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Exhibit
10.1
CEDAR FAIR,
L.P.
AMENDED AND RESTATED
EXECUTIVE CHANGE OF CONTROL PLAN
Adopted: July 26,
1995
Revised: January 28,
1998
Revised: May 9,
2002
Revised: June 8,
2004
Revised: July 18,
2007
Cedar Fair, L.P. (the
“Partnership”) has established this Cedar Fair, L.P.
Amended and Restated Executive Change of Control Plan
(“Plan”) in order to clarify the circumstances under
which certain key executive employees of Cedar Fair Management,
Inc. and/or Magnum Management Corporation (both hereinafter
referred to as the “Company”) could be terminated for
cause and to provide these executive employees with assurances in
the event a termination of employment or deemed termination occurs
after a change of control of the Partnership.
This Plan shall cover the Chief
Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Corporate Vice
President-Administration, the Corporate Vice
President-Planning & Design, and certain other key
executive employees as designated by the Board of Directors of
Cedar Fair Management, Inc. (each, an “Executive”). The
Executives so designated by the Board of Directors of Cedar Fair
Management, Inc. (“Board”) shall continue to be covered
by this Plan during their employment by the Partnership or one of
its “Affiliates.” For purposes of this Plan,
“Affiliates” shall mean all persons with whom the
Partnership would be considered a single employer under
Section 414(b) or Section 414(c) of the Internal Revenue
Code of 1986, as amended (“Code”). Notwithstanding the
foregoing, an Executive shall not participate in this Plan during
any period of time in which a written employment agreement or other
agreement between/among the Company and/or the Partnership and an
Executive is in effect which contains change in control provisions
relating to the change in control of the Partnership.
| C. |
DEFINITION OF CHANGE IN CONTROL : |
A “Change in Control” of the
Partnership shall mean a “change in control event”
within the meaning of Section 409A of the Code and the
April 10, 2007, final regulations thereunder (collectively
“Section 409A”) if, by analogy to the rules applicable
to corporations under Section 409A, the Partnership would be
considered to have undergone a “change in control
event” under Section 409A.
| D. |
TERMINATION FOR CAUSE : |
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1. |
The Company or the Partnership may terminate an
Executive’s employment for Cause. For the purposes of this
Plan, the Company or the Partnership shall have “Cause”
to terminate an Executive’s employment only under the
following circumstances: |
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a. |
If termination shall have been the result of an act or acts by
the Executive which have been found by an applicable court to
constitute a felony; or |
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b. |
If termination shall have been the result of an act or acts of
dishonesty or significant impropriety by the Executive resulting or
intended to result directly or indirectly in significant gain or
personal enrichment (monetary or otherwise) to the Executive at the
expense of or detriment to the Company or the Partnership;
or |
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c. |
Upon the willful and continued failure by the Executive
substantially to perform his duties with the Company or the
Partnership (other than any such failure resulting from incapacity
due to mental or physical illness) after a demand in writing for
substantial performance is delivered by the Board, which demand
specifically identifies the manner in which the Board believes that
the Executive has not substantially performed his duties, and such
failure results in demonstrably material injury to the Company or
the Partnership. |
The Executive’s
employment shall not be considered to have been terminated by the
Company or the Partnership for Cause if such termination took place
as the result of (i) the Executive’s bad judgment or
negligence or (ii) any act or omission believed by the
Executive in good faith to have been in or not opposed to the best
interest of the Company or the Partnership. The Executive shall not
be deemed to have been terminated for Cause unless and until there
shall have been delivered to him a notice of termination, approved
by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board (after
reasonable notice to the Executive and an opportunity for him,
together with his counsel, to be heard before the Board), finding
that, in the good faith opinion of the Board, the Executive was
guilty of conduct set forth above in clauses a, b, or c, above, of
Item 1 of this Section D, and specifying the particulars
thereof in detail.
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2. |
If the Executive’s employment shall be terminated for
Cause, the Executive shall be paid his full base salary through the
date of termination at the rate in effect at the time notice of
termination is given, and neither the Company nor the Partnership
shall have any further obligations to the Executive under this Plan
or otherwise, except as may be provided under the terms of any
written agreement between/among the Executive and the Company
and/or the Partnership. |
| E. |
DEEMED TERMINATION AFTER CHANGE IN CONTROL
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Any of the following events shall be
deemed to be a termination of the Executive’s employment (a
“Deemed Termination” or “Deemed
Terminated”) by the Company and/or the Partnership if they
occur within twenty-four (24) months following a Change in
Control:
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1. |
Forced
relocation of the Executive’s place of employment by the
greater of thirty-five (35) miles, or the distance
constituting a “material change in the geographic
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location” of the
Executive’s place of employment (within the meaning of
Section 409A).
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2. |
Reduction of the Executive’s base salary or significant
reduction of his responsibility. |
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3. |
Elimination of the Executive’s job. |
Notwithstanding the
foregoing, Executive shall not have incurred a Deemed Termination
unless:
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a. |
Executive incurs a “separation from service” (as
the term is defined under Section 409A) within the twenty-four
(24) month period following the effective date of the Change
in Control; and |
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b. |
Executive provides notice to the Company within ninety
(90) days of the event that constitutes the Deemed
Termination; and |
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c. |
The Company has at least thirty (30) days in which to
remedy its action. |
| F. |
SEVERANCE PAYMENT IF TERMINATION OCCURS AFTER CHANGE IN
CONTROL : |
If, at any time within twenty-four
(24) months after a Change in Control occurs, the
Executive’s employment with the Company and/or the
Partnership is involuntarily terminated (other than for Cause, as
described in Section D) or the Executive incurs a Deemed
Termination hereunder (within the meaning of Section E, above),
then subject to Item 6 of this Section F , the
Partnership and/or the Company shall make the following cash
payments and provide the following benefits to the affected
Executive:
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1. |
President and/or Chief Executive Officer |
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a. |
If the Executive is the President and/or Chief Executive
Officer, three (3) times average annual Cash Compensation (as
defined in Item 6 of this Section F) for the previous three
(3) years (or for the period of such Executive’s
employment with the Company or Partnership if less than three
(3) years) preceding the calendar year in which the Change in
Control occurred, less One United States Dollar (US $1.00);
and |
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b. |
For a thirty-six- (36-) month period after the date of
termination or Deemed Termination, the Partnership or the Company
shall provide life, disability, accident, and health insurance
benefits substantially similar to those that were received or
entitled to be receive |
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