Convertible Preferred Stock will be 115,000. (b) Any shares of the Convertible Preferred Stock that at any time have been acquired upon conversion or otherwise acquired by the Company shall, after such conversion or other acquisition, resume the status of authorized and unissued shares of Preferred Stock without designation as to series until such shares are once more designated and issued as part of a particular series by the Board. Section 2. RANK. The shares of Convertible Preferred Stock will rank both as to payment of dividends and distribution of assets upon liquidation, winding up, dissolution, or reduction or decrease in the Capital Stock of the Company resulting in a distribution of all or substantially all of the assets of the Company to holders of any class or series of Capital Stock: (i) on parity with the Company's 7 1/2% Mandatorily Convertible Preferred Stock and with any class or series of the Company's Capital Stock issued by the Company in the future that by its terms ranks PARI PASSU with the shares of Convertible Preferred Stock (collectively, "Parity Stock"); (ii) junior to all of the Company's existing and future debt obligations; (iii) junior to each other class or series of the Company's Capital Stock other than the Common Stock and any other class or series of the Company's Capital Stock the terms of which provide that that class or series will rank junior to the Convertible Preferred Stock and any other class or series of the Company's Capital Stock the terms of which provide that that class or series will rank on a parity with the Convertible Preferred Stock ("Senior Stock"); (iv) senior to the Common 2 Stock and each class or series of the Company's Capital Stock the terms of which provide that that class or series will rank junior to the Convertible Preferred Stock (collectively "Junior Stock"); PROVIDED, that, the terms "Senior Stock", "Parity Stock" and "Junior Stock" shall include warrants, rights, calls or options exercisable for or convertible into that type of stock. Section 3. DIVIDENDS. (a) The holders of record of the shares of Convertible Preferred Stock shall be entitled to receive from the Company, when, as and if declared by the Board out of funds legally available therefor, cumulative dividends per share ("Preferred Dividends") from the date of the initial issuance of the shares of Convertible Preferred Stock at the rate of 7 1/4% per annum of the Liquidation Preference (as defined in Section 9 hereof) per share of Convertible Preferred Stock, payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each year or, if any such date is not a business day (as defined in Section 7 hereof), the Preferred Dividend due on such date shall be payable on the next succeeding business day (each such payment date being a "Regular Dividend Payment Date"), subject to upward adjustment pursuant to Section 3(e) hereof. The first dividend period will be from the date of initial issuance of the shares of Convertible Preferred Stock to but excluding May 15, 2001 and will be payable on May 15, 2001. Preferred Dividends shall be payable to holders of record of shares of Convertible Preferred Stock as they appear on the stock register of the Company at the close of business on February 1, May 1, August 1 and November 1 of each year or on a record date which will be fixed by the Board and which will be not more than 60 days and not less than 10 days before the applicable Regular Dividend Payment Date. The right of holders of Convertible Preferred Stock to receive dividend payments is subject to the rights of any holders of shares of Senior Stock or Parity Stock. Preferred Dividends will cease to become payable by us for distribution to holders when dividends cease to accrue on the Convertible Preferred Stock on the Mandatory Redemption Date (as defined in Section 4(k) hereof) or on such other date of their earlier conversion in accordance with Section 4(a) or 4(f). Preferred Dividends payable on shares of Convertible Preferred Stock for any period less than a full quarterly dividend period (or, in the case of the first Preferred Dividend, from the date of initial issuance of the shares of Convertible Preferred Stock to the first Regular Dividend Payment Date) will be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in any period less than one month. Preferred Dividends shall accrue on a daily basis (computed as set forth in the immediately preceding sentence) whether or not there are funds of the Company legally available for the payment of such Preferred Dividends and whether or not such Preferred Dividends are declared. Accrued but unpaid Preferred Dividends shall cumulate as of the Regular Dividend Payment Date on which they first become payable, but no interest shall accrue on any accumulated but unpaid Preferred Dividends. (b) Preferred Dividends may be paid, at the election of the Company, (i) in cash out of funds legally available therefor, (ii) through the delivery of shares of the Company's common stock, par value $0.025 per share (the "Common Stock"), in accordance with applicable laws or (iii) through any combination of the foregoing. If the Company elects to pay any Preferred Dividend, in whole or in part, by delivery of shares of Common Stock, the Company shall deliver to holders of record of shares of Convertible Preferred Stock on the related record date for such Preferred Dividend payment (determined as set forth in Section 3(a) hereof) a number of shares of Common Stock for each share of Convertible Preferred Stock held thereby determined by dividing the dollar amount of such Preferred Dividend payment which is to be paid per share of Convertible Preferred Stock in shares of Common Stock by an amount (the "Cash Equivalent Amount") equal to 95% of the Average Market Value of the Common Stock. "Average Market Value" of the Common Stock means the arithmetic average of the Current Market Value of the Common Stock for the ten-Trading 3 Day period preceding the related record date for such dividend (the "Dividend Stock Price") (appropriately adjusted in such manner as the Board in good faith deems appropriate to take into account any stock dividend on the Common Stock, or any subdivision, split, combination or reclassification of the Common Stock that occurs, or the ex-dividend date for which occurs, during the period following the first Trading Day in such ten-Trading Day Period and ending on the last full Trading Day immediately preceding the payment of the Preferred Dividend). "Current Market Value" of the Common Stock means the average volume-weighted daily trading price of the Common Stock as reported on the New York Stock Exchange or such other SEC recognized securities exchange or trading system which the Company may from time to time designate upon which the greatest number of shares of the Common Stock is then listed or traded, for the Trading Day in question. The Dividend Stock Price for any Preferred Dividend which shall be paid, in whole or in part, through the delivery of shares of Common Stock, shall be determined on the related record date for such Preferred Dividend payment. Any portion of a Preferred Dividend that is declared and not paid by the Company through delivery of shares of Common Stock on the related Regular Dividend Payment Date will be paid in cash. (c) The Company will not (i) declare or pay any Preferred Dividend on or (ii) set apart any sum for the payment of Preferred Dividends on, any outstanding shares of Convertible Preferred Stock with respect to any dividend period unless the Company has declared and paid or has declared and set apart a sufficient sum for the payment of all Preferred Dividends on all outstanding Convertible Preferred Stock for all preceding dividend periods. (d) The Company will not: (i) declare, pay or set apart funds for the payment of any dividend or other distribution with respect to any Junior Stock or Parity Stock; or (ii) redeem, purchase or otherwise acquire for consideration Junior Stock or Parity Stock through a sinking fund or otherwise, unless the Company has paid or set apart funds for the payment of all accrued and unpaid dividends with respect to the shares of the Convertible Preferred Stock and any Parity Stock at the time those dividends are payable. As an exception to this Section 3(d), the Company will be able to (a) declare and pay dividends on Junior Stock or Parity Stock which are payable solely in shares of Parity Stock or Junior Stock, in the case of Parity Stock, or Junior Stock, in the case of Junior Stock, or by the increase in the liquidation value of Junior Stock or Parity Stock and (b) redeem, purchase or otherwise acquire Junior Stock or Parity Stock in exchange for consideration consisting of Parity Stock or Junior Stock, in the case of Parity Stock, or Junior Stock, in the case of Junior Stock. (e) In the event of any consolidation, merger, sale, transfer or statutory exchange to which the provisions of Section 11 apply, or in the event of any dividend or distribution to which the provisions of Section 4(h)(ii) or (iii) apply, as a result of which a Reset Transaction (as defined below) has occurred, the dividend rate on the Convertible Preferred Stock shall be increased (but not decreased) to the rate per annum that is the arithmetic average of the rates quoted by two Reference Dealers (as defined in Section 7 hereof) selected by the Company or its successor as the dividend rate that the Convertible Preferred Stock should bear so that the fair market value, expressed in dollars, of a share of Convertible 4 Preferred Stock immediately after the public announcement of the related Reset Transaction, after giving effect to any adjustments pursuant to Section 4(h) hereof, will equal the average Closing Price of a share of Convertible Preferred Stock (it being understood that, in the event any shares of Convertible Preferred Stock are represented by depositary shares, the average Closing Price of the Convertible Preferred Stock shall be determined by reference to the average Closing Price of such depositary shares multiplied by 100) for the 20 Trading Days immediately preceding the date of public announcement of such Reset Transaction. A "Reset Transaction" is any transaction described above whereby the Convertible Preferred Stock is convertible on and after the effective date of such trans action into shares (including those of the Company) which either (i) had a Dividend Yield (as defined in Section 7 hereof) for the four fiscal quarters immediately preceding the public announcement of such transaction which was, or (ii) are issued by an entity (including the Company) that has publicly announced a dividend policy prior to the effective date of such transaction which policy, if implemented, would result in a Dividend Yield on such shares for the next four fiscal quarters which would be, more than 250 basis points higher than the Dividend Yield on the Common Stock for the four fiscal quarters immediately preceding the public announcement of such transaction. (f) Whenever the dividend rate on the Convertible Preferred Stock is increased as provided in Section 3(e), the Company or its successor shall: (i) forthwith compute the increased dividend rate in accordance with Section 3(e) and prepare a certificate signed by the Chief Financial Officer, any Vice President, the Treasurer or the Controller of the Company or its successor setting forth the increased dividend rate, the applicable rates quoted by the two Reference Dealers selected by the Company or its successor for such rate quotes and the arithmetic average of those rate quotes, and the facts requiring such increase and upon which such increase is based, which certificate shall be con clusive, final and binding evidence of the correctness of the increase, and shall file such certificate forthwith with the transfer agent or agents for the shares of Convertible Preferred Stock and any depositary for any shares of Convertible Preferred Stock represented by depositary shares; (ii) make a prompt public announcement stating that the dividend rate on the Convertible Preferred Stock has been increased and setting forth the increased dividend rate; and (iii) mail a notice stating that the dividend rate on the Convertible Preferred Stock has been increased, the facts requiring such increase and upon which such increase is based and setting forth the increased dividend rate to the holders of record of the outstanding shares of the Convertible Preferred Stock, and, in the event any shares of Convertible Preferred Stock are represented by depositary shares, to the holders of record of the depositary receipts evidencing such depositary shares, no later than 45 days after the end of the Company's fiscal quarter period during which the Reset Transaction resulting in such increase occurred. Section 4. CONVERSION RIGHTS. (a) Unless previously (i) converted at the option of the holder into Common Stock in accordance with the provisions of Section 4(f), (ii) redeemed in accordance with the provisions of Section 4(k) or (iii) purchased by the Company in accordance with the provisions of Section 11, on any date (a "Mandatory 5 Conversion Date") on or after February 15, 2004, the Company may at its option cause the Convertible Preferred Stock, in whole or from time to time in part, to be automatically converted into that number of fully paid and nonassessable shares of Common Stock at the Conversion Rate (as defined in Section 4(e) below) in effect on the Mandatory Conversion Date. The Company may exercise this conversion right only if the Closing Price of the Common Stock (multiplied by 100) equals or exceeds 120% of the then prevailing Conversion Price (as defined in Section 7) for at least 20 Trading Days in any consecutive 30-day trading period, including the last Trading Day of such 30-day period, ending on the Trading Day prior to the issuance of the press release announcing the mandatory conversion referred to in Section 4(b). (b) To exercise this mandatory conversion, the Company shall issue a press release announcing such mandatory conversion prior to the opening of business on the first Trading Day following any date on which the conditions described in Section 4(a) are met. The Company will give notice of the mandatory conversion by mail or by publication (with subsequent prompt notice by mail) to the holders of the Convertible Preferred Stock, and, in the event any shares of Convertible Preferred Stock are represented by depositary shares, to the holders of record of the depositary receipts evidencing such depositary shares, not more than four business days after the date of the press release announcing the Company's intention to convert the Convertible Preferred Stock. Any Mandatory Conversion Date will be a date selected by the Company which shall be not less than 30 nor more than 60 days after the date on which the Company issues such press release. In addition to any information required by applicable law or regulation, notice of a mandatory conversion shall state, as appropriate, (i) the Mandatory Conversion Date, (ii) the number of shares of Common Stock to be issued upon conversion of each share of Convertible Preferred Stock, (iii) the number of shares of Convertible Preferred Stock to be converted (and, if fewer than all of the shares of Convertible Preferred Stock are to be converted the number of shares of Convertible Preferred Stock to be converted from such holder), (iv) the place(s) where the shares of Convertible Preferred Stock are to be surrendered for delivery of shares of Common Stock and (v) that dividends on the Convertible Preferred Stock to be converted will cease to accrue on the Mandatory Conversion Date. (c) On and after a Mandatory Conversion Date, dividends will cease to accrue on converted Convertible Preferred Stock and all rights of holders of such Convertible Preferred Stock will terminate except for the right to receive the shares of Common Stock issuable upon conversion thereof. The dividend payment with respect to the Convertible Preferred Stock called for a mandatory conversion on a date during the period from the close of business on any record date for the payment of dividends to the close of business on the business day immediately following the corresponding dividend payment date will be payable on such dividend payment date to the record holder of such share on such record date if such share has been converted after such record date and prior to such dividend payment date. Except as provided in the immediately preceding sentence with respect to a mandatory conversion, no payment or adjustment will be made upon conversion of Convertible Preferred Stock for accumulated and unpaid dividends or for dividends with respect to the Common Stock issued upon such conversion. The Company may not authorize or make any mandatory conversion unless, prior to giving the conversion notice, all accumulated and unpaid dividends on the Convertible Preferred Stock for periods ended prior to the date of such conversion notice shall have been paid in cash or Common Stock. The Company shall make such arrangements as it deems appropriate for the issuance of certificates representing shares of Common Stock and for the payment of cash in respect of accrued and unpaid dividends on the Convertible Preferred Stock, if any, or cash in lieu of fractional shares, if any, without interest, 6 in exchange for and contingent upon surrender of certificates representing the shares of Convertible Preferred Stock, and the Company may defer the payment of dividends on such shares of Common Stock until, and make such payment contingent upon, the surrender of certificates representing the shares of Convertible Preferred Stock, provided that the Company shall give the holders of the shares of Convertible Preferred Stock such notice of any such actions as the Company deems appropriate and upon such surrender such holders shall be entitled to receive such dividends declared and paid, if any, without interest, on such shares of Common Stock subsequent to the Mandatory Conversion Date. (d) In the event of partial mandatory conversions of the Convertible Preferred Stock, the shares of Convertible Preferred Stock to be converted will be determined pro rata or by lot, as determined by the Company; PROVIDED that the Company may convert all shares of Convertible Preferred Stock held by holders of fewer than 100 depositary shares representing of Convertible Preferred Stock (or by holders that would hold fewer than 100 depositary shares representing shares of Convertible Preferred Stock of Convertible Preferred Stock following such conversion) prior to the Company's conversion of other shares of Convertible Preferred Stock. (e) The "Conversion Rate" is equal to (i) the Liquidation Preference divided by (ii) the Conversion Price (as defined in Section 7 hereof). (f) Shares of Convertible Preferred Stock are convertible, in whole or in part, at the option of the holders thereof ("Optional Conversion"), at any time and from time to time prior to August 15, 2009, into fully paid and nonassessable shares of Common Stock at the Conversion Rate. To effect such an Optional Conversion, a holder of depository receipts representing the Convertible Preferred Stock must deliver such receipts representing the Convertible Preferred Stock to be converted, together with a written notice of conversion and a proper assignment of the depositary receipts to the Company or in blank (and, if such conversion is to occur after the close of business on a record date for any payment of declared dividends and before the opening of business on the next succeeding Regular Dividend Payment Date, payment in cash or shares of Common Stock, or both, as the case may be, in an amount equal to the Preferred Dividend payable on such date), to the depositary or its agent providing for depositary shares representing the Convertible Preferred Stock. A holder who delivers depositary receipts evidencing the Convertible Preferred Stock to the depositary on a record date for any payment of declared dividends for conversion on the succeeding Regular Dividend Payment Date will not be required to include payment of the dividend payable on such date upon delivery of such depositary receipts. Each Optional Conversion shall be deemed to have been effected immediately prior to the close of business on the date on which the foregoing requirements shall have been satisfied. The conversion shall be at the Conversion Price in effect at such time or such date. (g) If a holder of Convertible Preferred Stock exercises conversion rights pursuant to Section 4(f) upon delivery of shares for conversion, dividends will cease to accrue on the Convertible Preferred Stock as of the end of the day immediately preceding the date of conversion, but the holder will continue to be entitled to receive all accrued dividends which such holder is entitled to receive through the last preceding Regular Dividend Payment Date. Any accrued and unpaid dividends will be payable by the Company as and when those dividends are paid to any remaining holders, or, if none, on the date which would have been the next succeeding Regular Dividend Payment Date had there been remaining holders or at a later time when the Company has adequate capital under applicable law to make such payment. However, shares of Convertible Preferred Stock surrendered for Optional Conversion after the 7 close of business on a record date for any payment of declared Preferred Dividends and before the opening of business on the next succeeding Regular Dividend Payment Date must be accompanied by payment in cash or Common Stock, or both, of an amount equal to the Preferred Dividend declared on such shares. Except as provided above, upon any Optional Conversion of shares of Convertible Preferred Stock, the Company shall make no payment of or allowance for unpaid Preferred Dividends, whether or not in arrears, on such shares of Convertible Preferred Stock as to which Optional Conversion has been effected or previously declared dividends or distributions on the shares of Common Stock issued upon such Optional Conversion. If any shares of Convertible Preferred Stock are to be redeemed, the right to convert those shares will terminate at the close of business on the business day