Exhibit 10(c)
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT dated as of the 3rd day of December, 1996,
by and between Xxxxxxx X. Xxxx ("Xxxx"), an individual with an address of c/o
Xxxxxxx X. Xxxx Foundation, 000 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, and Premier
Parks Inc. ("Premier"), a Delaware corporation with offices at 000 X. 00xx
Xxxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx.
W I T N E S S E T H:
WHEREAS, Premier Parks Acquisition Corp., ("PPAC") a wholly-owned
subsidiary of Premier, and Storytown USA, Inc. ("Storytown") and Fantasy Rides
Corporation ("Fantasy") have executed and entered into that certain asset
purchase agreement dated as of the 23rd day of August, 1996 (the "Purchase
Agreement") whereby the assets and real estate owned by Storytown and Fantasy
will be sold to PPAC pursuant to the terms contained therein; and
WHEREAS, Wood is the sole shareholder and director of both Storytown and
Fantasy Rides;
WHEREAS, as part of the transactions contemplated by PPAC, Storytown and
Fantasy Rides, Premier has requested that Wood execute this noncompetition
agreement; and
WHEREAS, PPAC's acquisition of those certain assets of Storytown and
Fantasy pursuant to the terms of the Purchase Agreement constitutes good and
sufficient consideration for Wood's entry into this agreement and performance of
his obligations hereunder.
NOW THEREFORE, for the mutual covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. PROHIBITED ACTIVITIES. Wood will not, for a period of five (5) years
following the Closing Date (as that term is defined in the Purchase Agreement),
directly or indirectly, for himself or on behalf of or in conjunction with any
other person, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial or advisory capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales representative, in
any Competing Business within 250 miles of the Great Escape, as that term is
defined in the Purchase Agreement (the "Territory");
(ii) call upon any person who is an employee of Premier or any of its
subsidiaries for the purpose or with the intent of enticing such employee away
from or out of the employ of Premier or any of its subsidiaries; or
(iii) call upon any person or entity which is, at that time, or which
has been, within one (1) year prior to that time, a customer of Premier or any
of its subsidiaries within the
Territory for the purpose of soliciting or selling services or products for or
on behalf of a Competing Business.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Wood from acquiring, as a passive investor with no involvement in the
operations of the business, not more than five percent (5%) of the capital stock
of a business engaging in or operating a Competing Business within the Territory
whose capital stock is publicly traded on a national securities exchange or
over-the-counter. For purposes of this Agreement, "Competing Business" shall
mean and include any entity whose business includes providing rides, amusements,
games, fun parks, water parks and/or amusement parks to the general public.
2. EXCEPTIONS. (a) Premier recognizes and acknowledges that Wood
and/or corporations which he controls presently own and/or operate several
businesses identified on Exhibit "A", attached hereto and incorporated by
reference herein (the "Wood Businesses"). Of the Wood Businesses, only Gaslight
Village, Inc., d/b/a Xxxx Xxxxxx Action Park, and Gaslight Rides, Inc.
(collectively, "Gaslight") may be deemed to be a Competing Business.
(b) Premier acknowledges and agrees that Wood may carry on any
business activity which is currently conducted by the Wood Businesses, it being
understood that during the period specified in the first sentence of Section 1
(i) neither Wood nor Gaslight will expand Gaslight by adding rides or
attractions materially different than the type of rides and attractions existing
on the date hereof; provided, however, nothing herein shall be deemed to
prohibit Wood from utilizing the entire site on which Gaslight is located and
(ii) Holiday Ads, Inc. will not offer marketing and P.R. services to any
Competing Business in the Territory other than Gaslight.
(c) Premier acknowledges and agrees that Wood's conduct and
continuation of the Wood Businesses as contemplated by subsections (a) and (b)
of this section 2, (i) is not prohibited under the terms of this Agreement and
(ii) constitutes an exception to the covenant set forth in section 1, hereof.
