Exhibit 10.7
EMPLOYMENTAGREEMENT
ThisEmploymentAgreement(the“Agreement”),datedasof May 21,2026,isbyand betweenSixFlagsEntertainmentCorporation,aDelawarecorporation(the“Company”),and Ashok Walia (the “Executive”).
WHEREAS,theBoard of Directorsof theCompany(the“Board”)hasapprovedthe hiring of Executiveas Chief Financial Officer (“CFO”) of the Company, effective as of the Effective Date (as defined herein); and
WHEREAS,theCompanyandExecutivedesiretoenter intothisAgreementtoreflectthe terms of Executive’s employment as CFO of the Company.
NOW,THEREFORE, inconsiderationofsuchemploymentandthemutualcovenants andpromiseshereincontained,andforothergoodandvaluableconsideration, thereceiptand sufficiency ofwhichare hereby acknowledged,theCompanyand Executiveagreeasfollows:
1.Employment.TheCompanyherebyagreestoemployExecutive,andExecutivehereby agrees to accept employment with the Company as its CFO upon the terms and conditionscontainedinthisAgreement.Executive’semploymentwiththeCompanyshall commence on June 17, 2026(such date,the “Effective Date”) and shall continue, subject to earlier termination of such employment pursuant to the terms hereof, until (and including) the three- (3-) year anniversary of the Effective Date (the “Term”), subject to automatic renewal for successive one (1) year periods thereafter (each, a “RenewalTerm”), provided either party can give written notice of non-renewal at least ninety (90) days’prior to the expiration of the Term or then-current Renewal Term.The Term and each Renewal Term, if any, shall be collectively referred to hereinafter as the “EmploymentPeriod.”
2.Duties. DuringtheEmploymentPeriod,Executiveshallserveonafull-timebasis, and performservicesinacapacityandinamannerconsistentwithExecutive’spositionfor theCompany,reportingtotheCompany’sChiefExecutiveOfficer.Executiveshallhave the title of CFO commencing as of the Effective Date and shall have such duties, authoritiesandresponsibilitiesasareconsistentwiththecustomaryduties,authoritiesand responsibilitiesof suchaposition,andastheChiefExecutiveOfficer may designatefrom time to time while the Executive serves as the CFO of the Company.
Executive shall devote substantially all of Executive’s business time and attention and Executive’s best efforts (excepting vacation time, holidays, sick days and periods of disability) to Executive’s employment and service with the Company; provided that this Section2shallnotbeinterpretedasprohibitingExecutivefrom(i)managingExecutive’s personal investments (so long as such investment activities are of a passive nature), (ii) engaging in charitable or civic activities, or (iii) participating on boards of directors or similar bodiesof non-profit organizations, in eachcase, so long assuch activitiesin the aggregatedonot(a)materiallyinterferewiththeperformanceofExecutive’sdutiesand responsibilities hereunder, (b) create a fiduciary conflict, or (c) with respect to (ii) and
(iii)only,detrimentallyaffecttheCompany’sreputationasreasonablydeterminedbythe Company in good faith.
3.Location of Employment. Executive’s principal place of employment shall be at the Company’scorporateofficelocatedinArlington,Texas,subjecttoreasonablebusiness travel consistent with Executive’s duties and responsibilities.
4.Compensation.
4.1BaseSalary.
(a)In consideration of all services rendered by Executive under this Agreement, the Company shall pay Executive a base salary (the “BaseSalary”) at an annual rate of $690,000 during the Employment Period. Executive’s Base Salary will be reviewed from time to time for possible increase(butwillnotdecrease,exceptintheeventofanacross-the-board reduction applicable to substantially all senior executives of the Company).
(b)TheBaseSalaryshallbepaidinsuchinstallmentsandatsuchtimesasthe Company pays its regularly salaried employees and shall be subject to all required withholding taxes, including income, FICA, and Medicare contributions,andsimilardeductions.
4.2IncentiveCompensation.DuringtheEmploymentPeriod,Executivewillbe eligible to participate in one or more of the Company’s cash incentive compensation plans and equity incentive plans (awards or compensation under any such plans being referred to as “Incentive Compensation”) at a level appropriatetoExecutive’spositionandperformance,assolelydeterminedbythe Board.Executive’s target level of Incentive Compensation as set forth in this Section 4.2 (other than the Initial Incentive Grant as defined below in Section 4.2(c)) will be reviewed from time to time but will not decrease, except in the eventofanacross-the-boardreductionapplicabletosubstantiallyallsenior executives of the Company.
(a)AnnualCashIncentiveCompensation.
(a)(i) Executive shall be eligible to receive an annual cash incentive award(“AnnualCashIncentive”)inrespectofeachoftheCompany’sfull fiscal years during the Employment Period, with a target bonus opportunityequalto100%ofBaseSalary(“TargetAnnualCash Incentive”). The Board will establish the applicable service-based and performance-based goals, which may include adjusted EBITDA or other criteria, and corresponding attainment percentages. Notwithstanding the foregoing,forcalendaryear2026,Executivewillbeeligibleforaprorated Annual Cash Incentive based on a partial year of service in such calendar year.
(ii) AnyAnnual Cash Incentive payable to Executive for a calendar year shall be paid to Executive at the same time that other senior executives of theCompanyreceivebonuspayments,butinnoeventlaterthanMarch15 of the calendar year following the end of the calendar year to which such Annual Cash Incentive relates. Executive shall not be paid anyAnnual Cash Incentive with respect to a calendar year unless Executive is employedwiththeCompanyonthelastdayofthecalendaryeartowhich suchAnnual Cash Incentive relates, except as otherwise set forth in Section 6hereof andincompliance withSection11.7.
(b)AnnualEquityIncentiveCompensation.Executiveshallbeeligibleto receive an annual equity award under the Company’s 2024 Omnibus Incentive Plan (or a successor plan) (the “Stock Incentive Plan”) in accordancewith thefollowing, with thetermsandconditionsasset forth intheapplicableawardagreementissuedundertheStockIncentivePlan, at the same time the Company generally makes equity grants to other senior executivesof theCompany,whichforcalendar year 2026shallbe prior to July 31, 2026 (the “Annual EquityAward”).
(i)ThetargetnumberofsharesunderlyingeachAnnualEquityAward shall be determined bydividing $1,869,000bytheclosing priceof the Company’s common stock on the trading date immediately prior to the date of theAnnual EquityAward grant.
(ii)Unlessotherwise specified by the Board,the formof theAnnual EquityAwardfor2026shallbeamixofperformancestockunits (“PSUs”) and restricted stock units (“RSUs”), with no less than thirtypercent(30%) intheformof RSUs.TheformoftheAnnual EquityAward will be determined by the Board on the same basis as for other senior executives of the Company.
(iii)TheBoardwillestablishforeachAnnualEquityAwardthe applicable service-based and/or performance-based goals on the samebasisassuchgoalsaresetforotherseniorexecutivesofthe Company.