immediately preceding the date fixed for redemption unless the Company defaults in payment of the redemption price. (h) The Conversion Price is subject to adjustment from time to time as provided below in this Section 4(h): (i) If the Company shall, at any time or from time to time after the issuance date of the Convertible Preferred Stock (a) pay a dividend in Common Stock to holders of Common Stock, (b) make a distribution in shares of Common Stock to holders of Common Stock, (c) subdivide or split the outstanding shares of Common Stock, (d) combine or reclassify the outstanding shares of Common Stock into a smaller number of shares or (e) issue by reclassification of the shares of Common Stock any shares of the Company's Capital Stock, then the Conversion Price in effect immediately prior to that event or the record date for that event, whichever is earlier, will be adjusted so that the holder of any shares of Convertible Preferred Stock thereafter surrendered for conversion will be entitled to receive the number of shares of Common Stock or of the Company's other securities which the holder would have owned or have been entitled to receive after the occurrence of any of the events described above, had those shares of Convertible Preferred Stock been surrendered for conversion immediately before the occurrence of that event or the record date for that event, whichever is earlier. (ii) For purposes of this Section 4(h)(ii) and Section 4(h)(iii), "Current Market Price" means the average of the daily Closing Prices for the five consecutive Trading Days selected by the Board beginning not more than 20 Trading Days before, and ending not later than the later of the date of the applicable event described in this Section 4(h)(ii) and the date immediately preceding the record date fixed in connection with that event. In case the Company issues to all holders of Common Stock rights or warrants expiring within 45 days entitling those holders to subscribe for or purchase Common Stock at a price per share less than the Current Market Price, the Conversion Price in effect immediately before the close of business on the record date fixed for determination of shareholders entitled to receive those rights or warrants will be reduced by multiplying the Conversion Price by a fraction, the numerator of which is the sum of the number of shares of Common Stock outstanding at the close of business on that record date and the number of shares of Common Stock that the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at the Current Market Price and the denominator of which is the sum of the number of shares of Common Stock outstanding at the close of business on that record date and the number of additional shares of Common Stock so offered 8 for subscription or purchase. For purposes of this Section 4(h)(ii), the issuance of rights or warrants to subscribe for or purchase securities convertible into shares of Common Stock will be deemed to be the issuance of rights or warrants to purchase shares of Common Stock into which those securities are convertible at an aggregate offering price equal to the sum of the aggregate offering price of those securities and the minimum aggregate amount, if any, payable upon conversion of those securities into shares of Common Stock. This adjustment will be made successively whenever any such event occurs. (iii) If the Company distributes to all holders of Common Stock, whether by dividend or in a merger, amalgamation or consolidation or otherwise, evidences of indebtedness, shares of Capital Stock of any class or series, other securities, cash or assets, other than Common Stock, rights or warrants referred to in Section 4(h)(ii) above or a dividend, payable exclusively in cash and other than as a result of a fundamental change described in Section 4(h)(iv) below, the Conversion Price in effect immediately before the close of business on the record date fixed for determination of shareholders entitled to receive that distribution will be reduced by multiplying the Conversion Price by a fraction, the numerator of which is the Current Market Price on that record date less the fair market value, as determined by the Board, whose determination in good faith will be conclusive, of the portion of those evidences of indebtedness, shares of Capital Stock, other securities, cash and assets so distributed applicable to one share of Common Stock and the denominator of which is the Current Market Price. This adjustment will be made successively whenever any such event occurs. In respect of a dividend or other distribution of shares of Capital Stock of any class or series, or similar equity interests, of or relating to a subsidiary or other business unit (a "spin-off") the adjustment to the Conversion Price under this Section 4(h)(iii) will occur at the earlier of (i) 20 Trading Days after the effective date of the spin-off and (ii) the initial public offering of securities pertaining to the subsidiary or other business unit to which the spin-off relates, if that initial public offering is effected simultaneously with the spin-off. For purposes of a spin-off, the "fair market value" of the securities to be distributed to holders of Common Stock means the average of the daily Closing Prices of those securities for the five consecutive Trading Days selected by the Board beginning on the first day of trading of those securities after the effectiveness of the spin-off and ending not later than 20 Trading Days after effectiveness of the spin-off. Also, for purposes of a spin-off, the "Current Market Price" of Common Stock means the average of the daily Closing Prices of the Common Stock for the same five consecutive Trading Days in determining the fair market value of the securities being distributed in the spin- off. If, however, an initial public offering of the securities being distributed in the spin-off is to be effected simultaneously with the spin-off, the "fair market value" of the securities being distributed in the spin-off means the initial public offering price, while the "Current Market Price" of Common Stock means the Closing Price of the Common Stock on the Trading Day on which the initial public offering price of the securities being distributed in the spin-off is determined. (iv) For purposes of this Section 4(h)(iv), "fundamental change" means any transaction or event, including any merger, consolidation, sale of assets, tender or exchange offer, reclassification, compulsory share exchange or liquidation, in which all or substantially all outstanding shares of Common Stock are converted into or exchanged for stock, other securities, cash or assets. If a fundamental change occurs, the holder of each share of Convertible Preferred Stock outstanding immediately before that fundamental change occurred will have the right upon any subsequent conversion to 9 receive, but only out of legally available funds, to the extent required by applicable law, the kind and amount of stock, other securities, cash and assets that holder would have received if that share had been converted immediately prior to the fundamental change. The Company will not, however, be required to give effect to any adjustment in the Conversion Price unless and until the net effect of one or more adjustments, each of which will be carried forward until counted toward adjustment, will have resulted in a change of the Conversion Price by at least 1%, and when the cumulative net effect of more than one adjustment so determined will be to change the Conversion Price by at least 1%, that change in the Conversion Price will be given effect. In the event that, at any time as a result of the provisions of this section 4(h)(iv), the holder of Convertible Preferred Stock upon subsequent conversion becomes entitled to receive any shares of the Company's Capital Stock other than Common Stock, the number of those other shares so receivable upon conversion of the Convertible Preferred Stock will thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained in this Section 4(h)(iv). There will be no adjustment to the Conversion Price in case of the issuance of any shares of the Company's stock in a merger, reorganization, acquisition, reclassification, recapitalization or other similar transaction except as provided in this Section 4(h)(iv). In any case in which this Section 4(h)(iv) requires that an adjustment as a result of any event becomes effective from and after a record date, the Company may elect to defer until after the occurrence of that event (a) issuing to the holder of any shares of Convertible Preferred Stock converted after that record date and before the occurrence of that event the additional shares of Common Stock issuable upon that conversion over and above the shares issuable on the basis of the Conversion Price in effect immediately before adjustment and (b) paying to that holder any amount in cash in lieu of a fractional share of Common Stock. If the Company takes a record of the holders of Common Stock for the purpose of entitling them to receive a dividend or other distribution, and after this, and before the distribution to the Company's shareholders, legally abandons its plan to pay or deliver that dividend or distribution, then no adjustment in the number of shares of Common Stock issuable upon conversion of Convertible Preferred Stock or in the Conversion Price then in effect will be required by reason of the taking of that record. The Board will have the power to resolve any ambiguity or correct any error in this section 4(h)(iv), and its action in so doing will be final and conclusive. (v) Anything in Section 4 notwithstanding, the Company shall be entitled (but shall not be required) to make such adjustments in the Conversion Price in addition to those set forth by this Section 4(h), as the Company, in its sole discretion, shall determine to be advisable, in order that any stock dividend, sub division or split of stock, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock (or any transaction that could be treated as any of the foregoing transactions pursuant to Section 305 of the Internal Revenue Code of 1986, as amended, or any successor provision) hereafter made by the Company to its stockholders will not be taxable in whole or in part. (vi) Prior to taking any action that could result in adjustment affecting the Conversion Price such that the imputed Conversion Price for shares of Common Stock issued upon Mandatory Conversion or upon Optional Conversion would be below the then par value of the Common Stock (multiplied by 100), the Company shall take any corporate action which may, in the opinion of the Board, be necessary in order that the 10 Company may validly and legally issue fully paid and nonassessable shares of Common Stock using the Conversion Price as so adjusted. (i) Whenever the Conversion Price is adjusted as provided in Section 4(h), the Company shall: (i) prepare a certificate signed by the Chief Financial Officer, any Vice President, the Treasurer or the Controller of the Company setting forth the adjusted Conversion Price, the method of calculation thereof in reasonable detail and the facts requiring such adjustment and upon which such adjustment is based, which certificate shall be conclusive, final and binding evidence of the correctness of the adjustment, and shall file such certificate forthwith with the transfer agent or agents for the shares of Convertible Preferred Stock and any depositary for any shares of Convertible Preferred Stock represented by depositary shares; (ii) make a prompt public announcement stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price, including, in the event any shares of Convertible Preferred Stock are represented by depositary shares, the adjusted Conversion Price on a per depositary share basis; and (iii) mail a notice stating that the Conversion Price has been adjusted, the facts requiring such adjustment and upon which such adjustment is based and setting forth the adjusted Conversion Price to the holders of record of the outstanding shares of the Convertible Preferred Stock, and, in the event any shares of Convertible Preferred Stock are represented by depositary shares, to the holders of record of the depositary receipts evidencing such depositary shares, no later than 45 days after the end of the Company's fiscal quarter period during which the facts requiring such adjustment occurred. (j) In case, at any time while any of the shares of Convertible Preferred Stock are outstanding, (i) the Company shall declare a dividend (or any other distribution) on the Common Stock, excluding any cash dividends, or (ii) the Company shall authorize the issuance to all holders of the Common Stock of rights or warrants to subscribe for or purchase shares of the Common Stock or of any other subscription rights or warrants, or (iii) the Company shall authorize any reclassification of the Common Stock (other than a subdivision, split or combination thereof) or of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required (except for a merger of the Company into one of its subsidiaries solely for the purpose of changing the corporate domicile of the Company to another state of the United States and in connection with which there is no substantive change in the rights or privileges of any securities of the Company other than changes resulting from differences in the corporate statutes of the state the Company was then domiciled in and the new state of domicile), or of the sale or transfer of all or substantially all the assets of the Company (except to one or more wholly owned subsidiaries), then the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of the shares of Convertible Preferred 11 Stock, and shall cause to be mailed to the holders of shares of Convertible Preferred Stock at their last addresses as they shall appear on the stock register, and, in the event any shares of Convertible Preferred Stock are represented by depositary shares, to the holders of record of the depositary receipts evidencing such depositary shares, at least 10 business days before the date specified in clause (A) or (B) below (or the earlier of such specified dates, in the event that more than one date is specified), a notice stating (A) the date on which a record is to be taken for the purpose of such dividend, distribution, or issuance of rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, or issuance of rights or warrants are to be determined, or (B) the date on which any such reclassification, consolidation, merger, sale or transfer is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property (including cash), if any, deliverable upon such reclassification, consolidation, merger, sale or transfer. The failure to give or receive the notice required by this subsection (k) or any defect therein shall not affect the legality or validity of any such dividend, distribution, issuance of any right or warrant or other action. (k) On August 15, 2009 (the "Mandatory Redemption Date"), the Company will be obligated to redeem for cash all outstanding shares of Convertible Preferred Stock not previously converted, upon not less than 30 nor more than 60 days' prior notice sent by first class mail to the registered address of each holder of Convertible Preferred Stock, and, in the event that any shares of Convertible Preferred Stock are represented by depositary shares, to the holders of record of the depositary receipts evidencing such depositary shares, at 100% of the Liquidation Preference per share, plus accumulated and unpaid dividends to the date of such redemption. 5. NO FRACTIONAL SHARES. (a) No fractional shares of Common Stock shall be issued upon the conversion of any shares of the Convertible Preferred Stock, upon repurchase of the Convertible Preferred Stock pursuant to a Change in Control (as defined in Section 11) or in connection with the payment of dividends. In lieu of any fractional shares otherwise deliverable in respect of shares of Convertible Preferred Stock of any holder, such holder shall be entitled to receive an amount in cash (computed to the nearest cent) equal to the same fraction of the Closing Price of the Common Stock determined (a) as of the fifth Trading Day immediately preceding the Mandatory Conversion Date, in the case of Mandatory Conversion or the Regular Dividend Payment Date in the case of dividends paid on Common Stock or, (b) as of the second Trading Day immediately preceding the effective date of conversion, in the case of an Optional Conversion by a holder or the date of purchase, in the case of a Change in Control. At any time that any shares of Convertible Preferred Stock are represented by depositary shares pursuant to a depositary agreement with the Company, the Company may treat each holder of such depositary shares as a holder of the number (including fractions) of shares of Convertible Preferred Stock represented by the depositary shares of such holder for the purposes of computing the fractional shares of Common Stock otherwise issuable in respect of the conversion or repurchase of any shares of Convertible Preferred Stock or the payment of any dividend. If more than one depositary receipt evidencing shares of Convertible Preferred Stock is surrendered for conversion or tendered for purchase at one time by or for the same holder, the number of shares of Common Stock issuable upon conversion thereof or upon repurchase will be computed on a basis of the aggregate number of depositary receipts evidencing shares of Convertible Preferred Stock so converted or tendered. If more than one depositary receipt evidencing Shares of Convertible Preferred Stock is held by a holder for purposes of determining the amount of dividends such holder is entitled to receive the number of 12 shares of Common Stock issuable as such dividend will be computed on a basis of the aggregate number of depositary receipts evidencing shares so held. On the Mandatory Conversion Date or the date the Company purchases any Convertible Preferred Stock upon a Change in Control, the fractional share of Common Stock that any holder of Convertible Preferred Stock would otherwise be entitled to receive shall be determined by adding all the fractional shares such holder would otherwise be entitled to receive on the mandatory conversion or purchase of all Convertible Preferred Stock held by such holder and on the payment of the regular quarterly dividend on all Convertible Preferred Stock held by such holder. On that date, the Company may, at its option, deliver any resulting whole number of shares in shares of Common Stock and the resulting fraction in cash. In the event that (i) mandatory conversion of Convertible Preferred Stock, (ii) optional conversions of Convertible Preferred Stock, (iii) purchase of Convertible Preferred Stock upon a Change in Control, (iv) depositary's delivery of shares of Common Stock as dividends to the holders of Convertible Preferred Stock or (v) any combination of the foregoing, results in more than one holder of depositary receipts evidencing Convertible Preferred Stock being entitled to cash in lieu of a fractional share on the related date of conversion, purchase or dividend payment, as applicable, the Company will deliver to the holders of Convertible Preferred Stock represented by depositary shares cash in an amount equal to the total amount of cash to which all holders of Convertible Preferred Stock represented by depositary shares are entitled in lieu of fractional shares on such date. (b) If payment in cash in lieu of fractional shares of Common Stock in accordance with the preceding three paragraphs would result in the Company's failure to be in compliance with any debt instrument to which it is a party, the Company shall be entitled to deliver a whole share of Common Stock in lieu of cash to holders of shares of Convertible Preferred Stock (or depositary shares representing shares of Convertible Preferred Stock) entitled to fractional shares of Common Stock (beginning with the holders entitled to the largest fractional shares) until delivery of cash in lieu of fractional shares of Common Stock to the remaining holders would no longer result in the Company's failure to be in compliance with such debt instrument. 6. RESERVATION OF COMMON STOCK. The Company shall at all times reserve and keep available out of its authorized and unissued Common Stock, solely for issuance upon the conversion of shares of Convertible Preferred Stock as herein provided, free from any preemptive rights, such maximum number of shares of Common Stock as shall from time to time be issuable upon the conversion of all the shares of Convertible Preferred Stock then outstanding. 