Exhibit 10.1.4


 


EMPLOYMENT AGREEMENT


 


THIS AGREEMENT is entered
into effective this 5th day of March, 2009, by and between Western Sizzlin
Corporation, a Delaware corporation (“WSC”), Western Sizzlin Franchise
Corporation a Delaware Corporation and wholly-owned subsidiary of WSC (“WSFC”),
Western Sizzlin Stores, Inc., a Delaware corporation and wholly owned
subsidiary of WSC (“WSSI”), and Robert Moore (“Employee”).


 


WHEREAS, WSFC and WSSI
(collectively the “Company”) are engaged in the restaurant and restaurant
franchising business (the “Business”), and,


 


WHEREAS, the Company has
offered employment to Employee subject to the execution of this Agreement and
Employee accepted employment on such terms;


 


NOW, THEREFORE, in
consideration of the above premises and the mutual covenants contained in this
Agreement and other good and valuable consideration, the receipt and
sufficiency of all of which are hereby acknowledged, the parties agree as
follows:


 


ARTICLE
I: EMPLOYMENT AND DUTIES


 


1.1           Effective Date of Employment.  The Company agrees to employ Employee and
Employee agrees to be employed by the Company, beginning as of July 15,
2008 (the “Effective Date”), and continuing for the period of time set forth in
Article 2 of this Agreement, subject to the terms and conditions of this
Agreement.


 


1.2           Location of Employment.  Employee will perform his services under this
Agreement at the principal office of the Company, located in Roanoke, Virginia.


 


1.3           Position, Duties, and
Obligations.  The Company
and Employee agree that Employee shall serve as Chief Executive Officer and
President of WSFC and WSSI.  Employee
shall report to and shall perform such duties and exercise such powers
pertaining to the business of the Company as may be determined from time to
time by the Chief Executive Officer of WSC. 
Employee acknowledges receipt of the Company’s policies and procedures
in the form set forth as “Exhibit A” hereto, and agrees to abide by
and be bound by said policies and procedures as if they were fully set forth in
this Agreement.


 

















 


1.4           Other Interests. Employee
agrees that his employment with the Company will be full-time and that he will
devote his best efforts and full professional attention to the business of the
Company.  Except for his employment with
the Company, during the term of this Agreement, Employee shall not enter into
any employment, independent contractor relationship, or consulting arrangement,
with any other person or entity, or provide services to any other person or
entity, without the prior written consent of the Company.


 


1.5           Duty of Loyalty.  Employee acknowledges and agrees that at all
times while Employee is employed under this Agreement, Employee owes a
fiduciary duty of loyalty, fidelity and allegiance to act at all times in the
best interests of the Company and to do no act which would injure the business,
interests, or reputation of the Company or any of its subsidiaries or
affiliates.  In keeping with these
duties, Employee shall make full disclosure to the Company of all business
opportunities pertaining to the Company’s business and shall not appropriate
for Employee’s own benefit business opportunities concerning the subject matter
of the fiduciary relationship.


 


ARTICLE
II: TERM, TERMINATION, AND SEVERANCE


 


2.1           Initial Term. Unless
otherwise terminated in accordance with this Agreement, Employee’s employment
shall commence on the Effective Date and shall continue until December 31,
2009 (the “Initial Term”).  Thereafter,
the Agreement shall automatically renew for subsequent one year terms (Renewal
Terms).


 


2.2           Termination.  Termination of the Employee’s employment
shall be governed solely by this Agreement and shall not be governed by
generally applicable policies of the Company concerning disciplinary action or
termination of employment.  Employee’s
employment shall be terminated only in one of the following ways:


 


A.            At any time by mutual
written agreement of both parties to this Agreement;  or


 


B.            Notwithstanding
anything in Section 2.1 of this Agreement to the contrary, upon thirty
(30) days written notice from the Company to Employee , or upon thirty (30)
days written notice from Employee to Company; or


 


C.            Automatically
and immediately should one of the following events occur:


 


1.             Death.  Employee dies; or


 


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2.             Disability.  Employee becomes totally and permanently
disabled, meaning Employee’s inability for a period of three (3) months,
to perform his duties contemplated by this Agreement, such that he does not
constitute a Qualified Individual with a Disability under the terms of the
Americans with Disabilities Act of 1990. 
Such total and permanent disability shall be determined by the Company
based on medical and other evidence satisfactory to it; or


 


D.            For Cause.  At any time by the Company, by written notice
to Employee, terminating this Agreement and discharging Employee for Cause, as
defined in this section of this Agreement.


