PARKS! AMERICA, INC, EMPLOYMENT AGREEMENT
Exhibit 10.1 Xxxx Xxx Xxxxxxx Employment Contract, June 1, 2016
PARKS! AMERICA, INC,
This Employment Agreement (this "Agreement") is hereby entered into and made effective this first day of June 2016, by and between Parks! America, Inc., a Nevada corporation, with its principal place of business located at 0000 Xxx Xxxxx Xxxx Xxxx Xxxxxxxx, Xxxxxxx 00000 (the "Company"), and Xxxx Xxx Xxxxxxx of 0000 Xxxxxxx Xxxxx, Xxxxx, Xxxx ("Van Xxxxxxx").
RECITALS
1.
The Company is engaged in the business of developing theme parks and attractions and related service enterprises and desires to acquire and retain qualified, experienced leadership in this endeavor.
2.
Van Xxxxxxx has been an officer and Director of the Company since 2009.
In view of his effective service in the operation and financial management of the Company, the Company has determined that it desires to continue the employment of Van Xxxxxxx, as Chief Executive Officer of the Company and as a member of the Board of Directors according to the terms as set forth below.
3.
Van Xxxxxxx desires to be employed by the Company as its Chief Executive Officer.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants, promises, terms and conditions hereinafter set forth, the parties hereto agree as follows:
I.
EMPLOYMENT
The Company hereby employs, engages and hires Van Xxxxxxx, on a part-time basis, as its Chief Executive Officer, on the terms and conditions hereinafter set forth, and Van Xxxxxxx hereby accepts such employment and agrees to perform such services and duties and to carry out such responsibilities as hereinafter set forth and as further clarified in Schedule "A" attached hereto.
II.
TERMS OF EMPLOYMENT The term of employment under this Agreement shall be for a period of two (2) years commencing as of June 1, 2016 and terminating on May 31, 2018.
III.
SERVICES, DUTIES AND RESPONSIBILITIES
1.
On a part time-basis, Van Xxxxxxx will faithfully and to the best of his ability serve the Company in his capacity as its Chief Executive Officer and a member of the Board of Directors, subject to the policy direction of the Board of Directors of the Company. Van Xxxxxxx shall perform such services and duties as are customarily performed by one holding the positions of Chief Executive Officer of a public corporation.
2.
As Chief Executive Officer, Van Xxxxxxx shall be responsible for the overall management of the Company's business. Van Xxxxxxx will devote his energy and skill on a part-time basis to his employment with the Company. Such duties shall be rendered where Van Xxxxxxx elects, and at such other place or places as the Company shall require or as interests, needs, business or opportunity of the Company shall require, subject to the part time-nature of this employment.
3.
Van Xxxxxxx shall be responsible for reporting to the Board of Directors of the Company.
4.
Van Xxxxxxx shall not directly or indirectly represent or be engaged by or be an employee of any other person, firm or corporation or be engaged for his services as an officer, general manager or consultant in any other business or enterprise in competition with the Company, subject to the conditions and limitations provided in Article IX, Section 3 hereof,. It is understood, however, that the foregoing in no way prevents Van Xxxxxxx from owning stock or having an economic interest in other businesses or enterprises. Furthermore, Van Xxxxxxx may serve on the board of directors of other companies so long as such service does not conflict with his interest in and duties to the Company and he may be an officer, director, and/or shareholder in any family or personal investment business so long as it does not conflict with his interest in and duties to the Company.
IV.
COMPENSATION
1.
Salary. Commencing June 1, 2016, the Company shall pay Van Xxxxxxx a salary at the rate of $90,000.00 (Ninety Thousand Dollars) per year, payable monthly on the last day of each month. Said salary will be subjected to withholding taxes, e.g., Federal Income Tax, FICA, and State and/or Local Withholding Taxes. Whereas such salary shall not be decreased during the term of this Agreement without the consent of Van Xxxxxxx, it shall be subject to review by the Company’s Board of Directors annually. The salary shall be guaranteed during the entire 2-year term of this Agreement. The Company shall also reimburse Van Xxxxxxx for all reasonable and necessary business expenses incurred by him as the Chief Executive Officer and/or a Board Member of the Company, including expenses incurred by him with respect to his wife when it is necessary for her to accompany him to the IAAPA Convention for the Company and/or attending business or social functions.