7. CERTAIN DEFINITIONS. As used in this Certificate of Designations: (i) the term "business day" shall mean any day other than a Saturday, a Sunday or a day on which the New York Stock Exchange, Inc. (the "NYSE"), banking institutions or trust companies in New York, New York, are authorized or obligated by law or executive order to close; (ii) the term "Capital Stock" means: (a) in the case of a corporation, corporate stock; (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (c) in the case of a partnership or limited liability company, partnership or membership 13 interests (whether general or limited); and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. (iii) the term "Closing Price" of any security shall mean on any date of determination (i) the closing sale price (or, if no closing sale price is reported, the last reported sale price) of such security (regular way) on the NYSE on such date, (ii) if such security is not listed for trading on the NYSE on any such date, as reported in the composite transactions for the principal United States securities exchange on which such security is so listed, (iii) if such security is not so listed on a United States national or regional securities exchange, as reported by the NASDAQ Stock Market, (iv) if such security is not so reported, the last quoted bid price for such security in the over-the-counter market as reported by the National Quotation Bureau or similar organization, or (v) if such security is not so quoted, the average of the mid-point of the last bid and ask prices for such security from each of at least three nationally recognized investment banking firms selected by the Company for such purpose; (iv) the term "Continuing Directors" means, as of any date of determination, any member of the Board who: (a) was a member of the Board on April 1, 1998 or June 30, 1999; or (b) was nominated for election or elected to the Board with the approval of a majority of the Continuing Directors who were members of the Board at the time of such nomination or election; (v) the term "Conversion Price" shall mean $2,085.00, subject to adjustment from time to time as set forth in Section 4(h); (vi) the term "Dividend Yield" shall mean, with respect to any security for any period, the dividends paid or proposed to be paid pursuant to an announced dividend policy on such security for such period divided by, if with respect to dividends paid on such security, the average Closing Price of such security during such period and, if with respect to dividends so proposed to be paid on such security, the Closing Price of such security on the effective date of the related Reset Transaction; (vii) the term "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock); (viii) the term "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or agency or political subdivision thereof (including any subdivision or ongoing business of any such entity or substantially all of the assets of any such entity, subdivision or business); (ix) the term "record date" shall be such date as is from time to time fixed by the Board with respect to the receipt of dividends or the taking of any action or exercise of any voting rights permitted hereby; (x) the term "Reference Dealer" shall mean a dealer engaged in the trading of convertible securities; 14 (xi) the term "Subsidiary" shall mean, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% (49% in the case of Walibi, S.A.) of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); provided that, notwithstanding the foregoing, each of SFOG A Holdings, SFOG B Holdings, SFOT I Holdings and SFOT II Holdings shall be deemed to be a Subsidiary of the Company for all purposes under this Certificate of Designation so long as (x) the subordinated indemnity agreement and the beneficial share assignment agreement, to each of which the Company is a party, shall each be in full force and effect and no default or event of default shall have occurred thereunder, and (ii) any partnership or limited liability company (a) the sole general partner or the managing general partner (or equivalent) of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof). (xii) the term "Trading Day" shall mean a business day on which the security, the Closing Price of which is being determined, (A) is not suspended from trading on any national or regional securities exchange or association or over-the-counter market at the close of business and (B) has traded at least once on the national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of such security; and (xiii) the term "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person. 8. PAYMENT OF TAXES. The Company shall pay any and all documentary, stamp or similar issue or transfer taxes payable in respect of the issue or delivery of shares of Common Stock on the conversion of shares of Convertible Preferred Stock pursuant to Section 4; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any registration or transfer involved in the issue or delivery of shares of Common Stock in a name other than that of the registered holder of shares of Convertible Preferred Stock converted or to be converted, and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Company the amount of any such tax or has established, to the satisfaction of the Company, that such tax has been paid. 9. LIQUIDATION RIGHTS. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company or a reduction or decrease in the Capital Stock of the Company resulting in a distribution of all or substantially all of the assets of the Company to holders of any class or series of Capital Stock, the holders of outstanding shares of Convertible Preferred Stock are entitled to receive the sum of $2,500.00 per share (the "Liquidation Preference"), plus an amount equal to any accrued and unpaid dividends thereon to the date of such liquidation, dissolution, winding up or reduction or decrease in the Capital Stock of the Company resulting in a distribution of all or substantially all of assets of the Company to holders of any class or series of Capital Stock out of the assets of the Company available for distribution to stockholders, before any distribution of assets is made to holders of Junior Stock, including Common Stock, but after any distributions on any of the Company's indebtedness or shares of Senior Stock. If upon any voluntary or involuntary liquidation, dissolution, winding up of the Company or a reduction or decrease in the Capital Stock of the Company resulting in a distribution of all or substantially all of the assets of the Company to holders of any class or series of Capital Stock, the assets of the Company are insufficient to permit the payment of the full preferential amounts payable with respect to shares of Convertible Preferred Stock and all other series of Parity Stock, the holders of shares of Convertible Preferred Stock and of all other series of Parity Stock shall share equally and ratably in any distribution of assets of the Company in proportion to the full respective preferential amounts including accrued and unpaid dividends to which they are entitled. After payment in full of the liquidation preference and all accrued and unpaid dividends to which holders of Convertible Preferred Stock are entitled, holders will not be entitled to any further participation in distribution of our assets. Neither the voluntary sale, conveyance, exchange or transfer, for cash, shares of stock (other than the Company's Capital Stock), securities or other consideration, of all or substantially all of the Company's property or assets nor the consolidation, merger or amalgamation of the Company with or into any corporation or the consolidation, merger or amalgamation of any corporation with or into the Company will be deemed to be a voluntary or involuntary liquidation, dissolution or winding up of the Company or a reduction or decrease in the Capital Stock of the Company resulting in a distribution of all 15 or substantially all of the assets of the Company to holders of any class or series of Capital Stock. 10. VOTING RIGHTS. The holders of shares of Convertible Preferred Stock shall not be entitled to any voting rights, except as required by applicable state law or as described below: (i) The affirmative vote of the holders of at least a majority of the outstanding shares of Convertible Preferred Stock, voting with holders of shares of all other series of Preferred Stock affected in the same way as a single class, in person or by proxy, at a special or annual meeting called for that purpose, or by written consent in lieu of meeting, will be required to amend, repeal or change any provisions of this Certificate of Designations in any manner which would adversely affect, alter or change the powers, preferences or special rights of the Convertible Preferred Stock and any of those securities affected in the same way. With respect to any matter on which the holders are entitled to vote as a separate class, each share of Convertible Preferred Stock is entitled to 100 votes. (ii) If at any time the equivalent of six quarterly dividends payable on the Convertible Preferred Stock are accrued and unpaid, whether or not consecutive and whether or not declared, the holders of all outstanding Convertible Preferred Stock and any Parity Stock or Senior Stock having similar voting rights then exercisable, voting separately as a single class without regard to series, will be entitled to elect at the next annual meeting of the Company's shareholders two directors to serve until all dividends accumulated and unpaid on any of those voting shares have been paid or declared and funds set aside to provide for payment in full. In exercising the voting rights described in this subsection (ii), each share of Convertible Preferred Stock is entitled to 100 votes. The creation, authorization or issuance of any other class or series of the Company's Capital Stock or the increase or decrease in the amount of authorized Capital Stock of any of those classes or series or of the Convertible Preferred Stock, or any increase, decrease or change in the par value of any class or series of Capital Stock, including the Convertible Preferred Stock, will not require the consent of the holders of the Convertible Preferred Stock and will not be deemed to affect adversely, alter or change the powers, preferences and special rights of the Convertible Preferred Stock. 11. CHANGE IN CONTROL PUT RIGHT. (a) For purposes of this Section 11, "Change in Control" of the Company means the occurrence of any of the following: (i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, to any "person" (as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934 (the "Exchange Act")); (ii) the adoption of a plan relating to the liquidation or dissolution of the Company; (iii) the first day on which a majority of the members of the Board are not Continuing Directors; or (iv) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any "person" becomes the "beneficial owner" (as such terms are defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 35% of the Voting Stock of the Company. (b) If a Change in Control occurs, each holder of Convertible Preferred Stock will have the right to require the Company to purchase all or any part of that holder's 16 Convertible Preferred Stock at a purchase price equal to 100% of the Liquidation Preference, plus all accumulated and unpaid dividends on those shares of Convertible Preferred Stock to the date of purchase. Within 30 days following any Change in Control, the Company will mail a notice to each holder, and in the event any shares of Convertible Preferred Stock are represented by depositary shares, to the holders of record of the depositary receipts evidencing such depositary shares, describing the Change in Control and offer to purchase that holder's Convertible Preferred Stock on the date specified in that notice, which date will be no earlier than 30 days and no later than 60 days from the date the notice is mailed. In connection with a Change in Control, the Company will have the option to pay for shares of Convertible Preferred Stock that have been tendered in shares of Common Stock valued at 95% of the volume-weighted daily trading price for the Common Stock over a 10-day trading period ending one Trading Day prior to the date of purchase; otherwise the Company will pay for tendered shares in cash. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent those laws and regulations are applicable in connection with the purchase of shares of Convertible Preferred Stock as a result of a Change in Control. To the extent that the provisions of any securities laws or regulations conflict with any of the provisions of this Section 11, the Company will comply with the applicable securities laws and regulations and will be deemed not to have breached its obligations under this Section 11. The Company will publicly announce the results of its offer on or as soon as practicable after the payment date for the purchase of the shares of Convertible Preferred Stock in connection with a Change in Control. (c) The rights of the holders of Convertible Preferred Stock described in this Section 11 will be subject to the obligation of the Company to: (i) repay its debt obligations in full under its corporate credit facility; and (ii) repay all of its own and its subsidiaries indebtedness that is tendered for redemption or required to be repaid and outstanding shares of Senior Stock that have been tendered for purchase in connection with a Change in Control. In addition, the right of the holders of Convertible Preferred Stock described in this Section 11 will be subject to the repurchase or repayment of the Company's future indebtedness which the Company is required to repurchase or repay in connection with a Change in Control and the Company's compliance with the restricted payment covenants in its indentures. When the Company has satisfied these obligations, subject to the legal availability of funds for this purpose, it will purchase all shares tendered upon a Change in Control. 12. SEVERABILITY OF PROVISIONS. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof. If a court of competent jurisdiction should determine that a provision hereof would be valid or enforceable if a period of time were extended or shortened or a particular percentage were increased or decreased, then such court may make such change as shall be necessary to render the provision in question effective and valid under applicable law. 17 IN WITNESS WHEREOF, the Company, has caused this Certificate of Designation to be signed by Kieran E. Burke, its Chairman and Chief Executive Officer, and attested by James M. Coughlin, its Assistant Secretary, as of this 23 day of January, 2001. SIX FLAGS, INC. By ____________________________________ Name: Kieran E. Burke Title: Chairman and Chief Executive Officer Attest: By____________________________ Name: James M. Coughlin Title: Assistant Secretary EX-5.1 4 a2036093zex-5_1.txt EXHIBIT 5.1 Exhibit 5.1 January 22, 2001 Six Flags, Inc. 11501 Northeast Expressway, Oklahoma City, Oklahoma 73131 Dear Sirs: I have acted as counsel for Six Flags, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing of a registration statement on Form S-3 (File No. 333-76595) under the Securities Act of 1933, as amended (the "Act"), as filed with the Securities and Exchange Commission (the "Commission") on April 20, 1999, as amended from time to time (the "Registration Statement"), and the Prospectus Supplement dated January 17, 2001 (the "Prospectus Supplement"), in connection with a proposed public offering of: (a) 10,000,000 Preferred Income Equity Redeemable Shares ("PIERS"), each representing one one-hundreth of a share of the Company's 7 1/4% Convertible Preferred Stock, par value $1.00 per share (the "Convertible Preferred Stock"), deposited with The Bank of New York, as depositary, (the "Depositary") for the PIERS; and (b) up to an additional 1,500,000 PIERS subject to an option granted to the underwriters, Lehman Brothers Inc., Allen & Company Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, and Salomon Smith Barney Inc. (the "Underwriters") to cover over-allotments, if any. The sale of the PIERS by the Company are subject to the terms and conditions set forth in an Underwriting Agreement entered into by the Company, Six Flags Operations Inc., Six Flags Theme Parks, Inc. and the Underwriters (the "Underwriting Agreement"). In so acting, I have examined originals or copies (certified or otherwise identified to my satisfaction) of such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such 1 officers and representatives, as I have deemed relevant and necessary as a basis for the opinions hereinafter set forth. In such examination, I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that have not been independently established, I have relied upon the representations and warranties of the Company contained in the Agreement, and certificates or comparable documents of officers and representatives of the Company. I have also assumed the due authorization, execution and delivery of the Deposit Agreement by the Depositary. Based on the foregoing and subject to the qualifications stated herein, I am of the opinion that: 1. The shares of Convertible Preferred Stock to be issued as contemplated by the Agreement and the Deposit Agreement, to be dated as of January 23, 2001, among the Company, The Depositary and all Owners and Holders from time to time of Depositary Receipts (as defined therein) issued thereunder (the "Deposit Agreement"), have been duly authorized and, when issued and delivered to the Depositary in connection with the issuance and sale of the Securities to the Underwriters as contemplated by the Underwriting Agreement and the Deposit Agreement, against payment therefor will be validly issued, fully paid and non-assessable under the laws of the State of Delaware (the jurisdiction in which the Company is incorporated), and such shares of Convertible Preferred Stock will entitle the holders thereof to the benefits in the certificate of designation therefor. 2. When issued under the Deposit Agreement in accordance with the provisions thereof, each share of the PIERS will represent a one one-hundredth interest in a validly issued, outstanding, fully paid and nonassessable share of Convertible Preferred Stock. The PIERS, when issued under the Deposit Agreement in accordance with the provisions thereof, will be validly issued, and, assuming due execution and delivery of the Depositary Receipts relating to the PIERS by the Depositary pursuant to the Deposit Agreement, such Depositary Receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement. The opinions expressed herein are limited to the laws of the State of Delaware, the federal laws of the United States, and I express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction. The opinions expressed herein are rendered solely for your benefit in connection with the transactions described herein. Those opinions may not be used or relied upon by any other person, nor may this letter or any copies thereof be furnished to a third party, filed with a governmental agency, quoted, cited or otherwise referred to 2 without my prior written consent. I hereby consent to the filing of this opinion as Exhibit 5.1 to the 8-K to be filed by the Company on January 23, 2001. Yours truly, /s/ James M. Coughlin James M. Coughlin General Counsel 3 EX-10.1 5 a2036093zex-10_1.txt EXHIBIT 10.1 Exhibit 10.1 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = SIX FLAGS, INC. As Issuer AND THE BANK OF NEW YORK As Depositary AND OWNERS AND HOLDERS OF DEPOSITARY RECEIPTS Deposit Agreement Dated as of January 23, 2001 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = DEPOSIT AGREEMENT DEPOSIT AGREEMENT dated as of January 23, 2001 among SIX FLAGS, INC., incorporated under the laws of Delaware (herein called the "Issuer"), THE BANK OF NEW YORK, a New York banking corporation (herein called the "Depositary"), and all Owners and holders from time to time of Depositary Receipts issued hereunder. W I T N E S S E T H WHEREAS, the Issuer desires to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the Issuer with the Depositary for the purposes set forth in this Deposit Agreement, for the creation of Depositary Shares representing the Shares so deposited and for the execution and delivery of Depositary Receipts evidencing the Depositary Shares; and WHEREAS, the Depositary Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement; NOW, THEREFORE, in consideration of the premises, it is agreed by and among the parties hereto as follows: ARTICLE I DEFINITIONS The following definitions shall for all purposes, unless otherwise clearly indicated, apply to the respective terms used in this Deposit Agreement: SECTION 1.1. DEPOSITARY SHARES. The term "Depositary Shares" shall mean the securities representing the interests in the Deposited Securities and evidenced by the Receipts issued hereunder. Each Depositary Share shall represent 1/100 of a Share and the same proportional interest in any and all other securities, property and cash received by the Depositary in respect thereof and held hereunder, until there shall occur a change in Deposited Securities covered by Section 4.8 with respect to which additional Receipts are not executed and delivered, and thereafter Depositary Shares shall evidence the amount of Shares or Deposited Securities specified in such Section. SECTION 1.2. ARTICLE; SECTION. Wherever references are made in this Deposit Agreement to an "Article" or "Articles" or to a "Section" or "Sections", such references shall mean an article or articles or a section or sections of this Deposit Agreement, unless otherwise required by the context. SECTION 1.3. CERTIFICATE OF DESIGNATION. The term "Certificate of Designation" shall mean the Certificate of Designation dated January 22, 2001 adopted by the Board of Directors of the Issuer establishing and setting forth the rights, preferences, privileges and limitations of the Shares, as the same may be amended from time to time in accordance with the provisions thereof. SECTION 1.4. CLOSING PRICE. The term "Closing Price" of any security shall mean on any date of determination (i) the closing sale price (or, if no closing sale price is reported, the last reported sale price) of such security (regular way) on the New York Stock Exchange (the "NYSE") on such date, (ii) if such security is not listed for trading on the NYSE on any such date, as reported in the composite transactions for the principal United States securities exchange on which such security is so listed, (iii) if such security is not so listed on a United States national or regional securities exchange, as reported by the NASDAQ Stock Market, (iv) if such security is not so reported, the last quoted bid price for such security in the over-the-counter market as reported by the National Quotation Bureau or similar organization, or (v) if such security is not so quoted, the average of the mid-point of the last bid and ask prices for such security from each of at least three nationally recognized investment banking firms selected by the Issuer for such purpose. SECTION 1.5. COMMISSION. The term "Commission" shall mean the Securities and Exchange Commission of the United States or any successor governmental agency in the United States. SECTION 1.6. DEPOSIT AGREEMENT. The term "Deposit Agreement" shall mean this Agreement, as the same may be amended from time to time in accordance with the provisions hereof. SECTION 1.7. DEPOSITARY; CORPORATE TRUST OFFICE. The term "Depositary" shall mean The Bank of New York, a New York banking corporation and any successor as depositary hereunder. The term "Corporate Trust Office", when used with respect to the Depositary, shall mean the office of the Depositary which at the date of this Agreement is 101 Barclay Street, New