Exhibit 10.2


 


AMENDED
AND RESTATED EMPLOYMENT AGREEMENT


 


This Amended and Restated Employment Agreement (the “Agreement”),
dated as of April 1, 2010, is entered into by and among Six Flags, Inc.,
a Delaware corporation (“SF”), Six Flags Operations Inc., a Delaware
corporation, and Six Flags Theme Parks Inc., a Delaware corporation
(collectively, the “Company”), and Mark Shapiro (the “Executive”).


 


W  I  T  N  E  S  S  E  T
H:


 


WHEREAS,
Executive is currently employed by the Company pursuant to that certain
Employment Agreement between Executive and the Company dated as of April 1,
2009, as amended (the “Existing Employment Agreement”);


 


WHEREAS,
the Company and Executive desire to modify the terms and conditions of
Executive’s continued employment by entering into this Agreement; and


 


WHEREAS,
this Agreement shall supersede and replace the Existing Employment Agreement.


 


NOW,
THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, it is hereby agreed as follows:


 


1.             Term of
Employment.  The term of
Executive’s employment by the Company
pursuant to this Agreement commenced on April 1, 2009 (the “Effective Date”)
and shall expire on the fourth anniversary of the Effective Date (the “Term”),
subject to earlier termination in accordance with Section 4 hereof.


 


2.             Position,
Duties and Location.  During the
Term,


 


(a)           Position and
Duties.  Executive shall serve as the
President and Chief Executive Officer of the Company, with the duties and
responsibilities customarily assigned to such position and such other customary
duties as may reasonably be assigned to Executive from time to time by the
Board (as defined below) consistent with such position.  Executive shall at all times report solely
and directly to the Board.  All other
employees will report to Executive either directly or through other employees
as determined by Executive.


 


(b)           Attention and
Time.  Executive shall devote
substantially all his business attention and time to his duties hereunder and
shall use his reasonable best efforts to carry out such duties faithfully and
efficiently.  During the Term, it shall
not be a violation of this Agreement for Executive to (i) serve on
industry, trade, civic or charitable boards or committees; (ii) deliver
lectures or fulfill speaking engagements; or (iii) manage personal
investments, as long as such activities do not materially interfere with the
performance of Executive’s duties and responsibilities as described
herein.  Executive shall be permitted to
serve on for-profit corporate boards of directors and advisory committees if
approved in advance by the Board, which approval shall not unreasonably be
withheld.


 

















 


(c)           Location.  Executive’s principal place of employment
shall be located in New York, New York; provided that Executive shall travel
and shall render services at other locations, both as may reasonably be
required by his duties hereunder.


 


3.             Compensation.


 


(a)           Base Salary.  During the Term, Executive shall receive a
base salary (the “Base Salary”) at an annual rate of $1,300,000.  Base Salary shall be paid at such times and
in such manner as the Company customarily pays the base salaries of its
employees.  In the event that Executive’s
Base Salary is increased by the Board in its discretion at any time during the
Term, such increased amount shall thereafter constitute the Base Salary.


 


(b)           Annual Bonus.  During the Term, Executive shall be paid an
annual cash bonus based on the attainment of performance targets in accordance
with Exhibit A hereto.  The “Target
Bonus” shall be $1,300,000 and the “Maximum Bonus” shall be $2,600,000.  The annual bonus shall be payable at such
time as bonuses are paid to other senior executive officers of the Company but
no later than 2 1/2 months following the end of each fiscal year of the Company.  For the avoidance of any doubt, the annual
bonus earned by Executive for fiscal year 2009 shall be calculated on results
for the full fiscal year and shall not be prorated on account of the Effective
Date.


 


(c)           Success Fee.  Upon the first to occur of:  (i) the closing date of SF’s proposed
Exchange Offer for its Senior Notes or (ii) the emergence of the Company
from a chapter 11 bankruptcy (the first to occur of (i) or (ii), a “Triggering
Event”), the Company shall pay Executive a lump sum cash payment of $2,000,000 within
ten (10) business days. In addition, if Executive remains employed by the
Company until the first anniversary of the Triggering Event, the Company shall
pay Executive a lump sum cash payment of $1,000,000 within ten (10) business
days of such anniversary date; provided that, if Executive’s employment is
terminated (i) by the Company without Cause (as defined below), (ii) by
Executive for Good Reason (as defined below), (iii) by Executive without
Good Reason under circumstances where he is entitled to receive the payments
and benefits specified in Section 4(c) below or (iv) due to
Executive’s death or Disability (as defined below), in each instance, on or
after the occurrence of a Triggering Event but prior to the first anniversary
of the Triggering Event, such amount shall instead be paid to Executive within
ten (10) business days of the date of termination.


 


(d)           Equity Awards.  Promptly following a Triggering Event, SF
shall issue Executive under the long-term incentive plan described in Company’s
Modified Fourth Amended Joint Plan of Reorganization filed as of April 1,
2010 (as amended or supplemented by the Company, the “Plan”) restricted shares (the
“Restricted Stock”) of SF’s common stock (the “Common Stock”) and options to
purchase shares of Common Stock (the “Options”) in an amount and with vesting
and other terms as mutually agreed to between the Board and Executive.


