EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement"), dated as of April 1,
2009, is entered into by and among Six Flags, Inc., a Delaware corporation
("SF"), Six Flags Operations Inc., a Delaware corporation, and Six Flags
Theme Parks Inc., a Delaware corporation (collectively, the "Company"), and
Xxxxxxx X. Speed (the "Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Executive is currently employed by SF pursuant to that
certain Employment Agreement between Executive and SF dated as of January 17,
2006, as amended (the "Existing Employment Agreement");
WHEREAS, the Company and Executive desire to modify the terms and
conditions of Executive's continued employment by entering into this Agreement;
and
WHEREAS, this Agreement shall supersede and replace the Existing
Employment Agreement (except with regard to outstanding equity awards granted in
accordance therewith).
NOW, THEREFORE, in consideration of the mutual covenants set forth
in this Agreement, it is hereby agreed as follows:
1. Term of Employment. The term of Executive's employment by the
Company pursuant to this Agreement shall commence on the date hereof (the
"Effective Date") and shall expire on the fourth anniversary of the Effective
Date (the "Term"), subject to earlier termination in accordance with Section 4
hereof.
2. Position, Duties and Location. During the Term,
(a) Position. Executive shall serve as the Executive Vice President
and Chief Financial Officer of the Company, with the duties and responsibilities
customarily assigned to such position and such other customary duties as may
reasonably be assigned to Executive from time to time by the Chief Executive
Officer of the Company (the "Chief Executive Officer") consistent with such
position. The Executive shall at all times report directly to the Chief
Executive Officer.
(b) Duties. Executive shall devote substantially all his business
attention and time to the duties reasonably assigned to him by the Chief
Executive Officer consistent with Executive's position and shall use his
reasonable best efforts to carry out such duties faithfully and efficiently.
During the Term, it shall not be a violation of this Agreement for Executive to
(i) serve on industry, trade, civic or charitable boards or committees; (ii)
deliver lectures or fulfill speaking engagements; or (iii) manage personal
investments, as long as such activities do not materially interfere with the
performance of the Executive's duties and responsibilities. Executive shall be
permitted to serve on for-profit corporate boards of directors and advisory
committees if approved in advance by the Board (as defined below), which
approval shall not unreasonably be withheld.
(c) Location. Executive's principal place of employment shall be
located in New York, New York; 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. During the Term, Executive shall receive a base
salary (the "Base Salary") at an annual rate of $775,000. Base Salary shall be
paid at such times and in such installments as the Company customarily pays the
base salaries of its employees.
(b) Annual Bonus. During the Term, Executive shall be paid an annual
cash bonus based on the attainment of performance targets in accordance with
Exhibit A hereto; provided that in no event will Executive's annual bonus for
fiscal years 2009-2012, inclusive, be less than $250,000. The "Target Bonus"
shall be one hundred percent (100%) of Executive's Base Salary. The annual bonus
shall be payable at such time as bonuses are paid to other senior executive
officers of the Company, but no later than 2 1/2 months following the end of
each fiscal year of the Company. For the avoidance of any doubt, the annual
bonus earned by Executive for fiscal year 2009 shall be calculated on results
for the full fiscal year and shall not be prorated on account of the Effective
Date.
(c) Success Fee. Upon the first to occur of: (i) the closing date of
SF's proposed Exchange Offer for its Senior Notes or (ii) the emergence of the
Company from a chapter 11 bankruptcy (the first to occur of (i) or (ii), a
"Triggering Event"), the Company shall pay Executive a lump sum cash payment of
$750,000 within ten (10) business days.
(d) Equity Awards. Immediately following a Triggering Event, SF
shall issue Executive restricted shares of SF's common stock (the "Common
Stock") equal to 0.625% of the amount of outstanding shares of Common Stock on
such date (the "Restricted Stock") and options to purchase an additional 0.625%
of the outstanding shares of Common Stock on such date (the "Options"). For
purposes of the preceding sentence, the number of shares of Common Stock
outstanding on such date shall be determined immediately after the issuance of
(i) the Restricted Stock and Options and (ii) any other shares, options, shares
of restricted stock or warrants issuable in connection with the Triggering
Event. Subject to the provisions hereof, the Restricted Stock shall vest in four
equal annual installments commencing on the first anniversary of the Effective
Date, provided that Executive remains employed by the Company through each
applicable vesting date. Subject to the provisions hereof, the Options shall
vest and become exercisable on the fourth anniversary of the Effective Date,
provided that Executive remains employed by the Company on such vesting date.