(c)InitialIncentiveGrant.Executiveshallbe granteda stock unitaward under theStockIncentivePlan (the“InitialIncentiveGrant”) intheform of RSUs with an aggregate grant date value of $1,250,000, vesting in equalone-thirdinstallmentsoneachofthefirstthree(3)anniversariesof the grant date based on the continued service of Executive. The Initial Incentive Grant shall become fully vested upon termination by the Company without Cause or at the option of Executive for Good Reason duringtheEmploymentPeriod,orupontheexpirationoftheinitialTerm upon notice of non-renewal by the Company, subject to Executive executingageneralreleaseofallclaims.Thetermsandconditionsofthe Initial Incentive Grant shall be set forth in the award agreement
evidencingsuchaward.TheInitialIncentiveGrantshallbemadeatthe same time as the 2026Annual EquityAward. The number of shares underlyingtheInitialIncentiveGrantshallbedeterminedbasedonthe closing price of the Company’s common stock on the trading date immediately priortothe dateoftheInitialIncentive Grant.
4.3StockOwnershipGuidelines.Executiveacknowledgesandagreesthatforthe duration of the Term the Executive will comply with the Company’s Stock Ownership Guidelines as an officer of the Company.
4.4Vacation.Executiveshallbeentitledtofive(5)weeksofannualpaidvacation days, which shall accrue and be useable by Executive in accordance with Company policy, as may be in effect from time to time.
4.5Benefits.DuringtheEmploymentPeriod,Executiveshallbeentitledtoparticipate in any benefitand compensation plans, includingbut not limited tomedical, short and long-term disability, life insurance coverage, 401(k) and deferred compensationplans(butexcludinganyseveranceor bonusplansunless specificallyreferencedinthisAgreement)offeredbytheCompanyasineffect from time to time (collectively, “Benefit Plans”), on the same basis as those generallymadeavailabletootherseniorexecutivesoftheCompany,totheextent Executive may be eligible to do so under the terms of any such Benefit Plan; provided, that the Company shall cover the costs of an annual physical for ExecutiveundertheCompany’smedicalplan.Executiveunderstandsthat any such Benefit Plans may be terminated or amended from time to time by the Company in its sole discretion.
4.6BusinessExpenses.DuringtheEmploymentPeriod,allreasonabletravel, entertainment, and other business expenses incurred by Executive in the performance of the Executive’s duties hereunder shall be reimbursed by the CompanyinaccordancewiththeCompany’spoliciesasineffectfromtimeto time.
4.7RelocationExpenses.TheCompanyshallreimburseExecutiveforallreasonable relocation expenses incurred in connection with Executive’s relocation to the Arlington,Texasarea,inaccordancewiththeCompany’srelocationpoliciesasin effectfromtimetotime.Thisreimbursementshallalsoincludeexpensesincurred with respect to travel for house search purposes, Buyer Value Option (“BVO”) programeligibilityfor ahomeinexcessof $400,000, cratinganduncrating, upto one-hundred and twenty (120) days of temporary housing for a one- or two-bedroomresidence, andshallexcludebuyeragentcommissions.Allsuch reimbursementsshallbemadeonorbeforethelastdayofExecutive’staxable year following the taxable year in which the expense occurred.
5.Termination.Executive’semploymenthereundermayonlybeterminatedasfollows:
5.1ByCompany.AttheoptionoftheCompany:
(a)for Cause(asdefinedinSection6.3hereofandsubjecttothenoticeand cure provisions therein); or
(b)without Cause, but subject toten(10) dayspriorwrittennoticeto Executive(providedthattheassignmentofthisAgreementtoand assumptionofthisAgreementbythepurchaserofallorsubstantiallyallof the assets of the Company shall not, in and of itself, be treated as a termination withoutCauseunderthisSection5.1(b)).
5.2ByExecutiveForGoodReason.AttheoptionofExecutiveforGoodReason(as provided in Section 6.3 hereof); or
5.3By Executive Without Good Reason.At the option of Executive for any or no reason, on sixty (60) days prior written notice to the Company (which the Companymay, initssolediscretion, makeeffectiveasaresignationearlierthan theterminationdateprovidedinsuchnotice) subjecttoSection6.4hereoftothe extent applicable.
5.4ByReasonofDeathorDisability;ExpirationoftheTerm.(i)Automaticallyinthe event of the death of Executive, (ii) in the event of Disability of Executive, at the option of the Company, by written notice to Executive or Executive’s personal representative, and (iii) automatically at theexpiration of the Term under Section 1 hereof.
6.SeverancePayments.
6.1TerminationWithoutCauseorResignationforGoodReason.IfExecutive’s employmentisterminatedatanytimeduringtheEmploymentPeriodbythe CompanywithoutCauseorbyExecutiveforGoodReason(asdefinedinSection 6.3 hereof), subject to Section 6.4 and Section 11.7 hereof, Executive shall be entitled to:
(a)within thirty (30) days following such termination: (i) payment of Executive’s accrued and unpaid Base Salary; (ii) reimbursement of expensesunderSections4.6and4.7hereof(asapplicable);and(iii) paymentforaccruedandunusedvacationdays,ineachcaseaccruedasof the date of termination;
(b)anamountequal totwo(2)timesbothExecutive’sBaseSalaryand Executive’sTargetAnnualCashIncentiveatthetimeofterminationof employment(whichshallnotreflectanydecreasesresultingfromanevent described in Section 6.3(c)(iii)), payable in twelve (12) equal monthly installments following the termination date, in accordance with the Company’sstandardpayrollpracticesandsubjecttotheprovisionsof Sections 6.4 and 11.7 hereof;
(c)anyAnnualCashIncentiveawardearnedwithrespecttoacalendaryear ending on or prior to the date of such termination of employment but
unpaid as of such date, shall be payable at the same time such payment wouldbemadeifExecutivecontinuedtobeemployedbytheCompany;
(d)a pro-rata portion of Executive’sAnnual Cash Incentive award for the calendar year in which Executive’s termination of employment occurs (determinedbymultiplyingtheamountofsuchAnnualCashIncentive, measuredpursuanttothemetricsestablishedbytheBoard, thatwouldbe dueforthefullcalendaryear,byafraction,thenumeratorofwhichisthe number of days during the calendar year of termination that Executive is employed with the Companyand the denominator of which is 365based on actual performance) and payable at the same time that other senior executivesoftheCompanyreceivebonuspaymentsin respect ofthe calendaryearinwhichsuchterminationoccurs,butinnoeventlaterthan March 15 of the calendar year following the end of the calendar year to which such cash incentive award relates;
(e)providedExecutiveeffectivelyelectsandremainseligibletoreceive continuationcoverageunderPart6ofTitleIoftheEmployeeRetirement Income SecurityAct of 1974, as amended, and Section 4980B of the Code, as amended (“COBRA”) the Company shall pay to the carrier or reimburseExecutive(attheCompany’sdiscretion)fortheamountofany COBRApremiumsundertheCompany’sgroupmedicalbenefitplansasin effect fromtimeto time that wouldbe due, less theamount of Executive’s portion of such premiums determined as if Executive were an active employee, untilthe earliest tooccur of (i) eighteen(18) months after the terminationdate;(ii)thedateExecutiveisnolongereligibleforCOBRA coverage; or (iii) with respect to any particular plan, the date Executive becomes eligible to participate in a comparable benefit provided by a subsequentemployer (andExecutivemustnotifytheCompany, inwriting, at least two (2) weeks or as soon as practicable prior to becoming eligible for such benefit through a subsequent employer), which shall be payableinaccordancewiththeCompany’sstandardpayrollpracticessubjecttothe provisions of Sections 6.4 and 11.7 hereof;
(f)if suchterminationistheresultofaterminationbytheCompanywithout Cause or resignation by Executive for Good Reason, then, subject to ExecutiveexecutingageneralreleaseofallclaimsassetforthinSection 6.4, notwithstanding anything in theAnnual EquityAward or Stock IncentivePlantothecontrary,Executiveshallbecomevestedastoservice requirements in all outstanding equity awards granted under the Stock Incentive Plan (including the RSUs and PSUs hereunder) that are scheduledtovestwithintheeighteen-(18-)monthperiodfollowing Executive’sdateoftermination,or,ifgreater,alloutstandingequity awardsshallbecomevestedonapro-ratabasistothedateoftermination, withPSUsandanyotherperformance-basedawardsremainingsubjectto vesting based on actual performance measured at the end of the performanceperiodundertheaward;provided that,inthe eventsuch
termination occurs within the eighteen- (18-) month period following a Change in Control (as defined in the Stock Incentive Plan), Executive shallbecomevestedastoservicerequirementsinalloutstandingequity awardsgranted undertheStockIncentive Plan(includingthe RSUsand PSUshereunder),withPSUsandanyother performance-basedawardsto be vested at the target level of performance, without regard to any continuing employmentrequirementsorproration.