York, New York, 10286. -2- SECTION 1.8. DEPOSITED SECURITIES. The term "Deposited Securities" as of any time shall mean Shares at such time deposited under this Deposit Agreement and any and all other securities, property and cash received by the Depositary in respect thereof and at such time held hereunder. SECTION 1.9. ISSUER. The term "Issuer" shall mean Six Flags, Inc., incorporated under the laws of Delaware and its successors. SECTION 1.10. OWNER. The term "Owner" shall mean the person in whose name a Receipt is registered on the books of the Depositary maintained for such purpose. SECTION 1.11. RECEIPTS. The term "Receipts" shall mean the Depositary Receipts issued hereunder evidencing Depositary Shares. SECTION 1.12. REGISTRAR. The term "Registrar" shall mean any bank or trust company having an office in the Borough of Manhattan, The City of New York, which shall be appointed to register Receipts and transfers of Receipts as herein provided. SECTION 1.13. SECURITIES ACT OF 1933. The term "Securities Act of 1933" shall mean the United States Securities Act of 1933, as from time to time amended. SECTION 1.14. SHARES. The term "Shares" shall mean the Issuer's 71/4% Convertible Preferred Stock, par value $1.00 per share, heretofore validly issued and outstanding and fully paid, nonassessable and free of any pre-emptive rights of the holders of outstanding capital stock of the Issuer or hereafter validly issued and outstanding and fully paid, nonassessable and free of any pre-emptive rights of the holders of outstanding capital stock of the Issuer or interim certificates representing such Shares. SECTION 1.15. TRADING DAY. The term "Trading Day" shall mean a business day on which the security, the Closing Price of which is being determined, (i) is not suspended from trading on any national or regional securities exchange or association or over-the-counter market at the -3- close of business and (ii) has traded at least once on the national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of such security. ARTICLE II FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS SECTION 2.1. FORM AND TRANSFERABILITY OF RECEIPTS. Definitive Receipts shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized signatory of the Depositary and, if a Registrar for the Receipts shall have been appointed, countersigned by the manual signature of a duly authorized signatory of the Registrar. The Depositary shall maintain books on which each Receipt so executed and delivered as hereinafter provided and the transfer of each such Receipt shall be registered. Receipts bearing the manual or facsimile signature of a duly authorized signatory of the Depositary who was at any time a proper signatory of the Depositary shall bind the Depositary, notwithstanding that such signatory has ceased to hold such office prior to the execution and delivery of such Receipts by the Registrar or did not hold such office on the date of issuance of such Receipts. The Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or modifications not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or regulations thereunder or with the rules and regulations of any securities exchange upon which Depositary Shares may be listed or to indicate any special limitations or restrictions to which any particular Receipts are subject by reason of the date of issuance of the underlying Deposited Securities or otherwise. Title to a Receipt (and to the Depositary Shares evidenced thereby), when properly endorsed or accompanied by proper instruments of transfer, shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that the Depositary, notwithstanding any notice to the contrary, may treat the Owner thereof as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes. -4- SECTION 2.2. DEPOSIT OF SHARES. Subject to the terms and conditions of this Deposit Agreement, Shares may be deposited by delivery thereof by the Issuer to the Depositary on any closing date for the sale of the Depositary Shares representing such Shares to the underwriters in connection with the public offering of such Depositary Shares, accompanied by any appropriate instrument or instruments of transfer, or endorsement, in form satisfactory to the Depositary, together with all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement, and, if the Depositary requires, together with a written order directing the Depositary to execute and deliver to, or upon the written order of, the Issuer, a Receipt or Receipts for the number of Depositary Shares representing such deposit. All Shares so deposited shall be recorded in the name of the Depositary on the books of the Issuer. Deposited Securities shall be held by the Depositary for the account and to the order of the Depositary at its Corporate Trust Office or at such other place or places as the Depositary shall determine. SECTION 2.3. EXECUTION AND DELIVERY OF RECEIPTS. Upon receipt by the Depositary of any deposit pursuant to Section 2.2 hereunder (and in addition, if the transfer books of the Issuer are open, the Depositary may in its sole discretion require a proper acknowledgment or other evidence from the Issuer that any Deposited Securities have been recorded upon the books of the Issuer in the name of the Depositary or its nominee), together with the other documents required as above specified, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver at its Corporate Trust Office, to or upon the written order of the Issuer, a Receipt or Receipts, registered in the name or names and evidencing any authorized number of Depositary Shares deliverable in respect of such deposit requested by the Issuer, but only upon payment to the Depositary of all taxes and governmental charges and stock transfer and registration fees payable in connection with such deposit and the transfer of the Deposited Securities. SECTION 2.4. TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS. The Depositary, subject to the terms and conditions of this Deposit Agreement, shall register transfers of Receipts on its transfer books from time to time, upon any surrender of a Receipt, by the Owner in person or by a duly authorized attorney, properly endorsed or accompanied by proper instruments of transfer, and duly stamped as may be required by the laws of the State of New York and of the United States of America. Thereupon the Depositary shall execute a new Receipt or Receipts and deliver the same to or upon the order of the person entitled thereto. The Depositary, subject to the terms and conditions of this Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose of effecting a -5- split-up or combination of such Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of Depositary Shares requested, evidencing the same aggregate number of Depositary Shares as the Receipt or Receipts surrendered. The Depositary may appoint one or more co-transfer agents for the purpose of effecting transfers, combinations and split-ups of Receipts at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Owners or persons entitled to Receipts and will be entitled to protection and indemnity to the same extent as the Depositary. SECTION 2.5. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES. Upon surrender at the Corporate Trust Office of the Depositary of a Receipt for the purpose of withdrawal of the Deposited Securities (it being understood that, with respect to any withdrawal of Shares, only whole Shares may be withdrawn) represented by the Depositary Shares evidenced by such Receipt, and upon payment of all taxes and governmental charges payable in connection with such surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of this Deposit Agreement, the Owner of such Receipt shall be entitled to delivery, to him or her upon his or her order, of the amount of Deposited Securities at the time represented by the Depositary Shares evidenced by such Receipt. If the Receipts delivered by such Owner evidence a number of Deposited Shares in excess of the number of Deposited Shares representing the number of Shares to be withdrawn, the Depositary will at the same time deliver to such Owner a new Receipt or Receipts evidencing such excess number of Deposited Shares. Delivery of such Deposited Securities may be made by the delivery of (i) certificates for Shares being withdrawn in the name of such Owner or as ordered by him or by certificates for Shares being withdrawn properly endorsed or accompanied by proper instruments of transfer to such Owner or as ordered by him or her and (ii) any other securities, property and cash to which such Owner is then entitled in respect of such Receipt to such Owner or as ordered by him. Such delivery shall be made, as hereinafter provided, without unreasonable delay. A Receipt surrendered for such purposes may be required by the Depositary to be properly endorsed in blank or accompanied by proper instruments of transfer in blank, and if the Depositary so requires, the Owner thereof shall execute and deliver to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be delivered to or upon the written order of a person or persons designated in such order. Thereupon the Depositary shall, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and conditions of this Deposit Agreement, deliver at the Corporate Trust Office to or upon the written order of the person or persons designated in the order delivered to the Depositary as above provided, the amount of Deposited Securities represented by the Depositary Shares evidenced by such Receipt. -6- SECTION 2.6. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS. As a condition precedent to the execution and delivery, registration of transfer, split-up, combination or surrender of any Receipt or withdrawal of any Deposited Securities or the exercise of any conversion right referred to in Section 2.10, the Depositary, any of the Depositary's agents or the Registrar may require any or all of the following: (i) payment to it of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn or with respect to the Common Stock (as defined in Section 2.9) of the Issuer being delivered upon conversion); (ii) the production of proof satisfactory to it as to the identity and genuineness of any signature and (iii) compliance with any regulations the Depositary may establish consistent with the provisions of this Deposit Agreement, including, without limitation, this Section 2.6. The transfer of Receipts in particular instances may be refused or the registration of transfer of outstanding Receipts generally may be suspended, during any period when the transfer books of the Depositary are closed, or if any such action is deemed necessary or advisable by the Depositary or the Issuer at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of this Deposit Agreement, or, with the approval of the Issuer, for any other reason. Notwithstanding any other provision of this Deposit Agreement or the Receipts, the surrender of outstanding Receipts and withdrawal of Deposited Securities may not be suspended subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Issuer or the payment of dividends, (ii) the payment of taxes, stock transfer or registration fees and similar charges, and (iii) compliance with any U.S. laws or governmental regulations relating to the Receipts or to the withdrawal of the Deposited Securities. SECTION 2.7. LOST RECEIPTS, ETC. In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a new Receipt of like tenor in exchange and substitution for such mutilated Receipt upon cancellation thereof, or in lieu of and in substitution for such destroyed, lost or stolen Receipt. Before the Depositary shall execute and deliver a new Receipt in substitution for a destroyed, lost or stolen Receipt, the Owner thereof shall have (i) filed with the Depositary (a) a request for such execution and delivery before the Depositary has notice that the Receipt has been acquired by a bona fide purchaser and (b) a sufficient indemnity bond and (ii) satisfied any other reasonable requirements imposed by the Depositary. -7- SECTION 2.8. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All Receipts surrendered to the Depositary shall be canceled by the Depositary and disposed of by it in accordance with its customary procedures. SECTION 2.9. MANDATORY CONVERSION OF SHARES INTO COMMON STOCK. At any time on or after February 15, 2004, the Company may at its option cause the Depositary Shares, in whole or part from time to time, to be automatically converted into shares of Common Stock. On any such date fixed for mandatory conversion of the Shares by the Issuer (the "Mandatory Conversion Date"), Shares represented by Depositary Shares shall be mandatorily converted, and such Depositary Shares shall be deemed no longer outstanding and all rights of the Owners of the Receipts evidencing such Depositary Shares (except the right to receive (i) the shares of common stock, par value $0.025 per share (the "Common Stock") of the Issuer to which such Owner is entitled upon conversion, (ii) any cash payable with respect to any fractional shares of Common Stock otherwise deliverable by the Depositary upon conversion, (iii) any cash or Common Stock in payment of accrued and unpaid dividends on such Shares as and when paid in accordance with the Certificate of Designation payable to an Owner as of a prior date and (iv) any other securities, property or cash to which such Owner is entitled hereunder) shall cease and terminate. Upon surrender of the Receipts evidencing such Depositary Shares at the Corporate Trust Office or at such office or to such agent of the Depositary as the Depositary may designate for such purpose (properly endorsed or assigned for transfer, as the Depositary or such agent shall so require), such Depositary Shares shall be converted into (i) a number of shares of Common Stock per Depositary Share equal to one one-hundredth of the number (including fractional shares) of shares of Common Stock which each Share converted into at the applicable rate specified in the Certificate of Designation, subject to adjustment as provided in the Certificate of Designation, (ii) cash in lieu of fractional shares of Common Stock otherwise deliverable by the Depositary upon such conversion, calculated in accordance with Section 4.12 hereof, (iii) any cash or Common Stock in payment of accrued and unpaid dividends on such Shares as and when paid in accordance with the Certificate of Designation payable to an Owner as of a prior date and (iv) the right to receive any other securities, property or cash to which Owners are entitled hereunder. On the Mandatory Conversion Date (or such later date as dividends on the Shares subject to conversion are paid as provided below in the case of clause (iii) below), for each Owner of a Receipt or Receipts, the Issuer shall deposit with the Depositary (i) certificates for the number of shares of Common Stock and (ii) the amount of cash in lieu of fractional shares determined as set forth in the preceding paragraph into which the Depositary Shares evidenced by such Receipt or Receipts shall convert on the Mandatory Conversion Date (assuming proper surrender of such Receipt or Receipts to the Depositary or any of its agents) and (iii) any cash or Common Stock in payment of accrued and unpaid dividends on such Shares as and when paid in accordance with the -8- Certificate of Designation. With respect to Owners which hold a Receipt or Receipts evidencing more than one Depositary Share on the Mandatory Conversion Date, the number of shares of Common Stock and the amount of cash in lieu of fractional shares to be deposited by the Issuer with the Depositary on that date shall be computed on the basis of the aggregate number of Depositary Shares evidenced by such Receipt or Receipts. The Depositary shall as promptly as practicable deliver to each Owner of a Receipt or Receipts which properly delivers such Receipt or Receipts to the Depositary or any of its agents certificates for the number of shares of Common Stock and the amount of cash, without interest, to which such Owner is entitled pursuant to the preceding provisions. Pursuant to Section 4.12 hereof, no fractional shares of Common Stock will be delivered by the Depositary in connection with mandatory conversion of Shares represented by Depositary Shares on the Mandatory Conversion Date. SECTION 2.10. OPTIONAL CONVERSION OF SHARES INTO COMMON STOCK. Depositary Shares may be converted in whole or in part, into shares of Common Stock at the option of the Owner at any time prior to August 15, 2009. Subject to the terms and conditions of this Deposit Agreement, an Owner of a Receipt or Receipts evidencing Depositary Shares representing whole or fractional Shares may surrender such Receipt or Receipts at the Corporate Trust Office or at such office or to such agents of the Depositary as the Depositary may designate for such purpose, together with a written notice of conversion duly completed and executed, thereby directing the Depositary or any such agent to instruct the Issuer to cause the conversion (which may include partial conversions) of the number of Shares (which instruction may be given by reference to the number of Depositary Shares representing such Shares) specified in such notice of conversion into shares of Common Stock at the rate specified in the Certificate of Designation, and an assignment of such Receipt or Receipts to the Issuer or in blank, duly completed and executed (and, except as otherwise provided below, if such conversion is to occur after the close of business on a record date for the payment of dividends declared on the Shares and before the opening of business on the next succeeding dividend payment date, payment in cash or Common Stock or both (as the case may be) of an amount equal to the dividend payable on such date on the Shares so converted). Any Owner of a Receipt or Receipts who (or whose transferee) delivers a Receipt or Receipts to the Depositary on a dividend payment record date (established by the Depositary as provided in Section 4.6 hereof) for conversion of such Owner's underlying Shares on the succeeding dividend payment date shall receive the dividend payable with respect to the Depositary Shares evidenced by such Receipt or Receipts and will not be required to include payment of the dividend payable on such date upon delivery of such Receipt or Receipts. To the extent that an Owner delivers to the Depositary for conversion a Receipt or Receipts evidencing Depositary Shares representing Shares which in the aggregate (including fractional Shares) would result in a fractional share of Common Stock being deliverable by the Issuer upon such Shares' -9- conversion at the rate specified in the Certificate of Designation, the Issuer shall deliver to such Owner payment in cash in lieu of such fractional share of Common Stock, calculated in accordance with Section 4.12 hereof. If a Receipt or Receipts evidencing more than one Depositary Share shall be surrendered for conversion of the Shares represented thereby at one time by the same Owner, the number of shares of Common Stock and the amount of cash in lieu of fractional shares deliverable by the Issuer upon such conversion shall be computed on the basis of the aggregate number of Shares (including fractional Shares) represented by Depositary Shares evidenced by the Receipt or Receipts so surrendered. Upon receipt by the Depositary or an agent of the Depositary of a Receipt or Receipts, together with a notice of conversion, duly completed and executed, directing the Depositary or such agent to instruct the Issuer to cause the conversion (which may be a partial conversion) of a specified number of Shares (which instruction may be by reference to the number of Depositary Shares representing such Shares) at the rate specified in the Certificate of Designation, subject to adjustment as provided in the Certificate of Designation and an assignment of such Receipt or Receipts to the Issuer or in blank, duly completed and executed, the Depositary or such agent shall instruct the Issuer, (i) to cause the conversion (which may be a partial conversion) at the rate specified in the Certificate of Designation of the number of Shares represented by the Depositary Shares evidenced by the Receipt or Receipts so surrendered for conversion as specified in the written notice to the Depositary or such agent and (ii) to cause the delivery to the Owner of such Receipt or Receipts of (a) a certificate or certificates evidencing the number of whole shares of Common Stock into which the Shares (including fractional Shares) represented by the Depositary Shares evidenced by such Receipt or Receipts have been converted, (b) the amount of cash to which such Owner is entitled in lieu of fractional shares of Common Stock otherwise deliverable by the Issuer upon such conversion, calculated in accordance with Section 4.12 hereof and (c) any cash or Common Stock in payment of accrued and unpaid dividends on such Shares as and when paid in accordance with the Certificate of Designation. The Issuer shall as promptly as practicable after receipt thereof cause the delivery of the certificate or certificates and cash referred to in (a), (b) and (c) above, and such conversion shall be deemed to have been effected immediately prior to the close of business on the date of such receipt and shall occur at the rate specified in the Certificate of Designation in effect at such time and on such date. Upon such conversion, the Depositary or such agent (i) shall deliver to the Owner a Receipt evidencing the number of Depositary Shares evidenced by the surrendered Receipt or Receipts in excess of the number of Depositary Shares evidenced by such Receipt or Receipts that have been so converted, (ii) shall cancel the Depositary Shares evidenced by Receipts surrendered for conversion and (iii) shall deliver to the Issuer or its transfer agent for the Shares for cancellation the number of Shares (including fractional Shares) represented by the Depositary Shares evidenced by the Receipts so surrendered and so converted. Upon the delivery of the Shares to be canceled due to such conversion by the Depositary or such agent to the Issuer or its transfer agent, the Issuer or its transfer agent shall deliver to the Depositary or such agent, as applicable, a