The exercise price of the Options will be equal to the market price per share of
the Common Stock on the date of issuance.
(e) Benefits. During the Term, the Company shall provide, and
Executive shall be entitled to participate in or receive benefits under any
pension plan, profit sharing plan, stock option plan, stock purchase plan or
arrangement, health, disability and accident plan or any other employee benefit
plan or arrangement, including any non-qualified or deferred compensation or
retirement programs made available now or in the future to senior executives of
the Company; provided that Executive complies with the conditions attendant with
coverage under such plans or arrangements. Nothing contained herein shall be
construed to require the Company to establish any plan or arrangement not in
existence on the date hereof or to prevent the Company from modifying or
terminating any plan or arrangement in existence on the date hereof. Without
limiting the generality of the foregoing, Executive shall be entitled to no less
than four weeks of paid vacation per calendar year.
(f) Perquisites; Expenses. During the Term, Executive shall be
entitled to (i) perquisites on the same basis as perquisites are generally
provided to senior executives of the Company, including first class air travel,
and (ii) an automobile allowance of $500 per month. In addition, the Company
shall promptly pay or, if such expenses are paid directly by Executive,
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, including, without
limitation, those incurred in connection with business related travel or
entertainment, 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).
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 Termination (as defined below);
(B) any earned but unpaid bonus for the prior fiscal year of the Company; (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 and (D) any
expenses owed to the Executive (collectively, the "Accrued Amounts"). Executive
shall have no further right or entitlement under this Agreement; provided,
however, that in the event of a termination of Executive's employment due to
Executive's death or Disability, all options and shares of restricted stock
previously granted to Executive shall fully vest.
(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 (as defined below), in each case upon thirty (30)
days prior written notice. In the event that, during the Term, 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 within ten (10) business days:
(i) the Accrued Amounts;
(ii) a lump sum cash severance payment, within ten (10) business
days, equal to the greater of (A) Executive's Base Salary and Target Bonus for
the balance of the Term measured from the Date of Termination pursuant to this
Section 4(b) to the expiration date of the Term, or (B) two (2) times the sum of
Executive's Base Salary and Target Bonus;
(iii) continued coverage for a period of twelve (12) months
commencing on the Date of Termination (A) for Executive (and his eligible
dependents, if any) under the Company's health plans on the same basis as such
coverage is made available to executives employed by the Company (including,
without limitation, co-pays, deductibles and other required payments and
limitations) and (B) under any Company life insurance plan in which Executive
was participating immediately prior to the Date of Termination; and
(iv) full vesting of all options and shares of restricted stock
previously granted to Executive, with all outstanding options remaining
exercisable for their originally scheduled respective terms (other than any
incentive stock options granted to Executive prior to the date hereof that do
not provide for such continued exercisability in accordance with their terms).
(c) Definitions. For purposes of this Agreement, the following
definitions shall apply:
(i) "Board" shall mean the Board of Directors of SF.
(ii) "Cause" shall mean: (A) Executive's willful and continuing
failure (except where due to physical or mental incapacity) to substantially
perform his duties hereunder which is not remedied within fifteen (15) days
after receipt of written notice from the Company specifying such failure; (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)
which is not remedied within fifteen (15) days after receipt of written notice
from the Company specifying such breach. 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 or without reasonable belief
that Executive's action or omission was in the best interests of the Company.
