1
EXHIBIT 10.2.7
================================================================================
EMPLOYMENT AGREEMENT
BETWEEN
SILVERLEAF RESORTS, INC.
AND
JIM OESTREICH
================================================================================
2
TABLE OF CONTENTS
Page
----
R E C I T A L S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A G R E E M E N T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Regulatory Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(c) Silverleaf Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Base Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Bonus Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(d) Moving Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(e) Company Vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(f) Fringe Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 4. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Nondisclosure and Nonuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Confidential Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 5. Non-Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 6. Noncompetition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Tolling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Reformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 7. Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 8. Employee Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 9. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Voluntary Termination, or for Good Cause . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Involuntary Termination Without Good Cause . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Contingency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(i)
3
Page
----
Section 10. Return of Materials and Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 11. Non-Binding Alternate Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Agreement to Utilize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Failure to Resolve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 12. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 13. Successors, Assigns, Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Silverleaf Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) No Assignment by Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 14. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 15. Governing Law and Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 16. Entire Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 17. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Silverleaf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 18. Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 19. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 20. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(ii)
4
EMPLOYMENT AGREEMENT
WITH SILVERLEAF RESORTS, INC.
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made between SILVERLEAF
RESORTS, INC., a Texas corporation ("Silverleaf"), and JIM OESTREICH (the
"Employee").
R E C I T A L S:
A. Silverleaf has agreed to employee Employee as an executive
employee; and
B. Silverleaf and Employee desire to set forth the terms of
Employee's proposed employment
NOW, THEREFORE, in consideration of the premises and terms hereinafter
set forth, the parties agree as follows:
A G R E E M E N T:
SECTION 1. EMPLOYMENT. Employee is hereby employed as Vice
President of Marketing Development of Silverleaf, effective as of the Effective
Date and for a period of three (3) years thereafter, until earlier terminated
pursuant to the termination provisions of this Agreement. Employee may not
engage in other employment while he 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 duties as specified by
the Board of Directors of Silverleaf from time to time. Employee further
agrees that he will promote the best interests and welfare of Silverleaf and
shall perform any and all duties to the best of his abilities. The Employee
shall also:
(a) NON-COMPETITION: Not render to others, during his
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 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
to the extent informed of those laws by Silverleaf; and
(c) SILVERLEAF RULES: Abide by all rules and regulations
issued by Silverleaf, which are pertinent to Employee's duties and
obligations.
5
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 Three Hundred
Thousand and No/100 Dollars ($300,000.00), payable in semi-monthly
payments on the 1st and 15th days of each month.
(b) BONUS COMPENSATION: Employee shall also be paid
weekly commissions equal to one-half percent (1/2%) of Silverleaf's
gross sales from timeshare and vacation contracts attributable to
tours produced by the telemarketing division of Silverleaf for which
Employee is directly responsible for the management. The bonus
compensation payable on such gross sales for each week shall be paid
on the second Friday thereafter.
(c) STOCK OPTIONS: Employee shall be granted 100,000
Non-Qualified Stock Options pursuant to Silverleaf's 1997 Stock Option
Plan, one-quarter (1/4) of which will vest on the date which is one
(1) year after the grant and a like amount to vest on the same date
during each of the three years which follow thereafter, such options
to be exercisable for a period of 10 years from the date of grant, at
the price of TWENTY TWO AND 84,375/100,000ths DOLLARS ($22.84375) per
share of Silverleaf's $0.01 par value common stock.
(d) MOVING EXPENSES: Silverleaf shall pay Employee's
reasonable moving expenses to Dallas, Texas, such expenses to be
approved in advance by Silverleaf.
(e) COMPANY VEHICLE: Silverleaf shall furnish Employee a
company owned vehicle for use by Employee in performing his duties,
and Silverleaf shall pay all expenses associated therewith.
(f) 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. CONFIDENTIALITY.
(a) NONDISCLOSURE AND NONUSE: Employee acknowledges that
during his employment with Silverleaf, he may have access to and
become acquainted with Silverleaf Confidential Information, as defined
below. Except as Employee's duties during his employment with
Silverleaf may require or Silverleaf may otherwise consent in writing,
Employee agrees that he shall not at any time disclose or use,
directly or indirectly, either during or subsequent to his employment
with Silverleaf, any Silverleaf Confidential Information.
2
6
(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. Provided, however, "Silverleaf
Confidential Information" shall not include information that is not
unique to Silverleaf, information that is generally known in the
timeshare industry or information that was known by Employee prior to
his employment with Silverleaf other than information acquired by
Silverleaf pursuant to its acquisition of Bull's Eye Marketing, Inc.
and its marketing know-how.
SECTION 5. NON-INTERFERENCE. Employee further agrees that
during his employment and for a period of twelve (12) months thereafter,
Employee shall not, either on his 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,
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.