certificate -10- or certificates evidencing the number of Shares, if any, that equals the excess of the number of Shares evidenced by the surrendered certificate over the number of Shares evidenced by that certificate that have been so converted. Depositary Shares converted in connection with conversion of the Shares represented thereby shall only be converted in whole, and not in part. Upon the conversion of any Share for which a notice of conversion has been provided to the Depositary or an agent of the Depositary by the Owner of the Receipt or Receipts evidencing the Depositary Shares representing such Share, dividends shall cease to accrue on the Shares as of the day immediately preceding the date of conversion, such Depositary Shares shall be deemed no longer outstanding, all rights of the Owner of the Receipt or Receipts evidencing such Depositary Shares (except the right to receive (i) the Common Stock to which such Owner is entitled upon conversion, (ii) any cash payable with respect to any fractional shares of Common Stock otherwise deliverable by the Issuer upon conversion, (iii) any Receipts evidencing Depositary Shares representing Shares which were not so converted and (iv) any other securities, property or cash to which such Owner is entitled hereunder) shall cease and terminate, and the Receipt or Receipts evidencing such Depositary Shares shall be cancelled. No fractional shares of Common Stock shall be deliverable by the Issuer upon conversion of the Shares represented by the Depositary Shares. SECTION 2.11. REDEMPTION. On August 15, 2009, the Issuer will be obligated to redeem all outstanding Depositary Shares for cash, upon not less than 30 days nor more than 60 days' prior notice sent by first class mail to each Owner's registered address, in an amount equal to 100% of the aggregate liquidation preference of all Deposited Shares, plus accumulated and unpaid dividends to the date of redemption. SECTION 2.12. CHANGE IN CONTROL PUT RIGHT. For purposes of this section, "Change in Control" of the Issuer means the occurrence of any of the following: - the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any "person" (as such term is used in Section 13(d)(3) of the Exchange Act); - the adoption of a plan relating to the liquidation or dissolution of the Issuer; -11- - the first day on which a majority of the members of the board of directors of the Issuer are not Continuing Directors; or - the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any "person" becomes the "beneficial owner" (as such terms are defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 35% of the Voting Stock of the Issuer. If a Change in Control occurs, each Owner of Depositary Shares will have the right to require the Issuer to purchase all or any part of that Owner's Depositary Shares at a purchase price equal to 100% of the liquidation preference of the Shares representing such Depositary Shares, plus all accumulated and unpaid dividends on those Shares to the date of purchase. Within 30 days following any Change in Control, the Issuer will mail a notice to each Owner describing the Change in Control and offer to purchase that Owner's Depositary Shares on the date specified in that notice, which date will be no earlier than 30 days and no later than 60 days from the date the notice is mailed. In connection with a Change in Control, the Issuer will have the option to pay for Depositary Shares that have been tendered in shares of the Issuer's Common Stock valued at 95% of the volume-weighted daily trading price for the Issuer's Common Stock over the 10-day trading period ending one trading day prior to the date of purchase; otherwise the Issuer will pay for tendered Depositary Shares in cash. The Issuer will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended, and any other securities laws and regulations to the extent those laws and regulations are applicable in connection with the purchase of Depositary Shares as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with any of the provision of this section, the Issuer will comply with the applicable securities laws and regulations and will be deemed not to have breached its obligations under this section. On the date scheduled for payment of the Depositary Shares, the Depositary will, to the extent lawful, accept for payment all Depositary Shares properly tendered. The Depositary will promptly mail or deliver to each Owner of Depositary Shares so tendered the applicable payment for those Depositary Shares, and the Depositary will promptly countersign and mail or deliver, or cause to be transferred, to each Owner new Depositary Shares equal in liquidation preference to any unpurchased portion of the Depositary Shares surrendered, if any. The Issuer will publicly announce the result of its offer on or as soon as practicable after the payment date for the purchase of the Depositary Shares in connection with a Change in Control. The right of the Owners described in this section will be subject to the obligation of the Issuer to: -12- - repay its debt obligations in full under its corporate credit facility; and - repay all of its own and its Subsidiaries indebtedness that is tendered for redemption or required to be repaid and outstanding shares of senior stock that have been tendered for purchase in connection with a Change in Control. In addition, the right of the Owners of Depositary Shares described in this section will be subject to the repurchase or repayment of the Issuer's future indebtedness, which the Issuer is required to repurchase or repay in connection with a Change in Control and its compliance with the restricted payments covenants in its indentures. When the Issuer has satisfied these obligations then, subject to the legal availability of funds for this purpose, it will purchase all Depositary Shares tendered upon a Change in Control. The term "Continuing Directors" means, as of any date of determination, any member of the board of directors of the Issuer who: (i) was a member of such board of directors on April 1, 1998 or June 30, 1999; or (ii) was nominated for election or elected to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination or election. The term "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or agency or political subdivision thereof (including any subdivision or ongoing business of any such entity or substantially all of the assets of any such entity, subdivision or business). The term "Subsidiary" means, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% (49% in the case of Walibi, S.A.) of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); PROVIDED that, notwithstanding the foregoing, each of SFOG A Holdings, SFOG B Holdings, SFOT I Holdings and SFOT II Holdings shall be deemed to be a Subsidiary of the Company for all purposes under this Deposit Agreement so long as (i) the subordinated indemnity agreement to which the Company is a party and the beneficial share assignment agreement to which the Company is a party shall each be in full force and effect and no default or event of default shall have occurred thereunder, and (ii) any partnership or limited liability company (a) the sole general partner or the managing general partner (or equivalent) of which is such Person or a Subsidiary of such Person or -13- (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof). The term "Voting Stock" of any Person as of the any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person. ARTICLE III CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS SECTION 3.1. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any Owner of a Receipt may be required from time to time to file with the Depositary such proof of citizenship or residence, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the registration of transfer of any Receipt or the distribution of any dividend or sale or distribution of rights or of the proceeds thereof or the delivery of any Deposited Securities or the exercise of any conversion right referred to in Section 2.9 or 2.10 or the delivery of any Common Stock upon such conversion or the payment of any redemption or purchase amounts referred to in Section 2.11 or 2.12 until such proof or other information is filed or such certificates are executed or such representations and warranties made. SECTION 3.2. LIABILITY OF OWNER FOR TAXES. If any tax or other governmental charge shall become payable with respect to any Receipt or any Deposited Securities represented by Depositary Shares evidenced by any Receipt or with respect to any conversion right referred to in Section 2.9 or 2.10, such tax or other governmental charge shall be payable by the Owner of such Receipt to the Depositary. The Depositary may refuse to effect any transfer of such Receipt or any withdrawal of Deposited Securities represented by Depositary Shares evidenced by such Receipt or any such conversion or payment of redemption or purchase amounts until such payment is made, and may withhold any dividends or other distributions or payments, or may sell for the account of the Owner thereof any part or all of the Deposited Securities represented by the Depositary Shares evidenced by such Receipt, and may apply such dividends or other distributions or the proceeds of any such sale in payment of such tax or other governmental charge and the Owner of such Receipt shall remain liable for any deficiency. SECTION 3.3. WARRANTIES ON DEPOSIT OF SHARES. The Issuer, upon depositing Shares under this Deposit Agreement, shall be deemed thereby to represent and warrant that such Shares and each certificate therefor are -14- validly issued, fully paid, nonassessable and free of any pre-emptive rights of the holders of outstanding capital stock of the Issuer and that the person making such deposit is duly authorized so to do. The Issuer shall also be deemed to represent that the deposit of such Shares and the sale of Receipts evidencing Depositary Shares representing Shares by the Issuer are not restricted under the Securities Act of 1933. Such representations and warranties shall survive the deposit of Shares and issuance of Receipts. SECTION 3.4. TRANSFERS, SPLIT-UPS AND COMBINATION OF SHARES. The transfer of Shares is registrable on the books of the Depositary at its Corporate Trust Office by the Owner hereof in person or by a duly authorized attorney, upon surrender of Shares properly endorsed for transfer or accompanied by proper instruments of transfer and funds sufficient to pay any applicable transfer taxes and upon compliance with such regulations, if any, as the Depositary may establish for such purpose. With the approval of the Issuer, the transfer of Shares in particular instances may be refused, or the registration of transfer of outstanding Shares generally may be suspended, for any reason, and such transfer and registration may also be refused or suspended in certain circumstances described in the Deposit Agreement. The Shares may be split into other such Shares, or may be combined with other such Shares into one Share, evidencing the same aggregate number of Shares as the Shares surrendered. ARTICLE IV THE DEPOSITED SECURITIES SECTION 4.1. CASH DISTRIBUTIONS. Whenever the Depositary shall receive any cash dividend or other cash distribution on any Deposited Securities (other than cash dividends or cash distributions paid by the Issuer to the Depositary in lieu of fractional shares of Common Stock otherwise deliverable by the Issuer upon conversion of the Depositary Shares or purchase of the Depositary Shares upon a Change in Control), the Depositary shall distribute the dividend or distribution thus received to the Owners entitled thereto, in proportion, insofar as practicable, to the number of Depositary Shares representing such Deposited Securities held by them respectively. In the event that the Issuer or the Depositary shall be required to withhold and does withhold from any such cash dividend or such other cash distribution an amount on account of taxes, the amount distributed to the Owner of the Receipts evidencing Depositary Shares representing such Deposited Securities shall be reduced accordingly. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Owner a fraction of one cent. Any such fractional amounts shall be rounded to the nearest whole cent and so distributed to Owners entitled thereto. The Depositary will forward to the Issuer or its agent such information from its records as the Issuer may reasonably request to enable the Issuer or its agent to file necessary reports with governmental agencies. The Depositary will -15- distribute cash dividends to any Owner on the basis of such Owner's aggregate record holdings of Depositary Shares. SECTION 4.2. REGULAR SHARE DIVIDENDS PAYABLE IN COMMON STOCK. Pursuant to and subject to the terms of the Certificate of Designation, the Issuer may pay dividends (in whole or in part) on the Shares through the delivery of shares of Common Stock, so long as shares of Common Stock delivered in payment of a dividend are delivered on the regular dividend payment date (as set forth in the Certificate of Designation) for such dividend. Dividends paid by the Issuer on Shares represented by Depositary Shares shall be paid to the Depositary, as record holder of such Shares (assuming the Depositary was also the record holder for such Shares on the related record date for such dividend payment). The Depositary shall distribute, on the related regular dividend payment date, shares of Common Stock paid to it by the Issuer as dividends on the Shares to persons who were Owners on the related record date for such dividend, as established by the Depositary in accordance with Section 4.6 hereof. The Depositary shall distribute to, each such Owner on such date, for each Depositary Share evidenced by a Receipt or Receipts held by such Owner on the related record date for such dividend (it being understood that the number of fractional shares of Common Stock to which such Owner is entitled with respect to such dividend shall be determined on the basis of its aggregate holdings of such Depositary Shares), (i) a number of shares (subject to clause (ii) of this sentence) of Common Stock equal to one-one hundredth of the number of shares of Common Stock (including fractional shares) payable per Share in payment of the related dividend as determined pursuant to the Certificate of Designation and (ii) the amount of cash to which such Owner is entitled in lieu of fractional shares of Common Stock otherwise distributable by the Depositary under clause (i), calculated in accordance with Section 4.12 hereof. The Issuer shall deposit with the Depositary, on or prior to the regular dividend payment date (as set forth in the Certificate of Designation) for any dividend which the Issuer has elected to pay in whole or in part in shares of Common Stock, for each Owner which held a Receipt or Receipts on the related record date for such dividend as established by the Depositary, (i) certificates for the number of shares of Common Stock and (ii) the amount of cash in lieu of fractional shares to which such Owner is entitled pursuant to the preceding sentence. No fractional shares of Common Stock will be delivered by the Depositary to persons who were Owners on the related record date for a dividend on the Shares in connection with the Depositary's distribution of a dividend on the Shares paid by the Issuer to it in shares of Common Stock. SECTION 4.3. DISTRIBUTIONS OTHER THAN CASH, SHARE DIVIDENDS PAID IN COMMON STOCK, SHARES OR RIGHTS. Subject to the provisions of Section 4.8, whenever the Depositary shall receive any distribution other than a distribution described in Sections 4.1, 4.2, 4.4 or 4.5, the Depositary shall cause the securities or property received by it to be distributed to the -16- Owners entitled thereto, in proportion to the number of Depositary Shares representing Deposited Securities held by them respectively, in any manner that the Depositary may, with the consent of the Issuer, not to be unreasonably withheld, deem equitable and practicable for accomplishing such distribution; provided, however, that if in the opinion of the Depositary such distribution cannot be made proportionately among the Owners entitled thereto, or if for any other reason (including, but not limited to, any requirement that the Issuer or the Depositary withhold an amount on account of taxes or other governmental charges or that such securities must be registered under the Securities Act of 1933 in order to be distributed to Owners or holders) the Depositary deems such distribution not to be feasible, the Depositary may, with the approval of the Issuer, adopt such method as it may deem equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the public or private sale of the securities or property thus received, or any part thereof, and the net proceeds of any such sale shall be distributed by the Depositary to the Owners entitled thereto as in the case of a distribution received in cash pursuant to Section 4.1. SECTION 4.4. DISTRIBUTIONS IN SHARES. If any distribution upon any Deposited Securities consists of a dividend in, or free distribution of, Shares, the Depositary may, and shall if the Issuer shall so request, distribute to the Owners of outstanding Receipts entitled thereto, in proportion to the number of Depositary Shares representing such Deposited Securities held by them respectively, additional Receipts evidencing an aggregate number of Depositary Shares representing the amount of Shares received as such dividend or free distribution, subject to the terms and conditions of the Deposit Agreement with respect to the deposit of Shares and the issuance of Depositary Shares evidenced by Receipts, including the withholding of any tax or other governmental charge as provided in Section 4.11. In lieu of delivering Receipts for fractional Depositary Shares in any such case, the Depositary shall sell the amount of Shares represented by the aggregate of such fractions and distribute the net proceeds, all in the manner and subject to the conditions described in Section 4.1, or, if the Depositary deems such sale and distribution not feasible, the Depositary may, with the approval of the Issuer, adopt such method as it shall deem equitable and practicable in substitution for delivering Receipts for fractional Depositary Shares. SECTION 4.5. RIGHTS. In the event that the Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds -17- available to such Owners or, if by the terms of such rights offering or for any other reason, the Depositary may not either make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate. In circumstances in which rights would otherwise not be distributed, if an owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the Depositary Shares of such Owner hereunder, the Depositary will make such rights available to such Owner upon written notice from the Issuer to the Depositary that (i) the Issuer has elected in its sole discretion to permit such rights to be exercised and (ii) such Owner has executed such documents as the Issuer has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to purchase Shares to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary shall cause the Shares so purchased to be deposited pursuant to Section 2.2 of this Deposit Agreement, and shall, pursuant to Section 2.3 of this Deposit Agreement, execute and deliver Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this section, such Receipts shall be legended in accordance with applicable U.S. laws, and shall be subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under such laws. If the Depositary determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, it may sell the rights, warrants or other instruments in proportion to the number of Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise. -18- The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to Owners or are registered under the provisions of such Act. If an Owner of Receipts requests distribution of warrants or other instruments, notwithstanding that there has been no such registration under such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Issuer upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any owner in particular. SECTION 4.6. FIXING OF RECORD DATE. Whenever any cash dividend or other cash distribution or any dividend to be paid by the Issuer in shares of Common Stock shall become payable or any distribution other than cash shall be made, or whenever any rights, preferences or privileges shall be offered or issued with respect to the Deposited Securities, or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each Depositary Share, or whenever the Depositary shall receive notice of any meeting at which holders of Shares are entitled to vote or of which holders of Shares are entitled to notice, the Depositary shall fix a record date (which shall be the same date as the record date fixed by the Issuer in respect of the Shares) (i) for the determination of the Owners who shall be (a) entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof or (b) entitled to give instructions for the exercise of voting rights at any such meeting, or (ii) on or after which each Depositary Share will represent the changed number of Shares. SECTION 4.7. VOTING OF DEPOSITED SECURITIES. Upon receipt of notice of any meeting at which the holders of Shares are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the Owners a notice, which shall be provided by the Issuer and which shall contain (i) such information as is contained in such notice of meeting, and (ii) a statement that the Owners as of the close of business on a specified record date fixed pursuant to Section 4.6 shall be entitled, subject to any applicable provision of law, the Restated Certificate of Incorporation or the by-laws of the Issuer, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares or other Deposited Securities represented by their respective Depositary Shares and (iii) a statement as to the manner in which such instructions may be given. Upon the written request of an Owner on such record date, the Depositary shall endeavor, in so far as practicable, to vote or cause to be voted the amount of Shares or other Deposited Securities represented by the Depositary -19- Shares evidenced by such