Employment Agreement - Skylands Park Management Inc. and Barry M. Levine
EMPLOYMENT AGREEMENT (this "Agreement"), entered into as of this ____ day
of October, 1996, by and between SKYLANDS PARK MANAGEMENT, INC., a New Jersey
corporation having offices at U.S. Highway 206 and County Route 565, P.O. Box
117, Augusta, New Jersey 07822-0117 (the "Company"), and BARRY M. LEVINE, an
individual residing at 18 Ramapo Trail, Harrison, New York 10528 (the
"Employee");
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company is engaged in the business of operating a regional
sports entertainment and recreation center, including a 4,300 seat baseball
stadium, indoor recreation center, sporting goods store, and related facilities;
and
WHEREAS, the Employee has substantial experience relating to the management
and operation of sports-related businesses; and
WHEREAS, to promote the ongoing business of the Company, the Company
desires to assure itself of the right to the Employee's services on the terms
and conditions of this Agreement; and
WHEREAS, the Employee is willing and able to render his services to the
Company on the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as follows:
1. Nature of Employment.
--------------------
(a) Subject to the terms and conditions of this Agreement, the Company
shall, throughout the term of this Agreement, retain the Employee, and the
Employee shall render services to the Company, in the capacity and with the
title of President and Chief Executive Officer of the Company. In such capacity,
the Employee shall have and exercise responsibility for (i) managing and
overseeing all aspects of the day-to-day business operations of the Company,
(ii) participating in corporate planning and development strategy for the
Company, (iii) advising on and participating and assisting in corporate finance
and shareholder relations matters relating to the Company, and (iv) such other
similar or related duties as may be assigned to the Employee from time to time
by the Board of Directors of the Company (the "Board").
<PAGE>
(b) Throughout the period of his employment hereunder, the Employee shall:
(i) devote his full business time, attention, knowledge and skills, faithfully,
diligently and to the best of his ability, to the active performance of his
duties and responsibilities hereunder on behalf of the Company; (ii) observe and
carry out such reasonable rules, regulations, policies, directions and
restrictions as may be established from time to time by the Board, including but
not limited to the standard policies and procedures of the Company as in effect
from time to time; and (iii) do such traveling as may reasonably be required in
connection with the performance of such duties and responsibilities; provided,
--------
however, that the Employee shall not be assigned to regular duties that would
-------
reasonably require him to relocate his permanent residence from that first set
forth above.
(c) Anything contained in paragraph 2(b) above to the contrary
notwithstanding, the Employee may make passive investments of his personal funds
(including, without limitation, in securities of publicly traded entities), so
long as such investments do not otherwise constitute or entail a violation of
paragraph 6 below.
2. Term of Employment.
------------------
(a) Subject to prior termination in accordance with paragraph 2(b)
below, the term of this Agreement and the Employee's employment hereunder shall
commence on the date hereof and shall continue through and including December
31, 1999, and shall thereafter automatically renew for additional terms of one
(1) year each unless either party gives written notice of termination to the
other party not less than ninety (90) days prior to the end of any term (in
which event this Agreement shall terminate effective as of the close of such
term).
(b) This Agreement:
(i) may be terminated upon mutual written agreement of the Company
and the Employee;
(ii) may be terminated at the option of the Employee, upon
fourteen (14) days' prior written notice to the Company, in the event that
the Company shall (A) fail (subject to the last sentence of paragraphs 3(a)
and 3(b) below) to make any payment to the Employee required to be made
under the terms of this Agreement within thirty (30) days after payment is
due, (B) fail to perform any other material covenant or agreement to be
performed by it hereunder or take any action prohibited by this Agreement,
and fail to cure or remedy same within thirty (30) days after written
notice thereof to the Company, or (C) for any reason discontinue
substantially all of its business operations for any period in excess of
six (6) consecutive months;
(iii) may be terminated at the option of the Company, upon written
notice to the Employee, "for cause" (as hereinafter defined);
<PAGE>
(iv) may be terminated at the option of the Company in the event of
the "permanent disability" (as hereinafter defined) of the Employee; or
(v) shall automatically terminate, without requirement of any notice,
upon the death of the Employee.
