鑒《而在2024年7月1日合併結束後(以下簡稱「結束」)的雪松娛樂有限合夥企業(一間特拉華有限合夥企業)(以下簡稱「雪松娛樂」), Six Flags Entertainment Corporation(一間特拉華公司)及某些其他相關方(每一方均稱為「前身公司」),正如同所載的合併協議及計劃之間所規定並日期為2023年11月2日的(以下簡稱「合併協議”), of which the Company is a surviving corporation, the Company wishes to employ executive on the terms and conditions set forth herein.
WHEREAS, Executive was employed by Cedar Fair and now desires to be employed by the Company on the terms and conditions set forth herein.
鑒於公司董事會認為存在董事會的可能性(下稱“董事會”),以及董事會可能面臨重大變動(下文有明確定義),且因此可能導致重要管理人員的離職或分心,因為這種情況下充滿著不確定性。董事會”) and Executive intend and agree that effective as of the Closing (the “生效日期”), except as may be specified otherwise herein, this Agreement shall supersede and replace all employment agreements between Executive, the Company, and any Predecessor Company.
6.3 Expiration of the Term. Notwithstanding any other provision of the Agreement, in the event Executive’s Term expires, Executive’s severance benefits following the
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expiration of the Term shall be governed by the terms of the Company’s Executive Management and Severance Plan (including the Restrictive Covenants and Arbitration Agreement attached thereto) and any other plan or agreement (including any outstanding equity award or incentive plan agreement) which are or may go into effect, which terms shall not be less beneficial than Executive severance benefits provided under this Agreement.
6.4 Termination For Any Other Reason. Upon the termination of Executive’s employment for any reason other than by the Company without Cause, as a result of death or Disability or by Executive for Good Reason, including without limitation a termination by the Company for Cause or a resignation by Executive without Good Reason, Executive or Executive’s legal representatives shall be entitled to receive the payments and benefits described under Sections 6.1(a), (c), (g) and (h) hereof.
(b)根據本協議,""術語意味著公司開發或使用的與“”(如下所定義)、公司的營運、員工、客戶、供應商和分銷商有關的所有信息,包括但不限於客戶清單、採購訂單、財務數據、價格信息和價格清單、業務計劃和市場策略、安排和任何戰略計劃,所有書籍、記錄、手冊、廣告材料、目錄、通信、郵寄清單、生產數據、銷售材料和記錄、採購材料和記錄、人員記錄、質量控制記錄和與業務或公司資產有關的程序,以及所有商標、版權和專利及其申請,所有商業秘密、發明、過程、程序、研究記錄、市場調查和市場專業知識和其他技術文件。""術語亦包括任何此前或此後由公司獲得的,並被公司認為是機密的任何其他信息。為了本協議的目的,"機密信息術語“”亦包括由公司過去或將來獲得並被認為是機密的任何其他信息。業務“」板塊包括公司開發或使用的與公司的“」(如下所定義)、運營、員工、客戶、供應商和分銷商有關的一切信息,包括但不限於客戶清單、採購訂單、財務數據、定價信息和價目表、業務計劃和市場戰略及安排和任何戰略計劃,所有書籍、記錄、手冊、廣告材料、目錄、通信、郵遞清單、生產數據、銷售材料和記錄、採購材料和記錄、人事記錄、質量控制記錄和程序,包括或與業務或公司任何資產相關的一切,以及所有商標、版權和專利及其申請,所有商業秘密、發明、過程、程序、研究記錄、市場調查和市場專業知識和其他技術文件。"“也包括公司此前或將來取得並被認為是機密的任何其他信息。機密信息」術語包括公司此前或將來取得並被認為是機密的任何其他信息。業務” shall mean: (i) the business of amusement and water parks; (ii) leisure theme parks; (iii) any other business engaged in or being developed (including production of materials used in the Company’s businesses) by the Company, or being considered by the Company, at the time of Executive’s termination, in each case, to the extent such business is primarily related to the business of amusement and water parks or leisure theme parks; and (iv) any joint venture, partnership or agency arrangements relating to the businesses described in (b)(i) through (iii) above provided that, in determining when an entity is in a “Business”, the Board will not act unreasonably in making such determination.
8.2 非競爭.