SECTION 6. NONCOMPETITION.
(a) COVENANT: Employee covenants and agrees that he or
she shall not, for a period of one (1) year 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
3
7
Silverleaf or its affiliates immediately prior to the effective date
of any Termination, in any county or similar geographic area in 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 12 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.
SECTION 7. INJUNCTIVE RELIEF. Employee acknowledges that a
breach of Sections 4, 5 or 6 hereof would cause irreparable damage to
Silverleaf and/or its affiliates, and in the event of Employee's breach of the
provisions of Sections 4, 5 or 6 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 4, 5 and 6
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 8. EMPLOYEE INVESTMENTS. Anything to the contrary
herein notwithstanding, Employee: (1) shall not be prohibited from investing
his assets in such form or such manner as will not, in the aggregate, detract
from the performance by Employee of his duties hereunder and will not violate
the provisions of Sections 4, 5 or 6 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
affiliates) more than two percent
4
8
(2%) of the stock in any company, other than Silverleaf, which is engaged in
the timeshare business.
SECTION 9. TERMINATION. This Agreement shall terminate: (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, incapacity
due to Employee's physical or mental illness as determined in Silverleaf's sole
discretion or Employee reaching Silverleaf's normal retirement age (the
"Termination"). In the event of Termination, Employee shall be entitled to the
following:
(a) VOLUNTARY TERMINATION, OR FOR GOOD CAUSE: If
Employee voluntarily terminates his employment, or if his employment
is terminated for Good Cause or after the initial three (3) year term
of this Agreement, Employee shall be entitled to no severance pay. At
the Termination, the payment to Employee of compensation earned to
date shall be in full satisfaction of all claims against Silverleaf
under this Agreement. Good Cause shall be deemed to exist if the
Employee's employment is terminated because 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 governing employee performance;
[3] Refuses to obey reasonable orders in a manner
that amounts to insubordination;
[4] Commits clearly dishonest acts toward
Silverleaf; or
[5] Becomes incapacitated as set forth above,
dies or reaches Silverleaf's normal
retirement age.
(b) INVOLUNTARY TERMINATION WITHOUT GOOD CAUSE: If
Silverleaf terminates Employee's employment during the initial three
(3) year term of this Agreement, other than for Good Cause, Employee
shall also be paid severance pay equal to his base compensation set
forth in Section 3(a) of this Agreement, payable in semi- monthly
payments on the 1st and 15th days of each month for the 12 months
following the Termination. Provided, however upon Employee's
full-time reemployment following such Termination, the semi-monthly
payments still due to Employee by Silverleaf shall be decreased by the
amount of Employee's semi-monthly salary from his reemployment for the
remaining period during which the semi-monthly payments are otherwise
due. For purposes of determining such decrease, Employee's total
salary and bonuses, exclusive of any fringe benefits, for the first
twelve months of his reemployment shall
5
9
be divided by twenty-four and the result shall be deemed to be
Employee's semi-monthly salary from his reemployment.
(c) CONTINGENCY: Payment of any amounts due under this
Section is also contingent upon return of all Silverleaf's property as
outlined below.
SECTION 10. RETURN OF MATERIALS AND VEHICLES. Employee
understands and agrees that any training manuals, sales and promotional
material, vehicles or other equipment provided to him 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.
SECTION 11. NON-BINDING ALTERNATE DISPUTE RESOLUTION. Except for
actions brought by Silverleaf pursuant to Section 7 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 12. 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.
6
10
SECTION 13. 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 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 corporation.
(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 14. 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.
SECTION 15. 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 16. 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 17. 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.
(a) SILVERLEAF:
Silverleaf Resorts, Inc.
Attention: Robert E. Mead, Chief Executive Officer
1221 Riverbend, Suite 120
Dallas, Texas 75247
7
11
(b) EMPLOYEE:
Jim Oestreich
1711 Muirfield Drive
Qxnard, California 93030
SECTION 18. 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 19. 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 20. EFFECTIVE DATE. This Agreement is executed effective
as of December 30, 1997 (the "Effective Date"). Provided, however, the
compensation payable hereunder shall only commence upon Employee's commencement
of his full-time services to Silverleaf, which shall occur on or before March
1, 1998. If Employee fails to commence his full- time services by that date
without the written consent of Silverleaf, then this Agreement shall terminate
and be null and void for all purposes.
Executed this 20th day of January, 1998.
"SILVERLEAF"
SILVERLEAF RESORTS, INC.
By: /s/ ROBERT E. MEAD
--------------------------------------
Robert E. Mead, Chief Executive Officer
"EMPLOYEE"
/S/ JIM OESTREICH
---------------------------------------
JIM OESTREICH
8