**Exhibit 10.1.4**

 

**EMPLOYMENT AGREEMENT**

 

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

 

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

 

WHEREAS, the Company hasoffered employment to Employee subject to the execution of this Agreement andEmployee accepted employment on such terms;

 

NOW, THEREFORE, inconsideration of the above premises and the mutual covenants contained in thisAgreement and other good and valuable consideration, the receipt andsufficiency of all of which are hereby acknowledged, the parties agree asfollows:

 

**ARTICLEI: EMPLOYMENT AND DUTIES**

 

1.1           Effective Date of Employment.  The Company agrees to employ Employee andEmployee 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 inArticle 2 of this Agreement, subject to the terms and conditions of thisAgreement.

 

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

 

1.3           Position, Duties, andObligations.  The Companyand Employee agree that Employee shall serve as Chief Executive Officer andPresident of WSFC and WSSI.  Employeeshall report to and shall perform such duties and exercise such powerspertaining to the business of the Company as may be determined from time totime by the Chief Executive Officer of WSC. Employee acknowledges receipt of the Company’s policies and proceduresin the form set forth as “Exhibit A” hereto, and agrees to abide byand be bound by said policies and procedures as if they were fully set forth inthis Agreement.

 

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

 

1.5           Duty of Loyalty.  Employee acknowledges and agrees that at alltimes while Employee is employed under this Agreement, Employee owes afiduciary duty of loyalty, fidelity and allegiance to act at all times in thebest 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 oraffiliates.  In keeping with theseduties, Employee shall make full disclosure to the Company of all businessopportunities pertaining to the Company’s business and shall not appropriatefor Employee’s own benefit business opportunities concerning the subject matterof the fiduciary relationship.

 

**ARTICLEII: TERM, TERMINATION, AND SEVERANCE**

 

2.1           Initial Term. Unlessotherwise terminated in accordance with this Agreement, Employee’s employmentshall 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 (RenewalTerms).

 

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

 

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

 

B.            Notwithstandinganything 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.            Automaticallyand immediately should one of the following events occur:

 

1.             Death.  Employee dies; or

 

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2.             Disability.  Employee becomes totally and permanentlydisabled, meaning Employee’s inability for a period of three (3) months,to perform his duties contemplated by this Agreement, such that he does notconstitute a Qualified Individual with a Disability under the terms of theAmericans with Disabilities Act of 1990. Such total and permanent disability shall be determined by the Companybased on medical and other evidence satisfactory to it; or

 

D.            For Cause.  At any time by the Company, by written noticeto Employee, terminating this Agreement and discharging Employee for Cause, asdefined in this section of this Agreement.

 

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

 

i.              Employee has materiallybreached this Agreement.  A materialbreach of this Agreement shall include but shall not be limited to a habitualor repeated neglect of Employee’s duties (illness, injury or incapacity of theEmployee shall not constitute “Cause”);

 

ii.             Employee has breached hisduty of loyalty to the Company;

 

iii.            Employee has committed anact of gross negligence, in connection with the performance of his duties thatis injurious to the business of the Company;

 

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

 

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

 

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

 

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

Inthe event Employee’s employment is terminated by the Company without “Cause,”as defined in this Agreement, then Employee shall be entitled to a SeveranceBenefit as set forth in Section 2.3, below.  Under no circumstances shall Employee receiveseverance 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 usedin this Agreement shall refer to any corporation or other business entity inwhich Western Sizzlin’ Corporation owns any interest.

 

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

 

A.            If terminationwithout Cause occurs during the Initial Term Employee shall be entitled to aseverance payment in an amount equal to three (3) months’ base salary atthe rate then in effect.  If terminationwithout Cause occurs during the first Renewal Term Employee shall be entitledto a severance payment in an amount equal to six (6) months’ base salaryat the rate then in effect. If termination without Cause occurs during thesecond Renewal Term Employee shall be entitled to a severance payment in anamount equal to nine (9) months’ base salary at the rate then in effect.If termination without Cause occurs during the third or any subsequent RenewalTerm Employee shall be entitled to a severance payment in an amount equal totwelve (12) months’ base salary at the rate then in effect. If the Companyterminates this Agreement without Cause, the Company shall have the right atits 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 shallnot be entitled to, and shall not receive any cash bonus paid for any year inwhich the termination occurs, on or pro rata basis or otherwise.  The base salary portion of the severanceshall be payable, at the Company’s option, in a lump sum or in equal monthlyinstallments consistent with the Company’s ordinary payroll practices.

 

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

 

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Companyshall reimburse Employee for all premiums paid by Employee for saidcontinuation coverage for a period of three-months.

