GREAT WOLF RESORTS, INC. EMPLOYMENT AGREEMENT FOR KIMBERLY SCHAEFER
Exhibit 10.5
Final Version
FOR
XXXXXXXX XXXXXXXX
This is an Employment Agreement entered into between Great Wolf Resorts, Inc., a Delaware
corporation, or the “Company,” and Xxxxxxxx Xxxxxxxx, or “Executive,” the terms and conditions of
which are as follows:
§ 1. TERM OF EMPLOYMENT
1.1. Term. Subject to the terms and conditions set forth in this Employment
Agreement, the Company agrees to employ Executive and Executive agrees to be employed by
the Company for a term of three (3) years, which term shall start on the closing date of the
Company’s initial public offering of its common stock (the “IPO Closing Date”) and shall end
on the third anniversary of such date. The term of this Employment Agreement shall
automatically be extended from time to time for additional periods of one (1) calendar year
from the date on which it would otherwise expire unless the Executive, on the one hand, or the
Company, on the other, gives notice to the other party at least one-hundred and twenty (120)
days prior to such date that it elects to permit the term of this Employment Agreement to
expire without extension on such date.
1.2. Term. The term described in § 1.1 plus any extension of such term shall be
referred to in this Employment Agreement as the “Term.”
§ 2. TITLE, DUTIES AND RESPONSIBILITIES AND POWERS AND WORK SITE
2.1. Title. Executive’s title initially shall be Chief Brand Officer.
2.2. Duties and Responsibilities and Powers. Executive’s duties and responsibilities
and powers shall be those commensurate with Executive’s position that are set from time to
time
by the Company’s Chief Executive Officer, and Executive shall report exclusively to and shall
be accountable exclusively to the Company’s Chief Executive Officer. Executive shall
undertake to perform all Executive’s duties and responsibilities and exercise all Executive’s
powers in good faith and on a full-time basis during the Company’s normal work week for senior
executives and shall at all times act in the course of Executive’s employment under this
Employment Agreement in the best interest of the Company.
2.3. Primary Work Site. Executive’s primary work site for the Term shall be at the
Company’s headquarters in Madison, Wisconsin. However, Executive shall undertake such
travel away from Executive’s primary work site and shall work from such temporary work sites
as necessary or appropriate to fulfill Executive’s duties and responsibilities and exercise
Executive’s powers under the terms of this Employment Agreement.
2.4. Outside Activities. Executive shall have the right to continue to serve on the
board of directors of those business, civic and charitable organizations on which Executive is
serving on the date the Company signs this Employment Agreement as long as doing so has no
adverse effect on the performance of Executive’s duties and responsibilities or the exercise
of
Executive’s powers under this Employment Agreement. Executive shall not serve on any other
boards of directors and shall not provide services (whether as an employee or independent
contractor) to any for-profit organization on or after the date the Executive signs this
Employment Agreement absent the written consent of the Chairman of the Compensation
Committee of the Company’s Board of Directors.
§ 3. COMPENSATION AND BENEFITS
3.1. Base Salary. Executive’s initial base salary shall be $200,000.00 per year, which
base salary shall be payable in accordance with the Company’s standard payroll practices and
policies for senior executives and shall be subject to such withholdings as required by law or as
otherwise permissible under such practices or policies. Executive’s base salary shall be subject
to annual review and periodic increases (but not decreases), if any, as determined by the
Compensation Committee of the Company’s Board of Directors or, at the discretion of such
Board of Directors, the Board of Directors as a whole.
3.2. Annual Bonus. Executive during the Term shall be eligible to receive an annual
bonus each year, and such bonus, if any, shall be set by the Compensation Committee of the
Company’s Board of Directors or, at the discretion of such Board of Directors, the Board of
Directors as a whole. Each such bonus shall be reasonable in light of the contribution made by
Executive for such year in relation to the contributions made and bonuses paid other senior
Company executives for such year.
3.3.
Stock Options and Restricted Stock. Executive shall be eligible for grants of
options to purchase stock of the Company and restricted stock grants when and as recommended
by the Compensation Committee of the Company’s Board of Directors or, at the discretion of
such Board of Directors, the Board of Directors as a whole. The number of shares subject to
each such stock option grant or restricted stock grant shall be reasonable in light of the
contribution made, or expected to be made, by Executive for the period for which such grant is
made in relation to the number of shares subject to stock option grants and restricted stock grants
made to other senior Company executives based on the contributions made, or expected to be
made, by such other senior Company executives for such period.
3.4.
Employee
Benefit Plans, Programs and Policies. Executive shall be eligible to
participate in the employee benefit plans, programs and policies maintained by the Company for
similarly situated senior executives in accordance with the terms and conditions of such plans,
programs and policies as in effect from time to time.