(g)allotheraccrued amountsoraccruedbenefitsdueto Executivein accordancewiththeCompany’sbenefitplans,programsorpolicies(other than severance).
6.2TerminationForAnyOtherReason.UpontheterminationofExecutive’s employment for any reason other than by the Company without Cause, or by ExecutiveforGoodReason, includingwithoutlimitationaterminationbythe Company for Cause, aresignation byExecutive without Good Reason, inthe event of death or Disability, or uponthe expirationof theTerm, Executiveor Executive’slegalrepresentativesshallbeentitledtoreceivethepaymentsand benefits described under Sections 6.1(a), (c), and (g) hereof.
6.3CertainDefinitions.ForpurposesofthisAgreement:
(a)“Cause”shallmean:
(i)Executive’swillfulandcontinuedfailuretoperformthe Executive’sdutieshereunder ortofollowthelawfuldirection of theBoardoramaterialbreachoffiduciarydutyafterwrittennotice specifying the failure or breach;
(ii)Theftorfraud,withregardtotheCompanyorinconnectionwith Executive’s duties;
(iii)Executive’sconvictionof(orpleadingguiltyornolocontendere to) a felony (excluding minor motor vehicle infractions) or any lesser offense involving fraud, or moral turpitude;
(iv)materialviolationoftheCompany’sCodeofConductorsimilar written policies after written notice specifying the failure or breach;
(v)anactofgrossnegligenceorwillfulmisconductbyExecutivethat relates to the affairs of the Company;
(vi)amaterial breachbyExecutive ofanyprovision ofthisAgreement;
(vii)a final,non-appealable determinationbyacourtorother governmentalbody ofcompetent jurisdiction thatamaterial
violationbyExecutiveoffederalorstatesecuritieslawshas occurred; or
(viii)asprovided in Section11.1hereof.
providedhowever,thatCauseshallnotexistunless(A)theCompanyhas given Executive written notice of any termination, setting forth the conduct that is alleged to constitute Cause, within thirty (30) days of the firstdateonwhich theCompanyhasknowledgeofsuchconduct, and(B) the Company has provided Executive at least thirty (30) days following thedateonwhichsuchnoticeisprovidedtobothmeetwiththeBoardand to cure such conduct and Executive has failedto do so. Failingsuch cure, aterminationofemploymentby theCompanyforCauseshallbeeffective on thedayfollowing theexpirationof such cureperiod.Failuretoachieve any specified performance goals shall not constitute Cause.
(b)“Disability”shallmeanaphysicalormentalincapacityordisabilitywhich has rendered, or is likely to render, Executive unable to perform Executive’smaterial dutiesfor aperiod of either(i) one hundred and eighty(180)daysinanytwelve-(12)monthperiodor(ii)ninety(90) consecutive days, as determined by the Company.
(c)“GoodReason”shallmean,withoutExecutive’sexpressconsent:
(i)anymaterialdiminutioninExecutive’sresponsibilities,authority or duties as CFO;
(ii)anyadversechangeinthereportingrelationshipassetforthin Section 2 hereof;
(iii)anymaterialreductionin(x)Executive’saggregateamountof BaseSalary or (y) targetIncentiveCompensationopportunity underSections4.2(a)and(b)(exceptintheeventofanacross-the-board reduction in Base Salary or Incentive Compensation opportunityapplicabletosubstantiallyallseniorexecutivesofthe Company); or
(iv)amaterialbreachofthisAgreementbytheCompany;
providedhowever, that no event described in clause (i) or (ii) shall constituteGoodReasonunless(A)ExecutivehasgiventheCompany writtennoticeofthetermination,settingforththeconductoftheCompany that is alleged to constitute Good Reason, within thirty (30) days of the first date on which Executive has knowledge of such conduct, and (B) ExecutivehasprovidedtheCompanyatleastthirty(30)daysfollowing the date on which such notice is providedto curesuch conduct and the Company has failed to do so. Failing such cure, a termination of
employmentbyExecutiveforGoodReasonshallbeeffectiveontheday following the expiration of such cure period.
(d)“NoncompetitionPeriod”shallmeanduringExecutive’semploymentand the twenty-four- (24-) month period immediately following the date of Executive’stermination.Forpurposesofclarity,aNoncompetitionPeriod shall apply to any form of termination of employment, including but not limitedto,terminationwithoutCause,terminationforCause,resignation for Good Reason or resignation without Good Reason.
6.4ConditionstoPayment.AllpaymentsandbenefitsduetoExecutiveunderthis Section 6 which are not otherwise required by law shall be payable only if Executive(orExecutive’sbeneficiaryorestate)deliverstotheCompanyanddoes not revoke (under the terms of applicable law) a general release of all claims in the form attached hereto as ExhibitA, provided that, if necessary, such general releasemaybeupdatedandrevisedtocomplywithapplicablelawtoachieveits intent.ThefirstpaymentsofamountsdescribedinSections6.1(b),(d), (e)and(f) shall be made beginning on the first payroll date following the effective date of such general release, and the first payment shall include all amounts otherwise duepriorthereto,subjecttothetermsandconditionsherein. Suchgeneralrelease shallbeexecutedand delivered (andnolongersubjectto revocation)withinsixty (60) days following termination and provided further that if the sixty- (60-) day periodbeginsinonecalendaryearandendsinasecondcalendaryear,payments shall always be made in the second calendar year. Failure totimely execute and return such release or revocation thereof shall be a waiver by Executive of Executive’sright toseverance(which,fortheavoidanceofdoubt,shall not includeanyamountsdescribedinSections6.1(a),(c)and(g) hereof).Inaddition, severance shall be conditioned on Executive’s compliance with Section 7 hereof as provided in Section 8 below.
