AMENDED AND RESTATED EMPLOYMENT AGREEMENT WITH SILVERLEAF RESORTS, INC.
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
WITH
SILVERLEAF RESORTS, INC.
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made between
SILVERLEAF RESORTS, INC., a Texas corporation ("Silverleaf"), and XXXXXX X.
XXXXXXXXX (the "Employee").
RECITALS:
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A.
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Employee
is a key executive officer and employee of Silverleaf;
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B.
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Silverleaf
and Employee entered into that certain Employment Agreement between
them
dated effective as of April 15, 2002, which Employment Agreement
was
amended on August 18, 2003; and
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C.
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Silverleaf
and Employee desire to continue the employment of Employee and to
agree on
the terms of Employee's continued
employment.
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NOW,
THEREFORE, in consideration of the premises and terms hereinafter set forth,
the
parties agree as follows:
AGREEMENT:
Section
1. Employment.
Employee's employment with Silverleaf as President is hereby continued,
effective as of the Effective Date and for an initial period of two (2) years
from the Effective Date (the "Term"), unless sooner terminated pursuant to
the
termination provisions of this Agreement. Employee may not engage in other
employment while he or she is in the employ of Silverleaf pursuant to this
Agreement.
Section
2. Duties.
Employee
agrees to devote such time, attention and energies as are necessary to fulfill
his or her duties as specified by the Board of Directors of Silverleaf from
time
to time. Employee further agrees that he or she will promote the best interests
and welfare of Silverleaf and shall perform any and all duties to the best
of
his or her abilities. The Employee shall:
(a)
Non-Competition:
Not
render to others, during his or her employment with Silverleaf, service of
any
kind for compensation or promote, participate or engage in any other business
activity which would conflict or interfere with the performance of his or her
duties or loyalty under this Agreement, including, but not limited to,
participating in the promotion or sale of products or services for a competitor
of Silverleaf or otherwise engage in business with such competitor;
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(b)
Regulatory
Laws:
Abide by
all applicable statutes, rules and regulations of each State in which services
may be rendered; and
(c)
Silverleaf
Rules:
Abide by
all rules and regulations issued by Silverleaf, which are pertinent to
Employee's duties and obligations.
Section
3. Compensation.
As
compensation for the services rendered pursuant to this Agreement:
(a)
Base
Compensation:
Silverleaf shall pay Employee base compensation computed at the annual rate
of
Four Hundred Thirty Five Thousand and No/100 Dollars ($435,000.00), payable
in
semi-monthly payments on the 1st and 15th days of each month.
(b)
Incentive
Compensation:
Employee
shall be entitled to participate in any bonus, incentive, stock option or other
compensation plans of Silverleaf only to the extent the Board of Directors
of
Silverleaf may deem appropriate from time to time.
(c)
Company
Vehicle:
Silverleaf shall furnish Employee a company owned vehicle for use by Employee
in
performing his or her duties, and Silverleaf shall pay all expenses associated
therewith.
(d)
Fringe
Benefits:
Silverleaf shall provide Employee health insurance under its group plan as
it
may exist from time to time. The cost of any coverage of any of the Employee's
family members under Silverleaf's group plan shall be paid by the Employee.
The
Employee shall also be entitled to such vacation time, sick leave and other
fringe benefits as may be specified by the Board of Directors of Silverleaf
from
time to time for its executive personnel.
Section
4.
Termination
Payments.
If
Employee voluntarily terminates his or her employment or if Silverleaf
terminates Employee’s employment for Good Cause, the payment to Employee of all
compensation earned to the date of termination shall be in full satisfaction
of
all of Employee’s claims against Silverleaf under this Agreement and Employee
shall be entitled to no other termination pay. If Employee's employment is
terminated by Silverleaf, other than for Good Cause, then Employee shall be
entitled to termination pay equal to the greater of: (1) the unpaid amount
of
the Employee's base compensation set forth in Subsection 3(a) for the remaining
months during the Term of this Agreement; or (2) the amount of the Employee's
base compensation set forth in Subsection 3(a) for a period of twelve months.
The termination pay shall be payable in semi-monthly payments on the first
and
fifteenth days of each such month. For purposes of the preceding provisions,
"Good
Cause"
shall be deemed to exist if Employee:
a.