 


1.             Cause. Termination
by the Company of Employee’s employment for “Cause” means:


 


i.              Employee has materially
breached this Agreement.  A material
breach of this Agreement shall include but shall not be limited to a habitual
or repeated neglect of Employee’s duties (illness, injury or incapacity of the
Employee shall not constitute “Cause”);


 


ii.             Employee has breached his
duty of loyalty to the Company;


 


iii.            Employee has committed an
act of gross negligence, in connection with the performance of his duties that
is injurious to the business of the Company;


 


iv.            Employee has committed an
act of gross misconduct relating to his employment or the Company’s business,
including, but not limited to, theft or embezzlement of the Company’s property
or money, or an act of fraud against the Company;


 


v.             Employee is convicted of a
felony, or a crime involving moral turpitude.


 


In
the event Employee’s employment is terminated at any time by mutual written
agreement of both parties, voluntarily terminated by Employee upon thirty (30)
days notice, automatically and immediately terminated upon Employee’s death or
total and permanent disability, or terminated for “Cause”, as defined in this
Agreement, then following termination, Employee shall not be entitled to
payment of further compensation (whether base salary, bonus compensation, or
severance) or benefits of any type (other than Employee’s right to “vested”
benefits under the Company’s benefit plans or continuing insurance coverage
under the Company’s Health Benefit Plan pursuant to the Consolidated Omnibus
Budget Reconciliation Act (COBRA) at Employee’s sole expense) under this
Agreement.  If Employee terminates this
Agreement upon 


 


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thirty
(30) days notice, the Company shall have the right at its option, to require
Employee to immediately leave the Company’s premises; provided, that the
Company shall be obligated to pay Employee’s base salary during the 30-day
notice period.


In
the event Employee’s employment is terminated by the Company without “Cause,”
as defined in this Agreement, then Employee shall be entitled to a Severance
Benefit as set forth in Section 2.3, below.  Under no circumstances shall Employee receive
severance under this Agreement if Employee, after termination from the Company,
is employed as an executive in a portfolio company of Western Sizzlin’
Corporation.  “Portfolio company” as used
in this Agreement shall refer to any corporation or other business entity in
which Western Sizzlin’ Corporation owns any interest.


 


2.3           Severance.  In the event that the Company terminates
Employee’s employment at any time, upon thirty (30) days’ written notice,
without Cause, then Employee’s sole remedy shall be payment of the following
Severance Benefit:


 


A.            If termination
without Cause occurs during the Initial Term Employee shall be entitled to a
severance payment in an amount equal to three (3) months’ base salary at
the rate then in effect.  If termination
without Cause occurs during the first Renewal Term Employee shall be entitled
to a severance payment in an amount equal to six (6) months’ base salary
at the rate then in effect. If termination without Cause occurs during the
second Renewal Term Employee shall be entitled to a severance payment in an
amount equal to nine (9) months’ base salary at the rate then in effect.
If termination without Cause occurs during the third or any subsequent Renewal
Term Employee shall be entitled to a severance payment in an amount equal to
twelve (12) months’ base salary at the rate then in effect. If the Company
terminates this Agreement without Cause, the Company shall have the right at
its option, to require Employee to immediately leave the Company’s premises;
provided, that the Company shall be obligated to pay (as additional severance)
Employee’s base salary during the 30-day notice period.


 


B.            Employee shall
not be entitled to, and shall not receive any cash bonus paid for any year in
which the termination occurs, on or pro rata basis or otherwise.  The base salary portion of the severance
shall be payable, at the Company’s option, in a lump sum or in equal monthly
installments consistent with the Company’s ordinary payroll practices.


 


C.            In the event
Employee elects continuing insurance coverage under the Company’s Health
Benefit Plan pursuant to the Consolidated Omnibus Budget Reconciliation Act
(COBRA) following any termination without Cause, then, in addition to payment
of salary as set forth above, the 


 


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Company
shall reimburse Employee for all premiums paid by Employee for said
continuation coverage for a period of three-months.