Receipt in accordance with the instructions set forth in such request. The Issuer hereby agrees to take all reasonable action that may be deemed necessary by the Depositary in order to enable the Depositary to vote such Shares or cause such Shares to be voted. In the absence of specific instructions from the Owner of a Receipt, the Depositary will abstain from voting to the extent of the Shares represented by the Depositary Shares evidenced by such Receipt. SECTION 4.8. CHANGES AFFECTING DEPOSITED SECURITIES. In circumstances where the provisions of Section 4.3 do not apply, upon any change in nominal value, change in par value, split-up, consolidation or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger or consolidation or sale of assets affecting the Issuer or to which it is a party, any securities which shall be received by the Depositary in exchange for or in conversion of or in respect of Deposited Securities shall be treated as new Deposited Securities under this Deposit Agreement, and Depositary Shares evidenced by Receipts then outstanding shall thenceforth represent the proportionate interest of Owners thereof in the new Deposited Securities so received in exchange or conversion, unless additional Receipts are delivered pursuant to the following sentence. In any such case the Depositary may, and shall if the Issuer shall so request, execute and deliver additional Receipts as in the case of a dividend in Shares, or call for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing such new Deposited Securities. SECTION 4.9. REPORTS. The Depositary shall make available for inspection by Owners at its Corporate Trust Office any reports and communications, including any proxy soliciting material, received from the Issuer which are both (i) received by the Depositary as the holder of the Deposited Securities and (ii) made generally available to the holders of such Deposited Securities by the Issuer. The Issuer agrees that it shall deliver to the Depositary, and the Depositary shall, promptly after receipt thereof, transmit to the Owners of the Receipts, in each case at the address recorded in the Depositary's books, copies of all notices and reports (including financial statements) required by law, by the rules of any national securities exchange upon which the Depositary Shares are listed or by the Restated Certificate of Incorporation or the Certificate of Designation to be furnished by the Issuer to holders of Shares. Such transmission shall be at the Issuer's expense and the Issuer shall provide the Depositary with such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the Owners of Receipts at the Issuer's expense such other documents as may be requested by the Issuer. SECTION 4.10. LISTS OF OWNERS. Promptly upon request by the Issuer, the Depositary shall, at the expense of the Issuer, furnish to it a list, as of a recent date, of the names, addresses and holdings -20- of Depositary Shares by all persons in whose names Receipts are registered on the books of the Depositary. SECTION 4.11. WITHHOLDING. In the event that the Depositary determines that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary deems necessary and practicable to pay any such taxes or charges and the Depositary shall distribute the net proceeds of any such sale after deduction of such taxes or charges to the Owners entitled thereto. SECTION 4.12. FRACTIONAL SHARES. No fractional shares of Common Stock will be delivered by the Issuer or the Depositary, as applicable, to the Owners of Receipts upon mandatory or optional conversion into shares of Common Stock, upon a Change in Control or for payment of dividends in Common Stock or any combination of the above. In lieu of any fractional share otherwise deliverable in respect of the aggregate number of Depositary Shares evidenced by a Receipt or Receipts of any Owner that are converted upon mandatory conversion, such Owner shall be entitled to receive an amount in cash equal to the same fraction of the Closing Price (as defined in Section 1.1 hereof) of the Common Stock as of the fifth Trading Day (as defined in Section 1.1 hereof) immediately preceding the Mandatory Conversion Date. In lieu of any fractional share otherwise deliverable in respect of the aggregate number of Shares represented by Depositary Shares evidenced by a Receipt or Receipts of any Owner that are converted upon any optional conversion or upon a Change in Control, such Owner shall be entitled to receive an amount in cash equal to the same fraction of the Closing Price of the Common Stock as of the second Trading Day immediately preceding the effective date of conversion or the date of purchase in the case of a Change in Control. If a Receipt or Receipts evidencing more than one Depositary Share are surrendered for conversion at one time by or for the same Owner, the number of shares of Common Stock and the amount of cash in lieu of fractional shares deliverable upon conversion shall be computed on the basis of the aggregate number of Depositary Shares evidenced by the Receipt or Receipts so surrendered. No fractional shares of Common Stock will be delivered by the Depositary to persons who were Owners on the related record date for a dividend on the Shares in connection with the Depositary's distribution of a dividend on the Shares paid by the -21- Issuer to it in shares of Common Stock. In lieu of any fractional share otherwise so deliverable, such Owners shall be entitled to receive an amount in cash equal to the same fraction of the Closing Price of the Common Stock determined as of the fifth Trading Day immediately preceding the dividend payment date. On the Mandatory Conversion Date or the date the Issuer purchases any Depositary Shares upon a Change in Control, the fractional share of Common Stock that any Owner would otherwise be entitled to receive shall be determined by adding all the fractional shares such Owner would be entitled to receive (i) on the mandatory conversion or purchase of all Depositary Shares evidenced by Receipts held by such Owner and (ii) on the payment of the regular quarterly dividend on all Depositary Shares evidenced by Receipts held by such Owner at the related record date. On the Mandatory Conversion Date, the Issuer may, at its option, deliver any whole number of shares of Common Stock resulting from the addition of fractional shares resulting from (i) and (ii) above in shares of Common Stock and any remaining fractional shares in cash beginning with holders entitled to the largest fractional shares. In the event that (i) mandatory conversions of the Depositary Shares, (ii) optional conversions of the Depositary Shares, (iii) purchases of Depositary Shares upon a Change in Control, (iv) Depositary deliveries of shares of Common Stock as dividends on the Depositary Shares or (v) the combination of any of the foregoing result in any Owner of Receipts evidencing Depositary Shares being entitled to cash in lieu of a fractional share on the related date of conversion, purchase or dividend payment date, as applicable, the Issuer will deliver (either directly or through the Depositary, as applicable) to all such Owners cash in an amount equal to the total amount of cash to which all such Owners of Receipts are entitled in lieu of fractional shares on such date. If payment in cash in lieu of fractional shares of Common Stock in accordance with the preceding six paragraphs would result in the Issuer's failure to be in compliance with any debt instrument to which it is a party, the Issuer shall be entitled to deliver (either directly or through the Depositary, as applicable) a whole share of Common Stock in lieu of cash to Owners entitled to fractional shares of Common Stock (beginning with the Owners entitled to the largest fractional shares) until delivery of cash in lieu of fractional shares of Common Stock to the remaining Owners would no longer result in the Issuer's failure to be in compliance with such debt instrument. ARTICLE V THE DEPOSITARY AND THE ISSUER SECTION 5.1. MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY. Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall maintain in the Borough of Manhattan, The City of New York, -22- facilities for the execution and delivery, registration, registration of transfers and surrender of Receipts in accordance with the provisions of this Deposit Agreement. The Depositary shall keep books for the registration of Receipts and transfers of Receipts which at all reasonable times shall be open for inspection by the Owners, provided that such inspection shall not be for the purpose of communicating with Owners in the interest of a business or object other than the business of the Issuer or a matter related to this Deposit Agreement or the Receipts. The Depositary may close the transfer books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder. If any Receipts or the Depositary Shares evidenced thereby are listed on one or more stock exchanges in the United States, the Depositary shall act as Registrar or appoint a Registrar or one or more co-registrars for registry of such Receipts in accordance with any requirements of such exchange or exchanges. SECTION 5.2. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR THE ISSUER. Neither the Depositary nor the Issuer shall incur any liability to any Owner or holder of any Receipt, if by reason of any provision of any present or future law or regulation of the United States or of any governmental or regulatory authority or stock exchange, or by reason of any provision, present or future, of the Restated Certificate of Incorporation or by-laws of the Issuer, or by reason of any act of God or war or other circumstances beyond its control, the Depositary or the Issuer shall be prevented or forbidden from, or be subject to any civil or criminal penalty on account of, doing or performing any act or thing which by the terms of this Deposit Agreement it is provided shall be done or performed; nor shall the Depositary or the Issuer incur any liability to any Owner or holder of any Receipt by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing which by the terms of this Deposit Agreement it is provided shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement. Where, by the terms of a distribution pursuant to Sections 4.1, 4.3, or 4.4 of this Deposit Agreement, or an offering or distribution pursuant to Section 4.5 of this Deposit Agreement, or for any other reason, such distribution or offering may not be made available to Owners, and the Depositary may not dispose of such distribution or offering on behalf of such Owners and make the net proceeds available to such Owners, then the Depositary shall not make such distribution or offering, and shall allow any rights, if applicable, to lapse. -23- SECTION 5.3. OBLIGATIONS OF THE DEPOSITARY AND THE ISSUER. The Issuer assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to Owners or holders of Receipts except that it agrees to perform its obligations specifically set forth herein without gross negligence or willful misconduct. The Depositary assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to any Owner or holder of any Receipt (including, without limitation, liability with respect to the validity or worth of the Deposited Securities), except that it agrees to perform its obligations specifically set forth in this Deposit Agreement without gross negligence or willful misconduct. Neither the Depositary nor the Issuer shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability shall be furnished as often as may be required. Neither the Depositary nor the Issuer shall be liable for any action or nonaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Owner or any other person believed by it in good faith to be competent to give such advice or information. The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without gross negligence or willful misconduct while it acted as Depositary. The Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any such vote is cast or the effect of any such vote, provided that any such action or nonaction is in good faith. The Depositary may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys or independent contractors and the Depositary will not be responsible for any misconduct or negligence on the part of any agent, attorney or independent contractor appointed with due care by it hereunder and exercising the care required of the Depositary hereunder. The rights, privileges, protections, immunities and benefits given to the Depositary, including, without limitation, its right to be indemnified, are extended to, and -24- shall be enforceable by, the Depositary, and each agent, custodian and other person employed to act hereunder. No disclaimer of liability under the Securities Act of 1933 is intended by any provision of this Deposit Agreement. SECTION 5.4. RESIGNATION AND REMOVAL OF THE DEPOSITARY. The Depositary may at any time resign as Depositary hereunder by written notice of its election so to do delivered to the Issuer, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. The Depositary may at any time be removed by the Issuer by written notice of such removal effective upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. If the instrument of acceptance by the successor depositary required by this Section shall not have been delivered to the Depositary within 50 days after the giving of such notice of resignation or removal, the Depositary may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Depositary with respect to the Receipts. In case at any time the Depositary acting hereunder shall resign or be removed, the Issuer shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, The City of New York and having a combined capital and surplus of at least $50,000,000. Every successor depositary shall execute and deliver to its predecessor and to the Issuer an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor; but such predecessor, nevertheless, upon payment of all sums due it and on the written request of the Issuer shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Deposited Securities to such successor, and shall deliver to such successor a list of the Owners of all outstanding Receipts. Any such successor depositary shall promptly mail notice of its appointment to the Owners. Any corporation into or with which the Depositary may be merged or consolidated or to which the Depositary shall sell all or substantially all of its corporate trust or stock transfer business shall be the successor of the Depositary without the execution or filing of any document or any further act. -25- SECTION 5.5. DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC. The Issuer agrees that in the event of any issuance or distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities convertible into Shares, or (4) rights to subscribe for such securities, (each a "Distribution"), the Issuer will promptly furnish to the Depositary a written opinion from U.S. counsel for the Issuer, which counsel shall be reasonably satisfactory to the Depositary, stating whether or not the Distribution requires a Registration Statement under the Securities Act of 1933 to be in effect prior to making such Distribution available to Owners entitled thereto. If in the opinion of such counsel a Registration Statement is required, such counsel shall furnish to the Depositary a written opinion as to whether or not there is a Registration Statement in effect which will cover such Distribution. SECTION 5.6. INDEMNIFICATION. The Issuer agrees to indemnify the Depositary, its directors, employees, agents and affiliates, and hold each of them harmless from, any liability or expense (including, but not limited to, the fees and expenses of counsel) which may arise out of acts performed or omitted, in accordance with the provisions of this Deposit Agreement and of the Receipts, as the same may be amended, modified or supplemented from time to time, (i) by the Depositary or its directors, employees, agents and affiliates, except for any liability or expense arising out of the gross negligence or willful misconduct of either of them, or (ii) by the Issuer or any of its directors, employees, agents and affiliates. The provisions of this Section shall survive the termination of this Deposit Agreement. SECTION 5.7. CHARGES OF DEPOSITARY. No fees, charges and expenses of the Depositary or any agent of the Depositary hereunder or of any Registrar shall be payable by any person other than the Issuer, except for any taxes (including transfer taxes, if any) and other governmental charges and except as provided in this Deposit Agreement. All other fees, charges and expenses of the Depositary and any agent of the Depositary hereunder and of any Registrar incident to the performance of their respective obligations hereunder shall be paid upon consultation and agreement between the Depositary and the Issuer as to the amount and nature of such fees, charges and expenses. The Depositary shall present its statement for fees, charges and expenses to the Issuer once every month or at such other intervals as the Issuer and the Depositary may agree. The provisions of this Section shall survive the termination of this Deposit Agreement. The Depositary may own and deal in any class of securities of the Issuer and its affiliates and in Receipts. -26- SECTION 5.8. RETENTION OF DEPOSITARY DOCUMENTS. The Depositary is authorized to destroy those documents, records, bills and other data compiled during the term of this Deposit Agreement at the times permitted by the laws or regulations governing the Depositary unless the Issuer requests that such papers be retained for a longer period or turned over to the Issuer or to a successor depositary. SECTION 5.9. EXCLUSIVITY. The Issuer agrees not to appoint any other depositary for issuance of Depositary Receipts so long as The Bank of New York is acting as Depositary hereunder. SECTION 5.10. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF RECEIPTS. The recitals contained herein and in the Receipts, except the Depositary's execution of the Receipts, may be taken as the statements of the Issuer, and the Depositary does not assume any responsibility for their correctness. The Depositary makes no representations as to the validity or sufficiency of this Deposit Agreement or of the Receipts. The Depositary will not be accountable for the use or application by the Issuer of Receipts or the proceeds thereof. ARTICLE VI AMENDMENT AND TERMINATION SECTION 6.1. AMENDMENT. The form of the Receipts and any provision of this Deposit Agreement may at any time and from time to time be amended by agreement between the Issuer and the Depositary in any respect that they may deem necessary or desirable. Any amendment that shall impose any fees, taxes or charges (other than taxes and other governmental charges, fees and expenses provided for herein or in the Receipts), or that shall otherwise prejudice any substantial existing right of Owners of Receipts, shall not become effective as to outstanding Receipts until the expiration of 90 days after notice of such amendment shall have been given to the Owners of outstanding Receipts. Every Owner of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby. In no event shall any amendment impair the right, subject to the provisions of this Deposit Agreement, of any Owner to surrender any Receipt or Receipts evidencing Depositary Shares representing Shares with instructions to the Depositary or an applicable agent of the Depositary to deliver to the Owner such Shares or to cause the conversion of such Shares into Common Stock and cash for fractional shares of Common Stock and, in each case, all money and other -27- property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law. SECTION 6.2. TERMINATION. This Deposit Agreement shall terminate at the close of business on the earliest of (a) the Mandatory Conversion Date (provided all then outstanding Depositary Shares are converted) or the first date on which all the Depositary Shares shall have been converted into shares of Common Stock pursuant to Section 2.10, in each case upon distribution by the Depositary to each Owner entitled thereto of (i) shares of Common Stock and cash (whether in lieu of fractional shares or otherwise) received by the Depositary from the Issuer for mandatory conversion of, and/or dividend payments on, the Depositary Shares evidenced by the Receipt or Receipts held by such Owner and (ii) all other securities, property and cash then held by the Depositary hereunder, (b) the date the Issuer purchases all the outstanding Depositary Shares upon a Change in Control pursuant to Section 2.12 upon distribution by the Depositary to each Owner entitled thereto of the cash or Common Stock such Owner is entitled to pursuant to this Agreement, (c) the date the Issuer redeems all the outstanding Depositary Shares pursuant to Section 2.11 upon distribution by the Depositary to each Owner entitled thereto of the cash such Owner is entitled thereto pursuant to this Agreement and (d) the first date for any of the foregoing reasons (or combinations thereof) there shall be no Depositary Shares outstanding. If any Receipts shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue the registration of transfers of Receipts, shall suspend the distribution of dividends to the Owners thereof, and shall not give any further notices or perform any further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Deposited Securities, shall sell rights as provided in this Deposit Agreement, and shall continue to deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights or other property, in exchange for Receipts surrendered to the Depositary (after deducting, in each case, any applicable taxes or governmental charges). At any time after the expiration of one year from the date of termination, the Depositary may sell the Deposited Securities then held hereunder and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it hereunder, unsegregated and without liability for interest, for the pro rata benefit of the Owners of Receipts which have not theretofore been surrendered, such Owners thereupon becoming general creditors of the Depositary with respect to such net proceeds. After making such sale, the Depositary shall be discharged