 


(e)           Other
Compensation and Benefits. 
During the Term, the Company shall provide and Executive shall be
entitled to participate in or receive benefits under any pension plan, profit
sharing plan, stock option plan, stock purchase plan or 


 


2

















 


arrangement, health, disability and accident
plan or any other employee benefit plan or arrangement, including any
non-qualified or deferred compensation or retirement programs made available
now or in the future to senior executives of the Company on a basis no less
favorable than provided any other senior executive of the Company; provided that
Executive complies with the conditions attendant with coverage under such plans
or arrangements.  In addition to the
Company’s group insurance policies, the Company shall provide Executive with
term life insurance with a death benefit equal to his Base Salary and with a
disability insurance policy that provides for full income replacement for the
first thirty-six (36) months of Executive’s Disability after which time the
standard disability benefit available to senior executives shall apply to
Executive.  Full income shall include
Base Salary for the year in which disability occurs plus the greater of the
actual bonus for the year prior to the occurrence of disability or the Target
Bonus for the year in which disability occurs. 
Except as expressly provided in this Agreement, nothing contained herein
shall be construed to prevent the Company from modifying or terminating any
plan or arrangement, not including the annual bonus plan described in Section 3(b),
in existence on the date hereof provided that no such modification or
termination adversely affects any award or other entitlement previously granted
to Executive.  Without limiting the
generality of the foregoing, Executive shall be entitled to no less than four
weeks of paid vacation per calendar year. 
The Company shall also reimburse Executive for the cost (including
travel costs) of an annual physical exam provided by an executive health
program selected by Executive.


 


(f)            Perquisites;
Expenses.  During the
Term, Executive shall be entitled to perquisites no less favorable than those
provided to any other senior executive of the Company.  In addition, the Company shall promptly pay
or, if such expenses are paid directly by Employee, Executive shall be entitled
to receive prompt reimbursement, for all reasonable expenses that Executive
incurs during his employment with the Company in carrying out Executive’s
duties under this Agreement, including, without limitation, those incurred in
connection with business related travel or entertainment, upon presentation of
expense statements and customary supporting documentation.  Executive shall be reimbursed for the cost of
commutation (by train, car or car service at Executive’s discretion) between
his home and the Company’s office and between his home and an airport and at
all other times when traveling on Company business.  When traveling on company business, Executive
shall be entitled to use any aircraft owned or leased by the Company (“Company
Aircraft”) or fly commercial first-class. Any other use of Company Aircraft
shall be governed by applicable Company policy.


 


(g)           Additional
Compensation and Benefits. 
Nothing contained in this Agreement shall limit the Board in awarding,
in its discretion, additional compensation and benefits to Executive.


 


4.             Termination of
Employment; Change in Control.


 


(a)           Death;
Disability; Termination For Cause.  Executive’s employment shall terminate
automatically upon his death or Disability. 
The Company may terminate Executive’s employment for Cause.  It shall not be deemed to be a breach of this
Agreement for the Executive to voluntarily terminate his employment without
Good Reason.  Upon a termination of
Executive’s employment (i) due to Executive’s death or Disability, or 


 


3

















 


(ii) by the Company for Cause or by the
Executive without Good Reason, Executive (or, in the case of Executive’s death,
Executive’s estate and/or beneficiaries) shall be entitled to:  (A) unpaid Base Salary through the Date
of Termination (as defined below); (B) any earned but unpaid bonus for the
prior fiscal year; (C) any benefits due to Executive under any employee
benefit plan of the Company and any payments due to Executive under the terms
of any Company program, arrangement or agreement, including insurance policies
but excluding any severance program or policy and (D) any expenses owed to
Executive ((A), (B), (C) and (D) collectively, the “Accrued Amounts”).  Except as provided in the preceding sentence,
Executive shall have no further right or entitlement under this Agreement to
payments arising from termination of his Employment by the Company for Cause or
by Executive without Good Reason.  In the
event of a termination of Executive’s employment due to Executive’s death or
Disability, Executive (or in the case of Executive’s death, Executive’s estate
and/or beneficiaries) shall be entitled to a lump-sum cash amount equal to the
Target Bonus for Executive for the year of termination pro-rated based on the
number of days from the beginning of the year through the Date of Termination
divided by the total number of days in the year of termination and all options
and shares of restricted stock previously granted to Executive shall fully vest
and all outstanding options shall remain exercisable for their originally
scheduled respective terms (other any options granted to Executive prior to the
date hereof that do not so provide for such continued exercisability in
accordance with its terms).


 


(b)           Termination
Without Cause or for Good Reason.  The Company may terminate Executive’s
employment without Cause and Executive may terminate his employment for Good
Reason, in each case upon thirty days prior written notice.  In the event that, during the Term, the
Company terminates Executive’s employment without Cause or Executive terminates
his employment for Good Reason, Executive shall be entitled to the following in
lieu of any payments or benefits under any severance program or policy of the
Company within ten (10) business days:


 


(i)            the Accrued
Amounts plus a lump sum cash amount equal to the Target Bonus for Executive for
the year of termination pro-rated based on the number of days from the
beginning of the year through the Date of Termination divided by the total
number of days in the year of termination;


 


(ii)           a lump sum cash
severance payment equal to three times the sum of (X) Executive’s Base
Salary and (Y) annual bonus; the severance payable shall be computed based
upon (A) Executive’s highest Base Salary in effect at any time during his
employment with the Company and (B) Executive’s Target Bonus as provided
for in this Agreement;


 


(iii)          continued
coverage for a period of thirty-six (36) months commencing on the Date of
Termination or until Executive receives comparable coverage (determined on a
benefit-by-benefit basis) from a subsequent employer (A) for Executive
(and his eligible dependents, if any) under the Company’s health plans
(including medical and dental) and other welfare benefit plans on the same
basis as such coverage is made available to executives employed by the Company
(including, without limitation, co-pays, deductibles and other required
payments and limitations) and (B) 


 


4

















 


under any Company-provided life insurance and
disability insurance policies and plan under which Executive was insured
immediately prior to the Date of Termination; and


 


(iv)          full vesting of
all options and shares of restricted stock then held by Executive, with all
outstanding options remaining exercisable for their originally scheduled
respective terms (other than any incentive stock options granted to Executive
prior to the date hereof that do not provide for such continued exercisability
in accordance with their terms).