 


ARTICLE
III: COMPENSATION


 


3.1           Base Salary.  During the Initial Term of this Agreement,
Employee’s gross base salary shall be Two Hundred Fifty Thousand Dollars ($
250,000.00) per year, paid in equal installments in accordance with the Company’s
standard payroll practices.  Employee’s
base salary may be reviewed and increased at the commencement of any Renewal
Term, or from time to time by the Chief Executive Officer of WSC in his sole
discretion and, after any such review and change, Employee’s new level of base
salary shall be Employee’s base salary for purposes of this Agreement until the
effective date of any subsequent change.


 


3.2           Bonus Compensation.  While Employee is actively employed under
this Agreement, and in addition to Employee’s Base Salary as set forth above,
Employee is eligible to receive an annual performance-based bonus.  Such bonus shall be equal to twenty percent
(20%) of Cash Flows in excess of $ 2.3 million annually as adjusted by a charge
of 20% of any incremental reinvestment of capital during each year (“Bonus
Compensation”).  The charge for
reinvestment of capital shall be applied annually year over year but pro rated
based upon the month in which the invested capital is contributed by the
Company.  For purposes hereof, “Cash Flows”
shall mean the Company’s earnings before interest, taxes, depreciation and
amortization (“EBITDA”), less capital expenditures and excluding any payments
to or obligations to make severance payments to James C. Verney.  The Bonus Compensation shall be due and
payable to Employee within thirty (30) days after it is determined by the
Company.  The following example
illustrates the computation of Bonus Compensation:


 


Assumptions:


 


·      2008 Cash Flow of $2.5 million


·      Reinvestment of capital on June 30, 2008 of $1
million


·      20% charge for reinvested capital of $200,000/6
months is $100,000


 


Bonus
Calculation:


 


·      Increase in Cash Flow of $200,000


·      20% charge for reinvested capital of $100,000


·      Adjusted Cash Flow is $100,000


·      Multiplied by 20% results in Bonus Compensation of $20,000


 


3.3           General Employee Benefits.  While employed by the Company, Employee shall
be allowed to participate, on the same basis generally as other 


 


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employees
of the Company, in all general employee benefit plans and programs, including
improvements or modifications of the same, which on the Effective Date or
thereafter are made available by the Company to the Company’s employees.  Such benefit plans, and programs may include,
without limitation, medical, health, and dental care, life insurance,
disability protection, and pension plans. 
Employee’s participation under any group insurance programs, retirement
plans, or other benefit programs, shall be subject to the applicable terms and
conditions of the particular plans or programs. 
This paragraph shall not be construed as a commitment on the part of the
Company to establish, maintain, or continue any such plans or programs.  The Company specifically reserves the right
to amend, alter, or terminate such plans or programs, as it deems
appropriate.  Notwithstanding any of the
foregoing, Employee’s family shall also be entitled to enroll in the Company’s
health and dental insurance plans.


 


3.4           Other Employee Compensation.  While employed with the Company, Employee
shall also be entitled to the following additional compensation:


 


·              A monthly car allowance of $1,500 per month.  Except for reimbursement of fuel costs
incurred for business travel which shall be reimbursed pursuant to Section 3.5,
this car allowance shall be inclusive of all vehicle expenses including lease
or loan payments, maintenance and insurance;


 


·              A temporary housing allowance not to exceed
$1,500.00 per month for so long as Employee is maintaining his existing home in
Austin, Texas; and


 


3.5           Reimbursement of Expenses.  The Company shall reimburse Employee for all
ordinary and necessary expenses in a reasonable amount that Employee incurs in
performing his duties under this Agreement, including, but not limited to
travel and entertainment.  Such expenses
will be accounted for and reimbursed through Company’s normal expense-reporting
and approval process.  Company shall also
reimburse Employee for round trip coach airfare between Roanoke, Virginia and
Austin, Texas once a month for use by Employee or Employee’s spouse which shall
expire on a monthly basis if not used.