from all obligations under this Deposit Agreement, except to account for such net proceeds and other cash (after deducting, in each case, any applicable taxes or governmental charges). Upon the termination of this Deposit Agreement, the Issuer shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary under Sections 5.6 and 5.7 hereof. -28- ARTICLE VII MISCELLANEOUS SECTION 7.1. COUNTERPARTS. This Deposit Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of such counterparts shall constitute one and the same instrument. Copies of this Deposit Agreement shall be filed with the Depositary and shall be open to inspection by any holder or Owner of a Receipt during business hours. SECTION 7.2. NO THIRD PARTY BENEFICIARIES. This Deposit Agreement is for the exclusive benefit of the parties hereto and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever to any other person. SECTION 7.3. SEVERABILITY. In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. SECTION 7.4. HOLDERS AND OWNERS AS PARTIES; BINDING EFFECT. The holders and Owners of Receipts from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance thereof. SECTION 7.5. NOTICES. Any and all notices to be given to the Issuer shall be deemed to have been duly given if in English and personally delivered or sent by mail or facsimile transmission confirmed by letter, addressed to Mr. Kieran E. Burke, Six Flags, Inc., 122 East 42nd Street, 49th Floor, New York, NY 10168 (facsimile: 212-949-6203) or any other place to which the Issuer may have transferred its principal office. -29- Any and all notices to be given to the Depositary shall be deemed to have been duly given if in English and personally delivered or sent by mail or facsimile transmission confirmed by letter, addressed to The Bank of New York, 101 Barclay Street, New York, New York 10286, Attention: Stock Transfer Administration, or any other place to which the Depositary may have transferred its Corporate Trust Office. Any and all notices to be given to any Owner shall be deemed to have been duly given if personally delivered or sent by mail or facsimile transmission confirmed by letter, addressed to such Owner at the address of such Owner as it appears on the transfer books for Receipts of the Depositary, or, if such Owner shall have filed with the Depositary a written request that notices intended for such Owner be mailed to some other address, at the address designated in such request. Delivery of a notice sent by mail or facsimile transmission shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a facsimile transmission) is deposited, postage prepaid, in a post-office letter box. The Depositary or the Issuer may, however, act upon any facsimile transmission received by it, notwithstanding that such facsimile transmission shall not subsequently be confirmed by letter as aforesaid. SECTION 7.6. GOVERNING LAW. This Deposit Agreement and the Receipts shall be interpreted and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by the laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. -30- IN WITNESS WHEREOF, SIX FLAGS, INC. and THE BANK OF NEW YORK have duly executed this agreement as of the day and year first set forth above and all Owners shall become parties hereto upon acceptance by them of Receipts issued in accordance with the terms hereof. SIX FLAGS, INC., as Issuer By: -------------------------------- Name: Title: THE BANK OF NEW YORK, as Depositary By: -------------------------------- Name: Title: -31- Exhibit A to Deposit Agreement N0. 11,500,000 ------------------------ DEPOSITARY SHARES (Each Depositary Share represents 1/100 of a deposited Share) THE BANK OF NEW YORK DEPOSITARY RECEIPT FOR 11,500,000 SHARES OF THE 7-1/4% CONVERTIBLE PREFERRED STOCK, PAR VALUE $1.00 PER SHARE, OF SIX FLAGS, INC. (INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE) The Bank of New York as depositary (hereinafter called the "Depositary"), hereby certifies that __________________________________, or registered assigns IS THE OWNER OF________________________________________ DEPOSITARY SHARES representing interests in deposited shares of 71/4% Convertible Preferred Stock, par value $1.00 per share (herein called "Shares"), of Six Flags, Inc., incorporated under the laws of the State of Delaware (herein called the "Issuer"). At the date hereof, each Depositary Share represents 1/100 of a Share which is deposited under the deposit agreement at the Corporate Trust Office of the Depositary. THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS 101 BARCLAY STREET, NEW YORK, N.Y. 10286 1. THE DEPOSIT AGREEMENT. This Depositary Receipt is one of an issue (herein called "Receipts"), all issued and to be issued upon the terms and conditions set forth in the deposit agreement, dated as of January 23, 2001 (herein called the "Deposit Agreement"), by and among the Issuer, the Depositary, and all Owners and holders from time to time of Receipts issued thereunder, each of whom by accepting a Receipt agrees to become a party thereto and become bound by all the terms and conditions thereof. The Deposit Agreement sets forth the rights of Owners and holders of the Receipts and the rights and duties of the Depositary in respect of the Shares deposited thereunder and any and all other securities, property and cash from time to time received in respect of such Shares and held thereunder (such Shares, securities, property, and cash are herein called "Deposited Securities"). Copies of the Deposit Agreement are on file at the Depositary's Corporate Trust Office in New York City. The statements made on the face and reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of the Deposit Agreement, to which reference is hereby made. Capitalized terms not defined herein shall have the meanings set forth in the Deposit Agreement. 2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES. Upon surrender at the Corporate Trust Office of the Depositary of a Receipt for the purpose of withdrawal of the Deposited Securities (it being understood that, with respect to any withdrawal of Shares, only whole Shares may be withdrawn) represented by the Depositary Shares evidenced by such Receipt, and upon payment of all taxes and governmental charges payable in connection with such surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of this Deposit Agreement, the Owner of such Receipt shall be entitled to delivery, to him or her upon his or her order, of the amount of Deposited Securities at the time represented by the Depositary Shares evidenced by such Receipt. If the Receipts delivered by such Owner evidence a number of Deposited Shares in excess of the number of Deposited Shares representing the number of Shares to be withdrawn, the Depositary will at the same time deliver to such Owner a new Receipt or Receipts evidencing such excess number of Deposited Shares. Delivery of such Deposited Securities may be made by the delivery of (i) certificates for Shares being withdrawn in the name of such Owner or as ordered by him or by certificates for Shares being withdrawn properly endorsed or accompanied by proper instruments of transfer to such Owner or as ordered by him or her and (ii) any other securities, property and cash to which such Owner is then entitled in respect of such Receipt to such Owner or as ordered by him. Such delivery shall be made, as hereinafter provided, without unreasonable delay. 3. MANDATORY CONVERSION OF SHARES INTO COMMON STOCK. At any time on or after February 15, 2004, the Company may at its option cause the Depositary Shares, in whole or part from time to time, to be automatically converted into shares of Common Stock. On any such date fixed for mandatory conversion of the Shares by the Issuer (the "Mandatory Conversion Date"), Shares represented by Depositary Shares shall be mandatorily converted, and such Depositary Shares shall be deemed no longer outstanding and all rights of the Owners of the Receipts evidencing such Depositary Shares (except the right to receive (i) the shares of common stock, par value $0.025 per share (the "Common Stock") of the Issuer to which such Owner is entitled upon conversion, (ii) any cash payable with respect to any fractional shares of Common Stock otherwise deliverable by the Depositary upon conversion, (iii) any cash or Common Stock in payment of accrued and unpaid dividends on such Shares as and when paid in accordance with the Certificate of Designation payable to an Owner as of a prior date and (iv) any other securities, property or cash to which such Owner is A-2 entitled hereunder) shall cease and terminate. Upon surrender of the Receipts evidencing such Depositary Shares at the Corporate Trust Office or at such office or to such agent of the Depositary as the Depositary may designate for such purpose (properly endorsed or assigned for transfer, as the Depositary or such agent shall so require), such Depositary Shares shall be converted into (i) a number of shares of Common Stock per Depositary Share equal to one one-hundredth of the number (including fractional shares) of shares of Common Stock which each Share converted into at the applicable rate specified in the Certificate of Designation, subject to adjustment as provided in the Certificate of Designation, (ii) cash in lieu of fractional shares of Common Stock otherwise deliverable by the Depositary upon such conversion, calculated in accordance with Section 4.12 hereof, (iii) any cash or Common Stock in payment of accrued and unpaid dividends on such Shares as and when paid in accordance with the Certificate of Designation payable to an Owner as of a prior date and (iv) the right to receive any other securities, property or cash to which Owners are entitled hereunder. On the Mandatory Conversion Date (or such later date as dividends on the Shares subject to conversion are paid as provided below in the case of clause (iii) below), for each Owner of a Receipt or Receipts, the Issuer shall deposit with the Depositary (i) certificates for the number of shares of Common Stock and (ii) the amount of cash in lieu of fractional shares determined as set forth in the preceding paragraph into which the Depositary Shares evidenced by such Receipt or Receipts shall convert on the Mandatory Conversion Date (assuming proper surrender of such Receipt or Receipts to the Depositary or any of its agents) and (iii) any cash or Common Stock in payment of accrued and unpaid dividends on such Shares as and when paid in accordance with the Certificate of Designation. With respect to Owners which hold a Receipt or Receipts evidencing more than one Depositary Share on the Mandatory Conversion Date, the number of shares of Common Stock and the amount of cash in lieu of fractional shares to be deposited by the Issuer with the Depositary on that date shall be computed on the basis of the aggregate number of Depositary Shares evidenced by such Receipt or Receipts. The Depositary shall as promptly as practicable deliver to each Owner of a Receipt or Receipts which properly delivers such Receipt or Receipts to the Depositary or any of its agents certificates for the number of shares of Common Stock and the amount of cash, without interest, to which such Owner is entitled pursuant to the preceding provisions. 4. OPTIONAL CONVERSION OF SHARES INTO COMMON STOCK. Depositary Shares may be converted in whole or in part, into shares of Common Stock at the option of the Owner at any time prior to August 15, 2009. Subject to the terms and conditions of the Deposit Agreement, an Owner of a Receipt or Receipts evidencing Depositary Shares representing whole or fractional Shares may surrender such Receipt or Receipts at the Corporate Trust Office or at such office or to such agents of the Depositary as the Depositary may designate for such purpose, together with a written notice of conversion duly completed and executed, thereby directing the Depositary or any such agent to instruct the Issuer to cause the conversion (which may include partial conversions) of the number of Shares (which instruction may be given by reference to the number of Depositary Shares representing such Shares) specified in such notice of A-3 conversion into shares of Common Stock at the rate specified in the Certificate of Designation, and an assignment of such Receipt or Receipts to the Issuer or in blank, duly completed and executed (and, except as otherwise provided below, if such conversion is to occur after the close of business on a record date for the payment of dividends declared on the Shares and before the opening of business on the next succeeding dividend payment date, payment in cash or Common Stock or both (as the case may be) of an amount equal to the dividend payable on such date on the Shares so converted). Any Owner of a Receipt or Receipts who (or whose transferee) delivers a Receipt or Receipts to the Depositary on a dividend payment record date for conversion of such Owner's underlying Shares on the succeeding dividend payment date shall receive the dividend payable with respect to the Depositary Shares evidenced by such Receipt or Receipts and will not be required to include payment of the dividend payable on such date upon delivery of such Receipt or Receipts. To the extent that an Owner delivers to the Depositary for conversion a Receipt or Receipts evidencing Depositary Shares representing Shares which in the aggregate (including fractional Shares) would result in a fractional share of Common Stock being deliverable by the Issuer upon such Shares' conversion at the rate specified in the Certificate of Designation, the Issuer shall deliver to such Owner payment in cash in lieu of such fractional share of Common Stock, calculated in accordance with Section 4.12 of the Deposit Agreement. If a Receipt or Receipts evidencing more than one Depositary Share shall be surrendered for conversion of the Shares represented thereby at one time by the same Owner, the number of shares of Common Stock and the amount of cash in lieu of fractional shares deliverable by the Issuer upon such conversion shall be computed on the basis of the aggregate number of Shares (including fractional Shares) represented by Depositary Shares evidenced by the Receipt or Receipts so surrendered. Upon the conversion of any Share for which a notice of conversion has been provided to the Depositary or an agent of the Depositary by the Owner of the Receipt or Receipts evidencing the Depositary Shares representing such Share, dividends shall cease to accrue on the Shares as of the day immediately preceding the date of conversion, such Depositary Shares shall be deemed no longer outstanding, all rights of the Owner of the Receipt or Receipts evidencing such Depositary Shares (except the right to receive (i) the Common Stock to which such Owner is entitled upon conversion, (ii) any cash payable with respect to any fractional shares of Common Stock otherwise deliverable by the Issuer upon conversion, (iii) any Receipts evidencing Depositary Shares representing Shares which were not so converted and (iv) any other securities, property or cash to which such Owner is entitled hereunder) shall cease and terminate, and the Receipt or Receipts evidencing such Depositary Shares shall be cancelled. 5. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS. The Depositary, subject to the terms and conditions of the Deposit Agreement, shall register transfers of Receipts on its transfer books from time to time, upon any surrender of a Receipt, by the Owner in person or by a duly authorized attorney, properly endorsed or accompanied by proper instruments of transfer, and duly stamped as A-4 may be required by the laws of the State of New York and of the United States of America. Thereupon the Depositary shall execute a new Receipt or Receipts and deliver the same to or upon the order of the person entitled thereto. The Depositary, subject to the terms and conditions of the Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose of effecting a split-up or combination of such Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of Depositary Shares requested, evidencing the same aggregate number of Depositary Shares as the Receipt or Receipts surrendered. 6. REDEMPTION On August 15, 2009, the Issuer will be obligated to redeem all outstanding Depositary Shares for cash, upon not less than 30 days nor more than 60 days' prior notice sent by first class mail to each Owner's registered address, in an amount equal to 100% of the aggregate liquidation preference of all Deposited Shares, plus accumulated and unpaid dividends to the date of redemption. 7. CHANGE IN CONTROL PUT RIGHT If a Change in Control (as defined in the Deposit Agreement) occurs, each Owner of Depositary Shares will have the right to require the Issuer to purchase all or any part of that Owner's Depositary Shares at a purchase price equal to 100% of the liquidation preference of the Shares representing such Depositary Shares, plus all accumulated and unpaid dividends on those Shares to the date of purchase. Within 30 days following any Change in Control, the Issuer will mail a notice to each Owner describing the Change in Control and offer to purchase that Owner's Depositary Shares on the date specified in that notice, which date will be no earlier than 30 days and no later than 60 days from the date the notice is mailed. In connection with a Change in Control, the Issuer will have the option to pay for Depositary Shares that have been tendered in shares of the Issuer's Common Stock valued at 95% of the volume-weighted daily trading price for the Issuer's Common Stock over the 10-day trading period ending one trading day prior to the date of purchase; otherwise the Issuer will pay for tendered Depositary Shares in cash. On the date scheduled for payment of the Depositary Shares, the Depositary will, to the extent lawful, accept for payment all Depositary Shares properly tendered. The Depositary will promptly mail or deliver to each Owner of Depositary Shares so tendered the applicable payment for those Depositary Shares, and the Depositary will promptly countersign and mail or deliver, or cause to be transferred, to each Owner new Depositary Shares equal in liquidation preference to any unpurchased portion of the Depositary Shares surrendered, if any. The Issuer will publicly announce the result of its offer on or as soon as practicable after the payment date for the purchase of the Depositary Shares in connection with a Change in Control. A-5 The right of the Owners described in this section will be subject to the obligation of the Issuer to repay certain obligations and indebtedness as described in the Deposit Agreement. When the Issuer has satisfied these obligations then, subject to the legal availability of funds for this purpose, it will purchase all Depositary Shares tendered upon a Change in Control. 8. LIABILITY OF OWNER FOR TAXES. If any tax or other governmental charge shall become payable with respect to any Receipt or any Deposited Securities represented by Depositary Shares evidenced by any Receipt or with respect to any mandatory or optional conversion right, such tax or other governmental charge shall be payable by the Owner of such Receipt to the Depositary. The Depositary may refuse to effect any transfer of such Receipt or any withdrawal of Deposited Securities represented by Depositary Shares evidenced by such Receipt or any such conversion or payment of redemption or purchase amounts until such payment is made, and may withhold any dividends or other distributions or payments, or may sell for the account of the Owner thereof any part or all of the Deposited Securities represented by the Depositary Shares evidenced by such Receipt, and may apply such dividends or other distributions or the proceeds of any such sale in payment of such tax or other governmental charge and the Owner of such Receipt shall remain liable for any deficiency. 9. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION. Any Owner of a Receipt may be required from time to time to file with the Depositary such proof of citizenship or residence, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the registration of transfer of any Receipt or the distribution of any dividend or sale or distribution of rights or of the proceeds thereof or the delivery of any Deposited Securities or the exercise of any mandatory or optional conversion right or the delivery of any Common Stock upon such conversion or the payment of any redemption or purchase amounts until such proof or other information is filed or such certificates are executed or such representations and warranties made. 10. CHARGES OF DEPOSITARY. No fees, charges and expenses of the Depositary or any agent of the Depositary hereunder or of any Registrar shall be payable by any person other than the Issuer, except for any taxes (including transfer taxes, if any) and other governmental charges and except as provided in this Deposit Agreement. All other fees, charges and expenses of the Depositary and any agent of the Depositary hereunder and of any Registrar incident to the performance of their respective obligations hereunder shall be paid upon consultation and agreement between the Depositary and the Issuer as to the amount and nature of such fees, charges and expenses. The Depositary shall present its statement for fees, charges and expenses to the Issuer once every month or at such other intervals as the Issuer and the Depositary may agree. A-6 11. TITLE TO RECEIPTS. It is a condition of this Receipt and every successive holder and Owner of this Receipt by accepting or holding the same consents and agrees, that title to this Receipt when properly endorsed or accompanied by proper instruments of transfer, is transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that the Depositary, notwithstanding any notice to the contrary, may treat the person in whose name this Receipt is registered on the books of the Depositary as the absolute owner hereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in the Deposit Agreement and for all other purposes. 12. VALIDITY OF RECEIPT. This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized signatory of the Depositary and, if a Registrar for the Receipts shall have been appointed, countersigned by the manual signature of a duly authorized signatory of the Registrar. 