EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Agreement, dated as of January 1, 2007, by and between Xxxxx X.
Xxxxxxxx (the "Executive") and Six Flags, Inc., a Delaware corporation (the
"Company").
WITNESSETH
WHEREAS, the Company has offered Executive, and Executive has
accepted, employment on the terms and conditions set forth in this Agreement;
and
WHEREAS, the Company and Executive wish to set forth such terms and
conditions in a binding written agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
in this Agreement, it is hereby agreed as follows:
1. Term of Employment. Executive's employment with the Company
pursuant to this Agreement shall begin on the date of this Agreement (the
"Effective Date") and end on December 31, 2009, subject to earlier termination
in accordance with Section 4 hereof.
2. Position, Duties and Location.
(a) Position. Beginning on the Effective Date, Executive shall
serve as the General Counsel of the Company, with the duties and
responsibilities customarily assigned to such position and such other duties as
may reasonably be assigned to Executive from time to time by the Chief Executive
Officer of the Company ("CEO") consistent with such position. Executive shall at
all times report directly to the CEO.
(b) Duties. During his employment with the Company, Executive
shall devote substantially all his business attention and time to the duties
reasonably assigned to him by the CEO consistent with Executive's position and
shall use his reasonable best efforts to carry out such duties faithfully and
efficiently.
(c) Location. Executive's principal place of employment shall be
located in metropolitan New York City; provided that Executive will travel and
render services at such locations as may reasonably be required by his duties
hereunder.
3. Compensation.
(a) Base Salary. Executive shall receive a base salary (the "Base
Salary") at an annual rate of $503,928. Base Salary shall be paid at such times
and in such installments as the Company customarily pays the base salaries of
its employees. The Base Salary may be increased, but shall not be reduced, in
the discretion of the Company, and the term "Base Salary" shall thereafter refer
to the Base Salary as so increased.
(b) Annual Bonus and Equity Awards. Executive may be paid an
annual bonus and may receive grants of stock options or other equity awards
("Equity Grants") solely in the discretion of the Company.
(c) Benefits. During his employment with the Company, the Company
shall provide Executive with benefits on the same basis as benefits are
generally provided to executives of the Company. Without limiting the generality
of the foregoing, Executive shall be entitled to no less than four weeks of paid
vacation per calendar year.
(d) Perquisites; Expenses. During his employment with the
Company, Executive shall be entitled to perquisites on the same basis as
perquisites are generally provided to comparable executives of the Company,
which shall not include first class air travel. In addition, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses that
Executive incurs during his employment with the Company in carrying out
Executive's duties under this Agreement upon presentation of expense statements
and customary supporting documentation.
4. Termination of Employment.
(a) Death; Disability; Termination For Cause. Executive's
employment shall terminate automatically upon his death or Disability (as
defined below). The Company may terminate Executive's employment for Cause (as
defined below) without prior notice. Upon a termination of Executive's
employment (i) due to Executive's death or Disability, or (ii) by the Company
for Cause, Executive (or, in the case of Executive's death, Executive's estate
and/or beneficiaries) shall be entitled to: (A) unpaid Base Salary through the
date of the termination; (B) any earned but unpaid bonus for the prior fiscal
year of the Company; and (C) any benefits due to Executive under any employee
benefit plan of the Company and any payments due to Executive under the terms of
any Company program, arrangement or agreement, excluding any severance program
or policy (collectively, the "Accrued Amounts"). Executive shall have no further
right or entitlement under this Agreement.
(b) Termination Without Cause or for Good Reason. The Company may
terminate Executive's employment without Cause and Executive may terminate his
employment for Good Reason, in each case upon thirty days prior written notice.
In the event that the Company terminates Executive's employment without Cause or
Executive terminates his employment for Good Reason, Executive shall be entitled
to the following in lieu of any payments or benefits under any severance program
or policy of the Company, and subject to execution by Executive of a waiver and
release of claims in a form reasonably determined by the Company:
(i) the Accrued Amounts;
(ii) the vesting of any Equity Awards granted on or after the
Effective Date; and
(iii) a lump sum severance payment within thirty (30) days
equal to Executive's then applicable Base Salary for the period
commencing on the date of termination and ending on December 31,
2009.