(c) As used herein, the term "for cause" shall mean and be limited to: (i)
any willful and material breach of this Agreement (including, without
limitation, the covenants contained in paragraph 6 below) by the Employee which
in any case is not fully corrected within thirty (30) days after written notice
of same from the Company to the Employee; (ii) gross neglect by the Employee of
his duties and responsibilities hereunder; (iii) any fraud, criminal misconduct,
breach of fiduciary duty, dishonesty, or gross and willful misconduct by the
Employee in connection with the performance of his duties and responsibilities
hereunder; (iv) the Employee being legally intoxicated during business hours or
while on call, or being habitually drunk or addicted to drugs (provided that
this shall not restrict the Employee from taking physician-prescribed medication
in accordance with the applicable prescription); (v) the commission by the
Employee of any felony or crime of moral turpitude, the making by the Employee
of any material written or verbal statements which are intentionally disparaging
to or derogatory of the Company, or any other action by the Employee which may
materially impair or damage the reputation of the Company; or (vi) habitual
breach by the Employee of any of the material provisions of this Agreement
(regardless of any prior cure thereof).
(d) As used herein, the term "permanent disability" shall mean, and be
limited to, any physical or mental illness, disability or impairment that
prevents the Employee from continuing the performance of his normal duties and
responsibilities hereunder for a period in excess of six (6) consecutive months.
For purposes of determining whether a "permanent disability" has occurred under
this Agreement, the written determination thereof by two (2) qualified
practicing physicians selected and paid for by the Company (and reasonably
acceptable to the Employee) shall be conclusive.
(e) Upon any termination of this Agreement as hereinabove provided, the
Employee (or his estate or legal representatives, as the case may be) shall be
entitled to receive any and all unpaid Base Salary appropriately prorated to and
as of the effective date of termination (based on the number of days elapsed
prior to the date of termination), and any other amounts then due and payable to
the Employee hereunder. All such payments shall be made on the next applicable
payment date therefor (as provided in paragraph 3 below) following the effective
date of termination. Such payments shall constitute all amounts to which the
Employee shall be entitled hereunder upon termination of this Agreement.
<PAGE>
3. Compensation and Benefits.
-------------------------
(a) Base Salary. As compensation for his services to be rendered
-----------
hereunder, the Company shall pay to the Employee a base salary at the rate of
One Hundred Twenty-Five Thousand ($125,000) Dollars per annum (the "Base
Salary"), which shall be payable in periodic installments in accordance with the
standard payroll practices of the Company in effect from time to time, and shall
be subject to withholding and deduction for federal, state and local taxes,
unemployment insurance, social security and other legally required withholdings.
At the sole and absolute discretion of the Board, such Base Salary may be
reviewed and upwardly adjusted at any time and from time to time. Anything
elsewhere contained in this Agreement to the contrary notwithstanding, the
Employee hereby acknowledges and confirms that he is aware of the Company's
historic and ongoing cash flow problems, and the Employee hereby agrees that,
during the period from the date hereof through and including June 30, 1997, the
Company may accrue and defer payment of all or any portion of the Base Salary as
and to the extent that the cash flow of the Company may, in the Company's good
faith judgment, be insufficient to permit payment of such Base Salary and the
Company's other pressing obligations; and any Base Salary so accrued and
deferred shall be paid as soon as the Company's cash flow shall reasonably
permit the payment thereof.
(b) Bonus. The Board may authorize and pay bonuses to the Employee at
-----
any time and from time to time. Any such bonus shall be in the sole and absolute
discretion of the Board.
(c) Automobile. In addition to the Base Salary, the Company shall
----------
reimburse the Employee, throughout the period of his employment hereunder, for
all reasonable expenses incurred by the Employee in the use of an automobile
(such reimbursement not to exceed the sum of $1,000 per month). To the extent
that any such payment is made as a lump sum without requiring the Employee to
account for the actual expenditure thereof, and/or to the extent that any such
payment is in respect of any items that would be deemed to constitute personal
expenses of the Employee under applicable federal or state tax law, the Employee
will be solely responsible for any and all taxes which may be payable in respect
of the receipt of such automobile allowance. Payments under this paragraph 3(b)
for periods through June 30, 1997 may also be deferred in a manner consistent
with paragraph 3(a) above.
(d) Fringe Benefits. The Company shall also make available to the
---------------
Employee, throughout the period of his employment hereunder, such benefits and
perquisites as are generally provided by the Company to its executive employees,
including but not limited to eligibility for participation in any group
insurance plan, pension plan, profit-sharing plan, retirement savings plan,
401(k) plan, or other such benefit plan or policy which may presently be in
effect or which may hereafter be adopted by the Company for the benefit of its
executive employees; provided, however, that nothing herein contained shall be
-------- -------
deemed to require the Company to adopt or maintain any particular plan or
policy. Participation in such benefit plans
<PAGE>
may be subject to standard waiting periods following the commencement of
full-time employment.