3. EQUITABLE RELIEF. Because of the difficulty of measuring economic
losses to Premier as a result of a breach of the foregoing covenant, and because
of the immediate and irreparable damage that could be caused to Premier for
which it would have no other adequate remedy, Wood agrees that the foregoing
covenant, subject to the exceptions set forth in section 2, may be enforced by
Premier by injunctions, restraining orders and other equitable actions without
the necessity or obligation of posting bond.
4. REASONABLE RESTRAINT. Wood acknowledges and agrees that the Agreement
is necessary for the protection of the legitimate business of Premier. It is
agreed by the parties hereto that the foregoing covenants in this Agreement
impose a reasonable restraint on Wood in light of the activities and business of
Premier on the date of the execution of this Agreement and the current plans of
Premier.
5. SEVERABILITY; REFORMATION. The covenants in this Agreement are
severable and separate, and the unenforceability of any specific covenant shall
not affect the continuing validity and enforceability of any other covenant. In
the event any court of competent jurisdiction shall determine that the scope,
time or territorial restrictions set forth in this Agreement are unreasonable,
then it is the intention of the parties that such restrictions be
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enforced to the fullest extent which the court deems reasonable and this
Agreement shall thereby be reformed.
6. MATERIAL AND INDEPENDENT COVENANT. Wood acknowledges that his
covenants set forth in this Agreement are material conditions to Premier's
agreement to execute and deliver the Purchase Agreement and to consummate the
transactions contemplated thereby. All of the covenants in this Agreement shall
be construed as an agreement independent of any other provision in this
Agreement, and the existence of any claim or cause of action of Wood against
Premier or one of its subsidiaries, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Premier of such
covenants. It is specifically agreed that the five (5) year period during which
the agreements and covenants of Wood made in this Agreement shall survive shall
be computed by excluding from such computation any time during which Wood is in
violation of any provision of this Agreement. The covenants contained in this
Agreement shall not be affected by any breach of any other provision hereof by
any party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
PREMIER PARKS INC.
By: /s/ Xxxxxx X. Xxxxx
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Its: Chairman & CEO
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EXHIBIT "A"
EXCLUDED PROPERTIES
ENTITY NAME PURPOSE
Meadow Run Development Corporation Landholding company and billboard owner.
Hi-Way Host, Inc. Owner of Xxxxxx Xxxxxxx Motor Lodge, located at
Xxxxxxxx Exit I9 in Queensbury New York.
Alphonso's Xxxx Xxxxxx, Inc. Owner of land in Queensbury, New York, in close
proximity to the Great Escape on which Coachman
Restaurant is located.
Xxxxxxx X. Xxxx d/b/a Sun Castle Owner of motel and villas on Xxxx Xxxxxx.
Gaslight Village, Inc. d/b/a Xxxx Xxxxxx Owner of action park in Town and Village of Xxxx Xxxxxx,
Action Park New York, on site owned by the Xxxxxxx X. Xxxx
Foundation. Operator of amusements and attractions at
that site.
Gaslight Rides, Inc. Owner of rides located at Xxxx Xxxxxx Action Park.
Xxxxxxx Xxxx Enterprises, Inc. Administrative Offices for all companies.
Storytown USA, Inc.
Fantasy Rides Corporation
Xxxxxxx X. Xxxx Foundation Charitable organization.
Double "H" Hole in the Xxxxx, Ranch Inc. Owner of campground located in Xxxx Xxxxxx, New York
for critically ill children.
Holiday Ads, Inc. Marketing and PR company.
Waxlife USA, Inc. d/b/a Charley's Owner of Restaurant, Nightclub, Bar & Lounge in Town
of Xxxx Xxxxxx, New York.
In total, the Xxxxxxx X. Xxxx companies own approximately 9.3 acres in
the Town and Village of Xxxx Xxxxxx which are comprised of several of the
above-mentioned companies.
