EXHIBIT 10.2
As of January 11, 2006
Mr. Mark Shapiro
Re: Grant of Restricted Stock
Dear Mr. Shapiro:
On January 11, 2006, the Compensation Committee of the Board of Directors
of Six Flags, Inc., a Delaware corporation (the "Company") granted to you
250,000 restricted shares ("Restricted Shares") under the Company's 2001 Stock
Option and Incentive Plan (the "Plan").
A copy of the Plan is annexed to this letter agreement (the "Restricted
Stock Agreement") and shall be deemed a part of this Restricted Stock Agreement
as if fully set forth herein, subject to the terms of the Employment Agreement
between you and the Company, dated September 26, 2006 (the "Employment
Agreement"). Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Employment Agreement.
1. During the Restriction Period (as defined below) relating to the
Restricted Shares, such Restricted Shares may not be sold, assigned,
transferred, pledged or otherwise encumbered by you. Except as provided in this
Restricted Stock Agreement or the Employment Agreement, you, as the owner of
Restricted Shares, shall have all the rights of a holder of common stock of the
Company, including but not limited to the right to receive all cash dividends or
distributions paid on and the right to vote such Restricted Shares until the
date, if any, that such Restricted Shares shall have been forfeited pursuant to
Section 2 hereof.
2. The Restriction Period, during which the Restricted Shares shall,
except as otherwise provided in Section 6 hereof, be forfeited if you are no
longer employed by the Company or any subsidiary corporation of the Company and
during which the restrictions contained in this Restricted Stock Agreement on
your rights to sell, assign, transfer or encumber the Restricted Shares and to
hold the certificates representing the Restricted Shares are applicable, shall
expire on 50% of your Restricted Shares on each of January 11, 2009 and January
11, 2010 (each such date is hereinafter defined as a "Vesting Date"), provided
that you are continuously employed by the Company (or by any subsidiary
corporation of the Company if you are not then employed by the Company) from the
date of the grant of Restricted Shares until the applicable Vesting Date, as the
case may be (the "Restriction Period"). Except as otherwise provided in Section
6 hereof, if your employment with the Company terminates (and your employment
with any subsidiary corporation of the Company that you are then employed with
also terminates) prior to an applicable Vesting Date, the Restricted Shares for
which the restrictions have not yet expired shall be forfeited. Certificates
representing any Restricted Shares that have been forfeited shall be cancelled
by the Company, and you shall have no further rights with respect to such
forfeited Restricted Shares.
3. Each certificate representing Restricted Shares shall be registered in
your name, be deposited by you with the Company together with a stock power
endorsed in blank and shall bear the following, or a substantially similar,
legend:
"The Common Stock represented by this Certificate has been issued
pursuant to the terms and conditions, including forfeiture,
contained in the definitive Employment Agreement between Six Flags,
Inc. and Mark Shapiro and the related grant letter dated as of
January 11, 2006 and may not be sold, pledged, transferred, assigned
or otherwise encumbered in any manner except in accordance
therewith. A copy of such Employment Agreement and grant letter are
on file in the executive offices of Six Flags, Inc."
4. After the Restriction Period with respect to any of your Restricted
Shares has expired, upon your written request or the written request of your
legal representative, permitted successor or heir, the Company shall deliver to
you, or such legal representative, permitted successor or heir, a certificate or
certificates for such Restricted Shares, without the legend referred to in
Section 3 hereof (the "Shares"). Shares, when delivered to you, shall be fully
paid and nonassessable and shall be free and clear of any and all liens,
encumbrances, charges and other third party rights. The Company agrees that all
Shares delivered hereunder shall be (i) validly issued; (ii) registered for
resale by you (or a permitted transferee) under Federal and state securities
laws and shall remain registered so long as the Shares may not be freely sold in
the absence of such registration and (iii) listed, or otherwise qualified, for
trading in the United States on each national securities exchange or national
securities market system on which the Shares are listed or qualified. Except as
provided herein or by the Plan, the Employment Agreement or applicable law, this
Grant of Restricted Stock may not be cancelled for any reason without your prior
written consent.
The Company shall pay all issue or transfer taxes imposed upon the
issuance or transfer of the Shares, as well as all fees and expenses incurred by
the Company in connection with such issuance or transfer, including, without
limitation, all fees and expenses that may be necessitated by the filing or
amending of a registration statement under any Federal or state securities law.
Regardless of whether the offering and sale of Shares under the Plan have
been registered under the Securities Act of 1933, as amended, or have been
registered or qualified under the securities laws of any state, the Company may
impose restrictions upon the sale, pledge or other transfer of such Shares
(including the placement of appropriate legends on stock certificates or the
imposition of stop-transfer instructions) if, in the reasonable judgment of the
Company's counsel, such restrictions are necessary in order to achieve
compliance with the Securities Act of 1933, as amended, or the securities laws
of any state or any other law. In the event of any restriction, the Company
shall take all such action as may be necessary or appropriate to eliminate such
restriction at the earliest possible date.
5. If the Company is consolidated or merged with another corporation, you
shall deposit with the successor corporation the certificates for the stock,
securities and other property that you are entitled to receive by reason of your
ownership of Restricted Shares and such stock, securities and other property
shall become subject to the restrictions and requirements imposed by this
Restricted Stock Agreement, and the certificates therefor and other evidence
thereof shall bear legends similar in form and substance to the legend set forth
in Section 3 hereof.