 


(c)           Change in
Control.  In the event of a Change in
Control (as defined below), all options and shares of restricted stock then
held by Executive shall fully vest and all outstanding options shall remain
exercisable for their originally scheduled respective terms (other than
incentive stock options granted to Executive prior to the date hereof that do
not provide for such continued exercisability in accordance with their
terms).  If, during the ninety (90) day
period following a Change in Control, Executive’s employment is voluntarily
terminated by Executive without Good Reason, Executive shall be entitled to
receive the payments and benefits specified in Section 4(b) above.


 


(d)           Definitions.  For purposes of this Agreement, the following
definitions shall apply:


 


(i)            “Affiliate” of
a person or other entity shall mean:  a
person or other entity that directly or indirectly controls, is controlled by,
or is under common control with the person or other entity specified.


 


(ii)           “Board” shall
mean the Board of Directors of SF.


 


(iii)          “Cause” shall
mean:  (A) Executive’s willful and
continuing failure (except where due to physical or mental incapacity) to
substantially perform his duties hereunder, which is not remedied within
fifteen (15) days after receipt of written notice from the Company specifying
such failure; (B) Executive’s willful malfeasance or gross neglect in the
performance of his duties hereunder resulting in material harm to the Company; (C) Executive’s
conviction of, or plea of guilty or nolo contendere to, a felony or a
misdemeanor involving moral turpitude; (D) the commission by Executive of
an act of fraud or embezzlement against the Company or any Affiliate; or (E) Executive’s
willful material breach of any material provision of this Agreement (as
determined in good faith by the Board) which is not remedied within fifteen
(15) days after (I) receipt of written notice from the Company specifying
such breach and (II) the opportunity to appear before the Board.  For purposes of the preceding sentence, no
act or failure to act by Executive shall be considered “willful” unless done or
omitted to be done by Executive in bad faith or without reasonable belief that
Executive’s action or omission was in the best interests of the Company.


 


(iv)          “Change in
Control” shall mean:  (A) any “person”
(as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), but excluding (x) any
employee benefit plan of SF and (y) any Permitted Holder), is or becomes
the “beneficial owner” (as defined in Rules 13d-3 and 


 


5

















 


13d-5 under the Exchange Act, except that a
person shall be deemed to have “beneficial ownership” of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only through the passage of time), directly or indirectly, of
more than thirty-five percent (35%) of the voting stock of SF; (B) any transaction, including without limitation any merger,
consolidation, tender offer or other transaction (whether effected
by SF or by any other person) or any action (such as a deregistration or
delisting of the securities of SF) taken by SF or any of its affiliates, the
result of which is, in either case, that (1) SF is no longer a
reporting company under the Exchange Act, or (2) the common stock of
SF is no longer listed on a national securities exchange;  (C) at any
time, the Continuing Directors (as defined below) cease for any reason to
constitute at least a majority of the Board; (D) a direct or indirect sale
or other transfer of all or substantially all of the assets of SF and its
Subsidiaries, taken as a whole, or (E) any merger, consolidation or like
business combination or reorganization of SF, the consummation of which would
result in either (x) the occurrence of any event described in clause (A) above,
or (y) the voting securities of SF outstanding immediately prior to the
consummation of such merger, consolidation or like business combination or
reorganization not representing (either by remaining outstanding or by being
converted into voting securities of the applicable surviving or other entity)
more than fifty percent (50%) of the combined voting power of the voting
securities of SF or such surviving or other entity outstanding immediately
after such merger, consolidation or like business combination or
reorganization; provided, however, that the consummation of the transactions
contemplated by the Plan shall not be deemed to constitute a “Change in Control”
as of the effective date of such Plan. 
Only one (1) Change in Control may occur during the Term.


 


(v)           “Continuing
Directors” shall mean, as of any date of determination, any member of the Board
who (i) was a member of the Board on the date of this Agreement or,
following a Triggering Event, was a member of the Board on the date of such
Triggering Event or (ii) was nominated for election or elected to the
Board with the approval of a majority of the Continuing Directors who were
members of the Board at the time of such nomination or election.


 


(vi)          “Date of Termination”
/ “Notice of Termination”  Any
termination of Executive’s employment by the Company or by Executive under this
Section 4 (other than termination due to death) shall be communicated by a
written notice to the other parties hereto indicating the specific termination
provision in this Agreement relied upon, setting forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of Executive’s
employment under the provision so indicated, and specifying a “Date of Termination”
(a “Notice of Termination”) which, if submitted by Executive, shall be at least
thirty (30) days following the date of such notice.  A Notice of Termination submitted by the
Company may provide for a “Date of Termination” on the date Executive receives
the Notice of Termination, or any date thereafter elected by the Company in its
sole discretion not to exceed thirty (30) days following the date of such
notice.  The failure by Executive or the
Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Cause or Good Reason shall not waive any
right of Executive or the Company hereunder or preclude Executive or the
Company thereafter 


 


6

















 


from asserting such fact or circumstance
within a period of six months from the Date of Termination in order to enforce
Executive’s or the Company’s otherwise applicable rights hereunder.