(e) Expenses. Throughout the period of the Employee's employment
--------
hereunder, the Company shall also reimburse the Employee, upon presentment by
the Employee to the Company of appropriate records, receipts and vouchers
therefor, for any reasonable out-of-pocket business expenses incurred by the
Employee in connection with the performance of his duties and responsibilities
hereunder; provided, however, that no reimbursement shall be required to be made
-------- -------
for any expense which is not properly deductible (in whole or in part) by the
Company for income tax purposes, or for any expense item which has not
previously been approved if and to the extent required in accordance with the
Company's standard policies and procedures in effect from time to time.
4. Vacation, etc.
-------------
(a) The Employee shall be entitled to take, from time to time, up to
four (4) weeks of paid vacation per year, to be taken at such times as shall be
mutually convenient to the Employee and the Company, and so as not to interfere
unduly with the conduct of the business of the Company.
(b) The Employee shall further be entitled to paid holidays, personal
days and sick days in accordance with the Company's standard policies and
procedures in effect from time to time.
5. Company Property.
----------------
(a) The Employee hereby acknowledges and confirms that all ideas and
other developments or improvements conceived by the Employee, whether alone or
with others, during the period of his employment hereunder (whether or not
during working hours), that are within the scope of the Company's business
operations or that relate to any business of any type conducted or proposed to
be conducted by the Company, constitute the exclusive property of the Company.
The Employee shall assist the Company as required in order to establish, confirm
and evidence the Company's ownership of such ideas, developments and
improvements, and shall execute and deliver any and all such agreements,
instruments and other documents as may be necessary or appropriate in connection
therewith.
(b) Upon termination of this Agreement under any circumstances, and
otherwise upon request of the Company, the Employee shall immediately return all
property of the Company utilized by the Employee in rendering services
hereunder, to the extent in the Employee's possession or under his control.
<PAGE>
6. Restrictive Covenants.
---------------------
(a) The Employee hereby acknowledges and agrees that (i) the business
contacts, customers, suppliers, know-how, trade secrets, marketing techniques,
promotional methods and other aspects of the business of the Company have been
and are of value to the Company, and have provided and will hereafter provide
the Company with substantial competitive advantage in the operation of its
business, and (ii) by reason of his employment with the Company, he will have
detailed knowledge and will possess confidential information concerning the
business and operations of the Company. The Employee hereby further acknowledges
that his business skills are not uniquely suited to businesses of the type
conducted by the Company, and that, if required, he could readily adapt and
utilize such skills in one or more other types of businesses.
(b) The Employee shall not, directly or indirectly, for himself or
through or on behalf of any other person or entity:
(i) at any time, divulge, transmit or otherwise disclose or cause
to be divulged, transmitted or otherwise disclosed, any business contacts,
customer or supplier lists, know-how, trade secrets, marketing techniques,
promotional methods, contracts or other confidential or proprietary information
of the Company of whatever nature, whether now existing or hereafter created or
developed (provided, however, that for purposes hereof, information shall not be
considered to be confidential or proprietary if (A) it is a matter of common
knowledge or public record, (B) it is generally known in the industry, or (C)
the Employee can demonstrate that such information was already known to the
recipient thereof other than by reason of any breach of any obligation under
this Agreement or any other confidentiality or non-disclosure agreement); and/or
(ii) at any time during the period from the date hereof through
and including the date of the termination of the Employee's employment with the
Company, and for an additional period of one (1) year thereafter, (A) invest,
carry on, engage or become involved, either as an employee, agent, advisor,
officer, director, stockholder (excluding passive ownership of not more than 5%
of the outstanding shares of a publicly held corporation if such ownership does
not involve managerial or operational responsibility), manager, partner, joint
venturer, participant or consultant, in any business enterprise (other than the
Company and/or its affiliates, successors or assigns) which is located or
operating in Sussex County, New Jersey and/or any county contiguous thereto, and
derives any material revenues from any type of sports-related business engaged
in by the Company or any of its affiliates at the time that the Employee
proposes to become involved in such other business enterprise, and/or (B) induce
or attempt to induce any employee of the Company to leave the employ of the
Company, or in any way interfere with the Company's relationship with any of its
employees; provided, however, that the restrictions pursuant to clause (A) of
-------- -------
this paragraph 6(b)(ii) shall not thereafter be applicable in the event that,
and from and after such time as, (x) the Company terminates the Employee's
<PAGE>
employment other than "for cause," or (y) this Agreement is terminated by reason
of any election by the Company not to renew this Agreement in accordance with
paragraph 2(a) above.