(iii) "Date of Termination"/"Notice of Termination." Any termination
of the Executive's employment by the Company or by the Executive under this
Section 4 (other than termination pursuant to due to death) shall be
communicated by a written notice to the other parties hereto indicating the
specific termination provision in this Agreement relied upon, setting forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated, and
specifying a "Date of Termination" which, if submitted by Executive, shall be at
least thirty (30) days following the date of such notice (a "Notice of
Termination"). A Notice of Termination submitted by the Company may provide for
a "Date of Termination" on the date the Executive receives the Notice of
Termination, or any date thereafter elected by the Company in its sole
discretion. The failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Cause or Good Reason shall not waive any right of the Executive or the Company
hereunder or preclude the Executive or the Company from asserting such fact or
circumstance in enforcing the Executive's or the Company's rights hereunder.
(iv) "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 for a total of six
(6) months during any twelve (12) month period, as reasonably determined by a
physician selected by the Executive and acceptable to the Company or the
Company's legal representative (such agreement as to acceptability not to be
withheld unreasonably).
(v) "Good Reason" shall mean the occurrence, without Executive's
express written consent, of: (A) an adverse change in Executive's employment's
title or change in Executive's duty to report directly to the Chief Executive
Officer; (B) a diminution in Executive's employment duties, responsibilities or
authority, or the assignment to Executive of duties that are materially
inconsistent with his position; (C) any reduction in Base Salary or annual bonus
less than the minimum amount set forth in Section 3(b); (D) a relocation of
Executive's principal place of employment to a location outside of the New York
Area that would unreasonably increase Executive's commute; or (E) any breach by
the Company of any material provision of this Agreement (including but not
limited to any breach of its obligations under Section 3 hereof) which in the
case of this clause (E) only, is not cured within fifteen (15) days after
written notice is received from Executive.
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 by
him during the course of such employment, except for (i) disclosures and uses
required in the course of such employment or with the written permission of the
Company, (ii) disclosures necessary to establish or assert Executive's rights
hereunder, or, (iii) 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 provide reasonable
cooperation to the Company (at the Company's sole expense) in seeking a
protective order against such disclosure. Notwithstanding the foregoing,
"Confidential Information" shall not include information that is or becomes
publicly known outside the Company or any of its affiliates or subsidiaries
through no act or failure to act by Executive.
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 (at the Company's expense), 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 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 direct conflict with or materially adverse to the interests of the Company
or any affiliate. For purposes of this Agreement, "Competitor" shall mean any
business or enterprise in the theme park business. Notwithstanding the
foregoing, Executive's provision of services to an affiliate or unit of a
Competitor that is not directly engaged in the theme park business, or service
in an executive corporate capacity of an entity that has a theme park division,
such as The Xxxx Disney Company or General Electric, shall not be a violation of
the restrictions of this Section 7.
8. Noninterference. During Executive's employment with the Company
and for a period of one (1) year following any termination of employment,
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
then current 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 (the
"Restrictive Covenants") 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 the
Restrictive Covenants would be inadequate. Executive therefore agrees and
consents that if Executive commits any breach of a Restrictive Covenant, 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 the Restrictive Covenants 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
Restrictive Covenants 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. Arbitration. In the event that any dispute arises between the
Company and Executive regarding or relating to this Agreement and/or any aspect
of Executive's employment relationship with the Company, the parties consent to
resolve such dispute through mandatory arbitration under the Commercial Rules of
the American Arbitration Association ("AAA"), before a single arbitrator in New
York, New York. The parties hereby consent to the entry of judgment upon award
rendered by the arbitrator in any court of competent jurisdiction.
Notwithstanding the foregoing, however, should adequate grounds exist for
seeking immediate injunctive or immediate equitable relief, any party may seek
and obtain such relief. The parties hereby consent to the exclusive jurisdiction
in the state and Federal courts of or in the State of New York for purposes of
seeking such injunctive or equitable relief as set forth above. Except as
otherwise provided for herein, any and all out-of-pocket costs and expenses
incurred by the parties in connection with such arbitration (including
attorneys' fees) shall be allocated by the arbitrator in substantial conformance
with his or her decision on the merits of the arbitration.
12. Mutual Representations.
(a) Executive acknowledges 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 acknowledges that the Company
has not provided Executive with any legal advice regarding this Agreement.