 


(vii)         “Disability”
shall have the same meaning as in, and shall be determined in a manner
consistent with any determination under, the long-term disability plan of the
Company in which Executive participates from time to time, or if Executive is
not covered by such a plan, “Disability” shall mean Executive’s permanent
physical or mental injury, illness or other condition that prevents Executive
from performing his duties to the Company for a total of six (6) months
during any twelve (12) month period, as reasonably determined by a physician
selected by Executive and acceptable to the Company or the Company’s legal
representative (such agreement as to acceptability not to be withheld
unreasonably).


 


(viii)        “Good Reason”
shall mean the occurrence, without Executive’s express written consent,
of:  (A) an adverse change in
Executive’s employment’s title or change in Executive’s duty to report solely
and directly to the Board; (B) a diminution in Executive’s employment
duties, responsibilities or authority, or the assignment to Executive of duties
that are materially inconsistent with his position; (C) any reduction in
Base Salary, Maximum Bonus or Target Bonus as set forth in Section 3(b); (D) a
relocation of Executive’s principal place of employment to a location outside
of the New York area that would unreasonably increase Executive’s commute; (E) at
any time during the Term failure of Executive to be nominated for election as a
director of the Company throughout the Term or removal of Executive as a
director of the Company by the Board other than for Cause; (F) during the fifteen
month period commencing on the date of the Triggering Event (x) a
determination by the Board to abandon or change in any material respect the
applicable business plan, capital expenditure plan, capitalization and/or
strategic growth plan of the Company, as set forth in SF’s or the Company’s
business plans as of the date hereof or (y) a determination by the Board
to shut down, close, dispose of or divest any business or operations of the
Company and its subsidiaries (including, without limitation, Dick Clark
Productions ), or dispose of a divest any material asset of the Company and its
subsidiaries (taken as a whole), or (z) a determination by the Board to
terminate or hire any employee of SF, the Company or any subsidiary thereof that
reports directly to the Executive which, in the case of clauses (x), (y) or
(z), is without Executive’s prior approval; or (G) any breach by the
Company of any material provision of this Agreement (including but not limited
to any breach of its obligations under Section 3 hereof) which, in the
case of this clause (G) only, is not cured within fifteen (15) days after
written notice is received from Executive.


 


(ix)           “Permitted
Holders” shall have the meaning set forth in the Exit Facility (as defined in
the Plan) as in effect on the effective date of the Plan.


 


(x)            “Subsidiary” of
the Company shall mean: any corporation of which the Company owns, directly or
indirectly, more than fifty percent (50%) of the voting stock.


 


7

















 


(e)           Board of
Directors.  Promptly
following the date that Executive is no longer employed by the Company as Chief
Executive Officer, Executive will, if applicable, resign as a director of the
Company and any applicable Subsidiary of the Company.


 


5.             Confidentiality
of Trade Secrets and Business Information.  Executive agrees that Executive shall not, at
any time during Executive’s employment with the Company or thereafter, disclose
or use any trade secret, proprietary or confidential information of the Company
or any Subsidiary of the Company (collectively, “Confidential Information”),
obtained by him during the course of such employment, except for (i) disclosures
and uses required in the course of such employment or with the written
permission of the Company, (ii) disclosures with respect to any
litigation, arbitration or mediation involving this Agreement, including but
not limited to, the enforcement of Executive’s rights under this Agreement, or (iii) as
may be required by law or by any court, arbitrator, mediator or administrative
or legislative body (including any committee thereof) with apparent
jurisdiction to order such disclosure; provided that, if, in any circumstance
described in clause (iii), Executive receives notice that any third party shall
seek to compel him by process of law to disclose any Confidential Information,
Executive shall promptly notify the Company and provide reasonable cooperation
to the Company (at the Company’s sole expense) in seeking a protective order
against such disclosure. Notwithstanding the foregoing, “Confidential
Information” shall not include information that is or becomes publicly known
outside the Company or any of its subsidiaries other than due to a breach of
Executive’s obligations under this paragraph.


 


6.             Return of
Information.  Executive
agrees that at the time of any termination of Executive’s employment with the
Company or expiration of the Term, whether at the instance of Executive or the
Company, and regardless of the reasons therefore, Executive shall deliver to
the Company (at the Company’s expense), any and all notes, files, memoranda,
papers and, in general, any and all physical (including electronic) matter
containing Confidential Information (other than as he properly is retaining in
connection with an action or other proceeding as noted in clause (ii) or (iii) of
Section 5) which are in Executive’s possession, except as otherwise
consented in writing by the Company at the time of such termination.  The foregoing shall not prevent Executive
from retaining copies of personal diaries, personal notes, personal address
books, personal calendars, and any other personal information (including,
without limitation, information relating to Executive’s compensation), but only
to the extent such copies do not contain any Confidential Information other
than that which relates directly to Executive, including his compensation.


