Exhibit 10(v)
[Letterhead]
October 30, 1996
Ascent Entertainment Group, Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Gentlemen:
REFERENCE IS MADE TO THE ASSET PURCHASE AGREEMENT (THE "Asset Purchase
Agreement") DATED AS OF SEPTEMBER 23, 1996, BY AND AMONG PREMIER PARKS
Acquisition Corp. (together with its assignee thereunder, "Buyer"), Premier
Parks Inc. ("Premier"), Elitch Gardens Company, Xxxxxxxx Entertainment Corp. and
Xxxxxx Xxxxxx Construction Co. References to "you" or "your" shall mean Ascent
Entertainment Group, Inc. ("Ascent"), together with its controlled affiliates.
All capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to them in the Asset Purchase Agreement.
In order to provide an essential inducement to Premier to consummate
the transactions contemplated by the Asset Purchase Agreement (to which Ascent
is not a party and with respect to which it has no obligations thereunder) and
for other good and valuable consideration (including, without limitation,
Xxxxx'x's assumption of the Ascent Agreement), the receipt of which is hereby
acknowledged, you hereby agree as follows:
During the period commencing on the Closing Date and ending five years
thereafter (the "Term"):
(a) In order to preserve the value of the Assets being sold to Buyer,
you agree that you will not, directly or indirectly, as a stockholder, partner,
joint venturer, proprietor, consultant, representative or agent become or be
interested in any person or entity engaged in the ownership, operation and/or
management of any amusement park, theme park, water park or family amusement or
entertainment center (collectively the "Parks") located within the Territory.
The foregoing provisions are not intended to apply to 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 or any activity (other than the ownership or
operation of thrill rides or other rides customarily found in Parks) which is
complementary to, and part of, any sporting facility or restaurant such as video
games or interactive sport games. The foregoing provisions also shall not
prohibit the ownership by you of not more
Ascent Entertainment Group, Inc.
October 30, 1996
Page 2
than five percent (5%) of any class of outstanding equity of any entity
which engages in any of such businesses. For the purposes of this letter,
"TERRITORY" shall mean any area within a 250 mile radius of the Park.
(b) You agree that you will not, directly or indirectly, during
the Term, for your own benefit or for the benefit of any other person solicit
the professional services of any employee or exclusive agent or exclusive
consultant of Premier or any Affiliate or Premier or a otherwise interfere
with the relationship between Premier or any Affiliate and any of such
persons. Notwithstanding the preceding sentence, you shall be entitled to
hire or engage any such party who responds to a general solicitation to the
public with respect to services to be provided to Ascent.
(c) Prior to the Closing Date, you have not outside of the
ordinary course of Seller's Business, and after the Closing, you will not,
directly or indirectly, use disclose or make available to anyone (other than
Premier and Buyer) any confidential information concerning the ownership
and/or operation of the Park (the "Confidential Information"), except as
required by Law. The Confidential Information includes, 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
Seller pertaining to the Park, provided, however, that Confidential
Information shall not include information which you can demonstrate (i) was
hereafter provided to you by any party other than Premier or any of its
subsidiaries, provided that such information is not known by you to be
subject to another confidentiality agreement or other obligation of secrecy;
or (ii) was or becomes generally available to the public other than as a
result of a disclosure by you, your affiliates or Representatives.
(d) You agree that an actual and demonstrable violation of the
foregoing agreements not to compete or disclose, or any provision thereof,
would cause irreparable damage to Buyer, and Buyer 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 in equity, to an injunction
enjoining and retraining you from doing or continuing to do any such act or
any threatened violations of this paragraph.
(e) If one or more of the provisions contained in this letter
agreement (the "Agreement") (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 Agreement
(or any portion of any such provision), but this Agreement 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
Ascent Entertainment Group, Inc.
October 30, 1996
Page 3
contained in this Agreement 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 Section) as shall be valid and
enforceable under such applicable Law.
PREMIER PARKS INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
ACCEPTED AND AGREED
ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx, III
--------------------------------
Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President, Finance and
Chief Operating Officer