 

**ARTICLEIII: 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’sstandard payroll practices.  Employee’sbase salary may be reviewed and increased at the commencement of any RenewalTerm, or from time to time by the Chief Executive Officer of WSC in his solediscretion and, after any such review and change, Employee’s new level of basesalary shall be Employee’s base salary for purposes of this Agreement until theeffective date of any subsequent change.

 

3.2           Bonus Compensation.  While Employee is actively employed underthis 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 chargeof 20% of any incremental reinvestment of capital during each year (“BonusCompensation”).  The charge forreinvestment of capital shall be applied annually year over year but pro ratedbased upon the month in which the invested capital is contributed by theCompany.  For purposes hereof, “Cash Flows”shall mean the Company’s earnings before interest, taxes, depreciation andamortization (“EBITDA”), less capital expenditures and excluding any paymentsto or obligations to make severance payments to James C. Verney.  The Bonus Compensation shall be due andpayable to Employee within thirty (30) days after it is determined by theCompany.  The following exampleillustrates the computation of Bonus Compensation:

 

Assumptions:

 

·      2008 Cash Flow of $2.5 million

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

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

 

BonusCalculation:

 

·      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 shallbe allowed to participate, on the same basis generally as other 

 

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employeesof the Company, in all general employee benefit plans and programs, includingimprovements or modifications of the same, which on the Effective Date orthereafter 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, retirementplans, or other benefit programs, shall be subject to the applicable terms andconditions of the particular plans or programs. This paragraph shall not be construed as a commitment on the part of theCompany to establish, maintain, or continue any such plans or programs.  The Company specifically reserves the rightto amend, alter, or terminate such plans or programs, as it deemsappropriate.  Notwithstanding any of theforegoing, Employee’s family shall also be entitled to enroll in the Company’shealth and dental insurance plans.

 

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

 

·              A monthly car allowance of $1,500 per month.  Except for reimbursement of fuel costsincurred for business travel which shall be reimbursed pursuant to Section 3.5,this car allowance shall be inclusive of all vehicle expenses including leaseor 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 inAustin, Texas; and

 

3.5           Reimbursement of Expenses.  The Company shall reimburse Employee for allordinary and necessary expenses in a reasonable amount that Employee incurs inperforming his duties under this Agreement, including, but not limited totravel and entertainment.  Such expenseswill be accounted for and reimbursed through Company’s normal expense-reportingand approval process.  Company shall alsoreimburse Employee for round trip coach airfare between Roanoke, Virginia andAustin, Texas once a month for use by Employee or Employee’s spouse which shallexpire on a monthly basis if not used.

 

**ARTICLE IV: PROTECTION OF INFORMATION**

 

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

 

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shallplace Employee in a position to develop business good will on behalf of Companyor its affiliates.

 

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

 

4.3           Confidential Information.  “Confidential Information” shall mean allfinancial, 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 orsystem for direct sales, including lead acquisition systems, telephone contactsystems and all other confidential sales, training and marketing systemsdeveloped 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 andcommitments of the Business;

 

iii.            All technical, andnon-technical trade secrets, ideas, research and development, know-how,formulas, software programs, software documentation, source codes, computerdatabases (including without limitation, data and related documentation), allother proprietary rights of the Business, all copies and tangible embodimentsthereof (in whatever form or medium) compositions, manufacturing, design andproduction processes and techniques, technical data, proprietary technicalinformation, data processing reports, and other technical information andsystems relating to the goods and services of the Business; designs, drawings,specifications; pricing and cost information; customer, vendor, licensor anddistributor lists and data;

 

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

 

v.             Business, advertising andmarketing plans, data and proposals for presently offered or prospectiveproducts or services of the Business; and

 

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vi.                                   Any other materials or data of any kindfurnished to Employee by Company in order to enable Employee to perform hisduties or developed by Employee on behalf of Company or at Company’s directionor for Company’s use or otherwise in connection with Employee’s employment withCompany.

 

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

 

4.4           Restrictions on Use ofConfidential 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 businessof the Company or any of its affiliates) any such Confidential Information orproprietary data of the Company or any of its affiliates unless such disclosureis required by the order of a court of competent jurisdiction or a governmentalagency having authority to issue such an order. Upon termination of his employment under this Agreement, Employee shallexecute whatever instruments are necessary to promptly return to Company anyand 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 suchinformation.