 


7.             Noncompetition and Noninterference.


 


(a)           General.  Subject to Section 7(c), in
consideration for the compensation payable to Executive under this Agreement,
Executive agrees that Executive shall not, during Executive’s employment with
the Company other than in carrying out his duties hereunder and for a period of
one (1) year after any termination of employment (i) render services
to a Competitor, regardless of the nature thereof, (ii) engage in any
activity which is in direct conflict with or materially adverse to the
interests of the Company or any Subsidiary, (iii) directly or indirectly
recruit, solicit or induce, any employee, consultant or independent contractor
of the Company or any Subsidiary, to terminate, alter or modify such person’s
employment or other relationship with the Company or any Subsidiary, nor (iv) 


 


8

















 


directly or indirectly solicit any then current
customer or business partner of the Company or any Subsidiary to terminate,
alter or modify its relationship with the Company or the Subsidiary or to
interfere with the Company’s or any Subsidiary’s relationships with any of its
customers or business partners on behalf of any enterprise that is a competitor
with the Company or a Subsidiary.


 


(b)           Definition.  For purposes of this Agreement, “Competitor” shall mean any business or enterprise
in the theme park business.  Notwithstanding the foregoing, Executive’s
provision of services to an Affiliate or unit of a Competitor that is
not directly engaged in the theme park business, or service in an executive
corporate capacity of an entity that has a theme park division, such as The
Walt Disney Company or General Electric, shall
not be a violation of the restrictions of this Section 7.  Nothing contained herein shall prevent
Executive from acquiring, solely as an investment, any publicly-traded
securities of any person so long as he remains a passive investor in such
person and does not own more than one percent (1%) of the outstanding
securities thereof.


 


(c)           Expiration of
Term.  If Executive’s employment with
the Company ceases following expiration of the Term, the provisions of Section 7(a) shall
remain in effect; provided that clauses (i) and (ii) of Section 7(a) shall
apply for a period of six (6) months, rather than twelve (12) months,
following the expiration of the Term.  If
Executive remains employed by the Company at the expiration of the Term, (i) the
Company will pay Executive, within ten (10) business days, a lump sum cash
amount equal to (1) eighteen (18) months’ of Executive’s Base Salary plus (2) an
amount equal to the annual bonus of the Executive for the immediately prior
fiscal year of the Company, and (ii) all options and shares of restricted
stock previously granted to Executive shall fully vest and all such outstanding
options shall remain exercisable for their originally scheduled respective
terms (other than incentive stock options granted to Executive prior to the
date hereof that do not provide for such continued exercisability in accordance
with their terms).


 


8.             Enforcement.  Executive acknowledges and agrees that: 
(i) the purpose of the covenants set forth in Sections 5 through 7 above
(the “Restrictive Covenants”) is to protect the goodwill, trade secrets and
other confidential information of the Company; (ii) because of the nature
of the business in which the Company is engaged and because of the nature of
the Confidential Information to which Executive has access, it would be
impractical and excessively difficult to determine the actual damages of the
Company in the event Executive breached any such covenants; and (iii) remedies
at law (such as monetary damages) for any breach of Executive’s obligations
under the Restrictive Covenants would be inadequate.  Executive therefore agrees and consents that
if Executive commits any breach of a Restrictive Covenant, the Company shall
have the right (in addition to, and not in lieu of, any other right or remedy
that may be available to it) to temporary and permanent injunctive relief from
a court of competent jurisdiction, without posting any bond or other security
and without the necessity of proof of actual damage.  If any portion of the Restrictive Covenants
is hereafter determined to be invalid or unenforceable in any respect, such
determination shall not affect the remainder thereof, which shall be given the
maximum effect possible and shall be fully enforced, without regard to the invalid
portions.  In particular, without
limiting the generality of the foregoing, if the covenants set forth in Section 7
are found by a court or an arbitrator to be unreasonable, Executive and the
Company agree that the maximum period, scope or geographical area that is found
to be 


 


9

















 


reasonable shall be
substituted for the stated period, scope or area, and that the court or
arbitrator shall revise the restrictions contained herein to cover the maximum
period, scope and area permitted by law. 
If any of the Restrictive Covenants are determined to be wholly or
partially unenforceable in any jurisdiction, such determination shall not be a
bar to or in any way diminish the Company’s right to enforce any such covenant
in any other jurisdiction.


 


9.             Indemnification.


 


(a)           The Company
agrees that if Executive is made a party to, is threatened to be made a party
to, receives any legal process in, or receives any discovery request or request
for information in connection with, any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a “Proceeding”), by reason of
the fact that he was a director, officer, employee, consultant or agent of the
Company, or was serving at the request of, or on behalf of, the Company as a
director, officer, member, employee, consultant or agent of another
corporation, limited liability corporation, partnership, joint venture, trust
or other entity, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is Executive’s alleged action in an
official capacity while serving as a director, officer, member, employee,
consultant or agent of the Company or other entity, Executive shall be
indemnified and held harmless by the Company to the fullest extent permitted or
authorized by the Company’s certificate of incorporation or by-laws or, if
greater, by applicable law, against any and all costs, expenses, liabilities
and losses (including, without limitation, attorneys’ fees reasonably incurred,
judgments, fines, taxes or penalties and amounts paid or to be paid in
settlement and any reasonable cost and fees incurred in enforcing his rights to
indemnification or contribution) incurred or suffered by Executive in
connection therewith, and such indemnification shall continue as to Executive
even though he has ceased to be a director, officer, member, employee,
consultant or agent of the Company or other entity and shall inure to the
benefit of Executive’s heirs, executors and administrators.  The Company shall reimburse Executive for all
costs and expenses (including, without limitation, reasonable attorneys’ fees)
incurred by him in connection with any Proceeding within twenty (20) business
days after receipt by the Company of a written request for such reimbursement
and appropriate documentation associated with these expenses.  Such request shall include an undertaking by
Executive to repay the amount of such advance if it shall ultimately be determined
that he is not entitled to be indemnified against such costs and expenses;
provided that the amount of such obligation to repay shall be limited to the
after-tax amount of any such advance except to the extent Executive is able to
offset such taxes incurred on the advance by the tax benefit, if any,
attributable to a deduction for repayment.