3.5.
Vacation and Other Similar Benefits. Executive shall be entitled to vacation time
to be credited and taken in accordance with the Company’s policy from time to time in effect for
senior executives. Such vacation time shall not be carried over year to year, and shall not be paid
out upon termination of employment, or upon expiration of this Employment Agreement.
3.6. Business Expenses. Executive shall have a right to be reimbursed for Executive’s
reasonable and appropriate business expenses which Executive actually incurs in connection
with the performance of Executive’s duties and responsibilities under this Employment
Agreement in accordance with the Company’s expense reimbursement policies and procedures
for its senior executives.
§ 4. TERMINATION OF EMPLOYMENT
-2-
4.1. General. The Company shall have the right to terminate Executive’s
employment
at any time, and Executive shall have the right to resign at any time. However, any
non-renewal
by the Company of this Employment Agreement pursuant to § 1.1 shall constitute a termination
of Executive’s employment under § 4 of this Employment Agreement. Any non-renewal by the
Executive of this Employment Agreement pursuant to § 1.1 shall not constitute a resignation by
Executive under § 4 of this Employment Agreement.
4.2.
Termination By The Company Other Than For Death, Cause Or
Disability Or By Executive For Good Reason.
(a) Before a Change in Control. If the Company terminates Executive’s
employment other than for Death, Cause (as defined in § 4.2(c)) or a Disability (as
defined in § 4.2(d)) before the Effective Date (as defined in § 4.2(e)(l)) of a Change
in
Control (as defined in § 4.2(e)(2)) or Executive resigns for Good Reason (as defined
in
§ 4.2(f)) before such Effective Date, the Company (in lieu of any severance pay under
any severance pay plans, programs or policies) shall (subject to applicable
withholdings):
(1) pay to Executive a lump sum amount equal to the product of (x)
multiplied by (y), where (x) equals the sum of (A) and (B), with (A) equal to
the
Executive’s annual base salary as in effect on the date the Executive’s
employment terminates and (B) equal to the amount of the Executive’s most
recently paid annual bonus, and (y) equals one (1);
(2) with respect to options to purchase Company stock which are
granted to Executive before or after the date the Company signs this
Employment
Agreement, accelerate Executive’s right to exercise 100% of such still-outstanding options so that Executive has the right to exercise 100% of such
still-outstanding options on the date Executive’s employment
terminates, subject to the terms of the plan under which the options were granted;
(3) pay to the Executive a lump sum amount equal to the product of
(x) multiplied by (y), where (x) equals two times the Company’s monthly
contribution on behalf of Executive under the plans, programs and policies
described in § 3.4 which provide healthcare, life insurance and accidental
death
and dismemberment coverage to Executive immediately before Executive’s
employment terminates, and (y) equals eighteen (18); and
(4) make one or, if necessary, more than one Gross Up Payment (as
described in and paid in accordance with §4.2(g)) to Executive, if applicable.
(b) After a Change of Control. If Executive resigns for Good Reason within
one hundred eighty days (180) prior to, or eighteen (18) months following, the
Effective
Date of a Change in Control or the Company terminates Executive’s employment (other
than for Cause or a Disability) within one hundred eighty (180) days prior to, or
eighteen
(18) months following, the Effective Date of a Change of Control, the Company (in lieu
of any severance pay under any severance pay plans, programs or policies) shall
(subject
to applicable withholdings):
(1) pay to Executive a lump sum amount equal to the product of (x)
multiplied by (y), where (x) equals the sum of (A) and (B), with (A) equal to the
Executive’s annual base salary as in effect on the date the Executive’s
-3-
employment terminates and (B) equal to the amount of the Executive’s most
recently paid annual bonus, and (y) equals two (2);
(2) (a) with respect to options to purchase Company stock which are
granted to Executive before or after the date the Company signs this Employment
Agreement, accelerate Executive’s right to exercise 100% of such
still-outstanding options so that Executive has the right to exercise 100% of such
still-outstanding options on the date Executive’s employment terminates, subject to the
terms of the plan under which the options were granted; and
(b) treat Executive as if Executive had remained employed by the Company until the end
of the three (3) year period which starts on the date Executive’s employment terminates for
the sole purpose that the time period over which Executive has the right to exercise such
options shall be the same as if there had been no termination of Executive’s employment
until the end of such three (3) year period;
(3) with respect to shares of restricted stock which are granted to
executive after the date the Company signs this Employment Agreement and are
still outstanding, deem any conditions applicable to such grant to have been
satisfied in full;
(4) pay to the Executive a lump sum amount equal to the product of
(x) multiplied by (y), where (x) equals two times the Company’s monthly
contribution on behalf of Executive under the plans, programs and policies
described in §3.4 which provide healthcare, life insurance and accidental death
and dismemberment coverage to Executive immediately before Executive’s
employment terminates, and (y) equals eighteen (18); and
(5) make one or, if necessary, more than one, Gross Up Payment (as
described in and paid in accordance with § 4.2(g)) to Executive, if applicable.
