EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of November 7, 1997, between
PREMIER PARKS INC., a Delaware corporation (the "Company"), and XXXXXX X.
XXXX ("Xxxx").
W I T N E S S E T H
WHEREAS, pursuant to a Stock Purchase Agreement dated as of September 26,
1997 (the "Stock Purchase Agreement"), the Company acquired (the "Acquisition")
all of the membership interests of the limited liability company that acquired
pursuant thereto substantially all of the assets of Kentucky Kingdom, Inc.
("KKI") used in the operation of Kentucky Kingdom (the "Park");
WHEREAS, prior to the Acquisition, Xxxx served as the President of KKI;
WHEREAS, the Company wishes to preserve the business and good will of KKI
and its relationships with its customers, suppliers and contractors and wishes
to obtain the benefit of the expertise of Xxxx in the theme park business
following the Acquisition; and
WHEREAS, in order to preserve such relationships and to obtain such
benefits, Xxxx has agreed to serve as Managing Director of the Park on the terms
and conditions specified herein.
NOW, THEREFORE, in consideration of the mutual promises, representations
and warranties set forth herein, and for other good and valuable consideration,
it is hereby agreed as follows:
1. Certain Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" of a person shall mean any other person that directly or
indirectly controls, is controlled by, or is under common control with the
person specified. For the purposes of this Agreement, "control," when used with
respect to any person, shall mean the power to direct the management and
policies of such person, whether through the ownership of securities, by
contract or otherwise.
"Additional Compensation" shall have the meaning provided in Section
5(b).
"Base Salary" shall have the meaning provided in Section 5(a).
"Board" shall mean the Board of Directors of the Subsidiary of the
Company that owns the Park.
"Gross Revenues" shall have the meaning provided in the Stock
Purchase Agreement.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any other entity.
"Subsidiary" shall mean, in respect of any person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of capital stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such person,
(ii) such person and one or more Subsidiaries of such person or (iii) one or
more Subsidiaries of such person.
"Term" shall mean the period specified in Section 3(a) below.
2. Employment. The Company hereby agrees to continue to employ Xxxx, and
Xxxx hereby accepts such employment, upon the terms and conditions set forth
herein.
3. Term. (a) Unless sooner terminated in accordance with the provisions of
Section 3(b) hereof, the term of Xxxx'x employment under this Agreement shall
commence on the date hereof and shall end on the fifth anniversary hereof (the
"Term").
(b) This Agreement will terminate (upon written notice delivered by
the Company except in the case of clause (ii) below) if (i) Xxxx breaches in any
material respect any of his obligations contained herein, (ii) Xxxx voluntarily
terminates his employment hereunder, (iii) Xxxx otherwise becomes unable to
render his services hereunder or (iv) Xxxx breaches in any material respect his
indemnification obligations under the Stock Purchase Agreement.
4. Position and Duties. (a) During the Term, Xxxx shall have the
authority, functions, duties, powers and responsibilities of an executive nature
as from time to time may be prescribed by the Board or the Chief Executive
Officer or Chief Operating Officer of the Company. During the Term, Xxxx shall
have the title Managing Director of the Park. During the Term, Xxxx shall use
his best efforts to promote the best interests of the Company and the
Subsidiaries and shall not take any act contrary to such interests.
(b) During the Term, (i) Xxxx'x services shall be rendered on a
full-time, exclusive basis, (ii) he will apply on a full-time basis all of his
skill and experience to the performance of his duties in such employment, (iii)
he shall have no other employment or outside business activities (other than
outside activities similar in scope and type to his outside business activities
existing as of the date of this Agreement and which do not interfere in any
material respect with the performance of his duties hereunder) and (iv) unless
Xxxx otherwise consents, the headquarters for the performance of his services
shall be the offices of the Park in Louisville, Kentucky, subject to such
reasonable travel as the performance of his duties hereunder may require.
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5. Compensation. (a) Base Salary. The Company shall pay to Xxxx a base
salary (the "Base Salary") of $300,000 per annum. The Base Salary shall be
payable in monthly installments in accordance with the Company's regular payroll
practices.
(b) Additional Compensation. (i) As Additional Compensation with
respect to the year ending December 31, 1998, if Gross Revenues of the Park for
the year ending December 31, 1998 equal or exceed $30,000,000, the Company shall
pay Xxxx $200,000 payable no later than April 15, 1999.
(ii) As Additional Compensation with respect to the year
ending December 31, 1999, if Gross Revenues of the Park for the year ending
December 31, 1999 equal or exceed $35,000,000, the Company shall pay Xxxx
$200,000 payable no later than April 15, 2000.
(iii) If this Agreement shall terminate in accordance with
Section 3(b) (other than pursuant to Section 3(b)(iii)) during 1998 or 1999, no
Additional Compensation shall be payable with respect to such year or any
subsequent year. If this Agreement shall terminate pursuant to Section 3(b)(iii)
during either such year, the Additional Compensation provided for hereunder with
respect to such year shall be adjusted by multiplying the amount of such cash
payment to which Xxxx would have been entitled had no such termination occurred
by a fraction, the numerator of which shall be the number of days elapsed during
such year prior to the date of such termination and the denominator of which
shall be 365, and no Additional Compensation shall be payable with respect to
any subsequent year.
6. Employee Benefit Programs. During the Term, Xxxx shall be
entitled to participate in all employee pension and welfare benefit plans and
programs made available to the Company's employees generally, as such plans or
programs may be in effect from time to time, including without limitation,
pension, savings and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life insurance plans,
and any other employee benefit plans or programs that may be sponsored by the
Company from time to time, whether funded or unfunded.