V.
DIRECTORS AND OFFICERS INSURANCE
The Company has purchased and maintains Directors’ and Officers’ liability insurance, including coverage for Xxxx Xxx Xxxxxxx in his capacity as an officer and as Chairman of the Board of Directors of the Company and as a member of the Board of Directors of the Company, in an amount of not less than $3,000,000.00 (Three Million Dollars).
VI.
INDEMNIFICATION The Company shall indemnify Van Xxxxxxx, his heirs, executors, administrators and assigns, against, and he shall be entitled without further act on his part to be indemnified by the Company for all claims against him and expenses, including, but not limited to, amounts of judgments, reasonable settlement of suits, attorney fees and related costs of litigation, reasonably incurred by him in connection with or arising out of any action, suit or cause of action against the Company and/or against Van Xxxxxxx as a result of his having been an officer and/or Director of the Company, or, at its request, of any other corporation which the Company owns or of which the Company is a stockholder or creditor, whether or not he continues to be such officer or Director at the time of incurring said expenses. The foregoing right of indemnification shall not be exclusive of other rights to which Van Xxxxxxx may be entitled. The foregoing right of indemnification shall not apply to claims where Van Xxxxxxx is conclusively shown to have committed acts of malfeasance or gross negligence.
VII.
BUSINESS EXPENSE REIMBURSEMENT
The Company shall reimburse Van Xxxxxxx for all reasonable and necessary business expenses incurred by him in the performance of his services, duties and responsibilities, including but not limited to, transportation, travel expenses, board and room, entertainment, and other business expenses incurred within the scope of his duties, such requests for reimbursement to be supported by receipts, bills and other records acceptable to the Chief Financial Officer of the Company. If Van Xxxxxxx travels to the IAAPA Convention with his wife, Xxxxxx Xxx Xxxxxxx, her travel expenses shall be reimbursed as well. If reimbursement, advances or allowances are based on permitted mileage or per diem rates, then Van Xxxxxxx shall submit specification of relevant mileage, destination, dates and other supporting information typically required for tax purposes.
VIII.
TERMINATION OF EMPLOYMENT
1.
Termination for Cause, Generally. Under this Agreement, the Company shall have the right to terminate the employment of Van Xxxxxxx for “cause,” which shall consist of two classes: “Class 1” shall mean termination where there are acts or omissions involving malfeasance on the part of Van Xxxxxxx (as further described below), and “Class 2” shall refer to a termination of Van Xxxxxxx by the Board of Directors where no action or inaction involving malfeasance (“no-fault”) is alleged. Upon termination in either case, all Company property and credit cards in the possession and control of Van Xxxxxxx must be returned to the Company.
2.
Malfeasance Termination for Cause – Class 1. In the event the employment of Van Xxxxxxx is terminated for Class 1 cause, then, all compensation, including salary, stock options, bonuses, deferred compensation and benefits will cease immediately. Termination for Class 1 cause includes, but is not limited to, the following conduct:
(1)
Breach of any restrictive covenant contained herein against competition or disclosure of trade secrets;
(2)
Continued failure and refusal to carry out the duties and responsibilities of office under this Agreement within a reasonable time following written notice from the Board of Directors requiring the subject performance;
(3)
Failure to cure a material breach of this Agreement within ten (10) days after receiving written notice from the Board of Directors to cure such breach;
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(4)
Failure to cease conduct unbecoming an officer of the Company after the receipt of written notice from the Board of Directors to cease such conduct.
(5)
Commission of a felony.
3.
No-Fault Termination – Class 2
(a)
Simple Termination. In the event of a Class 2 (no fault) termination of Van Xxxxxxx as the result of a decision by the Board of Directors to terminate his employment or to materially change his responsibilities or title as Chief Executive Officer or termination because the Company ceases doing business for any reason whatsoever, Van Xxxxxxx shall be entitled to the amount of his salary for the entire remainder of the then existing term of this Agreement.