(c) Cause. The term “Cause” as used in this Employment Agreement shall (subject
to § 4.2(c)(4)) mean:
(1) Executive is convicted of, pleads guilty to, or confesses or
otherwise admits to any felony or any act of fraud, misappropriation or
embezzlement;
(2) There is any act or omission by Executive involving malfeasance
or gross negligence in the performance of Executive’s duties and responsibilities
under § 2 or the exercise of Executive’s powers under § 2 to the material
detriment of the Company; or
(3) (A) Executive breaches any of the provisions of § 5 or (B)
Executive violates any provision of any code of conduct adopted by the Company
which applies to Executive and any other Company employees if the consequence
of such violation for any employee subject to such code of conduct ordinarily
would be a termination of his or her employment by the Company; provided,
however.
-4-
(4) No such act or omission or event shall be treated as “Cause” under §
4.2(c)(2) and § 4.2(c)(3) and this Employment Agreement unless (A) Executive has been
provided a detailed, written statement of the basis for the Company’s belief that such act
or omission or event constitutes “Cause” and an opportunity to meet with the Company’s
Board of Directors (together with Executive’s counsel if Executive chooses to have
Executive’s counsel present at such meeting) after Executive has had a reasonable period in
which to review such statement and, if the act or omission or event is one which can be
cured by Executive, Executive has had at least a thirty (30) day period to take corrective
action and (B) the Company’s Board of Directors after such meeting (if Executive exercises
Executive’s right to have a meeting) and after the end of such thirty (30) day correction
period (if applicable) determines reasonably and in good faith and by the affirmative vote
of at least a majority or, after the Effective Date of a Change in Control, at least
three-fourths of the members of such Board of Directors then in office at a meeting called
and held for such purpose that “Cause” does exist under this Employment Agreement;
provided, however, if Executive is a member of such Board of Directors, Executive shall
have no right to participate in such vote, and the number of members needed to constitute a
majority of, or three-fourths of, whichever is applicable, the members of such Board of
Directors shall be determined without counting Executive as a member of such Board of
Directors; further provided,
(d) Disability. The term “Disability” as used in this Employment Agreement
means any physical or mental condition which renders Executive unable even with
reasonable accommodation by the Company to perform the essential functions of
Executive’s job for at least a consecutive one hundred and eighty (180) day period and
which makes Executive eligible to receive benefits under the Company’s long-term
disability plan as of the date that Executive’s employment terminates.
(e) Effective Date and Change in Control.
(1) The term “Effective Date” as used in this Employment Agreement
means either the date which includes the “closing” (as such term is commonly
understood in the United States) of the transaction which makes a Change in
Control effective if the Change in Control is made effective through a transaction
which has such a “closing” or the earliest date a Change in Control is reported in
accordance with any applicable law, regulation, rule or common practice as
effective to any government or any agency of any government or to any exchange
or market in which the Company effects any trades if the Change in Control is
made effective other than through a transaction which has such a “closing.”