Willfully
breaches or habitually neglects the duties that the Employee is required
to
perform under the terms of this Agreement;
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b.
Willfully
violates reasonable and substantial rules governing employee
performance;
c.
Refuses
to obey reasonable orders in a manner that amounts to insubordination; or
d.
Commits
clearly dishonest acts toward Silverleaf.
Additionally,
no severance pay shall be payable if Employee's employment is terminated because
of Employee's death, or Employee's incapacity due to Employee's physical or
mental illness.
Section
5. Confidentiality.
(a) Nondisclosure
and Nonuse:
Employee
acknowledges that during his or her employment with Silverleaf, he or she may
have access to and become acquainted with Silverleaf Confidential Information,
as defined below. Except as Employee's duties during his or her employment
with
Silverleaf may require or Silverleaf may otherwise consent in writing, Employee
agrees that he or she shall not at any time disclose or use, directly or
indirectly, either during or subsequent to his or her employment with
Silverleaf, any Silverleaf Confidential Information.
(b)
Confidential
Information:
For
purposes of the foregoing provisions, "Silverleaf Confidential Information"
shall mean (1) any and all confidential and proprietary business information
and
trade secrets concerning the business and affairs of Silverleaf and its
affiliates, including but not limited to all marketing, sales and lead
generation techniques, know-how and studies, customer and lead lists, current
and anticipated customer requirements, price lists, business plans, training
programs, computer software and programs, and computer software and data-base
technologies, systems, structures and architectures (and related processes,
formulae, compositions, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information), (2) any and
all
information concerning the business and affairs of Silverleaf and its affiliates
(including but not limited to their historical financial statements, financial
projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, personnel
training and techniques and materials, however documented), and (3) any and
all
notes, analysis, compilations, studies, summaries, and other material prepared
by or for Silverleaf and its affiliates containing or based, in whole or in
part, on any information included in the foregoing.
Section
6. Non-Interference.
Employee
further agrees that during his or her employment and
for a
period of two (2) years from and after the effective date of any Termination,
Employee
shall not, either on his or her own account or jointly with or as a manager,
agent, officer, employee, consultant, partner, joint venturer, owner or
shareholder or otherwise on behalf of any other person, firm or corporation:
(1)
carry on or be engaged or interested directly or indirectly in, or solicit,
the
manufacture or sale of goods or provision of services to any person, firm or
corporation which, at any time during his or her employment has been or is
a
customer or in the habit of dealing with Silverleaf or its affiliates in their
business, (2) endeavor, directly or indirectly, to canvas or solicit in
competition with Silverleaf or its affiliates or to interfere with the supply
of
orders for goods or services from or by any person, firm or corporation which
during this or her employment has been or is a supplier of goods or services
to
Silverleaf or its affiliates, or (3) directly or indirectly solicit or attempt
to solicit away from Silverleaf or its affiliates any of its officers, employees
or independent contractors or offer employment or business to any person who,
on
or during the 6 months immediately preceding the date of such solicitation
or
offer, is or was an officer, employee or independent contractor of Silverleaf
or
its affiliates.
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Section
7.
Noncompetition.
(a)
Covenant:
Employee
covenants and agrees that he or she shall not, for a period of two (2) years
from and after the effective date of any Termination, working alone or in
conjunction with one or more other persons or entities, for compensation or
not,
permit his or her name to be used by or engage in or carry on, directly or
indirectly, either for himself or herself or as a member of a partnership or
other entity or as a stockholder, investor, officer or director of a corporation
or as an employee, agent, associate or contractor of any person, partnership,
corporation or other entity, any business in competition with the business
of
Silverleaf or its affiliates, as carried on by Silverleaf or its affiliates
immediately prior to the effective date of any Termination, but only for as
long
as such business is carried on by (1) Silverleaf or its affiliates or (2) any
person, corporation, partnership, trust or other organization or entity deriving
title from Silverleaf or its affiliates to the assets and goodwill of the
business being carried on by Silverleaf or its affiliates immediately prior
to
the effective date of any Termination, in any county of any state of the United
States in which Silverleaf or its affiliates conducts such business or markets
the products of such business immediately prior to the effective date of any
Termination.
(b)
Tolling.
