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 SHARON K. BRAYFIELD (the
“Employee”).
A. Employee
is a key executive officer and employee of Silverleaf;
B. Employee
and Silverleaf entered into an Employment Agreement effective as of
January 1, 2007; and
C. Employee
and Silverleaf have jointly agreed to a change of Employee’s
title, duties and responsibilities as of the Effective Date of this
Agreement; and
D. Prior to
the Effective Date Employee served as President of Silverleaf,
while after the Effective Date Employee will become President of a
newly created division within Silverleaf dedicated to Owner Based
Marketing.
NOW, THEREFORE, in
consideration of the premises and terms hereinafter set forth, the
parties agree as follows:
Section 1. Employment . Employee
shall be employed by Silverleaf as President—Owner Based
Marketing and Sales Administration, as of the Effective Date hereof
through December 31, 2009 (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 reasonably specified by the Board
of Directors of Silverleaf from time to time for an employee of
Employee’s position. 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;
(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,
regulations and policies 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,
Seventy-Five Thousand and No/100 Dollars ($475,000.00), payable in
semi-monthly payments on the 15th day and the last day 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 and life insurance under its group plans as they
may exist from time to time. The cost of any coverage of any of the
Employee’s family members under Silverleaf’s group
plans 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’s employment with Silverleaf is terminated prior
to a Change of Control, the payment to Employee of all compensation
earned to the date of termination (the “Earned
Compensation”) 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 after a Change of Control
and during the Term or any extended Term of this Agreement, then
the following provisions shall apply:
(a) Good Cause or Voluntary Termination : If
Silverleaf terminates Employee’s employment for Good Cause,
or if Employee voluntarily terminates Employee’s employment
other than for Good Reason, then Employee shall be entitled to the
Earned Compensation only.
(b) No Good Cause or Good Reason : If Silverleaf
terminates Employee’s employment other than for Good Cause,
or if Employee terminates Employee’s employment for Good
Reason, then Employee shall be entitled to the Earned Compensation
and to Severance Pay. For this purpose, Severance Pay means an
amount of compensation equal to
2
two
(2) times the sum of the total cash compensation received by
the Employee for the immediately preceding calendar year, including
but not limited to any base compensation, commissions, bonuses, and
similar cash items, but exclusive of any fringe benefits, vehicle
usage and similar non-cash items. The Severance Pay shall be
payable in a lump sum within thirty (30) days after the
termination of employment. As a condition precedent to the payment
of the Severance Pay, Employee agrees to execute and deliver to
Silverleaf a general release of Silverleaf and its affiliates from
any and all other claims that Employee might have against
Silverleaf and its affiliates, the form of which will be provided
by Silverleaf.
(c) Death
or Incapacity : If Employee’s employment is
terminated because of Employee’s death, or Employee’s
incapacity and inability to perform Employee’s duties
hereunder due to Employee’s physical or mental illness, then
Employee shall be entitled to the Earned Compensation
only.
Section 5. Termination Payment
Definitions . For purposes of Section 4, the following
definitions shall apply:
(a) Change
of Control : “Change of Control” shall mean the
occurrence of any of the following events after the Effective
Date:
[1] Individuals who, on the Effective Date, constitute the
Board of Directors (the “Board”) of Silverleaf (the
“Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board, provided that any
person becoming a director subsequent to such date, whose election
or nomination for election was approved by a vote of at least
two-thirds of the Incumbent Directors then on the Board (either by
a specific vote or by approval of the proxy statement of Silverleaf
in which such person is named as a nominee for director, without
written objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially elected
or nominated as a director of Silverleaf as a result of an actual
or threatened election contest with respect to directors or as a
result of any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board shall
be deemed to be an Incumbent Director;
[2] The consummation of any sale, transfer or other
disposition of all or substantially all of the assets of the
business of Silverleaf through one transaction or a series of
related transactions to one or more persons or entities;
[3] Any “Person” (as such term is defined in
Section 3(a)(9) of the Securities Exchange Act of 1934 (the
“Exchange Act”) and as used in Sections 13(d)(3)
and 14 (d)(2) of the Exchange Act), other than Robert E. Mead, is
or becomes a “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of Silverleaf representing more than 50% of
the
3
combined voting
power of Silverleaf’s then outstanding securities eligible to
vote for the election of the Board;
[4] The consummation of a merger, consolidation,
reorganization, statutory share exchange or similar form of
corporate transaction involving Silverleaf or any of its
subsidiaries that requires the approval of Silverleaf’s
stockholders, whether for such transaction or the issuance of
securities in the transaction; or
[5] The stockholders of Silverleaf approve a plan of
complete liquidation or dissolution.
(b) Good
Cause : “Good Cause” shall be deemed to exist
if Employee:
[1] Willfully breaches or habitually neglects the duties
that the Employee is required to perform under the terms of this
Agreement;
[2] Willfully violates reasonable and substantial rules,
regulations or policies governing employee performance;
[3] Willfully refuses to obey reasonable orders in a manner
that amounts to insubordination; or
[4] Willfully commits clearly dishonest acts toward
Silverleaf.
For such
purposes, no act or failure to act by Employee shall be considered
“willful” unless done or omitted to be done by Employee
in bad faith and without reasonable belief that Employee’s
action or omission was in the best interests of Silverleaf or its
affiliates. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon
the advice of counsel for Silverleaf shall be conclusively presumed
to be done, or omitted to be done, by Employee in good faith and in
the best interests of Silverleaf. Good Cause shall also not exist
pursuant to clause [1], [2] or [3], unless Employee has failed to
correct the activity alleged to constitute Good Cause within thirty
(30) days following written notice from Silverleaf of such
activity, which notice shall specifically set forth the nature of
such activity and the corrective action reasonably sought by
Silverleaf. Notwithstanding the foregoing, the termination of the
Employee’s employment for Good Cause shall be pursuant to the
action of the Board, taken in conformity with the By-laws of
Silverleaf.
(c) Good
Reason: “Good Reason” shall mean the occurrence
of any of the following events after a Change of
Control:
[1] The failure by Silverleaf to pay Employee the
compensation and benefits due Employee under
Section 3;
4
[2] A material diminution in Employee’s
responsibilities or authority, or a diminution of Employee’s
title;
[3] Employee is required to relocate for purposes of
Employee’s employment with Silverleaf;
[4] Any material breach of this Agreement by Silverleaf;
or
[5] The failure of any successor to all or substantially all
of the business and/or assets of S
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