6.5NoOtherSeverance.Executiveherebyacknowledgesandagreesthat,otherthan the severance payments described in this Agreement, upon termination of employment Executive shall not be entitled to any other severance under any CompanybenefitplanorseverancepolicygenerallyavailabletotheCompany’s employees or otherwise.
7.RestrictionsonActivitiesofExecutive.
7.1Confidentiality.
(a)ExecutiveacknowledgesthatitisthepolicyoftheCompanytomaintain as secret and confidential all “Confidential Information” (as defined herein).The parties hereto recognize that the services to be performed by Executive pursuant to thisAgreement are special and unique, and that by reasonoftheExecutive’semploymentbytheCompanyaftertheEffective Date, Executive will acquire, or may have acquired, Confidential Information. Executive recognizes that all such Confidential Information
isandshallremainthesolepropertyoftheCompany,freeofanyrightsof Executive, and acknowledges that the Company has a vested interest in assuring that all such Confidential Information remains secret and confidential.Therefore, inconsideration ofExecutive’semployment with the Company pursuant to thisAgreement, Executive agrees that at all timesfromandaftertheEffectiveDate,theExecutivewillnot,directlyor indirectly, disclose to any person, firm, company or other entity (other than the Company) any Confidential Information, except as specifically required in the performance of the Executive’s duties hereunder, without thepriorwrittenconsentoftheCompany,excepttotheextentthat(i)any such Confidential Information becomesgenerallyavailable to the public, other than as a result of a breach by Executive of this Section 7.1 or by any other executive officer of the Company subject to confidentiality obligations,or(ii)anysuchConfidentialInformationbecomesavailableto Executive on a non-confidential basis from a source other than the Company, or its executive officers or advisors; provided that such source is not known by Executive to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Company or another party. In addition, itshall notbeabreach of theconfidentiality obligationshereofif Executive is required by law to disclose any Confidential Information; provided that in such case, Executive shall (x) give the Company the earliestnoticepossiblethatsuchdisclosureisormayberequiredand(y) cooperatewiththeCompany,attheCompany’sexpense,inprotectingto the maximum extent legally permitted, the confidential or proprietary natureoftheConfidentialInformationwhichmustbe sodisclosed.The obligations of Executive under this Section 7.1 shall survive any termination of thisAgreement. During the Employment Period Executive shallexercisealldueanddiligentprecautionstoprotecttheintegrityofthe businessplans,customerlists,statisticaldataandcompilation,agreements, contracts, manuals or other documentsofthe Company which embody the ConfidentialInformation,andupontheexpirationortheterminationofthe Employment Period, Executive agrees that all Confidential Information in theExecutive’spossession, directlyorindirectly, thatisinwritingorother tangible form (together with all duplicates thereof) will forthwith be returned to the Company and will not be retained by Executive or furnishedtoanyperson,eitherbysample,facsimilefilm,audioorvideo cassette, electronic data, verbal communication or any other means of communication. Executiveagreesthat the provisionsof thisSection 7.1 arereasonablynecessarytoprotecttheproprietaryrightsoftheCompany in the Confidential Information and its trade secrets, goodwill and reputation.
(b)For purposes hereof, the term “Confidential Information” means all informationdevelopedorusedbytheCompanyrelatingtothe“Business” (as herein defined), operations, employees, customers, suppliers and distributorsoftheCompany,including,butnotlimitedto,customerlists, purchase orders, financial data, pricing information and price lists,
business plans and market strategies and arrangements and any strategic plan, all books, records, manuals, advertising materials, catalogues, correspondence,mailinglists,productiondata,salesmaterialsandrecords, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Business or any of theassetsoftheCompanyandalltrademarks,copyrightsandpatents,and applicationstherefore,alltradesecrets,inventions,processes,procedures, research records, market surveys and marketing know-how and other technicalpapers.Theterm“ConfidentialInformation”alsoincludesany other information heretofore or hereafter acquiredby the Company and deemed by it to be confidential. For purposes of thisAgreement, the term “Business” shall mean: (i) thebusinessof amusement and water parks;(ii) leisurethemeparks;(iii)anyotherbusinessengagedinorbeingdeveloped (including production of materials used in the Company’s businesses) by the Company, or being considered by the Company, at the time of Executive’stermination,ineachcase, totheextentsuchbusinessis primarilyrelatedtothebusinessofamusementandwaterparksorleisure theme parks; and (iv) any joint venture, partnership or agency arrangementsrelating tothebusinessesdescribedin (b)(i)through(iii) aboveprovidedthat,indeterminingwhenanentityisina“Business”, the Board will not act unreasonably in making such determination.
(c)Notwithstanding Executive’s obligations in thisAgreement relating to ConfidentialInformation,thisAgreementshallnotbeappliedtolimitor interferewithExecutive’sright,withoutnoticetoorauthorizationofthe Company, to communicate and cooperate in good faith with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the U.S. SecuritiesandExchangeCommission,theFinancialIndustryRegulatory Authority,orany other self-regulatory organization or anyotherfederal, state or local governmental agency or commission (a “Government Agency”)forthepurposeof(i)reportingapossibleviolationofanyU.S. federal, state, or local law or regulation, (ii) participating in any investigationorproceedingthatmaybeconductedormanagedbyany Government Agency, including by providing documents or other information, or (iii) filing a charge or complaint with a Government Agency.Additionally,theExecutiveshallnotbeheldcriminallyorcivilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (x) in confidence to a federal, state, or local governmentofficial,ortoanattorney,solelyforthepurposeofreporting or investigating a suspected violation of law, (y) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; or (z) in court proceedings if the Executive files a lawsuit for retaliation by an employer for reporting a suspected violation of law, or to the Executive’s attorney in such lawsuit, provided that the Executive must fileanydocumentcontainingthetradesecretunderseal,andtheExecutive may not disclose the trade secret, except pursuant to court order.The
activitiesordisclosuresdescribedinthis Section7.1(c) shallbereferredto in this Agreement as “Protected Activities.” Notwithstanding the foregoing, under no circumstance will the Executive be authorized to make any disclosures as to which the Company may assert protections from disclosure under the attorney-client privilegeor the attorney work product doctrine, without prior written consent ofan authorized officer designated by the Company. Nothing in thisAgreement shall prevent Executive from listing the fact of Executive’s employment with the Company,orthedatesandsummarydescriptionthereof(toexcludeany Confidential Information) on any resume or similar professional accomplishmentssummary,oronsocialmediaoron-linenetworking forums.