(2) The term “Change in Control” as used in this Employment
Agreement means the occurrence of any of the following events:
(A) any “person” (as that term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934), is or becomes the beneficial owner (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities
representing 30% or more of the combined voting power of the then outstanding
securities of the Company eligible to
-5-
vote for the election of the members of the Company’s Board of Directors unless (1) such person is
the Company or any subsidiary of the Company, (2) such person is an employee benefit plan (or a
trust which is a part of such a plan) which provides benefits exclusively to, or on behalf of,
employees or former employees of the Company or a subsidiary of the Company, (3) such person is an
underwriter temporarily holding such securities pursuant to an offering of such securities, (4)
such person is Executive, an entity controlled by Executive or a group which includes Executive or
(5) such person acquired such securities in a Non-Qualifying Transaction (as defined in §
4.2(e)(2)(D));
(B) during any period of two consecutive years or less
beginning after the closing date of the initial public offering of the
common stock of the Company, individuals who at the beginning of such
period constitute the Board of Directors of the Company cease, for any
reason, to constitute at least a majority of such Board of Directors, unless
the election or nomination for election of each new director was approved
by at least two-thirds of the directors then still in office who were directors
at the beginning of the period (either by a specific vote of such directors or
by the approval of the Company proxy statement in which each such
individual is named as a nominee for a director without written objection
to such nomination by such directors); provided, however, that no
individual initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect to directors
or as a result of any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board of Directors
of the Company shall be deemed to be approved;
(C) the shareholders of the Company approve any
reorganization, merger, consolidation or share exchange as a result of
which the common stock of the Company shall be changed, converted or
exchanged into or for securities of another corporation (other than a
merger with a wholly owned subsidiary of the Company) or any
dissolution or liquidation of the Company or any sale or the disposition of
50% or more of the assets or business of the Company, or
(D) the shareholders of the Company approve any
reorganization, merger, consolidation or share exchange or similar form of
corporate transaction involving the Company unless (1) the persons who
were the beneficial owners of the outstanding securities eligible to vote for
the election of the members of the Company’s Board of Directors
immediately before the consummation of such transaction hold more than
60% of the voting power of the securities eligible to vote for the members
of the board of directors of the successor or survivor corporation in such
transaction immediately following the consummation of such transaction
and (2) the number of the securities of such successor or survivor
corporation representing the voting power described in § 4.2(e)(2)(D)(l)
held by the persons described in § 4.2(e)(2)(D)(l) immediately following
-6-
the consummation of such transaction is beneficially owned by each such person
in substantially the same proportion that each such person had beneficially owned
the outstanding securities eligible to vote for the election of the members of the
Company’s Board of Directors immediately before the consummation of such
transaction, provided (3) the percentage described in § 4.2(e)(2)(D)(l) of the
securities of the successor or survivor corporation and the number described in §
4.2(e)(2)(D)(2) of the securities of the successor or survivor corporation shall be
determined exclusively by reference to the securities of the successor or survivor
corporation which result from the beneficial ownership of shares of common stock of
the Company by the persons described in § 4.2(e)(2)(D)(l) immediately before the
consummation of such transaction (any transaction which satisfies all of the
criteria specified in (1), (2) and (3) above shall be deemed to be a
“Non-Qualifying Transaction”);
Notwithstanding the foregoing, the initial public offering of the common stock of the
Company shall in no event constitute a Change in Control under this Employment Agreement.
(f) Good Reason. The term “Good Reason” as used in this Employment
Agreement shall (subject to § 4.2(f)(6)) mean:
(1) there is a material reduction or, after the Effective Date of a
Change in Control, any reduction in Executive’s base salary under § 3.1 or there
is a material reduction in Executive’s opportunity to receive any annual bonus and
stock option grants without Executive’s express written consent;
(2) there is a material reduction in the scope, importance or prestige of
Executive’s duties, responsibilities or powers at the Company or Executive’s
reporting relationships with respect to who reports to Executive and whom
Executive reports to at the Company without Executive’s express written consent;
(3) the Company transfers Executive’s primary work site from
Executive’s primary work site on the date the Company signs this Employment
Agreement or, if Executive subsequently consents in writing to such a transfer
under this Employment Agreement, from the primary work site which was the
subject of such consent, to a new primary work site which is more than 30 miles
(measured along a straight line) from Executive’s then current primary work site
unless such new primary work site is closer (measured along a straight line) to
Executive’s primary residence than Executive’s then current primary work site;
(4) the Company after the Effective Date of a Change in Control
changes Executive’s job title or fails to continue to make available to Executive
the same or substantially equivalent plans, programs and policies pursuant to § 3.4
as made available before such Effective Date absent Executive’s express written
consent;
-7-
(5) there is a material breach or, after the Effective Date of a Change
in Control, any breach of this Employment Agreement by the Company;
provided, however,
(6) No such act or omission shall be treated as “Good Reason” under
this Agreement unless:
(A) (1) Executive delivers to the Compensation Committee of the
Company’s Board of Directors a detailed, written statement of the basis
for Executive’s belief that such act or omission constitutes Good Reason,
(2) Executive delivers such statement before the later of (a) the end of the
ninety (90) day period which starts on the date there is an act or omission
which forms the basis for Executive’s belief that Good Reason exists or
(b) the end of the period mutually agreed upon for purposes of this
§ 4.2(f)(6)(a)(2)(B) in writing by Executive and the Chairman of the Company’s
Board of Directors, (3) Executive gives such Board of Directors a thirty (30) day
period after the delivery of such statement to cure the basis for such belief and
(4) Executive actually submits Executive’s written resignation to the Chairman of
the Company’s Board of Directors during the sixty (60) day period which begins
immediately after the end of such thirty (30) day period if Executive reasonably
and in good faith determines that Good Reason continues to exist after the end of
such thirty (30) day period; or
(B) the Company states in writing to Executive that Executive
has the right to treat any such act or omission as Good Reason under this
Employment Agreement and Executive resigns during the sixty (60) day
period which starts on the date such statement is actually delivered to
Executive; and
(7) If Executive consents in writing to any reduction described in
§ 4.2(f)(l) or § 4.2(f)(2), to any transfer described in § 4.2(f)(3) or to any change or
failure described in § 4.2(f)(4) in lieu of exercising Executive’s right to resign for Good
Reason and delivers such consent to the Chairman of the Company’s Board of Directors, the
date such consent is so delivered thereafter shall be treated under this definition as the
Effective Date of a Change in Control for purposes of determining whether Executive
subsequently has Good Reason under this Employment Agreement to resign as a result of any
such subsequent reduction, transfer or change or failure.