 


ARTICLE IV: PROTECTION OF INFORMATION


 


4.1           Disclosure.  The Company shall disclose to Employee, or
place Employee in a position to have access to or to develop, trade secrets or
confidential information of the Company or its affiliates; and/or shall entrust
Employee with business opportunities of the Company or its affiliates; and/or 


 


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shall
place Employee in a position to develop business good will on behalf of Company
or its affiliates.


 


4.2           Property of the Company.  All Confidential Information, as defined
below, shall be the sole and exclusive property of the Company and shall be
subject to the use restrictions set forth below.


 


4.3           Confidential Information.  “Confidential Information” shall mean all
financial, advertising, marketings, sales, computer systems, computer software,
and any other information relating to the Business, its intellectual property,
trade secrets, proprietary information, customers, vendors, distributors,
licensors and employees, including, without limitation, any information,
knowledge, data, forms, manuals or systems relating to:


 


i.              Any apparatus, formula or
system for direct sales, including lead acquisition systems, telephone contact
systems and all other confidential sales, training and marketing systems
developed or used by the Employee or Company in connection with selling,
marketing and providing the goods and services of the Business;


 


ii.             Customer, vendor, licensor,
distributor and personnel files of the Business and all contracts and
commitments of the Business;


 


iii.            All technical, and
non-technical trade secrets, ideas, research and development, know-how,
formulas, software programs, software documentation, source codes, computer
databases (including without limitation, data and related documentation), all
other proprietary rights of the Business, all copies and tangible embodiments
thereof (in whatever form or medium) compositions, manufacturing, design and
production processes and techniques, technical data, proprietary technical
information, data processing reports, and other technical information and
systems relating to the goods and services of the Business; designs, drawings,
specifications; pricing and cost information; customer, vendor, licensor and
distributor lists and data;


 


iv.            Financial reports, budgets
or projections for all or any portion of the Business;


 


v.             Business, advertising and
marketing plans, data and proposals for presently offered or prospective
products or services of the Business; and


 


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vi.                                   Any other materials or data of any kind
furnished to Employee by Company in order to enable Employee to perform his
duties or developed by Employee on behalf of Company or at Company’s direction
or for Company’s use or otherwise in connection with Employee’s employment with
Company.


 


Confidential Information
shall remain the sole property of Company, and shall also include trade secrets
as defined in 18 U.S.C. § 1839(3); provided, however, that Confidential
Information shall not include any information known generally to the public
(other than as a result of unauthorized disclosure by the Employee or the
Company or any other past, present or future employee of Company) or any
information of a type not otherwise considered confidential by persons engaged
in the same business or a business similar to that conducted by the Company or
any of its affiliates.  Confidential
information shall also include “Intellectual Property,” as defined and
described in Section 4.5 of this Agreement.


 


4.4           Restrictions on Use of
Confidential Information. 
During the term of employment hereunder and indefinitely thereafter,
Employee shall not, without the written consent of the Company, disclose or use
(except in the course of his employment hereunder and in furtherance of the business
of the Company or any of its affiliates) any such Confidential Information or
proprietary data of the Company or any of its affiliates unless such disclosure
is required by the order of a court of competent jurisdiction or a governmental
agency having authority to issue such an order. 
Upon termination of his employment under this Agreement, Employee shall
execute whatever instruments are necessary to promptly return to Company any
and all copies he may have of any of the materials, Confidential Information,
data and other items referred to above, and shall not retain or use any such
information.


 


4.5           Patents and Copyrights.  Any and all writings, analysis, improvements,
procedures, software programs, source codes, backups, support systems, software
documentation, methods, discoveries, concepts and techniques (collectively the “Intellectual
Property”), or any one or more of the foregoing, which Employee may make,
conceive, discover or develop, either solely or jointly with any other person
or persons, at any time during the term of this Agreement, whether during
working hours or at any other time and whether at the request or upon the
suggestion of the Company or otherwise, which relate to or are useful in
connection with any business now or hereafter carried on or contemplated by the
Company, including, without limitation, developments or expansions of its
present fields of operations, shall be the sole and exclusive property of the
Company.  Employee shall make full
disclosure to Company of all Intellectual Property, and Employee shall do
everything necessary or desirable to vest the absolute title thereto in
Company.  Employee shall write and
prepare all specifications and procedures regarding such


 


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Intellectual
Property and otherwise aid and assist the Company so that Company can prepare
and present applications for patent or copyright and can secure such patent or
copyright whenever possible, as well as reissues, renewals and extensions
thereof, and can obtain the record title to such patent or copyright so Company
shall be the sole and absolute owner in all countries in which it may desire to
have patent or copyright protection. 
Employee agrees that he shall not be entitled to any additional or special
compensation or reimbursement in connection with any and all such Intellectual
Property.  Employee represents and
warrants that he does not currently own any Intellectual Property which is not
in the public domain.