(c) Definitions. For purposes of this Agreement, the following
definitions shall apply:
(i) "Cause" shall mean: (A) Executive's willful and continuing
failure (except where due to physical or mental incapacity) to
perform his duties hereunder or abide by the written policies of the
Company applicable to employees generally; (B) Executive's willful
malfeasance or gross neglect in the performance of his duties
hereunder; (C) Executive's conviction of, or plea of guilty or nolo
contendere to, the commission of a felony or a misdemeanor involving
moral turpitude; (D) the commission by Executive of an act of fraud
or embezzlement against the Company or any affiliate; or (E)
Executive's willful breach of any material provision of this
Agreement (as determined in good faith by the Board of Directors)
which, in the case of clauses (B) and (E), is not remedied within
fifteen (15) days after receipt of written notice from the Company
specifying the details thereof). For purposes of the preceding
sentence, no act or failure to act by Executive shall be considered
"willful" unless done or omitted to be done by Executive in bad
faith and without reasonable belief that Executive's action or
omission was in the best interests of the Company.
(ii) "Disability" shall have the same meaning as in, and shall
be determined in a manner consistent with any determination under,
the long-term disability plan of the Company in which Executive
participates from time to time, or if Executive is not covered by
such a plan, "Disability" shall mean Executive's permanent physical
or mental injury, illness or other condition that prevents Executive
from performing his duties to the Company, as reasonably determined
by the Board of Directors of the Company.
(iii) "Good Reason" shall mean the occurrence, without
Executive's express written consent, of: (A) a significant
diminution in Executive's employment duties, responsibilities or
authority, or the assignment to Executive of duties that are
materially inconsistent with his position; (B) any reduction in Base
Salary; (C) a change to a principal place of employment to a
location more than fifty (50) miles from metropolitan New York City;
or (D) any willful breach by the Company of any material provision
of this Agreement which is not cured within fifteen (15) days after
written notice is received from Executive specifying the details
thereof.
5. Confidentiality of Trade Secrets and Business Information.
Executive agrees that Executive will not, at any time during Executive's
employment with the Company or thereafter, disclose or use any trade secret,
proprietary or confidential information of the Company or any subsidiary or
affiliate of the Company (collectively, "Confidential Information"), obtained
during the course of such employment, except for disclosures and uses required
in the course of such employment or with the written permission of the Company
or, as applicable, any subsidiary or affiliate of the Company or as may be
required by law; provided that, if Executive receives notice that any party will
seek to compel him by process of law to disclose any Confidential Information,
Executive shall promptly notify the Company and cooperate with the Company in
seeking a protective order against such disclosure.
6. Return of Information. Executive agrees that at the time of any
termination of Executive's employment with the Company, whether at the instance
of Executive or the Company, and regardless of the reasons therefore, Executive
will deliver to the Company, and not keep or deliver to anyone else, any and all
notes, files, memoranda, papers and, in general, any and all physical (including
electronic) matter containing Confidential Information and other information
relating to the business of the Company or any subsidiary or affiliate of the
Company which are in Executive's possession, except as otherwise consented in
writing by the Company at the time of such termination. The foregoing shall not
prevent Executive from retaining copies of personal diaries, personal notes,
personal address books, personal calendars, and any other personal information
(including, without limitation, information relating to Executive's
compensation), but only to the extent such copies do not contain any
Confidential Information.
7. Noncompetition. In consideration for the compensation payable to
Executive under this Agreement, Executive agrees that Executive will not, during
Executive's employment with the Company and, in the event Executive's employment
is terminated by the Company for Cause or by Executive without Good Reason, for
a period of one (1) year after any termination of employment, render services to
a competitor of the Company or any affiliate, regardless of the nature thereof,
or engage in any activity which is in conflict with or adverse to the interests
of the Company or any affiliate.
8. Noninterference. During Executive's employment with the Company
and for a period of one (1) year following any termination, Executive agrees not
to directly or indirectly recruit, solicit or induce, any employees, consultants
or independent contractors of the Company, any entity in which the Company has
made a significant investment, or any entity to which Executive renders services
pursuant to the terms of this Agreement (each, a "Restricted Entity") to
terminate, alter or modify their employment or other relationship with the
Company or any Restricted Entity. During Executive's employment with the Company
and for a period of one (1) year following any termination thereof, Executive
agrees not to directly or indirectly solicit any customer or business partner of
the Company or any Restricted Entity to terminate, alter or modify its
relationship with the Company or the Restricted Entity or to interfere with the
Company's or any Restricted Entity's relationships with any of its customers or
business partners on behalf of any enterprise that directly or indirectly
competes with the Company or the Restricted Entity.