(c) The Employee and the Company hereby acknowledge and agree that any
breach by the Employee, directly or indirectly, of the foregoing restrictive
covenants will cause the Company irreparable injury for which there is no
adequate remedy at law. Accordingly, the Employee expressly agrees that, in the
event of any such breach or any threatened breach hereunder by the Employee,
directly or indirectly, the Company shall be entitled, in addition to any and
all other remedies available, to seek and obtain injunctive and/or other
equitable relief to require specific performance of or prevent, restrain and/or
enjoin a breach under the provisions of this paragraph 6.
(d) In the event of any dispute under or arising out of this paragraph 6,
the prevailing party in such dispute shall be entitled to recover from the
non-prevailing party or parties, in addition to any damages and/or other relief
that may be awarded, its reasonable costs and expenses (including reasonable
attorneys' fees) incurred in connection with prosecuting or defending the
subject dispute.
7. Non-Assignability.
-----------------
In light of the unique personal services to be performed by the Employee
hereunder, it is acknowledged and agreed that any purported or attempted
assignment or transfer by the Employee of this Agreement or any of his duties,
responsibilities or obligations hereunder shall be void.
8. Notices.
-------
Any notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been given (a) when delivered personally, (b) one (1) day after being deposited
for overnight delivery with a recognized overnight delivery service, with all
charges prepaid or billed to the account of the sender and properly addressed as
hereinafter provided, or (c) three (3) days after being mailed by postpaid
certified mail, return receipt requested, addressed to the party being notified
at the address of such party first set forth above, or at such other address as
such party may hereafter have designated by notice; provided, however, that any
-------- -------
notice of change of address shall not be effective until its receipt by the
party to be charged therewith. Copies of any notices or other communications to
the Company shall simultaneously be sent by first class mail to Mr. Barry J.
Gordon, American Fund Advisors, Inc., 1415 Kellum Place, Suite 205, Garden City,
New York 11530-1665.
<PAGE>
9. General.
-------
(a) Neither this Agreement nor any of the terms or conditions hereof
may be waived, amended or modified except by means of a written instrument duly
executed by the party to be charged therewith. Any waiver or amendment shall
only be applicable in the specific instance, and shall not constitute or be
construed as a waiver or amendment in any other or subsequent instance. No
failure or delay on the part of either party in respect of any enforcement of
obligations hereunder shall in any manner affect such party's right to seek or
effect enforcement at any other time or in respect of any other required
performance.
(b) Neither this Agreement nor any rights or obligations hereunder
may be assigned (other than by the Company by operation of law) by either party
without the express prior written consent of the other party.
(c) The captions and paragraph headings used in this Agreement are
for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
(d) This Agreement, and all matters or disputes relating to the
validity, construction, performance or enforcement hereof, shall be governed,
construed and controlled by and under the laws of the State of New Jersey.
(e) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
(f) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original hereof, but all of which together shall
constitute one and the same instrument.
(g) Except for any legal or judicial proceeding which may be brought
for injunctive and/or any other equitable relief as contemplated by paragraph
6(c) above, any dispute involving the interpretation or application of this
Agreement shall be resolved by final and binding arbitration before one or more
arbitrators designated by the American Arbitration Association in New Jersey.
The award of such arbitrator(s) may be enforced in any court of competent
jurisdiction. The prevailing party in any action or proceeding hereunder shall
be entitled to an award for its costs and reasonable attorneys' fees in
connection with such action or proceeding, and the arbitrator(s) in any
arbitration hereunder shall be empowered and directed to make such an award in
his, her or their discretion.
(h) This Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior
<PAGE>
discussions, agreements and understandings of every kind and nature between them
as to such subject matter.
(i) This Agreement is intended for the sole and exclusive benefit of the
parties hereto and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns, and no other person or entity
shall have any right to rely on this Agreement or to claim or derive any benefit
herefrom absent the express written consent of the party to be charged with such
reliance or benefit.
(j) If any provision of this Agreement is held invalid or unenforceable,
either in its entirety or by virtue of its scope or application to given
circumstances, such provision shall thereupon be deemed modified only to the
extent necessary to render same valid, or not applicable to given circumstances,
or excised from this Agreement, as the situation may require; and this Agreement
shall be construed and enforced as if such provision had been included herein as
so modified in scope or application, or had not been included herein, as the
case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the date first set forth above.
SKYLANDS PARK MANAGEMENT, INC.
By:_____________________________
(Title)
___________________________________
Barry M. Levine