(g) Gross Up Payment. The term “Gross Up Payment” as used in this Employment
Agreement shall mean a payment to or on behalf of Executive which shall be sufficient to pay (1)
100% of any excise tax described in this §4.2(g), (2) 100% of any federal, state and local income
tax and social security and other employment tax on the payment made to pay such excise tax as well
as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by the
Internal Revenue Service on Executive which are related to the timely payment of such excise tax
(unless such interest or penalties are attributable to Executive’s willful misconduct or gross
negligence with respect to such timely payment). A Gross Up Payment shall be made by the Company
-8-
promptly after either the Company or the Company’s independent accountants determine that
any payments and benefits called for under this Employment Agreement together with any other
payments and benefits made available to Executive by the Company and any other person will
result in Executive’s being subject to an excise tax under § 4999 of the Internal Revenue
Code of 1986, as amended (which shall be referred to in this § 4.2(g) as the “Code”) or such
an excise tax is assessed against Executive as a result of any such payments and other
benefits if Executive takes such action (other than waiving Executive’s right to any
payments or benefits in excess of the payments or benefits which Executive has expressly
agreed to waive under this § 4.2(g)) as the Company reasonably requests under the
circumstances to mitigate or challenge such excise tax; provided, however,
if the Company or the Company’s independent accountants make the determination described in
this § 4.2(g) and, further, determine that Executive will not be subject to any such excise
tax if Executive waives Executive’s right to receive a part of such payments or benefits and
such part does not exceed $25,000, Executive shall irrevocably waive Executive’s right to
receive such part if an independent accountant or lawyer retained by Executive and paid by
the Company agrees with the determination made by the Company or the Company’s independent
accountants with respect to the effect of such reduction in payments or benefits. Any
determinations under this §4.2(g) shall be made in accordance with § 280G of the Code and
any applicable related regulations (whether proposed, temporary or final) and any related
Internal Revenue Service rulings and any related case law and, if the Company reasonably
requests that Executive take action to mitigate or challenge, or to mitigate and challenge,
any such tax or assessment (other than waiving Executive’s right to any payments or benefits
in excess of the payments or benefits which Executive has expressly agreed to waive under
this §4.2(g)) and Executive complies with such request, the Company shall provide Executive
with such information and such expert advice and assistance from the Company’s independent
accountants, lawyers and other advisors as Executive may reasonably request and shall pay
for all expenses incurred in effecting such compliance and any related fines, penalties,
interest and other assessments.
4.3. Termination By The Company For Cause or By Executive Other Than For Good
Reason. If the Company terminates Executive’s employment for Cause or Executive
resigns
other than for Good Reason, the Company’s only obligation to Executive under this Employment
Agreement shall (subject to applicable withholdings) be to pay Executive’s base salary and
annual bonus, if any, which were due and payable on the date Executive’s employment
terminated and to reimburse Executive for expenses Executive had already incurred and which
would have otherwise been reimbursed but for such termination of employment.
4.4. Termination for Disability or Death.
(a) General. The Company shall have the right to terminate Executive’s
employment on or after the date Executive has a Disability, and Executive’s employment
shall terminate at Executive’s death.
(b) Base Salary and Bonus. If Executive’s employment terminates under this
§ 4.4, the Company’s only obligation under this Employment Agreement shall (subject to
applicable withholdings) be (1) to pay Executive or, if Executive dies, Executive’s
estate
the base salary and annual bonus, if any, which were due and payable on the date
Executive’s employment terminated and (2) to reimburse Executive or, if Executive dies,
-9-
Executive’s estate for any expenses which Executive had already incurred and which
would have otherwise been reimbursed but for such termination of employment.
4.5. Benefits at Termination of Employment. Executive upon Executive’s termination
of employment shall have the right to receive any benefits payable under the Company’s employee
benefit plans, programs and policies which Executive otherwise has a nonforfeitable right to
receive under the terms of such plans, programs and policies independent of Executive’s rights
under this Employment Agreement; however, if a payment is made to Executive under § 4.2(a) or §
4.2(b), such payment shall be in lieu of any severance pay under any severance pay plan, program or
policy.