 


(b)           Neither the
failure of the Company (including its board, independent legal counsel or
stockholders) to have made a determination prior to the commencement of any
proceeding concerning payment of amounts claimed by Executive under Section 9(a) above
that indemnification of Executive is proper because he has met the applicable
standard of conduct, nor a determination by the Company (including its board,
independent legal counsel or stockholders) that Executive has not met such
applicable standard of conduct, shall create a presumption or inference that
Executive has not met the applicable standard of conduct.


 


10
















 


(c)           The Company
agrees to continue and maintain a directors’ and officers’ liability insurance
policy covering Executive at a level, and on terms and conditions, no less
favorable to him than the coverage the Company provides other
similarly-situated executives until such time as suits against Executive are no
longer permitted by law.


 


(d)           Nothing in this
Section 9 shall be construed as reducing or waiving any right to
indemnification, or advancement of expenses, Executive would otherwise have
under the Company’s certificate of incorporation or by-laws or under applicable
law.


 


(e)           In addition,
the Company agrees to indemnify Executive against any and all losses,
liabilities, damages, expenses (including attorneys’ fees), judgments, fines
and amounts incurred by Executive in connection with any claim, action, suit or
proceeding arising as a result of Executive’s alleged or actual violation of
any existing contractual or other restrictions on Executive’s employment or
business activities if such violation occurs as a result of Executive’s
entering into this Agreement or his rendering, or having rendered, services to
the Company or to any Subsidiary.


 


10.           Arbitration.  In the event that any dispute arises between
the Company and Executive regarding or relating to this Agreement and/or any
aspect of Executive’s employment relationship with the Company, the parties
consent to resolve such dispute through mandatory arbitration under the
Commercial Rules of the American Arbitration Association (“AAA”), before a
single arbitrator in New York, New York. 
The parties hereby consent to the entry of judgment upon award rendered
by the arbitrator in any court of competent jurisdiction.  Notwithstanding the foregoing, however,
should adequate grounds exist for seeking immediate injunctive or immediate
equitable relief, any party may seek and obtain such relief.  The parties hereby consent to the exclusive
jurisdiction of the state and Federal courts of or in the State of New York for
purposes of seeking such injunctive or equitable relief as set forth
above.  All out-of-pocket costs and
expenses reasonably incurred by Executive in connection with such arbitration
(including attorneys’ fees) shall be paid by the Company unless the arbitrator
determines that Executive shall have brought a claim in bad faith or without
any reasonable basis.


 


11.           Mutual
Representations.


 


(a)           Executive
acknowledges that before signing this Agreement, Executive was given the
opportunity to read it, evaluate it and discuss it with Executive’s personal
advisors.  Executive further acknowledges
that the Company has not provided Executive with any legal advice regarding
this Agreement.


 


(b)           Executive
represents and warrants to the Company that the execution and delivery of this
Agreement and the fulfillment of the terms hereof (i) shall 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) as to his execution and
delivery of this Agreement do not require the consent of any other person.


 


(c)           The Company
represents and warrants to Executive that (i) the execution, delivery and
performance of this Agreement by the Company has been fully and 


 


11

















 


validly authorized by all necessary corporate
action, (ii) the person signing this Agreement on behalf of the Company is
duly authorized to do so, (iii) the execution, delivery and performance of
this Agreement does not violate any applicable law, regulation, order, judgment
or decree or any agreement, plan or corporate governance document to which the
Company is a party or by which it is bound and (iv) upon execution and
delivery of this Agreement by the parties, it shall be a valid and binding
obligation of the Company enforceable against it in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally.


 


(d)           Each party
hereto represents and warrants to the other that this Agreement constitutes the
valid and binding obligations of such party enforceable against such party in
accordance with its terms.


 


12.           Notices.  All notices and other communications required
or permitted hereunder shall be in writing and shall be deemed given
when delivered (i) personally, (ii) by registered or certified mail,
postage prepaid with return receipt requested, (iii) by facsimile with
evidence of completed transmission, or (iv) delivered by overnight courier
to the party concerned at the address indicated below or to such changed
address as such party may subsequently give such notice of:


 


If to the Company:


 


Six
Flags, Inc. 

1540 Broadway; 15th Floor 

New York, New York 10036


 


Attention:
James M. Coughlin, Esq.


 


Fax:
(212) 354-3089


 


If to Executive:


 


Mark Shapiro 

c/o Six Flags, Inc. 