(b) Executive represents and warrants to the Company that the
execution and delivery of this Agreement and the fulfillment of the terms hereof
(i) will not constitute a default under, or conflict with, any agreement or
other instrument to which he is a party or by which he is bound and (ii) do not
require the consent of any other person.
(c) The Company represents and warrants to the Executive that this
Agreement has been duly authorized, executed and delivered by the Company and
that such execution and delivery and the fulfillment of the terms hereof will
not constitute a default under or conflict with any agreement or other
instrument to which it is a party or by which it is bound and (ii) do not
require the consent of any other person, other than the Board or its
Compensation Committee.
(d) Each party hereto represents and warrants to the other that this
Agreement constitutes the valid and binding obligations of such party
enforceable against such party in accordance with its terms.
13. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given when delivered
(i) personally, (ii) by facsimile with evidence of completed transmission, or
(iii) 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:
Six Flags, Inc.
0000 Xxxxxxxx; 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to Executive:
Xxxxxxx X. Speed
c/o Six Flags, Inc.
0000 Xxxxxxxx; 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
14. Assignment and Successors. This Agreement is personal in its
nature and none of the parties hereto shall, without the consent of the others,
assign or transfer this Agreement or any rights or obligations hereunder;
provided, however, that in the event of a merger, consolidation, or transfer or
sale of all or substantially all of the assets of the Company with or to any
other individual(s) or entity, this Agreement shall, subject to the provisions
hereof, be binding upon and inure to the benefit of such successor and such
successor shall discharge and perform all the promises, covenants, duties, and
obligations of the Company hereunder, and such transferee or successor shall be
required to assume such obligations by contract (unless such assumption occurs
by operation of law). Anything herein to the contrary notwithstanding, Executive
shall be entitled to select (and change, to the extent permitted under any
applicable law) a beneficiary or beneficiaries to receive any compensation or
benefit payable hereunder following Executive's death or judicially determined
incompetence by giving the Company written notice thereof. In the event of
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to Executive shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
15. Governing Law; Amendment. This Agreement shall be governed by
and construed in accordance with the laws of New York, 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.
16. 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.
17. 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.
18. 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 the parties hereto; provided that each party agrees
to such waiver in writing.
19. 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.
20. Section 409A. This Agreement is intended to satisfy the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
("Section 409A") with respect to amounts, if any, subject thereto and shall be
interpreted and construed and shall be performed by the parties consistent with
such intent. To the extent Executive would otherwise be entitled to any payment
under this Agreement, or any plan or arrangement of the Company or its
affiliates, that constitutes a "deferral of compensation" subject to Section
409A and that if paid during the six (6) months beginning on the Date of
Termination of Executive's employment would be subject to the Section 409A
additional tax because Executive is a "specified employee" (within the meaning
of Section 409A and as determined by the Company), the payment will be paid to
Executive on the earlier of the six (6) month anniversary of his Date of
Termination or death. To the extent Executive would otherwise be entitled to any
benefit (other than a payment) during the six (6) months beginning on
termination of Executive's employment that would be subject to the Section 409A
additional tax, the benefit will be delayed and will begin being provided on the
earlier of the first day following the six (6) month anniversary of Executive's
Date of Termination or death. Any payment or benefit due upon a termination of
employment that represents a "deferral of compensation" within the meaning of
Section 409A shall be paid or provided only upon a "separation from service" as
defined in Treas. Reg. ss. 1.409A-1(h). Each payment made under this Agreement
shall be deemed to be a separate payment for purposes of Section 409A. Amounts
payable under this Agreement shall be deemed not to be a "deferral of
compensation" subject to Section 409A to the extent provided in the exceptions
in Treasury Regulation xx.xx. 1.409A-1(b)(4) ("short-term deferrals") and (b)(9)
("separation pay plans," including the exception under subparagraph (iii)) and
other applicable provisions of Treasury Regulation ss. 1.409A-1 through A-6.