§ 5. COVENANTS BY EXECUTIVE
5.1. Company Property.
(a) General. Executive upon the termination of Executive’s employment for
any reason or, if earlier, upon the Company’s request shall promptly return all
Property
(as defined in § 5.1(b)) which had been entrusted or made available to Executive by the
Company and, if any copy of any such Property was made by, or for, Executive, each and
every copy of such Property.
(b) Property. The term “Property” means records, files, memoranda, tapes,
computer disks, reports, price lists, customer lists, drawings, plans, sketches, keys,
computer hardware and software, cellular telephones, credit cards, access cards,
identification cards, personal data assistants and the like, company cars and other
tangible
personal property of any kind or description.
5.2. Trade Secrets.
(a) General. Executive agrees that Executive will hold in a fiduciary capacity
for the benefit of the Company and each of its affiliates, and will not directly or
indirectly
use or disclose to any person not authorized by the Company, any Trade
Secret (as
defined in § 5.2(b)) of the Company or its affiliates that Executive may have acquired
(whether or not developed or compiled by Executive and whether or not Executive is
authorized to have access to such information) during the term of, and in the course
of, or
as a result of Executive’s employment by the Company or its affiliates for so long as
such
information remains a Trade Secret.
(b) Trade Secret. The term “Trade Secret” for purposes of this Employment
Agreement means information, including, but not limited to, technical or nontechnical
data, a formula, a pattern, a compilation, a program, a device, a method, a technique,
a
drawing, a process, financial data, financial plans, product plans, or a list of actual
or
potential customers or suppliers that (1) derives economic value, actual or potential,
from
not being generally known to, and not being generally readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or use and
(2) is the subject of reasonable efforts by the Company and its affiliates to maintain
its
secrecy.
(c) Additional Rights. This § 5.2 is intended to provide rights to the
Company and its affiliates which are in addition to, not in lieu of, those rights
the
Company and its affiliates have under the common law or applicable statutes for
the
protection of trade secrets.
-10-
5.3. Confidential Information.
(a) General. Executive while employed under this Employment Agreement
and thereafter during the Restricted Period (as defined in § 5.4) shall hold in a
fiduciary
capacity for the benefit of the Company and its affiliates, and shall not directly or
indirectly use or disclose to any person not authorized by the Company, any
Confidential
Information (as defined in § 5.3(b)) of the Company or its affiliates that Executive
may
have acquired (whether or not developed or compiled by Executive and whether or not
Executive is authorized to have access to such information) during the term of, and in
the
course of, or as a result of Executive’s employment by the Company or its affiliates.
(b) Confidential Information. The term “Confidential Information” for
purposes of this Employment Agreement means any secret, confidential or proprietary
information possessed by the Company or its affiliates relating to their businesses,
including, without limitation, customer lists, details of client or consultant
contracts,
current and anticipated customer requirements, pricing policies, price lists, market
studies, business plans, operational methods, marketing plans or strategies, product
development techniques or flaws, computer software programs (including object codes
and source codes), data and documentation, base technologies, systems, structures and
architectures, inventions and ideas, past, current and planned research and
development,
compilations, devices, methods, techniques, processes, future business plans, licensing
strategies, advertising campaigns, financial information and data, business acquisition
plans and new personnel acquisition plans (not otherwise included in the definition of
a
Trade Secret under this Employment Agreement) that has not become generally available
to the public by the act of one who has the right to disclose such information without
violating any right of the Company or its affiliates.
(c) Additional Rights. This § 5.3 is intended to provide rights to the
Company and its affiliates which are in addition to, not in lieu of, those rights
the
Company and its affiliates have under the common law or applicable statutes for
the
protection of confidential information.
5.4. Restricted Period. The term “Restricted Period” for purposes of this Employment
Agreement shall mean the one-year period following termination of Executive’s employment.
5.5. Nonsolicitation of Customers or Employees.
(a) Customers. Executive, while employed under this Employment
Agreement and thereafter during the Restricted Period, shall not, on Executive’s own
behalf or on behalf of any person, firm partnership, association, corporation or
business
organization, entity or enterprise, call on or solicit for the purpose of competing
with the
Company or its affiliates any customers of the Company or its affiliates with whom
Executive had contact, knowledge, or association at any time during Executive’s
employment with the Company or its affiliates, or with respect to the Restricted
Period, at
any time during the twelve (12) month period immediately preceding the beginning of the
Restricted Period.