 


4.6           Remedies.  Employee acknowledges that money damages
would not be a sufficient remedy for any breach of this Article by
Employee, and the Company shall be entitled to enforce the provisions of this Article by
specific performance and injunctive relief as remedies for such breach or any
threatened breach.  Such remedies shall
not be deemed the exclusive remedies for a breach of this Article, but shall be
in addition to all remedies available at law or in equity to the Company,
including the recovery of damages from Employee and his agents involved in such
breach and remedies available to the Company pursuant to other agreements with
Employee.


 


ARTICLE V: NON-SOLICITATION AND NON-COMPETITION OBLIGATIONS


 


5.1           Diversion of Employees.  During the term of Employee’s employment
under this Agreement, and for a period of twelve (12) months after the
termination of his employment with Company for any reason whatsoever, Employee
will not, directly or indirectly, (a) induce or attempt to influence any
employee of Company to terminate his employment with Company; (b) employ
or recommend for employment (other than in response to potential employers
seeking job references about employees they specifically identify by name) any
employee of the Company; or (c) identify for purposes of employment any
employee of Company.


 


5.2           Non-competition Agreement.  Employee acknowledges that Company is engaged
in a business involving relationships with customers and franchisees, the
success of which business is in large part due to the undistributed
continuation of such relationships with customers and franchisees, and that all
goodwill created as a result of any such contact belongs to Company.


 


Employee
acknowledges his duty of loyalty to the Company and agrees that during the term
of Employee’s employment, Employee will not directly or indirectly, for his own
account or for the account of another, cause, encourage, induce, attempt to
induce, or aid, assist, or abet any other party or person in inducing or
attempting to induce any customer of Company with whom the Employee actually
does or did business for Company or had personal contact


 


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as
an employee of the Company for the benefit of Company, to terminate or change
in any manner adverse to the Company  any
existing relationship with the Company or to engage or employ Employee (whether
as an employee or independent contractor) or any other person to provide
services comparable to those provided by Employer to its customers during the
term of this Agreement, other than for the benefit of the Company.


 


In
order to further protect the Company’s legitimate business interests which are
a product of substantial effort and investment by Company, including, without
limitation, and the Company’s goodwill, the Employee agrees that if his
employment with the Company terminates, voluntarily or otherwise, for any
reason whatsoever, Employee shall not, directly or indirectly, for himself or
on behalf or in conjunction with any other person (including, without
limitation, any sole proprietor, general partnership, limited liability
company, limited liability partnership, limited partnership, business trust,
corporation or other entity) for a period of up to twenty-four (24) months
following termination of his employment:


 


A.                                   Cause, encourage,
solicit, induce, attempt to induce, or aid, assist, or abet any other party or
person in inducing or attempting to induce, any actual customer of the Company,
with whom the Employee actually did business or had personal contact while
performing services for Company during the twelve (12) month period immediately
preceding the date of termination of Employee’s employment, to terminate or
change in any manner adverse to the Company any existing relationship with the
Company,


 


B.                                     Cause,
encourage, solicit, induce, attempt to induce, or aid, assist, or abet any
other party or person in inducing or attempting to induce, any actual customer
of the Company, with whom the Employee actually did business or had personal
contact while performing services for Company during the twelve month period
immediately preceding the date of termination of Employee’s employment, to
engage Employee or any other person other than Company to provide products or
services comparable to those provided by the Company to said customer, or


 


C.                                     Accept an
engagement as an independent contractor or employment as an employee with any
actual customer of the Company with whom the Employee actually did business or
had personal contact while performing services for Company during the twelve month
period immediately preceding the date of termination of Employee’s employment
(even if such engagement or employment offer is unsolicited) which involves
Employee providing products or services comparable to those provided by the
Company to its customers.