Notwithstanding anything to the contrary in this Agreement or elsewhere, any
payment or benefit under this Agreement or otherwise that is exempt from Section
409A pursuant to Treasury Regulation ss. 1.409A-1(b)(9)(v)(A) or (C) (relating
to certain reimbursements and in-kind benefits) shall be paid or provided only
to the extent that the expenses are not incurred, or the benefits are not
provided, beyond the last day of the second calendar year following the calendar
year in which Executive's "separation from service" occurs; and provided further
that such expenses are reimbursed no later than the last day of the third
calendar year following the calendar year in which Executive's "separation from
service" occurs. To the extent any expense reimbursement or the provision of any
in-kind benefit is determined to be subject to Section 409A (and not exempt
pursuant to the prior sentence or otherwise), the amount of any such expenses
eligible for reimbursement, or the provision of any in-kind benefit, in one
calendar year shall not affect the expenses eligible for reimbursement in any
other calendar year (except for any life-time or other aggregate limitation
applicable to medical expenses), in no event shall any expenses be reimbursed
after the last day of the calendar year following the calendar year in which
Executive incurred such expenses, and in no event shall any right to
reimbursement or the provision of any in-kind benefit be subject to liquidation
or exchange for another benefit.
21. Headings. The Section headings contained in this Agreement are
for convenience only and in no manner shall be construed as part of this
Agreement.
22. 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 thereto,
including the Existing Employment Agreement (except with regard to outstanding
equity awards granted in accordance therewith).
23. 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.
24. 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.
IN WITNESS WHEREOF, Executive and the Company have caused this
Agreement to be executed as of the date first above written.
SIX FLAGS, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
SIX FLAGS OPERATIONS INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
SIX FLAGS THEME PARKS INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Speed
-----------------------------------------
Xxxxxxx X. Speed
EXHIBIT A
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Annual Bonus Parameters
Definitions:
"Performance Parameters" shall mean the following, as determined annually by the
Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the
Company's earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the
Company's earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue
per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing
revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be
determined annually by the compensation committee of the Board (the "Committee")
in accordance with the rules below. All determinations by the Committee shall be
final and binding on Executive. All Adjusted EBITDA and other bonus targets
shall be determined by reference to the Company's Budget for each year as
approved by the Board. The Committee shall work with the Chief Executive Officer
to determine appropriate bonus targets for any items that are not specifically
contained in the Company's Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted 20%
each.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year
if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted
EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the
Performance Parameter, no amount shall be payable in respect of such Performance
Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of
Budgeted Adjusted EBITDA, and the results for any given Performance Parameter
(including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance
Parameter, then the amount payable in respect of such parameter shall be
determined by multiplying the product of the Target Bonus and the weight
ascribed to the Performance Parameter in Rule 1 above by the appropriate
multiplier below:
Multiplier Performance Level
---------- -----------------
0.5 Actual Performance equals 90% of the
Performance Parameter (including Budgeted
Adjusted EBITDA)
0.75 Actual Performance equals 95% of the
Performance Parameter (including Budgeted
Adjusted EBITDA)
1.0 Actual Performance equals 100% of the
Performance Parameter (including Budgeted
Adjusted EBITDA)
1.5 Actual Performance equals 105% of the
Performance Parameter (including Budgeted
Adjusted EBITDA)
2.0 Actual Performance equals or exceeds 110% of
the Performance Parameter (including Budgeted
Adjusted EBITDA)
Determined Actual Performance exceeds 90% but is below
by 110% of the Performance Parameter (including
interpolation Budgeted Adjusted EBITDA)
between 0.5
and 2.0
5. If the product of the above calculation shall exceed the Target Bonus, the
Committee may, but is not required to, grant a bonus to Executive in excess of
the Target Bonus. If actual Adjusted EBITDA for a given fiscal year is or
exceeds 110% of Budgeted Adjusted EBITDA, then the Committee may, but is not
required to, grant a bonus to Executive in excess of the Target Bonus.
6. If Executive's employment with the Company ceases upon expiration of the
Term, Executive shall be entitled to a lump sum payment, within ten (10)
business days, equal to the Target Bonus for Executive for the year of
termination pro-rated based on the number of days from the beginning of the year
through the Date of Termination divided by the total number of days in the year
of termination.