(b) Employees. Executive, while employed under this Employment
Agreement and thereafter during the Restricted Period, shall not, either directly or
indirectly, call on, solicit or attempt to induce any other officer, employee or
independent
-11-
contractor of the Company or its affiliates with whom Executive had contact, knowledge of,
or association at any time during Executive’s employment with the Company or its affiliates,
or with respect to the Restricted Period, at any time during the twelve (12) month period
immediately preceding the beginning of the Restricted Period, to terminate his or her
employment or business relationship with the Company or its affiliates and shall not
assist any other person or entity in such a solicitation.
5.6. Intellectual Property Rights. Executive hereby unconditionally and irrevocably
assigns to the Company all of Executive’s right, title and interest in any ideas, inventions,
trademarks, copyrights, developments and improvements that Executive conceives, alone or with
others, during the Term, whether or not conceived during working hours, which are within the
scope of the Company’s business operations or relate to any of the Company’s work, projects or
research activities, all of which shall be referred to as “Intellectual Property,” and
Executive shall
assist the Company, at the Company’s expense, in obtaining patents, copyright and trademark
registrations for Intellectual Property, execute and deliver all documents and do any and all
things necessary and proper on Executive’s part to obtain such patents and copyright and
trademark registrations and execute specific assignments and other documents for such
Intellectual Property as may be considered necessary or appropriate by the Company at any time
during Executive’s employment. This § 5.6 shall not apply to any invention that Executive
develops entirely on Executive’s own time without using the Company’s equipment, supplies,
facilities or trade secret or confidential information. Executive agrees not place
Intellectual
Property in the public domain or disclose any inventions to third parties without the prior
written
consent of the Company.
5.7. Non-Compete. Executive and the Company agree that (a) the Company is
engaged in the family entertainment resort business featuring indoor waterparks, which shall
be
referred to as the “Business,” (b) the Business can be conducted anywhere, (c) the Business
can
be and is available to any person or entity with access to sufficient capital, (d) the
Business
consequently has no geographic boundary or limitation and will have none during the Term, (e)
Executive is, and is expected to continue to be during the Term, intimately involved in the
Business wherever it operates, and (f) this § 5.7 is intended to provide fair and reasonable
protection to the Company in light of the unique circumstances of the Business. Executive
therefore agrees that Executive shall not during the Term and for the one (1) year period
which
starts on the date Executive’s employment terminates under this Employment Agreement
compete with the Company within fifty (50) miles of a location where the Company conducts its
Business or is planning to conduct its Business; provided, however, Executive may own up to
five percent (5%) of the stock of a publicly traded company that engages in such competitive
business so long as Executive is only a passive investor and is not actively involved in such
company in any way.
5.8. Reasonable and Continuing Obligations. Executive agrees that Executive’s
obligations under this § 5 are obligations which will continue beyond the date Executive’s
employment terminates and that such obligations are reasonable and necessary to protect the
Company’s legitimate business interests. The Company in addition shall have the right to take
such other action as the Company deems necessary or appropriate to compel compliance with the
provisions of this § 5.
5.9.
Remedy for Breach. Executive agrees that the remedies at law of the Company
for any actual or threatened breach by Executive of the covenants in this § 5 would be
inadequate
-12-
and that the Company shall be entitled to specific performance of the covenants in this § 5,
including entry of an expaite, temporary restraining order in state or federal court, preliminary
and permanent injunctive relief against activities in violation of this § 5, or both, or other
appropriate judicial remedy, writ or order, in addition to any damages and legal expenses which the
Company may be legally entitled to recover. Executive acknowledges and agrees that the covenants in
this § 5 shall be construed as agreements independent of any other provision of this or any other
agreement between the Company and Executive, and that the existence of any claim or cause of action
by Executive against the Company, whether predicated upon this Employment Agreement or any other
agreement, shall not constitute a defense to the enforcement by the Company of such covenants.
§ 6. MISCELLANEOUS
6.1. Notices. Notices and all other communications shall be in writing and shall be
deemed to have been duly given when personally delivered or when mailed by United States
registered or certified mail. Notices to the Company shall be sent to 000 Xxxx Xxxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: General Counsel. Notices
and
communications to Executive shall be sent to the address Executive most recently provided to
the Company.
6.2.
No Waiver. Except for the notice described in § 6.1, no failure by either the
Company or Executive at any time to give notice of any breach by the other of, or to require
compliance with, any condition or provision of this Employment Agreement shall be deemed a
waiver of any provisions or conditions of this Employment Agreement.
6.3.
Choice of Law and Courts. This Employment Agreement shall be governed by
Delaware law (except to the extent that its choice of law provisions would call for the
application
of the law of another jurisdiction), and (subject to § 6.8) any action that may be brought by
either
the Company or Executive involving the enforcement of this Employment Agreement or any
rights, duties, or obligations under this Employment Agreement, shall be brought exclusively
in
the state or federal courts sitting in Delaware, and Executive consents and waives any
objection
to personal jurisdiction and venue in these courts for any such action.