(b)
Sale/Take-Over Termination Payment. In the event the employment of Van Xxxxxxx is terminated or his responsibilities or circumstances of his employment are materially changed following the sale of the business (either asset or stock sale), merger, consolidation, or by "takeover" or change in control, then Van Xxxxxxx shall be entitled to a termination payment of $225,000.00 (Two Hundred and Twenty-Five Thousand Dollars), in addition to the amount of his salary for the then existing remainder of the term of this Agreement.
(c)
Resignation. In the event that Van Xxxxxxx resigns as Chief Executive Officer of the Company, then, unless a different compensation is otherwise mutually agreed upon in writing between the parties, Van Xxxxxxx will be entitled to one (1) month's salary following his notice of resignation which precludes claims for full renumeration for the remainder of the Agreement. All rights to stock options, bonuses or deferred compensation not granted or vested shall be relinquished by Van Xxxxxxx upon his giving such notice of his resignation.
(d)
Death or Disability. In the event Van Xxxxxxx' employment is terminated by death or upon medical certification of total disability ("disability"), then the following will apply as the case may be:
(i)
In the event of Van Xxxxxxx' death, the Company shall:
Pay to Van Xxxxxxx' designated beneficiary an amount equal to Van Xxxxxxx' salary for a six (6) month period next following his death. As of this date of this Agreement, Van Xxxxxxx’ designated beneficiary is his wife, Xxxxxx Xxx Xxxxxxx.
(ii)
In the Event of Van Xxxxxxx' disability, the Company shall:
Pay to Van Xxxxxxx an amount equal to Van Xxxxxxx' salary for a six (6) month period next following medical notice to the Company of disability.
IX.
RESTRICTIVE COVENANTS
1.
Confidential information. Van Xxxxxxx covenants not to disclose the following specified confidential information to competitors or to others outside of the scope of reasonably prudent business disclosure, at any time during or after the termination of his employment by the Company.
a.
Customers lists, contracts, and other sales and marketing information;
b.
Financial information, cost data;
c.
Formulas, trade secrets, processes and devices related to the operation of the theme parks;
d.
Supply sources, contracts;
e.
Business opportunities relating to developing new business for the Company;
f.
Proprietary plans, procedures, models and other proprietary information of the Company.
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2.
Affirmative Duty to Disclose. Van Xxxxxxx shall promptly communicate and disclose to the Company all observations made, information received, and data maintained relating to the business of the Company obtained by him as a consequence of his employment by the Company. All written material, possessed during his employment with the Company concerning business affairs of the Company or any of its affiliates, are the sole property of the Company and its affiliates, and Van Xxxxxxx is obligated to make reasonably prompt disclosures of such information and documents to the Company, and, further, upon termination of this Agreement, or upon request of the Company, Van Xxxxxxx shall promptly deliver the same to the Company or its affiliates, and shall not retain any copies of same.
3.
Covenant Not to Compete. For a period of one (1) year following the termination of his employment with the Company, Van Xxxxxxx shall not work, directly or indirectly, for a competitor of the Company, nor shall he himself establish a competitive business. This restrictive covenant shall be limited to businesses that compete in the theme park business in market areas within 100 miles of Company parks or which the Company has designated for acquisition, for a period of one (1) year following the termination of his employment with the Company.
4.
Material Harm Upon Breach. The parties acknowledge the unique and secret nature of the Company's procedures for acquisition of theme parks and related businesses rand of related proprietary information, and that material irreparable harm occurs to the Company if these restrictive covenants are breached. Further, the parties hereto acknowledge and agree that injunctive relief is not an exclusive remedy and that an election on the part of the Company to obtain an injunction does not preclude other remedies available to the Company.
5.
Arbitration. Any controversy, claim, or matter in dispute occurring between these parties and arising out of or relating to this Agreement shall he submitted by either or both of the parities to arbitration administered by the American Arbitration Association or its successor and said arbitration shall be final, absolute and non-appealable. The Commercial Arbitration Rules of the American Arbitration Association shall apply subject to the following modifications:
a.