6. Notwithstanding Section 2 hereof, the Restriction Period with respect
to your Restricted Shares automatically and immediately shall expire, the
restrictions thereon shall immediately lapse and all Restricted Shares shall
immediately and fully vest if your employment by the Company (or by any
subsidiary corporation of the Company if you are not employed by the Company at
the time of your termination) (i) terminates by virtue of your death or
Disability as provided in Section 4(a) of the Employment Agreement; (ii) is
terminated by the Company without Cause or by you for Good Reason as provided in
Section 4(b) of the Employment Agreement or (iii) ceases upon expiration of the
Term. In addition, any restrictions on your Restricted Shares shall immediately
become null and void and cease to exist and all restrictions thereon shall lapse
and all Restricted Shares shall immediately and fully vest in the event of a
Change of Control.
7. You agree that if you make an election under Section 83(b) of the
Internal Revenue Code of 1986, as amended (a "Section 83(b) Election") with
regard to any Restricted Shares, you shall notify the Company in writing within
two (2) days after making such Election, so as to enable the Company to timely
comply with applicable governmental reporting requirements.
8. Withholding Taxes
The Company's obligations to deliver Shares upon the expiration of the
Restriction Period shall be subject to your satisfaction of all applicable
Federal, state and local income, excise and employment tax withholding
requirements ("Tax Obligations"). Withholdings shall be calculated at the
minimum statutory rate. You may satisfy any such Tax Obligations (a) by payment
of the applicable tax in cash to the Company, (b) by authorizing the Company to
withhold Shares that would otherwise have been delivered to you having a fair
market value as defined in the Employment Agreement equal to, but not greater
than, the minimum amount of tax required to be withheld; or (c) by any
combination of (a) and (b).
9. Entire Agreement, Grant Subject to Plan; Conflict
Except for the Employment Agreement, this Restricted Stock 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. This Restricted Stock Agreement is subject to all of the
terms, conditions, limitations and restrictions contained in the Plan. In the
event of a conflict or inconsistency between the terms hereof and the terms of
the Plan, the terms of the Plan shall be controlling. In the event of a conflict
or inconsistency between the terms hereof or the terms of the Plan and the terms
of the Employment Agreement, the terms of the Employment Agreement shall be
controlling.
10. Miscellaneous
(a) This Restricted Stock Agreement is not a contract of employment
and the terms of your employment by the Company shall not be affected hereby.
Nothing herein shall be construed to impose any obligation on (i) the Company to
continue your employment or (ii) you to remain in the employ of the Company.
(b) You represent that you have had ample opportunity to review the
Plan and to ask questions with respect thereto.
(c) The Company makes no commitment or guarantee to you regarding
the federal, state or local tax treatment of the Restricted Shares granted
hereby.
(d) You and the Company hereby agree that, to the extent applicable,
this Restricted Stock Agreement shall be interpreted in accordance with Section
409A of the Code and the provisions of Section 20 of the Employment Agreement
regarding Section 409A shall, to the extent applicable, be applied to this
Restricted Stock Agreement.
(e) This Restricted Stock Agreement shall be governed by and
construed in accordance with the laws of Delaware, without reference to
principles of conflict of laws.
(f) Any disputes arising out of or relating to this Restricted Stock
Agreement shall be resolved in accordance with Section 10 of the Employment
Agreement, which shall be deemed to be incorporated herein in full.
(g) No provision of this Restricted Stock Agreement may be amended
or modified except in writing signed by you and an authorized officer of the
Company. No waiver of any breach or condition of this Restricted Stock Agreement
by either party shall be deemed to be a waiver of any other or subsequent breach
or condition whether of like or different nature. Any waiver must be in writing
and signed by the party against whom the waiver is being enforced (either you or
an authorized officer of the Company, as the case may be).
(h) Except as otherwise expressly set forth in this Restricted Stock
Agreement or the Employment Agreement, the respective rights and obligations of
you and the Company hereunder shall survive any termination of your employment.
(i) The Company represents and warrants to you that (i) all
corporate action required to be taken by the Company to fully authorize the
execution, delivery and performance of this Restricted Stock Agreement and the
consummation of the transactions contemplated hereby (including, without any
limitation, any action required to be taken by the Board of Directors, any
committee of the Board of Directors, or any other person or body to interpret or
otherwise act with respect to any Company agreement, policy, program or
arrangement) has been duly and effectively taken, (ii) the execution, delivery
and performance of this Restricted Stock Agreement does not violate any
applicable law, regulation, order, judgment or decree or any agreement,
arrangement, plan or corporate governance document to which the Company is a
party or by which it is bound, (iii) the person signing this Restricted Stock
Agreement on behalf of the Company is duly authorized to do so and (iv) upon the
execution and delivery of this Restricted Stock 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.
Your acceptance of the Restricted Shares shall constitute your agreement
to all of the terms and conditions of this Restricted Stock Agreement.
Very truly yours,
SIX FLAGS, INC.
By: /s/ Harvey Weinstein
-----------------------------------------
Harvey Weinstein
Chairman of the Compensation
Committee
Agreed and Accepted:
By: /s/ Mark Shapiro
----------------------------
Mark Shapiro
Enclosures