1540 Broadway; 15th Floor 

New York, New York 10036


 


13.           Assignment and Successors.  This Agreement is personal
in its nature and none of the parties hereto shall, without the consent of the others,
assign or transfer this Agreement or any rights or obligations hereunder;
provided, however, that in the event of a merger, consolidation, or transfer or
sale of all or substantially all of the assets of the Company with or to any
other individual(s) or entity, this Agreement shall, subject to the
provisions hereof, be binding upon and inure to the benefit of such successor
and such successor shall discharge and perform all the promises, covenants,
duties, and obligations of the Company hereunder, and such transferee or
successor shall be required to assume such obligations by contract (unless such
assumption occurs by operation of law). 
Anything herein to the contrary notwithstanding, Executive shall be
entitled to select (and change, to the extent permitted under any applicable
law) a beneficiary or beneficiaries to receive any compensation or benefit
payable hereunder 


 


12

















 


following Executive’s death or judicially
determined incompetence by giving the Company written notice thereof.  In the event of Executive’s death or a
judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.


 


14.           Governing Law; Amendment.  This Agreement shall be governed by and
construed in accordance with the laws of New York, without reference to
principles of conflict of laws.  This
Agreement may not be amended or modified except by a written agreement executed
by Executive and the Company or their respective successors and legal
representatives.


 


15.           Severability.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement. 
If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with law.


 


16.           Tax Withholding.  Notwithstanding any other provision of this
Agreement, the Company may withhold from amounts payable under this Agreement
all federal, state, local and foreign taxes that are required to be withheld by
applicable laws or regulations.


 


17.           No Waiver.  Executive’s or the Company’s
failure to insist upon strict compliance with any provision of, or to assert
any right under, this Agreement shall not be deemed to be a waiver of such
provision or right or of any other provision of or right under this
Agreement.  Any provision of this
Agreement may be waived by the parties hereto; provided that any waiver by any
person of any provision of this Agreement shall be effective only if in writing
and signed by each party and such waiver must specifically refer to this
Agreement and to the terms or provisions being modified or waived.


 


18.           No Mitigation.  In no event shall Executive
be obligated to seek other employment or take other action by way of mitigation
of the amounts payable to Executive under any of the provisions of this
Agreement and such amounts shall not be subject to offset or otherwise reduced
whether or not Executive obtains other employment.  The Company’s obligation to make any payment
pursuant to, and otherwise to perform its obligations under, this Agreement
shall not be affected by any offset, counterclaim or other right that the
Company may have against Executive for any reason.


 


19.           Section 409A.  This Agreement is intended to satisfy the
requirements of Section 409A of the Internal Revenue Code of 1986, as
amended (“Section 409A”) with respect to amounts, if any, subject thereto
and shall be interpreted and construed and shall be performed by the parties
consistent with such intent.  To the
extent Executive would otherwise be entitled to any payment under this
Agreement, or any plan or arrangement of the Company or its Affiliates, that
constitutes a “deferral of compensation” subject to Section 409A and that
if paid during the six (6) months beginning on the Date of Termination of
Executive’s employment would be subject to the Section 409A additional tax
because Executive is a “specified employee” (within the meaning of Section 409A
and as determined by the Company), the payment will be paid to Executive on the
earlier of the six (6) month anniversary of his Date of Termination or
death.  To 


 


13

















 


the extent Executive would otherwise be
entitled to any benefit (other than a payment) during the six (6) months
beginning on termination of Executive’s employment that would be subject to the
Section 409A additional tax, the benefit will be delayed and will begin
being provided on the earlier of the first day following the six (6) month
anniversary of Executive’s Date of Termination or death.  Any payment or benefit due upon a termination
of employment that represents a “deferral of compensation” within the meaning
of Section 409A shall be paid or provided only upon a “separation from
service” as defined in Treas. Reg. § 1.409A-1(h).  Each payment made under this Agreement shall
be deemed to be a separate payment for purposes of Section 409A.  Amounts payable under this Agreement shall be
deemed not to be a “deferral of compensation” subject to Section 409A to
the extent provided in the exceptions in Treasury Regulation §§ 1.409A-1(b)(4) (“short-term
deferrals”) and (b)(9) (“separation pay plans,” including the exception
under subparagraph (iii)) and other applicable provisions of Treasury
Regulation § 1.409A-1 through A-6. 
Notwithstanding anything to the contrary in this Agreement or elsewhere,
any payment or benefit under this Agreement or otherwise that is exempt from Section 409A
pursuant to Treasury Regulation § 1.409A-1(b)(9)(v)(A) or (C) (relating
to certain reimbursements and in-kind benefits) shall be paid or provided only
to the extent that the expenses are not incurred, or the benefits are not
provided, beyond the last day of the second calendar year following the
calendar year in which Executive’s “separation from service” occurs; and
provided further that such expenses are reimbursed no later than the last day
of the third calendar year following the calendar year in which Executive’s “separation
from service” occurs.  To the extent any
expense reimbursement (including without limitation any reimbursement of
interest or penalties related to taxes) or the provision of any in-kind benefit
is determined to be subject to Section 409A (and not exempt pursuant to
the prior sentence or otherwise), the amount of any such expenses eligible for
reimbursement, or the provision of any in-kind benefit, in one calendar year
shall not affect the expenses eligible for reimbursement in any other calendar
year (except for any life-time or other aggregate limitation applicable to
medical expenses), in no event shall any expenses be reimbursed after the last
day of the calendar year following the calendar year in which Executive
incurred such expenses, and in no event shall any right to reimbursement or the
provision of any in-kind benefit be subject to liquidation or exchange for
another benefit.


 


20.           Headings.  The Section headings contained in this
Agreement are for convenience only and in no manner shall be construed as part
of this Agreement.