 


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Customer
shall mean any entity, including but not limited to manufacturers, licensees,
brokers and contractors that placed an order or assisted in any way in the
placement of an order with the Company for any of the Company’s products or
services.


 


Employee
acknowledges that he has carefully read and considered the provisions of this
agreement and agrees that the restrictions contained in this Article are
reasonable and necessary in order to protect the legitimate interests of the
Company and that any breach of these covenants by Employee will cause Company
irreparable harm for which there exists no adequate remedy at law.  Employee, therefore, acknowledges that in the
event of his violation of the provisions of this Article Company shall be
entitled to obtain from any court of competent jurisdiction preliminary and/or
permanent injunctive relief arising from such violation, which rights shall be
cumulative and in addition to any other rights or remedies to which the Company
may be entitled.  Employee is fully aware
of the restrictions that this agreement places upon Employee’s future
employment with someone other than the Company.


 


ARTICLE VI: GENERAL


 


6.1           Prior Agreements.  Employee represents to Company (a) that
there are no restrictions, agreements or understandings whatsoever to which
Employee is party which would prevent or make unlawful his execution or
performance of this Agreement or his employment hereunder, (b) that his
execution of this Agreement and his employment hereunder shall not constitute a
breach of any contract, agreement or understanding, oral or written, to which
he is a party or by which he is bound, and (c) that he is free and able to
execute this Agreement and, as to the Effective Date, to begin his employment
with Company.


 


6.2           Applicable Law.  The validity and construction of this
Agreement or any of its provisions shall be governed by and determined in
accordance with the laws of the State of Virginia.


 


6.3           Entire Agreement.  This Agreement contains the entire
understanding between the parties and supersedes all other oral and written
agreements or understandings between them relating to Employee’s
employment.  No modification or addition
to this Agreement, or waiver or cancellation of any provision under this
Agreement, shall be valid except by a written agreement signed by both parties.


 


6.4           Non-Waiver.  No delay or failure by either party to
exercise any right under this Agreement, and no partial or single exercise or
waiver of that right, shall constitute a waiver of that or any other or future
right.


 


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6.5           Notices.  Any notice to be delivered under this
Agreement shall be given in writing and delivered, personally, via telefax or
similar electronic transmission, or by certified mail, postage prepaid,
addressed to the Company or to Employee at its or his last known address.  Any such notice shall be deemed given when
actually received by the party to whom the notice is directed.


 


6.6           Successors and Assigns.  This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their heirs, personal
representative, successors and assigns, provided, however, in no event may
Employee assign to another any of his duties or obligations under this
Agreement.


 


6.7           Construction.  The language in all parts of this Agreement
shall in all cases be construed as a whole according to its fair meaning,
strictly neither for nor against any party hereto, and without implying a
presumption that the terms thereof shall be more strictly construed against one
party by reason of the rule of construction that a document is to be
construed more strictly against the person whom himself or through his agent
prepared the same.


 


6.8           Severability.  If any portion of this Agreement shall be
invalid or unenforceable, the parties agree that such invalidity or
unenforceability shall in no way affect the validity or enforceability of any
other portion of this Agreement.


 


6.9           Survival.  The provisions of this Agreement shall
survive the termination of Employee’s employment.


 


6.10         Review and Execution.  Employee acknowledges that he has read and
understands all of the terms of this Agreement, that he is executing the
Agreement voluntarily with full knowledge of its significance, that he has been
advised to consult with an attorney prior to signing the Agreement, and that
has been offered an opportunity to take a reasonable time to consider the
Agreement.


 


6.11         Recitals.  The recitals set forth at the beginning of
this Agreement are incorporated into the body of this Agreement as if set forth
fully herein.


 


Dated
this 5th day of March, 2009.


 


	
  “COMPANY”

  	
   

  	
  “EMPLOYEE”

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Sardar Biglari

  	
   

  	
  By:

  	
  /s/
  Robert Moore

  
	
   

  	
  Sardar
  Biglari

  	
   

  	
   

  	
  Robert
  Moore

  
	
   

  	
  Chief
  Executive Officer

  	
   

  	
   

  	
   

  
	
   

  	
  Western
  Sizzlin Corporation

  	
   

  	
   

  	
   

  



 


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