EXHIBIT 10.6
FORM OF NON-COMPETE, TRADE SECRET
AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT (the "Agreement") is made by and between GREAT WOLF
RESORTS, INC. (the "Company") and _______________ ("_______") to confirm certain
obligations of the parties hereto.
WHEREAS, through a series of proposed transactions, the Company will
succeed to the family entertainment resort business of The Great Lakes
Companies, Inc. ("Great Lakes");
WHEREAS, _______ has served from time to time as an officer and/or
director of Great Lakes and currently serves as an officer and/or director of
the Company;
WHEREAS, each of _______ and the Company desires that ______ continue to
serve as an officer and/or director of the Company;
WHEREAS, during _______'s tenure as an officer and/or director of Great
Lakes and the Company, he has and will receive and has had and will have access
to Trade Secrets and/or other Confidential Information of Great Lakes and the
Company which are highly valuable and unique assets of the Company and the use
or disclosure by _______ of any proprietary and/or Confidential Information of
Great Lakes, the Company contrary to this Agreement would cause permanent,
incalculable and irreparable injury and damage to the Company.
WHEREAS, _________ has received from Great Lakes, and may in the future
receive from the Company, training in the Company's Business, at considerable
time and expense to the Company, and through such training _________ has had and
will have the opportunity to gain close knowledge of and possible influence over
customers of the Company, and will in such capacity possess the good will of the
Company, and this Agreement is necessary to protect the Company against unfair
loss of said customers, employees or goodwill.
WHEREAS, each of Great Lakes and the Company has made a significant
investment in its workforce, including valuable training, and this Agreement is
necessary to protect the Company against unfair loss of its employees.
NOW, THEREFORE, in consideration of the promises contained in this
Agreement, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
I. CONSIDERATION FROM THE COMPANY:
A. In consideration for ______'s willingness to enter into this
Agreement and to serve in certain capacities for the Company from
time to time, the Company will (i) pay to ______ an annual fee, paid
in accordance with the Company's payroll policies, of $_______,
subject to annual adjustments in the discretion of the Compensation
Committee; (ii) pay to _____ an annual bonus, determined in the sole
discretion of the Compensation Committee, of up to 100% of the
annual fee
set forth in clause (i), as may be adjusted from time to time; and
(ii) accelerate the vesting of any outstanding options granted to
_____ pursuant to the Company's 2004 Incentive Stock Plan to the
date upon which ______ either fails to be nominated for re-election
to the Board of Directors of the Company or fails to be re-elected
to the Board of Directors by the Company's stockholders; provided,
however, that ______'s unwillingness to stand for re-election shall
not cause the acceleration of vesting of any options pursuant to
this Agreement.
B. The Company would not have continued its relationship with _______
but for ________ entering into this Agreement.
C. _________ acknowledges and agrees that the foregoing consideration
from the Company is sufficient and valid consideration to support
________'s obligations in this Agreement.
II. _________'S ASSURANCES:
A. _______ is not under any contractual agreement, including any with a
former employer, that would conflict with or in any way prevent
_______ from entering into this Agreement or from performing any and
all of ______'s obligations to the Company, including contacting any
customers or prospective customers.
B. _________ will not utilize any proprietary or confidential materials
or information of any former employer (other than Great Lakes) while
serving in any capacity for the Company. Proprietary or confidential
information does not include general skills or knowledge generally
known or available to others.
III. NON-COMPETE AND NON-SOLICITATION AGREEMENT:
During the period that _____ serves as an officer and/or director of the Company
and for a period of one (1) year thereafter, ______ shall not, either directly
or indirectly, for himself or on behalf of or in conjunction with any other
person, company, partnership, corporation, business, group, or other entity
(each, a "Person"):
A. Compete with the Company by engaging in the development,
construction, operation and/or management of family entertainment
resorts featuring indoor waterparks within fifty (50) miles of a
location where the Company conducts its Business or is planning to
conduct its Business;
B. Call on, solicit or attempt to induce any other officer, employee or
independent contractor of the Company or its affiliates with whom
______ had contact, knowledge of, or association at any time during
______'s term as an officer and/or director of Great Lakes, the
Company or any of their affiliates, or, with respect to the one (1)
year period after _____ is no longer an officer and/or director of
the Company (the "Restricted Period"), at any time during the twelve
(12) month period immediately preceding the beginning of the
Restricted Period,
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to terminate his or her employment or business relationship with the
Company or its affiliates and shall not assist any other person or
entity in such a solicitation; or
C. Call on or solicit for the purpose of competing with the Company or
its affiliates any customers of Great Lakes, the Company or any of
their affiliates with whom ______ had contact, knowledge or
association at any time during the time that ______ served as an
officer and/or director of Great Lakes or the Company or their
affiliates, or, with respect to the Restricted Period, at any time
during the twelve (12) month period immediately preceding the
beginning of the Restricted Period.
IV. FOR PURPOSES OF THE NON-COMPETE AND NON-SOLICITATION SECTION:
A. The covenants in Section III of this Agreement are severable and
separate, and the unenforceability of any specific covenant shall
not affect the provisions of any other covenant. If any provision of
this Agreement relating to the time period, scope, or geographic
areas of the restrictive covenants shall be declared by a court of
competent jurisdiction to exceed the maximum time period, scope, or
geographic area, as applicable, that such court deems reasonable and
enforceable, then this Agreement shall automatically be considered
to have been amended and revised to reflect such determination.
B. All of the covenants in this Agreement shall be construed as an
agreement independent of any other provisions in this Agreement, and
the existence of any claim or cause of action ________ may have
against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of such covenants.