9. Enforcement. Executive acknowledges and agrees that: (i) the
purpose of the covenants set forth in Sections 5 through 8 above is to protect
the goodwill, trade secrets and other confidential information of the Company;
(ii) because of the nature of the business in which the Company is engaged and
because of the nature of the Confidential Information to which Executive has
access, it would be impractical and excessively difficult to determine the
actual damages of the Company in the event Executive breached any such
covenants; and (iii) remedies at law (such as monetary damages) for any breach
of Executive's obligations under Sections 5 through 8 would be inadequate.
Executive therefore agrees and consents that if Executive commits any breach of
a covenant under Sections 5 through 8, the Company shall have the right (in
addition to, and not in lieu of, any other right or remedy that may be available
to it) to temporary and permanent injunctive relief from a court of competent
jurisdiction, without posting any bond or other security and without the
necessity of proof of actual damage. If any portion of Sections 5 through 8 is
hereafter determined to be invalid or unenforceable in any respect, such
determination shall not affect the remainder thereof, which shall be given the
maximum effect possible and shall be fully enforced, without regard to the
invalid portions. In particular, without limiting the generality of the
foregoing, if the covenants set forth in Section 7 are found by a court or an
arbitrator to be unreasonable, Executive and the Company agree that the maximum
period, scope or geographical area that is found to be reasonable shall be
substituted for the stated period, scope or area, and that the court or
arbitrator shall revise the restrictions contained herein to cover the maximum
period, scope and area permitted by law. If any of the covenants of Sections 5
through 8 are determined to be wholly or partially unenforceable in any
jurisdiction, such determination shall not be a bar to or in any way diminish
the Company's right to enforce any such covenant in any other jurisdiction.
10. Indemnification. The Company shall indemnify Executive against
any and all losses, liabilities, damages, expenses (including attorneys' fees)
judgments, fines and amounts paid in settlement incurred by Executive in
connection with any claim, action, suit or proceeding (whether civil, criminal,
administrative or investigative), including any action by or in the right of the
Company, by reason of any act or omission to act in connection with the
performance of his duties hereunder to the full extent that the Company is
permitted to indemnify a director, officer, employee or agent against the
foregoing under applicable law. The Company shall at all times cause Executive
to be included, in his capacity hereunder, under all liability insurance
coverage (or similar insurance coverage) maintained by the Company from time to
time.
11. Executive's Representations. Executive represents that before
signing this Agreement, Executive was given the opportunity to read it, evaluate
it and discuss it with Executive's personal advisors. Executive further
represents that the Company has not provided Executive with any legal advice
regarding this Agreement.
12. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given when delivered
(a) personally, (b) by facsimile with evidence of completed transmission, or (c)
delivered by overnight courier to the party concerned at the address indicated
below or to such changed address as such party may subsequently give such notice
of:
If to the Company:
0000 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
If to Executive:
000 X. Xxxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
13. Assignment and Successors. This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns. The
Company may assign this Agreement to another corporation, limited liability
company, partnership, joint venture or other business in which the Company has
made an investment.
14. Governing Law; Amendment. This Agreement shall be governed by
and construed in accordance with the laws of Delaware, without reference to
principles of conflict of laws. This Agreement may not be amended or modified
except by a written agreement executed by Executive and the Company or their
respective successors and legal representatives.
15. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement. If any provision of this Agreement shall
be held invalid or unenforceable in part, the remaining portion of such
provision, together with all other provisions of this Agreement, shall remain
valid and enforceable and continue in full force and effect to the fullest
extent consistent with law.
16. Tax Withholding. Notwithstanding any other provision of this
Agreement, the Company may withhold from amounts payable under this Agreement
all federal, state, local and foreign taxes that are required to be withheld by
applicable laws or regulations.
17. No Waiver. Executive's or the Company's failure to insist upon
strict compliance with any provision of, or to assert any right under, this
Agreement shall not be deemed to be a waiver of such provision or right or of
any other provision of or right under this Agreement. Any provision of this
Agreement may be waived by either party; provided that both parties agree to
such waiver in writing.
18. No Mitigation. In no event shall Executive be obligated to seek
other employment or take other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement and such
amounts shall not be subject to offset or otherwise reduced whether or not
Executive obtains other employment.
19. Headings. The Section headings contained in this Agreement are
for convenience only and in no manner shall be construed as part of this
Agreement.
20. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and shall
supersede all prior agreements, whether written or oral, with respect to
Executive's employment, including, without limitation, the severance agreement
dated July 21, 2005.
21. Duration of Terms. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to give effect to such rights and obligations.
22. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Executive has hereunto set Executive's hand and
the Company has caused this Agreement to be executed in its name on its behalf,
all as of the day and year first above written.
SIX FLAGS, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President and CEO
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