 


21.           Entire Agreement.  This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and shall
supersede all prior agreements, whether written or oral, with respect thereto,
including the Existing Employment Agreement (except with regard to
outstanding equity awards granted in accordance therewith).  In
the event of any inconsistency between the terms of this Agreement and the
terms of any other Company plan, policy, equity grant, arrangement or agreement
with Executive, the provisions most favorable to Executive shall govern.


 


22.           Duration of Terms.  The respective rights and obligations of the
parties hereunder shall survive any termination of Executive’s employment to
the extent necessary to give effect to such rights and obligations.


 


14

















 


23.           Effectiveness.  This Agreement, as amended and modified
herein, shall become effective upon the entry of an order of the United States
Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365,
authorizing the assumption hereof, which order is contemplated to be part of an
order confirming the Plan, pursuant to 11 U.S.C. § 1129.  Until such time as an order authorizing such
assumption is entered, the Existing Employment Agreement shall remain in full
force and effect.


 


24.           Counterparts.  This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.


 


15

















 


IN WITNESS WHEREOF, Executive and the Company have
caused this Agreement to be executed as of the date first above written.


 


 


	
   

  	
   

  	
  SIX
  FLAGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  James Coughlin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  James
  Coughlin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SIX FLAGS OPERATIONS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ James Coughlin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  James Coughlin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SIX FLAGS THEME PARKS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ James Coughlin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  James Coughlin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Mark Shapiro

  
	
   

  	
   

  	
  Mark Shapiro

  



 


16

















 


EXHIBIT A


 


Annual Bonus Parameters


 


Definitions:


 


“Performance
Parameters” shall mean the following, as determined annually by the Board:


 


(a) Budgeted
Adjusted EBITDA:  Total budgeted Adjusted
EBITDA (as defined in the Company’s earnings releases).


 


(b) Budgeted
Free Cash Flow:  Total Budgeted Free Cash
Flow (as defined in the Company’s earnings releases).


 


(c) Budgeted
Attendance:  Total budgeted attendance.


 


(d) Budgeted
In-Park Net Revenue Per Capita:  Total
budgeted in-park net revenue per capita.


 


(e) Budgeted
Sponsorship/Licensing Revenue:  Total
budgeted sponsorship/licensing revenue.


 


Rules for Calculation of Annual Bonus:


 


Any
annual bonus payable under Section 3(b) of this Agreement, shall be
determined annually by the compensation committee of the Board (the “Committee”)
in accordance with the rules below. 
All determinations by the Committee shall be final and binding on
Executive.  All Adjusted EBITDA and other
bonus targets shall be determined by reference to the Company’s Budget for each
year as approved by the Board.  The
Committee shall work with the Executive to determine appropriate bonus targets
for any items that are not specifically contained in the Company’s Budget each
year.


 


1.
Subject to the other rules, the Performance Parameters shall be weighted as
follows in determining the amount of the annual bonus:  Budgeted Adjusted EBITDA:  50% and 12.5% for each of the remaining
Performance Parameters.


 


2.
No annual bonus whatsoever shall be payable in respect of a given fiscal year
if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted
EBITDA.


 


3.
If actual results for a given Performance Parameter are less than 90% of the
Performance Parameter, no amount shall be payable in respect of such
Performance Parameter.


 


4.
If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of
Budgeted Adjusted EBITDA, and the results for any given Performance Parameter
(including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance
Parameter, then the amount payable in respect of such parameter shall be
determined by multiplying the product of the Target Bonus and the weight ascribed
to the Performance Parameter in Rule 1 above by the appropriate multiplier
below:


 


A-1

















 


	
  Multiplier

  	
   

  	
  Performance Level

  
	
   

  	
   

  	
   

  
	
  0.5 

  	
   

  	
  Actual
  Performance equals 90% of the  Performance Parameter (including Budgeted
  Adjusted  EBITDA) 

  
	
   

  	
   

  	
   

  
	
  0.75 

  	
   

  	
  Actual
  Performance equals 95% of the  Performance Parameter (including Budgeted  Adjusted EBITDA) 

  
	
   

  	
   

  	
   

  
	
  1.0 

  	
   

  	
  Actual
  Performance equals 100% of the  Performance Parameter (including Budgeted  Adjusted EBITDA) 

  
	
   

  	
   

  	
   

  
	
  1.5 

  	
   

  	
  Actual
  Performance equals 105% of the  Performance Parameter (including Budgeted  Adjusted EBITDA) 

  
	
   

  	
   

  	
   

  
	
  2.0 

  	
   

  	
  Actual
  Performance equals or exceeds 110% of  the Performance Parameter (including
  Budgeted  Adjusted
  EBITDA) 

  
	
   

  	
   

  	
   

  
	
  Determined
  by interpolation between 0.5  and 2.0 

  	
   

  	
  Actual
  Performance exceeds 90% but is below  110% of the Performance Parameter
  (including  Budgeted
  Adjusted EBITDA) 

  



 


5.
If actual EBITDA for a given fiscal year is or exceeds 110% of Budgeted EBITDA,
then Executive shall receive the Maximum Bonus notwithstanding the results of
the other Performance Parameters.


 


6.
Notwithstanding anything to the contrary above, Executive shall not receive an
annual bonus greater than the Maximum Bonus.


 


7.
If Executive’s employment with the Company ceases upon expiration of the Term,
Executive shall be entitled to a lump sum payment, within ten (10) business
days, equal to the Target Bonus for Executive for the year of termination
pro-rated based on the number of days from the beginning of the year through
the Date of Termination divided by the total number of days in the year of
termination.


 


A-2