13. REPORTS. The Depositary shall make available for inspection by Owners at its Corporate Trust Office any reports and communications, including any proxy soliciting material, received from the Issuer which are both (i) received by the Depositary as the holder of the Deposited Securities and (ii) made generally available to the holders of such Deposited Securities by the Issuer. The Issuer agrees that it shall deliver to the Depositary, and the Depositary shall, promptly after receipt thereof, transmit to the Owners of the Receipts, in each case at the address recorded in the Depositary's books, copies of all notices and reports (including financial statements) required by law, by the rules of any national securities exchange upon which the Depositary Shares are listed or by the Restated Certificate of Incorporation or the Certificate of Designation to be furnished by the Issuer to holders of Shares. Such transmission shall be at the Issuer's expense and the Issuer shall provide the Depositary with such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the Owners of Receipts at the Issuer's expense such other documents as may be requested by the Issuer. 14. DIVIDENDS AND DISTRIBUTIONS. Cash Distributions. Whenever the Depositary shall receive any cash dividend or other cash distribution on any Deposited Securities (other than cash dividends or cash distributions paid by the Issuer to the Depositary in lieu of fractional shares of Common Stock otherwise deliverable by the Issuer upon conversion of the Depositary Shares or purchase A-7 of the Depositary Shares upon a Change in Control), the Depositary shall distribute the dividend or distribution thus received to the Owners entitled thereto, in proportion, insofar as practicable, to the number of Depositary Shares representing such Deposited Securities held by them respectively. In the event that the Issuer or the Depositary shall be required to withhold and does withhold from any such cash dividend or such other cash distribution an amount on account of taxes, the amount distributed to the Owner of the Receipts evidencing Depositary Shares representing such Deposited Securities shall be reduced accordingly. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Owner a fraction of one cent. Any such fractional amounts shall be rounded to the nearest whole cent and so distributed to Owners entitled thereto. The Depositary will forward to the Issuer or its agent such information from its records as the Issuer may reasonably request to enable the Issuer or its agent to file necessary reports with governmental agencies. The Depositary will distribute cash dividends to any Owner on the basis of such Owner's aggregate record holdings of Depositary Shares. Regular Share Dividends Payable in Common Stock. Pursuant to and subject to the terms of the Certificate of Designation, the Issuer may pay dividends (in whole or in part) on the Shares through the delivery of shares of Common Stock, so long as shares of Common Stock delivered in payment of a dividend are delivered on the regular dividend payment date (as set forth in the Certificate of Designation) for such dividend. Dividends paid by the Issuer on Shares represented by Depositary Shares shall be paid to the Depositary, as record holder of such Shares (assuming the Depositary was also the record holder for such Shares on the related record date for such dividend payment). The Depositary shall distribute, on the related regular dividend payment date, shares of Common Stock paid to it by the Issuer as dividends on the Shares to persons who were Owners on the related record date for such dividend. The Depositary shall distribute to, each such Owner on such date, for each Depositary Share evidenced by a Receipt or Receipts held by such Owner on the related record date for such dividend (it being understood that the number of fractional shares of Common Stock to which such Owner is entitled with respect to such dividend shall be determined on the basis of its aggregate holdings of such Depositary Shares), (i) a number of shares (subject to clause (ii) of this sentence) of Common Stock equal to one-one hundredth of the number of shares of Common Stock (including fractional shares) payable per Share in payment of the related dividend as determined pursuant to the Certificate of Designation and (ii) the amount of cash to which such Owner is entitled in lieu of fractional shares of Common Stock otherwise distributable by the Depositary under clause (i). The Issuer shall deposit with the Depositary, on or prior to the regular dividend payment date (as set forth in the Certificate of Designation) for any dividend which the Issuer has elected to pay in whole or in part in shares of Common Stock, for each Owner which held a Receipt or Receipts on the related record date for such dividend as established by the Depositary, (i) certificates for the number of shares of Common Stock and (ii) the amount of cash in lieu of fractional shares to which such Owner is entitled pursuant to the preceding sentence. A-8 Distributions Other Than Cash, Share Dividends Paid in Common Stock, Shares or Rights. Subject to the provisions of Section 4.8 of the Deposit Agreement, whenever the Depositary shall receive any distribution other than a distribution described in Sections 4.1, 4.2, 4.4 or 4.5 of the Deposit Agreement, the Depositary shall cause the securities or property received by it to be distributed to the Owners entitled thereto, in proportion to the number of Depositary Shares representing Deposited Securities held by them respectively, in any manner that the Depositary may, with the consent of the Issuer, not to be unreasonably withheld, deem equitable and practicable for accomplishing such distribution. Distributions in Shares. If any distribution upon any Deposited Securities consists of a dividend in, or free distribution of, Shares, the Depositary may, and shall if the Issuer shall so request, distribute to the Owners of outstanding Receipts entitled thereto, in proportion to the number of Depositary Shares representing such Deposited Securities held by them respectively, additional Receipts evidencing an aggregate number of Depositary Shares representing the amount of Shares received as such dividend or free distribution, subject to the terms and conditions of the Deposit Agreement with respect to the deposit of Shares and the issuance of Depositary Shares evidenced by Receipts, including the withholding of any tax or other governmental charge as provided in the Deposit Agreement. In lieu of delivering Receipts for fractional Depositary Shares in any such case, the Depositary shall sell the amount of Shares represented by the aggregate of such fractions and distribute the net proceeds, all in the manner and subject to the conditions described in the Deposit Agreement, or, if the Depositary deems such sale and distribution not feasible, the Depositary may, with the approval of the Issuer, adopt such method as it shall deem equitable and practicable in substitution for delivering Receipts for fractional Depositary Shares. RIGHTS. In the event that the Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason, the Depositary may not either make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. 15. RECORD DATES. Whenever any cash dividend or other cash distribution or any dividend to be paid by the Issuer in shares of Common Stock shall become payable or any A-9 distribution other than cash shall be made, or whenever any rights, preferences or privileges shall be offered or issued with respect to the Deposited Securities, or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each Depositary Share, or whenever the Depositary shall receive notice of any meeting at which holders of Shares are entitled to vote or of which holders of Shares are entitled to notice, the Depositary shall fix a record date (which shall be the same date as the record date fixed by the Issuer in respect of the Shares) (i) for the determination of the Owners who shall be (a) entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof or (b) entitled to give instructions for the exercise of voting rights at any such meeting, or (ii) on or after which each Depositary Share will represent the changed number of Shares. 16. VOTING OF DEPOSITED SECURITIES. Upon receipt of notice of any meeting at which the holders of Shares are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the Owners a notice, which shall be provided by the Issuer and which shall contain (i) such information as is contained in such notice of meeting, and (ii) a statement that the Owners as of the close of business on a specified record date fixed by the Depositary pursuant to the Deposit Agreement shall be entitled, subject to any applicable provision of law, the Restated Certificate of Incorporation or the by-laws of the Issuer, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares or other Deposited Securities represented by their respective Depositary Shares and (iii) a statement as to the manner in which such instructions may be given. Upon the written request of an Owner on such record date, the Depositary shall endeavor, in so far as practicable, to vote or cause to be voted the amount of Shares or other Deposited Securities represented by the Depositary Shares evidenced by such Receipt in accordance with the instructions set forth in such request. The Issuer agrees to take all reasonable action that may be deemed necessary by the Depositary in order to enable the Depositary to vote such Shares or cause such Shares to be voted. In the absence of specific instructions from the Owner of a Receipt, the Depositary will abstain from voting to the extent of the Shares represented by the Depositary Shares evidenced by such Receipt. 17. FRACTIONAL SHARES. No fractional shares of Common Stock will be delivered by the Issuer or the Depositary, as applicable, to the Owners of Receipts upon mandatory or optional conversion into shares of Common Stock, upon a Change in Control or for payment of dividends in Common Stock or any combination of the above. In lieu of any fractional share otherwise deliverable in respect of the aggregate number of Depositary Shares evidenced by a Receipt or Receipts of any Owner that are converted upon mandatory conversion, such Owner shall be entitled to receive an amount in cash equal to the same fraction of the Closing Price (as defined in the Deposit Agreement) of the Common Stock as of the fifth Trading Day (as defined in the Deposit Agreement) immediately preceding the Mandatory Conversion Date. A-10 In lieu of any fractional share otherwise deliverable in respect of the aggregate number of Shares represented by Depositary Shares evidenced by a Receipt or Receipts of any Owner that are converted upon any optional conversion or upon a Change in Control, such Owner shall be entitled to receive an amount in cash equal to the same fraction of the Closing Price of the Common Stock as of the second Trading Day immediately preceding the effective date of conversion or the date of purchase in the case of a Change in Control. If a Receipt or Receipts evidencing more than one Depositary Share are surrendered for conversion at one time by or for the same Owner, the number of shares of Common Stock and the amount of cash in lieu of fractional shares deliverable upon conversion shall be computed on the basis of the aggregate number of Depositary Shares evidenced by the Receipt or Receipts so surrendered. No fractional shares of Common Stock will be delivered by the Depositary to persons who were Owners on the related record date for a dividend on the Shares in connection with the Depositary's distribution of a dividend on the Shares paid by the Issuer to it in shares of Common Stock. In lieu of any fractional share otherwise so deliverable, such Owners shall be entitled to receive an amount in cash equal to the same fraction of the Closing Price of the Common Stock determined as of the fifth Trading Day immediately preceding the dividend payment date. On the Mandatory Conversion Date or the date the Issuer purchases any Depositary Shares upon a Change in Control, the fractional share of Common Stock that any Owner would otherwise be entitled to receive shall be determined by adding all the fractional shares such Owner would be entitled to receive (i) on the mandatory conversion or purchase of all Depositary Shares evidenced by Receipts held by such Owner and (ii) on the payment of the regular quarterly dividend on all Depositary Shares evidenced by Receipts held by such Owner at the related record date. On the Mandatory Conversion Date, the Issuer may, at its option, deliver any whole number of shares of Common Stock resulting from the addition of fractional shares resulting from (i) and (ii) above in shares of Common Stock and any remaining fractional shares in cash beginning with holders entitled to the largest fractional shares. In the event that (i) mandatory conversions of the Depositary Shares, (ii) optional conversions of the Depositary Shares, (iii) purchases of Depositary Shares upon a Change in Control, (iv) Depositary deliveries of shares of Common Stock as dividends on the Depositary Shares or (v) the combination of any of the foregoing result in any Owner of Receipts evidencing Depositary Shares being entitled to cash in lieu of a fractional share on the related date of conversion, purchase or dividend payment date, as applicable, the Issuer will deliver (either directly or through the Depositary, as applicable) to all such Owners cash in an amount equal to the total amount of cash to which all such Owners of Receipts are entitled in lieu of fractional shares on such date. If payment in cash in lieu of fractional shares of Common Stock in accordance with the foregoing would result in the Issuer's failure to be in compliance with any debt instrument to which it is a party, the Issuer shall be entitled to deliver A-11 (either directly or through the Depositary, as applicable) a whole share of Common Stock in lieu of cash to Owners entitled to fractional shares of Common Stock (beginning with the Owners entitled to the largest fractional shares) until delivery of cash in lieu of fractional shares of Common Stock to the remaining Owners would no longer result in the Issuer's failure to be in compliance with such debt instrument. 18. LIABILITY OF ISSUER AND DEPOSITARY. The Issuer assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to Owners or holders of Receipts except that it agrees to perform its obligations specifically set forth herein without gross negligence or willful misconduct. The Depositary assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to any Owner or holder of any Receipt (including, without limitation, liability with respect to the validity or worth of the Deposited Securities), except that it agrees to perform its obligations specifically set forth in this Deposit Agreement without gross negligence or willful misconduct. Neither the Depositary nor the Issuer shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability shall be furnished as often as may be required. Neither the Depositary nor the Issuer shall be liable for any action or nonaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Owner or any other person believed by it in good faith to be competent to give such advice or information. The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without gross negligence or willful misconduct while it acted as Depositary. The Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any such vote is cast or the effect of any such vote, provided that any such action or nonaction is in good faith. The Depositary may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys or independent contractors and the Depositary will not be responsible for any misconduct or negligence A-12 on the part of any agent, attorney or independent contractor appointed with due care by it hereunder and exercising the care required of the Depositary hereunder. The rights, privileges, protections, immunities and benefits given to the Depositary, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Depositary, and each agent, custodian and other person employed to act hereunder. 19. RESIGNATION AND REMOVAL OF THE DEPOSITARY. The Depositary may at any time resign as Depositary hereunder by written notice of its election so to do delivered to the Issuer, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. The Depositary may at any time be removed by the Issuer by written notice of such removal effective upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. If the instrument of acceptance by the successor depositary required by this Section shall not have been delivered to the Depositary within 50 days after the giving of such notice of resignation or removal, the Depositary may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Depositary with respect to the Receipts. In case at any time the Depositary acting hereunder shall resign or be removed, the Issuer shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, The City of New York and having a combined capital and surplus of at least $50,000,000. Every successor depositary shall execute and deliver to its predecessor and to the Issuer an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor; but such predecessor, nevertheless, upon payment of all sums due it and on the written request of the Issuer shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Deposited Securities to such successor, and shall deliver to such successor a list of the Owners of all outstanding Receipts. Any such successor depositary shall promptly mail notice of its appointment to the Owners. Any corporation into or with which the Depositary may be merged or consolidated or to which the Depositary shall sell all or substantially all of its corporate trust or stock transfer business shall be the successor of the Depositary without the execution or filing of any document or any further act. A-13 20. AMENDMENT. The form of the Receipts and any provision of this Deposit Agreement may at any time and from time to time be amended by agreement between the Issuer and the Depositary in any respect that they may deem necessary or desirable. Any amendment that shall impose any fees, taxes or charges (other than taxes and other governmental charges, fees and expenses provided for herein or in the Receipts), or that shall otherwise prejudice any substantial existing right of Owners of Receipts, shall not become effective as to outstanding Receipts until the expiration of 90 days after notice of such amendment shall have been given to the Owners of outstanding Receipts. Every Owner of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby. In no event shall any amendment impair the right, subject to the provisions of this Deposit Agreement, of any Owner to surrender any Receipt or Receipts evidencing Depositary Shares representing Shares with instructions to the Depositary or an applicable agent of the Depositary to deliver to the Owner such Shares or to cause the conversion of such Shares into Common Stock and cash for fractional shares of Common Stock and, in each case, all money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law. 21. TERMINATION OF DEPOSIT AGREEMENT. This Deposit Agreement shall terminate at the close of business on the earliest of (a) the Mandatory Conversion Date (provided all then outstanding Depositary Shares are converted) or the first date on which all the Depositary Shares shall have been converted into shares of Common Stock pursuant to Section 2.10 of the Deposit Agreement, in each case upon distribution by the Depositary to each Owner entitled thereto of (i) shares of Common Stock and cash (whether in lieu of fractional shares or otherwise) received by the Depositary from the Issuer for mandatory conversion of, and/or dividend payments on, the Depositary Shares evidenced by the Receipt or Receipts held by such Owner and (ii) all other securities, property and cash then held by the Depositary hereunder, (b) the date the Issuer purchases all the outstanding Depositary Shares upon a Change in Control pursuant to Section 2.12 of the Deposit Agreement upon distribution by the Depositary to each Owner entitled thereto of the cash or Common Stock such Owner is entitled to pursuant to this Agreement, (c) the date the Issuer redeems all the outstanding Depositary Shares pursuant to Section 2.11 of the Deposit Agreement upon distribution by the Depositary to each Owner entitled thereto of the cash such Owner is entitled thereto pursuant to this Agreement and (d) the first date for any of the foregoing reasons (or combinations thereof) there shall be no Depositary Shares outstanding. If any Receipts shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue the registration of transfers of Receipts, shall suspend the distribution of dividends to the Owners thereof, and shall not give any further notices or perform any further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Deposited Securities, shall sell rights as provided in this Deposit Agreement, A-14 and shall continue to deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights or other property, in exchange for Receipts surrendered to the Depositary (after deducting, in each case, any applicable taxes or governmental charges). At any time after the expiration of one year from the date of termination, the Depositary may sell the Deposited Securities then held hereunder and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it hereunder, unsegregated and without liability for interest, for the pro rata benefit of the Owners of Receipts which have not theretofore been surrendered, such Owners thereupon becoming general creditors of the Depositary with respect to such net proceeds. After making such sale, the Depositary shall be discharged from all obligations under this Deposit Agreement, except to account for such net proceeds and other cash (after deducting, in each case, any applicable taxes or governmental charges). Upon the termination of this Deposit Agreement, the Issuer shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary under Sections 5.6 and 5.7 of the Deposit Agreement. 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