If
Employee violates any covenant contained in this Section, then the term of
such
violated covenant shall be tolled for the period commencing on the commencement
of such violation and ending upon the earlier of (1) such time as such violation
shall be cured by Employee to the reasonable satisfaction of Silverleaf, (2)
final adjudication (including appeals) of any action filed for injunctive relief
or damages arising out of such violation, and (3) the expiration of 24 months
after Termination during which no violation of the covenant has
occurred.
(c)
Reformation.
If, in
any judicial proceeding, the court shall refuse to enforce any covenant
contained in this Section because the time limit is too long, it is expressly
understood and agreed between Silverleaf and Employee that for purposes of
such
proceeding such time limitation shall be deemed reduced to the extent necessary
to permit enforcement of such covenant. If, in any judicial proceeding, the
court shall refuse to enforce any covenant contained in this Section because
it
is more extensive (whether as to geographic area, scope of business or
otherwise) than necessary to protect the business and goodwill of Silverleaf
and/or its affiliates, it is expressly understood and agreed between Silverleaf
and Employee that for purposes of such proceeding the geographic area, scope
of
business or other aspect shall be deemed reduced to the extent necessary to
permit enforcement of such covenant.
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Section
8. Injunctive
Relief.
Employee
acknowledges that a breach of Sections 5, 6, or 7 hereof would cause irreparable
damage to Silverleaf and/or its affiliates, and in the event of Employee's
breach of the provisions of Sections 5, 6 or 7 hereof, Silverleaf shall be
entitled to a temporary restraining order and an injunction restraining Employee
from breaching such Sections without the necessity of posting bond or proving
irreparable harm, such being conclusively admitted by Employee. Nothing shall
be
construed as prohibiting Silverleaf from pursuing any other available remedies
for such breach, including the recovery of damages from Employee. Employee
acknowledges that the restrictions set forth in Sections 5, 6 and 7 hereof
are
reasonable in scope and duration, given the nature of the business of Silverleaf
and its affiliates. Employee agrees that issuance of an injunction restraining
Employee from breaching such Sections in accordance with their terms will not
pose an unreasonable restriction on Employee's ability to obtain employment
or
other work following the effective date of any Termination.
Section
9. Employee
Investments.
Anything
to the contrary herein notwithstanding, Employee: (1) shall not be prohibited
from investing his or her assets in such form or such manner as will not, in
the
aggregate, detract from the performance by Employee of his or her duties
hereunder and will not violate the provisions of Sections 5, 6 or 7 hereof;
and
(2) shall not be prohibited from purchasing stock in any publicly traded company
solely as a stockholder so long as Employee does not own (together or separately
or through his or her affiliates) more than two percent (2%) of the stock in
any
company, other than Silverleaf, which is engaged in the timeshare
business.
Section
10. Employee's
Representations.
Employee
represents and warrants that he or she is free to enter into and perform each
of
the terms and conditions hereof, and that his or her execution and performance
of this Agreement does not and will not violate or breach any other Agreement
between Employee and any other person or entity.
Section
11. Termination. This
Agreement shall terminate upon the expiration of its Term, or prior thereto:
(1)
upon written notice by either party, at any time and for any or no reason
whatsoever, at least thirty (30) days prior to the effective date of the
termination; or (2) as of the end of the month of Employee’s death or incapacity
due to Employee’s physical or mental illness as determined in Silverleaf’s sole
discretion (the “Termination”). The
Term
of this Agreement may be extended only by the written agreement of Employee
and
Silverleaf.
Section
12. Return
of Materials and Vehicles:
Employee
understands and agrees that any training manuals, sales and promotional
material, vehicles or other equipment provided to him or her by Silverleaf
in
connection with this Agreement shall remain the sole property of Silverleaf,
and
shall be used by the Employee exclusively for Silverleaf's benefit. Upon
termination of this Agreement, any such material, vehicles or other equipment
shall be immediately returned to Silverleaf.
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Section
13. Non-Binding
Alternate Dispute Resolution.