7. Reimbursement of Expenses. During the Term, the Company shall pay or
reimburse Xxxx for all reasonable travel, entertainment and other business
expenses actually incurred or paid by Xxxx in the performance of his duties
hereunder to the extent specifically authorized prior thereto by an executive
officer of the Company upon presentation of expense statements or vouchers or
such other supporting information as the Company may reasonably require.
8. Vacations. In addition to customary paid holidays, Xxxx shall be
entitled to paid vacation in accordance with the Company's policies for
employees with comparable duties and functions. Any unused vacation days during
any year shall not be carried forward to subsequent years, nor shall Xxxx
receive any additional compensation for such unused vacation days.
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9. Restrictive Covenants. During the Term:
(a) Xxxx agrees that he will not directly or indirectly, as a
partner, officer, employee, director, stockholder, investor, lender, proprietor,
consultant, representative, agent or otherwise, become or be interested in, or
associate with or render assistance to, any Person (other than the Company)
engaged in the ownership, operation and/or management of any amusement park,
theme park, water park, or family entertainment center located within the
Territory. The foregoing provisions shall not prohibit the ownership by Xxxx of
not more than two percent (2%) of any class of outstanding equity securities
listed for trading on a national securities exchange or publicly traded in the
over-the-counter market of any Person (other than the Company) which engages in
any of such businesses. For the purposes of this Agreement, "Territory" shall
mean any area (i) within a 250 mile radius of the Park or (ii) in the case of
acting as a lender, within the United States.
(b) Xxxx 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 employee, agent or consultant of the Company or any
Subsidiary of the Company or otherwise interfere with the relationship between
the Company or any Subsidiary and any of such Persons.
(c) Xxxx recognizes and acknowledges that, in connection with his
employment with the Company and KKI, he has had and will continue to have access
to valuable trade secrets and confidential information of KKI, the Company and
its Subsidiaries and Affiliates and that any such confidential information
hereafter made available to Xxxx will be provided only in connection with the
furtherance of his employment with the Company. Accordingly, Xxxx agrees that he
will not, directly or indirectly, during the Term or thereafter, use, disclose
or make available to anyone (other than the Company) any confidential
information concerning KKI, the Company and its Subsidiaries or the ownership
and/or operation of the Park (the "Confidential Information"). 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 KKI, the Company or any Subsidiary.
(d) Xxxx acknowledges and agrees that the restrictive covenants set
forth in this Section 9 are reasonable and valid in geographical and temporal
scope and in all other respects. If one or more of the provisions contained in
this Section 9 (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 Section (or any portion of any such
provision), but this Section 9 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 Section 9 is finally
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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 9)
as shall be valid and enforceable under such applicable law. If any court of
competent jurisdiction determines that one or more of the provisions contained
in this Section 9 (or any portion of any such provision) shall for any reason be
invalid, illegal or unenforceable in any respect, such court shall have the
power to modify such provision (or any portion of any such provision), and, in
its modified form, such provision shall then be valid and enforceable.
(e) The parties agree that a violation of the foregoing agreements
not to compete or disclose, or any provision thereof, will cause irreparable
damage to the Company, and the Company 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 restraining Xxxx from doing or continuing to do any such act or
any other violations or threatened violations of this Section 9.
10. Severability. Should any provision of this Agreement be held, by a
court of competent jurisdiction, to be invalid or unenforceable, such invalidity
or unenforceability shall not render the entire Agreement invalid or
unenforceable, and this Agreement and each individual provision hereof shall be
enforceable and valid to the fullest extent permitted by law.
11. Successors and Assigns. (a) This Agreement and all rights under this
Agreement are personal to Xxxx and shall not be assignable by him. All of Xxxx'x
rights under the Agreement shall inure to the benefit of his heirs, personal
representatives, designees or other legal representatives, as the case may be.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns. Any person succeeding to the
business of the Park by merger, purchase, consolidation or otherwise shall
assume by contract or operation of law the obligations of the Company under this
Agreement.
12. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the Commonwealth of Kentucky, without regard to the
conflicts of laws rules thereof.
13. Notices. All notices, requests and demands given to or made upon the
respective parties hereto shall be deemed to have been given or made three (3)
business days after the date of mailing when mailed by registered or certified
mail, postage prepaid, or on the date of delivery if delivered by hand, or by
any nationally-recognized overnight delivery service, addressed to the parties
at their addresses set forth below or to such other addresses furnished by
notice given in accordance with this Section 14: (a) if to the
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Company, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Board of
Directors, and (b) if to Xxxx, 000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
14. Withholding. All payments required to be made by the Company to Xxxx
under this Agreement shall be subject to withholding taxes, social security and
other payroll deductions in accordance with the Company's policies applicable to
senior executives of the Company and the provisions of any applicable employee
benefit plan or program of the Company.
15. Complete Understanding. This Agreement supersedes any prior contracts,
understandings, discussions and agreements relating to employment between Xxxx
and the Company and, except as provided in the Stock Purchase Agreement,
constitutes the complete understanding between the parties with respect to the
subject matter hereof. No statement, representation, warranty or covenant has
been made by either party with respect to the subject matter hereof except as
expressly set forth herein.
16. Modification; Waiver. (a) This Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and signed, in the case of
an amendment, by the Company and Xxxx or in the case of a waiver, by the party
against whom the waiver is to be effective. Any such waiver shall be effective
only to the extent specifically set forth in such writing.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
17. Mutual Representations. (a) Xxxx 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 person.
(b) The Company represents and warrants to Xxxx 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 (i) 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 person.
(c) Each party hereto represents and warrants to the other that this
Agreement constitutes the valid and binding obligation of such party enforceable
against such party in accordance with its terms.
18. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
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19. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by the other party hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed in its corporate name, and Xxxx has manually signed his name hereto,
all as of the day and year first above written.
PREMIER PARKS INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
Chief Financial Officer
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
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