7.2Non-Competition.
(a)Executiveagreesthat,duringtheNoncompetitionPeriod,Executivewill not:
(i)directly orindirectly, own, manage,operate,control or participate intheownership,managementorcontrolof,orbeconnectedasan officer, employee, partner, consultant, contractor, director, or 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)inwhichtenpercent(10%) or moreofwhoseannual revenuesarederivedfrom aBusinessasdefinedabove; and
(B)which conducts business in any locality or region of the United States, Ontario or Quebec, Canada, or the Mexico City,Mexicoarea(whetherornotsuchcompetingentityor businessisphysicallylocatedintheUnitedStates,Canada, or Mexico) or any other area where Business is being conducted bythe Companyonthe dateExecutive’s employment is terminated hereunder or in each and every areawheretheCompanyhastakensubstantialandmaterial steps to conduct such Business as of the date Executive’s employment is terminated hereunder; and
(ii)eitherpersonallyorbytheExecutive’sagentorbyletters,circulars or advertisements, and whether for the Executive or on behalf of any other person, company, firm or other entity, except in the Executive’s capacity as an executive of the Company, canvass or solicit,orenterintooreffect(orcauseorauthorizetobesolicited, enteredinto,oreffected),directlyorindirectly,fororonbehalfof the Executive or any other person, any business relating to the servicesofthetypeprovidedby,orordersforbusinessorservices
similar to those provided by, the Company from any person, company, firm, or other entity who is, or has at any time within two (2)yearsprior tothe date of such action been,a customer or supplier of theCompany with whom Executivehas had material contacts or has learned Confidential Information about, in either case,duringthelasttwo(2)yearsofExecutive’sservicewiththe Company; provided that the restrictions of Section 7.2(a)(i)(B) aboveshallalsoapplytoanyperson,company,firm,orotherentity with whom the Company is specifically seeking to develop a relationship as a customer or supplier of the Company at the dateof such action.
Notwithstanding the foregoing, (x) Executive’s ownership of securities of apubliccompanyengaged incompetition withtheCompanynot inexcess of fivepercent (5%)of anyclassof such securitiesshall not beconsidered a breach of the covenants set forthinthis Section 7.2(a) and (y) Executive may be employed with a person, sole proprietorship, partnership, firm, corporation, company, institution, or other entity engaged in the Business providedthatExecutive’sservicesdonotincludeengagingintheBusiness and Executive is not in a position where Executive could reasonably be expectedto use,relyupon,ordiscloseConfidential Information.
(b)Executiveagreesthat,atalltimesfromaftertheEffectiveDate,Executive will not, either personally or by the Executive’s agent or by letters, circularsor advertisements, andwhetherforthe Executive or onbehalf of anyotherperson,company,firm,orotherentity,exceptintheExecutive’s capacity as an executive of the Company:
(i)seek to persuade any employee of the Company to discontinue such employee’s status or employment therewith or to become employedinabusinessoractivitieslikelytobecompetitivewith the Business; or
(ii)solicitor employanysuchperson whowasprovidingservicesto theCompanywithintwelve(12)monthspriortothedateofsuch solicitationoremployment,inanylocalityorregionoftheUnited States or Canada and in each and every other area where the Company conducts its Business;
provided;however,thattherestrictionssetforthinthisSection 7.2(b)shall cease upon the expiration of the Noncompetition Period and shall, atno time,prohibitExecutivefrom engagingin generalsolicitation for employees,solongassuchsolicitationisgeneralinnatureanddoesnot specifically target any employee of the Company.
7.3AssignmentofInventions.
(a)ExecutiveagreesthatduringemploymentwiththeCompany,anyandall inventions, discoveries, innovations, writings, domain names, improvements,tradesecrets,designs,drawings,formulas,business processes, secret processes and know-how, whether or not patentable or a copyrightortrademark,whichExecutivemaycreate,conceive,developor make, either aloneor in conjunctionwith others and related or in anyway connected with the Company’s strategic plans, products, processes or apparatusortheBusiness(collectively,“Inventions”),shallbefullyand promptly disclosed to the Company and shall be the sole and exclusive property of the Company as against Executive or any of Executive’s assignees.
RegardlessofthestatusofExecutive’semploymentbytheCompany, ExecutiveandExecutive’sheirs,assignsandrepresentativesshall promptlyassigntotheCompanyanyandallright,titleandinterestinand to such Inventions made during employment with the Company.
(b)WhetherduringoraftertheEmploymentPeriod,Executivefurtheragrees to execute and acknowledge all papers and to do, at the Company’s expense,anyandallotherthingsnecessaryfororincidenttotheapplying for, obtaining and maintaining of such letters patent, copyrights, trademarksorother intellectualpropertyrights,asthecasemaybe, andto execute, on request, all papers necessary to assign and transfer such Inventions, copyrights, patents, patent applications and other intellectual propertyrightstotheCompanyanditssuccessorsandassigns.Intheevent that the Company is unable, after reasonable efforts and, in any event,after ten (10) business days, to secure Executive’s signature on a written assignment to the Company, of any application for letters patent, trademark registration or to any common law or statutory copyright or otherpropertyrighttherein,whetherbecauseofExecutive’sphysicalor mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the Secretary of the Company as Executive’s attorney-in-fact toact onExecutive’sbehalf to execute and fileanysuchapplicationsandtodoalllawfullypermittedactstofurther theprosecutionorissuanceofsuchassignments,letterspatent,copyright or trademark.
7.4Return of Company Property. Within ten (10) days following the date of any termination of Executive’s employment, Executive or Executive’s personal representativeshallreturnallpropertyoftheCompanyinExecutive’spossession, including but not limited to all Company-owned computer equipment (hardware and software), telephones, facsimile machines, smart phones, cell phones, tablet computer and other communication devices, credit cards, office keys, security access cards, badges, identification cards and all copies (including drafts) of any documentation or information (however stored) relating to the Business, the
Company’s customers and clients or its prospective customers and clients. Anythingtothecontrarynotwithstanding,Executiveshallbeentitledtoretain(i) personal papers and other materials of a personal nature, provided that such papers or materials do not include Confidential Information, (ii) information showingExecutive’scompensationorrelatingtoreimbursementofexpenses,and copiesof plans,programsandagreementsrelatingtoExecutive’s employment,orterminationthereof,withtheCompanywhichtheExecutive received in Executive’s capacity as a participant.
7.5ResignationasanOfficerandDirector.UponanyterminationofExecutive’s employment,Executiveshallbedeemedtohaveresigned,totheextentapplicable asan officer of theCompany, a memberof the Board, anda memberofthe board of directors or similar body of anyof the Company’sAffiliates and as a fiduciary of any Company benefit plan. On or immediately following the date of any terminationofExecutive’semployment,Executiveshallconfirmtheforegoingby submitting to the Company in writing a confirmation of Executive’s resignation(s).
