Exhibit 10(u)
CONSULTING AND NON-COMPETITION AGREEMENT
This Agreement is made as of October 30, 1996, by and between Xxxxxx X.
("Xxxxx") Xxxxxxx ("Xxxxxxx") and Premier Parks Inc. (which, together with any
entity owned by it that owns and operates the Elitch Gardens Amusement Park in
the Central Platte Valley, Denver, Colorado (the "Park"), is hereafter
"Premier").
WHEREAS, Premier is acquiring the Park pursuant to the terms of that
certain Asset Purchase Agreement (as amended, the "Purchase Agreement") dated as
of September 23, 1996, by and between Premier as buyer and Elitch Gardens
Company ("Elitch's"), as seller, by the terms of which Xxxxxxx, indirectly
through a corporation in which he has a significant ownership interest, receives
substantial benefit; and
WHEREAS, Xxxxxxx'x past ownership of the predecessor to the Park and his
experience as the chief executive officer of the company that has been the
general partner of Elitch's as it developed and operated the Park, have made
Xxxxxxx uniquely qualified to provide consulting services to Premier; and
WHEREAS, for the foregoing reasons, Premier has required as a condition
precedent to acquiring the Park that Xxxxxxx enter into this Agreement, which
Xxxxxxx has agreed to do;
NOW, THEREFORE, in consideration of the Purchase Agreement and the closing
of the transactions contemplated thereby, and for $10.00 in hand paid and other
good and valuable consideration, the receipt and adequacy of which the parties
hereby acknowledge, it is agreed as follows:
1. CONSULTING SERVICES. For a period of twelve (12) months following the
date hereof, Xxxxxxx will be available by telephone for consultation with
Premier about matters relating to the transition of ownership of the Park from
Elitch's to Premier. Xxxxxxx agrees to make himself reasonably available for
such purpose. Premier agrees to use reasonable efforts to schedule such
consultation in advance for a time mutually convenient to itself and Xxxxxxx,
and to limit the amount of consulting time as reasonably necessary to address
the particular transition issue.
2. COMMUNITY RELATIONS. For a period of twelve (12) months following the
date hereof, Xxxxxxx will be available on reasonable advance notice, to consult
with Premier about Denver-area community relations matters affecting the Park.
Xxxxxxx is willing, during such period, to represent Premier at events and with
the media to the Denver-area community, provided that Xxxxxxx'x views are not
inconsistent with those he is asked to represent.
3. COVENANT NOT-TO-COMPETE. During the period commencing on the date
hereof and ending five years thereafter (the "TERM"):
a. In order to preserve the value of the Park being acquired by
Premier, Xxxxxxx agrees that he will not, directly or indirectly, as a
partner, officer, employee,
director, stockholder, proprietor, consultant, representative, agent or
otherwise become or be interested in, or associate with or render assistance
to, any person when engaged in the ownership, operation and/or management of an
amusement park, theme park, water park, video arcade or family amusement or
entertainment center located within the Territory. The foregoing provisions are
not intended to include sporting facilities such as arenas, ski areas or fishing
or hunting preserves or facilities that have as their primary source of revenue
sales of food, beverages, items at retail, and arts entertainment or educational
facilities such as movie theaters, stage theaters, museums and aquariums. The
foregoing provisions also shall not prohibit the ownership by any such person of
not more than two percent (2%) or any class of outstanding equity securities
listed for trading on a national securities exchange or publicly traded in the
over-the-counter market which engages in any of such businesses. For the
purposes of this Agreement, "Territory" shall mean any area within a 250 mile
radius of the Park.
x. Xxxxxxx agrees that he will not, directly or indirectly, during the
Term, for his own benefit or for the benefit of any other person solicit the
professional services of any full-time permanent employee or exclusive agent or
exclusive consultant of Premier or any Affiliate (as defined in the Purchase
Agreement) of Premier or otherwise interfere with the relationship between
Premier or any Affiliate and any of such persons.
x. Xxxxxxx will not, directly or indirectly, use, disclose or make
available to anyone (other than Premier) any confidential information concerning
the ownership and/or operation of the Park ( the "Confidential Information"),
except as required by law. The Confidential Information includes to the extent
that such information is not generally known in the amusement park industry,
without limitation, the business practices, financial information, customer and
prospective customers names, leads and account information, suppliers and
prospective suppliers names, mailing lists, computer programs, advertising
campaigns (including, without limitation, displays, drawings, memoranda,
designs, styles or devices); employee names, compensation and benefit
information of Elitch's pertaining to the Park.
d. The parties agree that a violation of the foregoing agreements not to
compete or disclose, or any provision thereof, will cause irreparable damage to
Premier, and Premier shall be entitled (without any requirement of posting a
bond or other security), in addition to any other rights and remedies which it
may have, at law or inequity, to an injunction enjoining and restraining Xxxxxxx
from doing or continuing to do any such act or any other violations or
threatened violations of this paragraph 3.
e. If one or more of the provisions contained in this paragraph 3 (or any
portion of any such provision) shall for any reason be finally held by a court
of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this
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paragraph (or any portion of any such provision), but this paragraph 3
shall be construed as if such invalid, illegal or unenforceable provision
(or portion thereof) had not been contained in this Agreement. If, for any
reason, any of the restrictions or covenants contained in this paragraph 3
is finally held by a court of competent jurisdiction to cover a geographic
area or to be for a length of time that is not permitted by applicable law,
or in any way construed to be too broad or to any extent invalid, such
provision shall not be determined to be null, void or of no effect, but to
the extent it is or would be valid or enforceable under applicable law, it
shall be construed and interpreted to provide for a covenant having the
maximum enforceable geographic area, time period and other provisions (not
greater than those contained in this paragraph 3) as shall be valid and
enforceable under such applicable law.
4. EXPENSES AND COMPENSATION. Premier shall advance or reimburse, upon
the production of receipts and vouchers in form and substance consistent with
Premier's standard policies, all Xxxxxxx'x direct out-of-pocket expenses
incurred in connection with his activities pursuant to this Agreement, including
without limitation for long-distance telephone, travel, and entertainment and
events costs (consistent with a budget, if any, mutually agreed in advance
between Xxxxxxx and Premier). In addition, for his services during the first 12
months after the date hereof, Premier shall pay to Xxxxxxx compensation of
$100.00 per month, payable in advance.
5. RELATIONSHIP. This Agreement is not for employment, and shall not be
construed to be a contract that creates the relationship of employer-employee,
partner, joint venturer, or otherwise than that Xxxxxxx is an independent
contractor of and consultant to Premier as set forth above. Xxxxxxx
acknowledges that nothing in this Agreement shall entitle him or his family to
any employee benefits from Premier.
6. BENEFIT. This Agreement shall inure to the benefit of the parties
hereto, their heirs, legal representatives, successors and assigns, provided,
however, that neither Gurtler nor Premier may assign rights under this Agreement
without the prior written consent of the other party.
7. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Colorado.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
/s/ Xxxxx Xxxxxxx
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Xxxxxx X. (Xxxxx) Xxxxxxx
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PREMIER PARKS INC., for itself and any
entity now or hereafter owned by it that
is the owner and operator of the Park
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Chairman of the
Board and Chief Executive Officer
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