6.4.
Assignment and Binding Effect. This Employment Agreement shall be binding
upon and inure to the benefit of the Company and any successor to all or substantially all of
the
business or assets of the Company. In the event the IPO Closing Date does not occur on or
prior
to March 31, 2005, this Employment Agreement shall become void and shall cease to have any
force or effect.
The Company may assign this Employment Agreement to any affiliate or successor, and no such
assignment shall be treated as a termination of Executive’s employment under this Employment
Agreement. Executive’s rights and obligations under this Employment Agreement are personal and
shall not be assigned or transferred. Any such assignment or attempted assignment by Executive
shall be null, void, and of no legal effect.
6.5. Other Agreements. This Employment Agreement replaces and merges any and all
previous agreements and understandings regarding all the terms and conditions of Executive’s
employment relationship with the Company, and this Employment Agreement constitutes the
entire agreement of the Company and Executive with respect to such terms and conditions.
-13-
6.6. Amendment. Except as provided in § 6.7, no amendment or modification to this
Employment Agreement shall be effective unless it is in writing and signed by the Company and
by Executive.
6.7.
Severability. If any provision of this Employment Agreement shall be found
invalid or unenforceable, in whole or in part, then such provision shall be deemed to be
modified
or restricted to the extent and in the manner necessary to render such provision valid and
enforceable, or shall be deemed excised from this Employment Agreement, as may be required
under applicable law, and this Employment Agreement shall be construed and enforced to the
maximum extent permitted by applicable law, as if such provision had been originally
incorporated in this Employment Agreement as so modified or restricted, or as if such
provision
had not been originally incorporated in this Employment Agreement, as the case may be.
6.8 Arbitration. The Company shall have the right to obtain an injunction or other
equitable relief arising out of the Executive’s breach of the provisions of § 5 of this
Employment
Agreement. However, any other controversy or claim arising out of or relating to this
Employment Agreement or any alleged breach of this Employment Agreement shall be settled
by binding arbitration in Delaware in accordance with the rules of the American Arbitration
Association then applicable to employment-related disputes and any judgment upon any award,
which may include an award of damages, may be entered in the highest state or federal court
having jurisdiction over such award. In the event of the termination of Executive’s
employment,
Executive’s sole remedy shall be arbitration under this § 6.8 and any award of damages shall
be
limited to recovery of lost compensation and benefits provided for in this Employment
Agreement. No punitive damages may be awarded to Executive. The Company and Executive
shall split equally all reasonable fees of the arbitrator.
6.9
Executive’s Legal Fees and Expenses. The Company shall (a) reimburse
Executive for all reasonable costs incurred by Executive in bringing a proceeding to enforce
the
terms of this Employment Agreement, including without limitation all reasonable costs of
investigation and reasonable attorneys fees and expenses and (b) make a payment to or on
behalf
of Executive which shall be sufficient to pay 100% of any federal, state and local income tax
on
the reimbursement and payments made to Executive under this § 6.9. Further, the Company
shall make one or more Gross-Up Payments under § 4.2(g) if the Excise Tax under § 4.2(g) is
applicable to any amounts paid under this § 6.9.
6.10 Release. As a condition to the Company’s making any payments to Executive
after Executive’s termination of employment under this Employment Agreement (other than the
compensation earned before such termination and the benefits due under the Company’s
employee benefit plans without regard to the terms of this Employment Agreement), Executive
or, if Executive is deceased, Executive’s estate shall execute a release in the form of the
release
attached to this Employment Agreement as Exhibit A, or in such other form as is acceptable to
the Company and Executive.
6.11 Counterparts. This Employment Agreement may be executed in counterparts,
each of which will be deemed an original, but all of which together will constitute one and
the same Employment Agreement.
6.12 Headings; References. The headings and captions used in this Employment
Agreement are used for convenience only and are not to be considered in construing or
interpreting this Employment Agreement. Any reference to a section (§) shall be to a section
(§)
-14-
of this Employment Agreement absent an express statement to the contrary in this Employment
Agreement.
-15-
IN WITNESS WHEREOF, the Company and Executive have executed this Employment Agreement in
multiple originals to be effective on the IPO Closing Date.
| GREAT WOLF RESORTS, INC. |
||||
| By: | /S/ | |||
| Name: | J. Xxxxxxx Xxxxxxxxx | |||
| Title: | General Counsel and Corporate Secretary | |||
| This 13th day of December, 2004 |
||||
| EXECUTIVE |
||||
| /S/ | ||||
| This 13th day of December, 2004 | ||||
-16-