7.6Cooperation. During employment and for a period of twelve (12) months thereafter,ExecutiveshallgiveExecutive’sassistanceandcooperationwillingly, upon reasonable advance notice (which shall include due regard to the extent reasonably feasible for Executive’s employment obligations and prior commitments),inanymatterrelatingtoExecutive’spositionwiththeCompany, or Executive’s knowledge as a result thereof as the Company may reasonably request, including Executive’s attendance and truthful testimony where deemed appropriatebytheCompany,withrespecttoanyinvestigationortheCompany’s defense or prosecution of any existing or future claims or litigations or other proceedingrelatingtomattersinwhichtheExecutivewasinvolvedorhad knowledge by virtue of Executive’s employment with the Company. The CompanywillreimburseExecutiveforreasonableout-of-pockettravelcostsand expenses incurred by the Executive (in accordance with Company policy) as a result of providing such assistance, upon the submission of the appropriate documentationtotheCompany.
7.7Non-Disparagement.DuringtheExecutive’semploymentwiththeCompanyand 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 “CompanyParties”). ForpurposesofthisSection7.7,theterm“disparage” includes, without limitation, comments or statements to the press, to the Company’semployeesortoanyindividualorentitywithwhomtheCompanyhas a business relationship (including, without limitation, any vendor, supplier, customerordistributor),oranypublicstatement,thatineachcaseisintendedto, or can be reasonably expected to, materially damage the Company Parties. Notwithstandingtheforegoing,nothinginthisSection 7.7shallpreventExecutive from engaging in any ProtectedActivities or from making any truthful statement
to the extent,butonly tothe extent(A)necessary with respect to anylitigation, arbitrationormediationinvolvingthisAgreement,including, butnotlimitedto, the enforcement of thisAgreement, in the forum in which such litigation, arbitrationormediationproperlytakesplaceor(B)requiredbylaw,legalprocess or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction over Executive.
7.8Tolling.IntheeventofanyviolationoftheprovisionsofthisSection 7,Executive acknowledges and agrees that the post- termination restrictions contained in this Section 7 shall be extended by a period of time equal to the period of such violation, itbeingthe intentionofthe partiesheretothattherunningofthe applicablepost-terminationrestrictionperiodshallbetolledduringanyperiodof such violation.
7.9Survival.ThisSection7andSection8hereofshallsurviveanyterminationor expiration of this Agreement or employment of Executive.
8.Remedies;Scope.
8.1Itisspecificallyunderstoodandagreed thatanybreach of theprovisionsof Section7ofthisAgreementislikelytoresultinirreparableinjurytotheCompany and that the remedy at law alone will be an inadequate remedy for such breach, and that in addition to any other remedy it may have in the event of a breach or threatenedbreachofSection 7above, theCompanyshallbeentitledtoenforcethe specific performance of thisAgreement and to seek both temporary and permanent injunctiverelief(to theextent permitted by law)without bondand without liability should such relief be denied, modified or violated. Furthermore, intheeventofanybreachoftheprovisionsofSection 7.2aboveoramaterialand willful breach of any other provision in Section 7 above (the “Forfeiture Criteria”),theCompanyshallbeentitledtoceasemakinganyseverancepayments being made hereunder, and in the event of a final, non-appealable determination by a federalor state court of competent jurisdiction that a breach of any provision of Section 7 above has occurred, if such breach of Section 7 above satisfies the ForfeitureCriteria andoccurs whileExecutive is receiving severance payments in accordancewithSection6above(regardlesswhethertheCompanydiscoverssuch breach during such period of severance payment or anytime thereafter), the Company shall be entitled torecover anyseverance payments made to Executive.
8.2Scope.Executivehascarefullyconsideredthenatureandextentoftherestrictions upon Executive and the rights and remedies conferred upon the Company under Section 7andSection 8.1,andherebyacknowledgesandagreesthatthesameare reasonable and necessary in time and territory, are intended to eliminate competitionwhichotherwisewouldbeunfairtotheCompany,donotstiflethe inherent skill and experience of Executive, would not operate as a bar to Executive’ssolemeansofsupport,arefullyrequiredtoprotectthebusiness interests of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Executive.
9.SeverableProvisions.TheprovisionsofthisAgreementareseverableandtheinvalidity of any one or more provisions shall not affect the validity of any other provision. In the event that a court of competent jurisdiction shall determine that any provision of this Agreement or theapplication thereof is unenforceable in whole or inpartbecause of the duration or scope thereof, the parties hereto agree that said court in making such determinationshallhavethepowertoreducethedurationandscopeofsuchprovisionto the extent necessary to make it enforceable, and that theAgreement in its reduced form shall be valid and enforceable to the full extent permitted by law.
10.Notices.Allnoticeshereunder,tobeeffective,shallbeinwritingandshallbedeemed effective when delivered (a) by hand or mailed by certified mail, postage and fees prepaid, or (b) nationally recognized overnight express mail service, as follows:
IftotheCompany: 8701 Red OakBoulevard
Charlotte,NC 28217
Attn:ChiefLegal andComplianceOfficer
If to Executive: ThelastaddressshownonrecordsoftheCompanyortosuchother address as a party may notify the other pursuant to a notice givenin accordance with this Section 10.
11.Miscellaneous.
11.1Executive Representation. Executive hereby represents to the Company that the execution and delivery of thisAgreement by Executive and the Company and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, or be prevented, interfered with or hindered by,thetermsofanyemploymentagreementorotheragreementorpolicytowhich Executive is a party or otherwise bound, and further that Executive is not subject to any limitation on the Executive’s activities on behalf of the Company as a resultofagreementsintowhichExecutivehasenteredexceptforobligationsof confidentiality with former employers. To the extent this representation and warranty is not true and accurate, it shall be treated as a Cause event and the CompanymayterminateExecutiveforCauseornotpermitExecutivetocontinue employment. Executive acknowledges and agrees that the Executive has had the opportunity to consult with legal counsel or other advisor of the Executive’s choice,thattheExecutiveisenteringintothisAgreementknowingly,voluntarily, and of the Executive’s own free will, that the Executive is relying on the Executive’sownjudgmentindoingso,andthattheExecutivefullyunderstands the terms and conditions contained herein.
11.2No Mitigation; No Offset. In the event of any termination of Executive’s employmenthereunder,Executiveshallbeundernoobligationtoseekother employment or otherwise mitigate the obligations of the Company under this Agreement, and there shall be no offset against any amount due to Executive on
accountofanyremunerationorbenefitsprovidedbyanysubsequentemployment Executive may obtain.
11.3EntireAgreement;Amendment.Exceptasotherwiseexpresslyprovidedherein and as further set forth in the grant agreement of any equity awards, this Agreement constitutes the entireAgreement between the parties hereto with regard to the subject matter hereof, superseding all prior understandings, term sheets and agreements, whether written or oral. ThisAgreement may not be amended or revised except by a writing signed by the parties.