(a) Executive agrees that, during the Noncompetition Period, Executive will not:
(i) directly or indirectly, own, manage, operate, control or participate in the ownership, management or control of, or be connected as an officer, employee, partner, consultant, contractor, director, or
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otherwise with, or have any financial interest in, or aid, consult, advise, or assist anyone else in the conduct of, any entity or business:
(A) in which ten percent (10%) or more of whose annual revenues are derived from a Business as defined above; and
(B) which conducts business in any locality or region of the United States, Ontario or Quebec, Canada, or the Mexico City, Mexico area (whether or not such competing entity or business is physically located in the United States, Canada, or Mexico)or any other area where Business is being conducted by the Company on the date Executive’s employment is terminated hereunder or in each and every area where the Company intends to conduct such Business as it expresses such intent in the written strategic plan developed by the Company as of the date Executive’s employment is terminated hereunder; and
8.6 合作事項. During and following the Employment Period, Executive shall give Executive’s assistance and cooperation willingly, upon reasonable advance notice (which shall include due regard to the extent reasonably feasible for Executive’s employment obligations and prior commitments), in any matter relating to Executive’s position with the Company, or Executive’s knowledge as a result thereof as the Company may reasonably request, including Executive’s attendance and truthful testimony where deemed appropriate by the Company, with respect to any investigation or the Company’s defense or prosecution of any existing or future claims or litigations or other proceeding relating to matters in which he was involved or had knowledge by virtue of Executive’s employment with the Company. The Company will reimburse Executive for reasonable out-of-pocket travel costs and expenses incurred by him (in accordance with Company policy) as a result of providing such assistance, upon the submission of the appropriate documentation to the Company.
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8.7 非貶低. During his employment with the Company and at any time thereafter, Executive agrees not to disparage or encourage or induce others to disparage the Company, any of its respective employees that were employed during Executive’s employment with the Company or any of its respective past and present, officers, directors, products or services (the “公司各方”), and the Company agrees not to disparage, and to take all reasonable efforts to prevent any Company Party from disparaging, Executive. For purposes of this Section 8.7, the term “disparage” includes, without limitation, comments or statements to the press, to the Company’s employees or to any individual or entity with whom the Company has a business relationship (including, without limitation, any vendor, supplier, customer or distributor), or any public statement, that in each case is intended to, or can be reasonably expected to, materially damage either Executive or the Company Parties. Notwithstanding the foregoing, nothing in this Section 8.7 shall prevent Executive or a Company Party from making any truthful statement to the extent, but only to the extent (A) necessary with respect to any litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement, in the forum in which such litigation, arbitration or mediation properly takes place or (B) required by law, legal process or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction over Executive.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “nonqualified deferred compensation” under Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” If Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Code Section 409A payable on account of a “separation from service,” if no exemption or exclusion from Section 409 (A) is determined to apply, such payment or benefit shall not be made or provided until the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive, and (ii) the date of Executive’s death (the “延遲期間”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 12.7(b) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to Executive in a lump sum with interest at the prime rate during the Delay Period, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates and in the normal payment forms specified for them herein.
(c) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits, to be provided in any other taxable year, provided that this clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and
(h) The parties agree and acknowledge that the promises and agreements set forth in Sections 8.1 (Confidentiality) and 8.2 (Non-Competition) of this Agreement shall not be subject to the arbitration provisions set forth in this Section 12.8, but rather such claims may be brought in any federal or state court of competent jurisdiction. This Agreement to arbitrate does not apply to claims arising under federal statutes that prohibit pre-dispute arbitration agreements. This Agreement to arbitrate does not preclude Executive from filing a claim or charge with a governmental administrative agency, such as the National Labor Relations Board, the Department of Labor, and the Equal Employment Opportunity Commission, or from filing a workers’ compensation or unemployment compensation claim in a statutorily-specified forum.
12.9 Code Section 280G. If the present value of all payments, distributions and benefits provided to the Participant or for the Participant’s benefit pursuant to the terms of this Agreement or otherwise which constitute a “parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent (299%) of the Participant’s “base amount,” then such payments, distributions and benefits shall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amount as would result in no portion of such payments, distributions and benefits being subject to the excise tax imposed by Section 4999 of the Code (the “消費稅”), whichever of the foregoing amounts (taking into account the applicable federal, state and local income taxes and the Excise Tax) results in the receipt by the Participant on an after-tax basis of materially larger payments, distributions and benefits as determined by the Company. As used herein, “parachute payment” has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to
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Code Section 280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4) and 1274(b) (2), of such aggregate “parachute payments” as determined by the Company exceeds the 299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so that such reduced amount will result in no portion of the payments, distributions and benefits being subject to the Excise Tax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of Equity Awards; and (C) reduction of employee benefits. If acceleration of vesting of Equity Award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Participant’s Equity Awards.
12.10 Indemnification; Liability Insurance. To the extent provided in the Company’s Code of Regulations and Certificate of Incorporation, and subject to the limitations on indemnification provided under the Dodd-Frank Wall Street Reform and Consumer Protection Act and regulations thereto (the “多德-弗蘭克法案”), the Company shall indemnify Executive for losses or damages incurred by Executive as a result of all causes of action arising from Executive’s performance of duties for the benefit of the Company, whether or not the claim is asserted during the Employment Period. Executive shall be provided with the same level of directors and officers liability insurance coverage provided to other directors and officers of the Company on the same terms and conditions applicable to such other directors and officers.