C. ________ has carefully read and considered the provisions of this
Agreement and, having done so, agrees that the restrictive covenants
in this Agreement impose a fair and reasonable restraint on _______
and are reasonably required to protect the interests of the Company.
D. _______ agrees that the Company shall be entitled to immediate
injunctive relief for any breach or threatened breach of any of the
provisions of this Agreement, and that a restraining order and/or an
injunction may issue against ______ to prevent or restrain any such
breach or threatened breach, in addition to any other rights or
remedies at law the Company may have. _______ further agrees that,
in the event that any legal action becomes necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled, in addition to its court costs, to such reasonable
attorney's fees, expert witness fees, and legal expenses as shall be
fixed by a court of competition jurisdiction.
V. TRADE SECRETS AND CONFIDENTIAL INFORMATION:
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A. For purposes of this Agreement, the "Business" of the Company means
the development, construction, operation and/or management of family
entertainment resorts featuring indoor waterparks.
B. For purposes of this Agreement, "Confidential Information" includes,
but is not limited to, any secret, confidential or proprietary
information possessed by Great Lakes, the Company or any of their
affiliates relating to their businesses, including, without
limitation, customer lists, details of client or consulting
contracts, current and anticipated customer requirements, pricing
policies, price lists, market studies, business plans, operational
methods, marketing plans or strategies, product development
techniques or flaws, computer software programs (including object
codes and source codes), data and documentation, base technologies,
systems, structures and architecture, inventions and ideas, past,
current and planned research and development, compilations, devices,
methods, techniques, processes, future business plans, licensing
strategies, advertising campaigns, financial information and data,
business acquisition plans and new personnel acquisition plans (not
otherwise included in the definition of a Trade Secret under this
Agreement) that has not become generally available to the public by
the act of one who has the right to disclose such information
without violating any right of Great Lakes, the Company or any of
their affiliates.
C. For purposes of this Agreement, the term "Trade Secret" shall mean
information, including, but not limited to, technical or
nontechnical data, a formula, a pattern, a compilation, a program, a
device, a method, a technique, a drawing, a process, financial data,
financial plans, product plans, or a list of actual or potential
customers or suppliers that (1) derives economic value, actual or
potential, from not being generally known to, and not being
generally readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use and (2) is
the subject of reasonable efforts by the Company and its affiliates
to maintain its secrecy.
D. _______ acknowledge and agrees that he as an officer and/or director
of Great Lakes, the Company or any of their affiliates, _____ is in
a confidential relationship wherein, in the course of this
relationship with Great Lakes, the Company or any of their
affiliates, ______ has received or will receive and has had or will
have access to Confidential Information and Trade Secrets of Great
Lakes and/or the Company. Accordingly, ______ is willing to enter
into the covenants contained in this Agreement in order to provide
the Company with what _______ considers to be reasonable protection
for its interests.
E. _______ hereby agrees that, during the period that ____ serves as an
officer and/or director of the Company and during the Restricted
Period, ______ will hold in confidence all Confidential Information
of Great Lakes, the Company and any of their affiliates that came
into ______'s knowledge while holding such position and will not
disclose, publish or make use of such Confidential Information
without the prior written consent of the Company.
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F. ______ hereby agrees to hold in confidence all Trade Secrets of
Great Lakes, the Company and any of their affiliates that came into
______'s knowledge while holding any position as an officer and/or
director of Great Lakes, the Company or any of their affiliates and
shall not disclose, publish, or make use of at any time after the
date hereof such Trade Secrets without the prior written consent of
the Company for as long as information remains a Trade Secret.
G. Notwithstanding the foregoing, the provisions of this Section will
not apply to (i) information required to be disclosed by _______ in
the ordinary course of his or her duties, (ii) Confidential
Information or Trade Secrets that otherwise becomes generally known
in the industry or to the public through no act of ______ or any
person or entity acting by or on _______'s behalf, or (iii)
Confidential Information or Trade Secrets which ______ is required
to disclose by law, regulation, or court order. In the event that
_______ is required to make a disclosure as set forth in subsection
(iii), _______ shall notify the Company prior to making any
disclosure.
H. The parties agree that the restrictions stated in this Section are
in addition to and not in lieu of protections afforded to Trade
Secrets and Confidential Information under applicable state law.
Nothing in this Agreement is intended to or shall be interpreted as
diminishing or otherwise limiting the Company's rights under
applicable state law to protect its Trade Secrets and Confidential
Information.
VI. CHOICE OF LAW AND FORUM:
This Agreement has been entered into in and shall be governed by and
construed under the laws of the State of Delaware, not including its choice of
law rules. Furthermore, the state and federal courts within the State of
Delaware shall have the exclusive jurisdiction over any disputes arising under
or relating to this Agreement. The Employee's signature acknowledges that this
Agreement serves as a waiver of any jurisdictional challenge, be it personal,
subject matter or otherwise to the courts within the State of Delaware.
VII. ENTIRE AGREEMENT:
This Agreement constitutes a single integrated contract expressing the
entire agreement of the parties hereto with respect to its subject matter. There
are no agreements, written or oral, express or implied, between the parties
hereto, concerning the subject matter hereof, except the agreements set forth in
this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall
affect any other written employment contract or restrictive covenant agreement
_____ may have with the Company or any of its affiliates. The Company may assign
this Agreement to any successor, subsidiary, parent, or affiliate. _______ may
not assign any part of this Agreement.
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This ___ day of _____________, 2004.
[NAME]
Signed:________________________________
Print Name:____________________________
Date:__________________________________
GREAT WOLF RESORTS, INC.
By:____________________________________
Title:_________________________________
Date:__________________________________
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