11.4Assignment and Transfer. The provisions of thisAgreement shall be binding on andshallinuretothe benefitoftheCompanyandanysuccessor ininteresttothe Company who acquires all or substantially all of the Company’s assets. Neither thisAgreement nor any of the rights, duties or obligations of Executive shall be assignablebyExecutive,norshall anyofthepaymentsrequiredorpermittedtobe made to Executive by thisAgreement be encumbered, transferred or in any way anticipated, except as required by applicable laws.All rights of Executive under thisAgreementshallinuretothebenefitofand beenforceablebyExecutive’s personal or legal representatives, estates, executors, administrators, heirs and beneficiaries.
11.5WaiverofBreach.Awaiverbyeitherpartyofanybreachofanyprovisionofthis Agreementbytheotherpartyshallnotoperateorbeconstruedasawaiverofany other or subsequent breach by the other party.
11.6ReportingandWithholding.TheCompanyshallbeentitledtoreportallincome and withhold from any amounts to be paid or benefits provided to Executive hereunder anyfederal,state,localorforeignincometaxwithholding,FICA contributions,Medicarecontributions,orothertaxes,chargesordeductionswhich it is from time to time required to withhold or that Executive has authorized the Company to withhold. The Company shall be entitled to rely on an opinion of counsel if any question as to the amount or requirement of any such withholding shall arise.
11.7CodeSection409A.Notwithstandinganythingtothecontrarycontainedinthis Agreement:
(a)ThepartiesagreethatthisAgreementshallbeinterpretedtocomplywith or, totheextentpossible, beexemptfromSection409Aof theCode,and the regulations and guidance promulgated thereunder to the extent applicable(collectively“CodeSection409A”),andallprovisionsofthis Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Except to the extent attributable to a breach of thisAgreement by the Company, in no event whatsoever will the Company be liable for any additional tax,interest orpenaltiesthat maybeimposed onExecutive underCodeSection409AoranydamagesforfailingtocomplywithCode Section 409A.
(b)Atermination of employment shall not be deemed to have occurred for purposesof any provisionofthisAgreement providing forthe paymentof anyamountsorbenefitsconsidered“nonqualifieddeferredcompensation” underCodeSection409Auponorfollowingaterminationofemployment unless such termination is also a “separation from service” within the meaningofCodeSection409Aand,forpurposesofanysuchprovisionof this Agreement, references to a “termination,” “termination of employment”orliketermsshallmean“separationfromservice.”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),thenwithregard toanypaymentorthe provisionofany benefitthatisconsiderednonqualifieddeferredcompensationunderCode Section 409Apayable on account of a “separation from service,” if no exemptionorexclusionfromSection409Aisdeterminedtoapply, such payment orbenefitshallnotbe madeorprovideduntilthe datewhichis theearlier of (i)theexpirationofthesix(6)-monthperiodmeasuredfrom the date of such “separation from service” of Executive, and (ii) the date of Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 11.7(b) (whether they would have otherwise been payable in a single sum orininstallmentsintheabsenceofsuchdelay)shallbepaidorreimbursed 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 Agreementshall bepaid orprovidedinaccordancewith thenormal paymentdatesandinthenormalpaymentformsspecified forthemherein.
(c)Withregardtoanyprovisionhereinthatprovidesforreimbursementof costs and expenses or in-kind benefits, except as permitted by Code Section409A,(i)therighttoreimbursementorin-kindbenefitsshallnot besubjecttoliquidationorexchangeforanotherbenefit,(ii)theamountof expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kindbenefits, to beprovidedin 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 isineffectand(iii)suchpaymentsshallbemadeonorbeforethelastday of Executive’s taxable year following the taxable year in which the expenseoccurred.
(d)ForpurposesofCodeSection409A,Executive’srighttoreceiveany installmentpaymentspursuanttothisAgreementshallbetreatedasaright toreceiveaseriesofseparateanddistinctpayments.Whenever apayment under thisAgreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within thirty (30) days followingthedate oftermination”),theactualdateofpaymentwithinthe
specifiedperiodshallbewithinthesolediscretionoftheCompany,unless provided otherwise herein.
11.8Arbitration.
(a)Executive and the Company agree that, except as provided in Section 11.8(h)below,anydispute,claim,orcontroversybetweenthem,including without limitation disputes, claims, or controversies arising out of or relating to thisAgreement or Executive’s employment with the Company ortheterminationofthatemployment,shallbesettledexclusivelybyfinal and binding arbitration. Judgment upon the award of the arbitrators may be entered and enforced in any federal or state court having jurisdiction overtheparties.ExecutiveandtheCompanyexpresslyacknowledgethat this agreement to arbitrate applies without limitation to any disputes, claims or controversies between them, including without limitationclaims ofunlawfuldiscrimination(includingwithoutlimitationclaimsunderTitle VII, the Age Discrimination in Employment Act, the Americans with DisabilitiesAct and all amendments to those statutes, as well as state anti-discriminationstatutes), harassment, whistleblowing, retaliation, wrongful discharge, constructive discharge, claims related to the payment of wages or benefits, contract claims, and tort claims under federal, state, or local law, whethercreated by statute or thecommon law. By agreeingto submit any and all claims to arbitration (except as set forth in Section 11.8(h) below),Executiveand theCompanyexpresslywaiveanyrightthatthey may have to resolve any disputes, claims, or controversies through any other means, including a jury trial or bench trial.
(b)The arbitration shall be conducted by a panel of three (3) arbitrators in accordance with the Employment Arbitration Rules of the American ArbitrationAssociation(“AAA”)exceptasprovidedinthisAgreement. Within twenty (20) days after notice from one party to the other of the notifying party’s election to arbitrate, each party shall select one (1) arbitrator.Withintwenty(20)daysaftertheselectionofthetwo(2) arbitrators by the parties, said arbitrators shall in turn select a third arbitrator.Ifthetwo(2) arbitratorscannotagreeupontheselectionofa thirdarbitrator,thepartiesagreethatthethirdarbitratorshallbeappointed by theAAAin accordance withAAA’s arbitrator selection procedures, including the provision of a list of potential arbitrators to both parties. Eachmemberofthepanelshallbealawyeradmittedtopracticelawfora minimum of 15 years.
(c)Executive and the Company waive their right to file any arbitration on a classorcollectivebasis;bothExecutiveandtheCompanyagreetofileany arbitration only on an individual basis and agree not to file any arbitration as a representative of any class or group of others. Therefore, neither ExecutivenortheCompany willseek to certify aclassorcollective arbitrationor otherwiseseektoproceed inarbitration onarepresentative
basis,andthearbitratorsshallhavenoauthoritytoconductaproceeding as a class or collective action or to award any relief to a class of employees.NorshallExecutiveortheCompanyparticipateinanyclassor collective action involving claims covered by thisAgreement, but instead shallarbitrateallclaimscoveredbythisAgreementonanindividualbasis.