12.11 管轄法. This Agreement shall be construed under and enforced in accordance with the laws of the State of Ohio, without regard to the conflicts of law provisions thereof.
12.12 對照合約. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and shall have the same effect as if the signatures hereto and thereto were on the same instrument.
12.13 律師費用公司應支付或償還執行董事於此協議的談判、準備和執行中所產生的合理律師費。
[後續簽名頁]
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據此,雙方於上述日期並在此協議上已經適當簽署。
公司
作者: /s/ Richard Zimmerman
姓名:Richard A. Zimmerman
職稱:首席執行官
行政管理人員
/s/ Brian C. Witherow
Brian Witherow
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附件A
釋放協議
本釋放協議(以下簡稱“協議”)日期為____________,由六旗娛樂公司,一家特拉華州公司(以下簡稱“權益代理), 與Brian Witherow (the “員工”).
(a) In consideration of Employee’s right to receive the severance payments and benefits set forth in Sections 6 of the Employment Agreement, the Employee, on behalf of himself and his heirs, executors, administrators, trustees, legal representatives, successors and assigns (hereinafter collectively referred to for purposes of this Section 1 as “員工”), hereby agrees to irrevocably and unconditionally waive, release and forever discharge the Company and its past, present and future affiliates and related entities, parent and subsidiary corporations, divisions, shareholders, predecessors, current, former and future officers, directors, employees, trustees, fiduciaries, administrators, executives, agents, representatives, successors and assigns (collectively, the “Company Released Parties”) from any and all waivable claims, charges, demands, sums of money, actions, rights, promises, agreements, causes of action, obligations and liabilities of any kind or nature whatsoever, at law or in equity, whether known or unknown, existing or contingent, suspected or unsuspected, apparent or concealed, foreign or domestic (hereinafter collectively referred to as “claims”) which he has now or in the future may claim to have against any or all of the Company Released Parties based upon or arising out of any facts, acts, conduct, omissions, transactions, occurrences, contracts, claims, events, causes, matters or things of any conceivable kind or character existing or occurring or claimed to exist or to have occurred prior to the date of the Employee’s execution of this Agreement. Such claims include, without limitation, claims arising under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq .; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq .; the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq .; the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq .; the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); Section 806 of the Corporate and Criminal Fraud Accountability Act of
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根據2002年《18 U.S.C. § 1681 et seq .》(即公平信貸報告法,15 U.S.C. § 1681 et seq.);任何其他聯邦、州或地方有關僱傭、僱傭歧視、終止僱傭、工資、福利或其他項目的法律;或任何其他聯邦、州或地方憲法、法規、規則,包括但不限於任何有關公平僱傭實踐的條例;對公司釋放方提出的任何就僱傭或重聘的索賠;包括但不限於侵權、誹謗和違約等普通法主張;對員工與公司釋放方(包括報復索賠)之間的僱傭關係或離職所產生的任何索賠或損害,根據任何普通法原則或未明確引用之任何聯邦、州或地方法令或條例;以及關於代表費用和成本的任何及所有索賠。
(d) In waiving and releasing any and all waivable claims whether or not now known, Employee and the Company understands that this means that, if they later discovers facts different from or in addition to those facts currently known by them, or believed by them to be true, the waivers and releases of this Agreement will remain effective in all respects — despite such different or additional facts and the later discovery of such facts, even if the party would not have agreed to this Agreement if such party had prior knowledge of such facts.
(e) Nothing in this Section 1, or elsewhere in this Agreement, prevents or prohibits Employee from filing a claim with a government agency, such as the U.S. Equal Employment Opportunity Commission, that is responsible for enforcing a law on behalf of the government. However, Employee understands that, because Employee is waiving and releasing, among other things, any and all claims for monetary
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damages and any other form of personal relief (per Section 1.a above), Employee may only seek and receive non-monetary forms of relief through any such claim.
(f) Nothing in this Section 1, or elsewhere in this Agreement, is intended as, or shall be deemed or operate as, a release by the Employee (i) of any claims for payments to which the Employee is entitled under the express language of Section 6 of the Employment Agreement, (ii) of any claims for vested benefits (e.g., medical or 401(k) benefits) and (iii) of any right that the Employee had immediately prior to his termination of employment to be indemnified by any Company Released Party or to coverage under any directors and officers insurance policy and any run-off policy thereto.
2. 沒有承認責任。. It is understood that nothing in this Agreement is to be construed as an admission on behalf of the Company Released Parties or the Employee of any wrongdoing with respect to the other party, any such wrongdoing being expressly denied.
3. Acknowledgement of Waiver and Release of Claims Under ADEA.