Except
for actions brought by Silverleaf pursuant to Section 8 hereof:
(a)
Agreement
to Utilize:
The
parties shall attempt to settle any claim or controversy arising from this
Agreement through consultation and negotiation in good faith and a spirit of
mutual cooperation prior to the commencement of any legal action. If such
attempts fail, then the dispute shall be mediated by a mutually-accepted
mediator to be chosen by the parties within forty-five (45) days after written
notice demanding mediation is sent by one party to the other party. Neither
party may unreasonably withhold consent to the selection of a mediator, and
the
parties shall share the costs of the mediation equally. By mutual written
agreement, however, the parties may postpone mediation until they have completed
some specified but limited discovery regarding the dispute. The parties may
also
agree to replace mediation with any other form of alternate dispute resolution
("ADR") available in Texas, such as a mini-trial or arbitration.
(b) Failure
to Resolve:
Any
dispute which the Parties cannot resolve through negotiation, mediation or
any
other form of ADR, within six (6) months of the date of the initial demand
for
mediation, may then be submitted to the appropriate court for resolution. The
use of negotiation, mediation, or any other form of ADR procedures will not
be
construed under the doctrines of laches, waiver or estoppel to affect adversely
the rights of either party.
Section
14. Waiver.
Silverleaf's failure at any time to require performance by Employee of any
of
the provisions hereof shall not be deemed to be a waiver of any kind nor in
any
way affect the rights of Silverleaf thereafter to enforce the provisions hereof.
In the event that either party to this Agreement waives any provision of this
Agreement or any rights concerning any breach or default of the other party
hereto, such waiver shall not constitute a continuing waiver of any such
provision or breach or default of the other party hereto.
Section
15. Successors,
Assigns, Benefit.
(a)
Silverleaf
Successors:
The
provisions of this Agreement shall inure to the benefit of and be binding upon
Silverleaf, its successors, assigns and other affiliated entities, including,
but not limited to, any corporation or other entity which may acquire all or
substantially all of Silverleaf's assets or with or into which Silverleaf may
be
consolidated, merged or reorganized. Upon any such merger, consolidation or
reorganization, the term "Silverleaf" as used herein shall be deemed to refer
to
any such successor.
(b)
No
Assignment by Employee:
The
parties hereto agree that Employee's services hereunder are personal and unique,
and that Silverleaf is executing this Agreement in reliance thereon. This
Agreement shall not be assignable by Employee.
Section
16. Severability.
If one
or more of the provisions contained in this Agreement shall for any reason
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but shall be deemed stricken and severed from this Agreement and
the
remaining terms of this Agreement shall continue in full force and
effect.
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Section
17. Governing
Law and Venue.
This
Agreement shall be deemed to have been made and entered into in the State of
Texas and its validity, construction, breach, performance and operation shall
be
governed by the laws of that state. The obligations hereunder of Silverleaf
shall be performable in Dallas County, Texas, and venue for any suit involving
this Agreement shall lie exclusively in Dallas County, Texas.
Section
18. Entire
Understanding.
This
Agreement sets forth the entire understanding between the parties with respect
to the employment of Employee, and no other representations, warranties or
agreements whatsoever have been made by Silverleaf to Employee. Further, this
Agreement may not be modified or amended except by another instrument in writing
executed by both of the parties.
Section
19. Notices.
All
notices and communications under this Agreement shall be sent to the parties
at
the following addresses or such other addresses that the parties may
subsequently designate in writing.
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(a)
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Silverleaf:
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Silverleaf
Resorts, Inc.
Attention:
Xxxxxx X. Xxxx, Chief Executive Officer
0000
Xxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
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(b)
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Employee:
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XXXXXX
X. XXXXXXXXX
2135
Texas Ash
Xxxxxx,
Xxxxx 00000
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Section
20. Section
Headings.
Section
and paragraph headings are inserted herein only for convenience and shall not
be
used to interpret any of the provisions hereof.
Section
21. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be an original,
but all of which together shall constitute one and the same
original.
Section
22. Effective
Date.
This
Agreement is executed on the date set forth below, but shall be effective as
of
April 15, 2006 (the "Effective Date").
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Executed
this 8th
day of
March, 2006.
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"SILVERLEAF"
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| SILVERLEAF RESORTS, INC. | ||
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| By: |
/S/
XXXXXX E,
XXXX
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XXXXXX X. XXXX, Chief Executive Officer |
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| "EMPLOYEE" | ||
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| /S/ XXXXXX X. XXXXXXXXX | ||
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XXXXXX X. XXXXXXXXX |
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