(d)Thearbitrationpanelshallhaveauthoritytoawardanyremedyorrelief that a Texas or federal court in Texas could grant in conformity with applicablelaw on the basisofthe claimsactuallymadeinthe arbitration. Thearbitration panelshall nothavetheauthorityeithertoabridge or change substantive rights available under existing law. Notwithstanding theabove,anyremedyforanallegedbreachoftheAgreement,wrongful discharge, or constructive discharge, or claims related to compensation and benefits will begoverned solely by the applicable provisions of this Agreement, with no right to compensatory, punitive, or equitable relief. Further notwithstanding the foregoing, given the nature of Executive’s position with the Company, thearbitrator shall nothave the authority to orderreinstatement,andExecutivewaivesanyrighttoreinstatementtothe full extent permitted by law.
(e)Thearbitratormayawardattorneys’feesandcoststotheextentauthorized by statute. The arbitration panel shall issue a written award listing the issuessubmittedbytheparties,togetherwithasuccinctexplanationofthe manner in whichthepanelresolvedtheissues.Thecostsof thearbitration panel shall be borne by the parties in accordance with the Employment Arbitration Rules of the AAA.
(f)Allarbitrationproceedings,includingthearbitrationpanel’sdecisionand award, shall beconfidential.Neither partyshall discloseany information or evidence adduced by the other in the arbitration proceedings, or the panel’sawardexcept(i)totheextentthatthepartiesagreeotherwisein writing; (ii) as necessary in any subsequent proceedings between the parties,suchastoenforcethearbitrationaward;or(iii)asotherwise compelled by law.
(g)Thetermsof thisarbitrationAgreementareseverable.Theinvalidity or unenforceabilityofanyprovisionshereinshallnotaffecttheapplicationof any other provisions.ThisAgreementto arbitrate shall be governed bythe FederalArbitrationAct.The claims, disputes, andcontroversies submitted to arbitration will be governed by Texas law and applicable federal law. The arbitrators shall have exclusive jurisdiction to decide questions concerningtheinterpretationandenforceabilityofthisAgreementto arbitrate,includingbutnotlimitedtoquestionsofwhetherthepartieshave agreed to arbitrate a particular claim, whether a binding contract to arbitrate hasbeen entered into,and whethertheAgreement to arbitrate is unconscionableor otherwiseunenforceable; provided however ,that itis agreedthat thearbitratorsshall haveno authority to decideanyquestions
as to whether the waiver of class and collective actions is valid or enforceableandallquestionsofthevalidityorenforceabilityofthewaiver shall be decided by a court,not thearbitrators, andthe courtshall stay any arbitration thatpurports to proceed as a class or collective action or where the claimant in the arbitration seeks to otherwise act in a representative capacity.
(h)The parties agree and acknowledge that the promises and agreements set forth in Sections 7.1 (Confidentiality) and 7.2 (Non-Competition) of this Agreementshallnotbesubjecttothearbitrationprovisionssetforthinthis Section 11.8, butrather such claims maybe brought in anyfederal or state courtofcompetentjurisdiction.ThisAgreementtoarbitratedoesnotapply to claims arising under federal statutes or applicable law that prohibit pre-dispute arbitration agreements. ThisAgreement to arbitrate does not preclude Executive from filing a claim or charge with a governmental administrativeagency,suchastheNationalLaborRelationsBoard,the Department of Labor, and the Equal Employment Opportunity Commission,orfromfilingaworkers’compensationorunemployment compensation claim in a statutorily-specified forum.
11.9CodeSection280G.Ifthepresentvalueof allpayments,distributionsand benefitsprovidedtoExecutiveorforExecutive’sbenefitpursuanttothetermsof thisAgreement or otherwise which constitute a “parachute payment” when aggregated with other payments, distributions, and benefits which constitute “parachutepayments,”exceed two hundredninety-ninepercent(299%)of Executive’s“baseamount,”thensuchpayments,distributionsandbenefitsshall either be (i) paid and delivered in full, or (ii) paid and delivered in such lesser amountaswouldresultinnoportionofsuchpayments,distributionsandbenefits being subject to theexcisetaximposed by Section4999 of theCode(the“ExciseTax”), whichever of the foregoing amounts (taking into account the applicable federal, state andlocal income taxes and theExciseTax) results inthe receipt by Executive on an after-tax basis of materially larger payments, distributions and benefitsasdeterminedbytheCompany.Asusedherein,“parachutepayment”has the meaning ascribed to it in Section 280G(b)(2) of the Code, without regard to 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 “parachutepayments”asdeterminedbytheCompanyexceedsthe299% limitation set forth herein and subparagraph (ii) above applies, such payments, distributionsandbenefitsshallbereducedbytheCompanyinaccordancewiththe 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 ExciseTax.Suchpayments,distributionsandbenefitswillbereducedbytheCompanyin 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 bereduced,suchaccelerationofvestingshallbecancelledinthereverseorderof
thedateofgrant ofExecutive’sequity awards.Alldeterminationsrequired tobe madeunderthisSection11.9shallbemadebyacertifiedpublicaccountingfirm of national standing (“Accounting Firm”) as determined by the Company and suchselectedAccountingFirmshallprovidedetailedsupportingcalculationsboth to the Company and Executive.Any determination by theAccounting Firm shall be binding.
11.10Indemnification;LiabilityInsurance.TotheextentprovidedintheCompany’s Code of Regulations and Certificate of Incorporation, and subject to the limitations on indemnification provided under the Dodd-Frank Wall Street ReformandConsumerProtectionActandregulationsthereto(the“Dodd-FrankAct”), the Company shall indemnify and hold harmless Executive for losses or damages incurred by Executive as a result of all causes of action arising from Executive’sperformanceofdutiesforthebenefitofthe Company,whetherornot the claim is asserted during the Employment Period. Executiveshall be provided withthesamelevelofdirectorsandofficersliabilityinsurancecoverageprovided to other directors and officers of the Company on the same terms and conditions applicable to such other directors and officers.
11.11Governing Law. ThisAgreement shall be construed under and enforced in accordancewiththelawsoftheStateofTexas,withoutregardtotheconflictsof law provisions thereof.
11.12Counterparts.ThisAgreementmaybeexecutedinoneormorecounterparts,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.
11.13Attorneys’Fees. The Company shall reimburse Executive for the reasonable attorneys’feesandcostsactuallyincurredbyExecutiveinthenegotiationand preparation of thisAgreement up to a maximum amount of $15,000. In connection with any dispute regarding the enforcement or interpretation of this Agreement,Executiveshallbeentitledtoanawardofreasonable attorneys’fees and costsincurred by Executive, to the extent thata court or arbitrator in such action determines Executive to be the prevailing party for this purpose. In all cases, reimbursement is subject to presentation of reasonable documentation of such fees and expenses.
[SignaturePagetoFollow]
INWITNESSWHEREOF,thepartiesheretohavedulyexecutedthisAgreementasofthe day and year first above written.
COMPANY
By: /s/ John Reilly
Name: John Reilly
Title:President&ChiefExecutive Officer
EXECUTIVE
/s/ Ashok Walia
AshokWalia