The venue for said arbitration shall be LaGrange, Georgia, and the laws of the State of Georgia relating to arbitration shall apply to said arbitration.
b.
The decision of the arbitration panel may be entered as a judgment in any court of general jurisdiction in any state of the United States or elsewhere.
X.
NOTICE
Except as otherwise provided herein, all notices required by this Agreement as well as any other notice to any party hereto shall be given by certified mail (or equivalent), to the respective parties as required under this Agreement or otherwise, to the following addresses indicated below or to any change of address given by a party to the others pursuant to the written notice,
COMPANY:
Parks! America, Inc.
X.X. Xxx 0000
Xxxx Xxxxxxxx, Xxxxxxx 00000
VAN XXXXXXX:
Xxxx Xxx Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxx 00000
XI.
PORT ROYAL HOLDINGS, LLC
Port Royal Holdings, LLC (“Port Royal”) is an entity with offices at One West 125th Street, LLC, 00 Xxxxxxxxxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000. Port Royal owns certain real property located in the City of Jasper, Xxxxxxx County, Georgia, which it is in the planning process of developing. Van Xxxxxxx has been hired by Port Royal, on a part time basis, as its Chief Executive Officer and Chairman of the Board of Directors.
The Company is satisfied that Port Royal is not a competing business with the Company and that Van Xxxxxxx serving as its Chief Executive Officer and Chairman of the Board will not interfere with him performing his duties as Chief Executive Officer and as Chairman of the Board of Directors of the Company.
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XII.
GENERAL PROVISIONS
1.
Entire Agreement. This Agreement constitutes and is the entire Agreement of the parities and supersedes all other prior understandings and/or Agreements between the parties regarding the matters herein contained, whether verbal or written.
2.
Amendments. This Agreement may be amended only in writing signed by both parties.
3.
Assignment. No party of this Agreement shall be entitled to assign his or its interest herein without the prior written approval of the other party.
4.
Execution of Other Documents. Each of the parties agrees to execute any other documents reasonably required to fully perform the intentions of this Agreement.
5.
Binding Effect. This Agreement shall inure to and be binding upon the parties hereto, their agents, employees, heirs, personal representatives, successors and assigns.
6.
No Waiver of Future Breach. The failure of one party to insist upon strict performance or observation of this Agreement shall not be a waiver of any future breach or of any terms or conditions of this Agreement.
7.
Execution of Multiple Originals. Two (2) original counterparts of this Agreement shall be executed by these parties. This Agreement may be executed by FAX or scanned signature, with such signatures treated as original signatures.
8.
Applicable Law. This Employment Agreement shall be governed by, and construed, in accordance with the applicable laws of the State of New York.
WHEREFORE, this Agreement is hereby executed and made effective the day and year first above written.
PARKS! AMERICA, INC.
By: /s/ Xxxxxxx Xxxxxx n
Xxxxxxx X. Xxxxxx, Director
/s/ Xxxx Xxx Xxxxxxx s
Xxxx Xxx Xxxxxxx
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SCHEDULE 'A'
Job Description for Chief Executive Officer, Xxxx Xxx Xxxxxxx
Strategic Oversight
o
Work with the Board in establishing and communicating Company mission statement and core values
o
Identify potential acquisitions
o
Lead market assessment and due diligence efforts for potential acquisitions
o
Lead efforts in negotiations of acquisition
o
Report to Board of Directors on matters material to the company
Operations
o
Serve as primary internal and external -facing company officer
o
Primary responsibility for oversight of parks operations
o
Supervise park presidents as direct reports regarding daily operating activities
o
Work with COO on non-ordinary course operating decisions for parks and staffing subsidiaries
o
Make recommendations for hire/fire decisions - Finance
o
Primary responsibility for developing annual operating budget and capital expenditure forecast in connection with local park presidents and COO
o
Coordinate with COO to maintain adherence to annual operating budget
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