 

4.5           Patents and Copyrights.  Any and all writings, analysis, improvements,procedures, software programs, source codes, backups, support systems, softwaredocumentation, methods, discoveries, concepts and techniques (collectively the “IntellectualProperty”), or any one or more of the foregoing, which Employee may make,conceive, discover or develop, either solely or jointly with any other personor persons, at any time during the term of this Agreement, whether duringworking hours or at any other time and whether at the request or upon thesuggestion of the Company or otherwise, which relate to or are useful inconnection with any business now or hereafter carried on or contemplated by theCompany, including, without limitation, developments or expansions of itspresent fields of operations, shall be the sole and exclusive property of theCompany.  Employee shall make fulldisclosure to Company of all Intellectual Property, and Employee shall doeverything necessary or desirable to vest the absolute title thereto inCompany.  Employee shall write andprepare all specifications and procedures regarding such

 

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IntellectualProperty and otherwise aid and assist the Company so that Company can prepareand present applications for patent or copyright and can secure such patent orcopyright whenever possible, as well as reissues, renewals and extensionsthereof, and can obtain the record title to such patent or copyright so Companyshall be the sole and absolute owner in all countries in which it may desire tohave patent or copyright protection. Employee agrees that he shall not be entitled to any additional or specialcompensation or reimbursement in connection with any and all such IntellectualProperty.  Employee represents andwarrants that he does not currently own any Intellectual Property which is notin the public domain.

 

4.6           Remedies.  Employee acknowledges that money damageswould not be a sufficient remedy for any breach of this Article byEmployee, and the Company shall be entitled to enforce the provisions of this Article byspecific performance and injunctive relief as remedies for such breach or anythreatened breach.  Such remedies shallnot be deemed the exclusive remedies for a breach of this Article, but shall bein 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 suchbreach and remedies available to the Company pursuant to other agreements withEmployee.

 

**ARTICLE V: NON-SOLICITATION AND NON-COMPETITION OBLIGATIONS**

 

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

 

5.2           Non-competition Agreement.  Employee acknowledges that Company is engagedin a business involving relationships with customers and franchisees, thesuccess of which business is in large part due to the undistributedcontinuation of such relationships with customers and franchisees, and that allgoodwill created as a result of any such contact belongs to Company.

 

Employeeacknowledges his duty of loyalty to the Company and agrees that during the termof Employee’s employment, Employee will not directly or indirectly, for his ownaccount or for the account of another, cause, encourage, induce, attempt toinduce, or aid, assist, or abet any other party or person in inducing orattempting to induce any customer of Company with whom the Employee actuallydoes or did business for Company or had personal contact

 

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asan employee of the Company for the benefit of Company, to terminate or changein any manner adverse to the Company  anyexisting relationship with the Company or to engage or employ Employee (whetheras an employee or independent contractor) or any other person to provideservices comparable to those provided by Employer to its customers during theterm of this Agreement, other than for the benefit of the Company.

 

Inorder to further protect the Company’s legitimate business interests which area product of substantial effort and investment by Company, including, withoutlimitation, and the Company’s goodwill, the Employee agrees that if hisemployment with the Company terminates, voluntarily or otherwise, for anyreason whatsoever, Employee shall not, directly or indirectly, for himself oron behalf or in conjunction with any other person (including, withoutlimitation, any sole proprietor, general partnership, limited liabilitycompany, limited liability partnership, limited partnership, business trust,corporation or other entity) for a period of up to twenty-four (24) monthsfollowing termination of his employment:

 

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

 

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

 

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

 

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

 

Employeeacknowledges that he has carefully read and considered the provisions of thisagreement and agrees that the restrictions contained in this Article arereasonable and necessary in order to protect the legitimate interests of theCompany and that any breach of these covenants by Employee will cause Companyirreparable harm for which there exists no adequate remedy at law.  Employee, therefore, acknowledges that in theevent of his violation of the provisions of this Article Company shall beentitled to obtain from any court of competent jurisdiction preliminary and/orpermanent injunctive relief arising from such violation, which rights shall becumulative and in addition to any other rights or remedies to which the Companymay be entitled.  Employee is fully awareof the restrictions that this agreement places upon Employee’s futureemployment with someone other than the Company.

 

**ARTICLE VI: GENERAL**

 

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

 

6.2           Applicable Law.  The validity and construction of thisAgreement or any of its provisions shall be governed by and determined inaccordance with the laws of the State of Virginia.

 

6.3           Entire Agreement.  This Agreement contains the entireunderstanding between the parties and supersedes all other oral and writtenagreements or understandings between them relating to Employee’semployment.  No modification or additionto this Agreement, or waiver or cancellation of any provision under thisAgreement, shall be valid except by a written agreement signed by both parties.

 

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

 

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6.5           Notices.  Any notice to be delivered under thisAgreement shall be given in writing and delivered, personally, via telefax orsimilar 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 whenactually received by the party to whom the notice is directed.

 

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

 

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

 

6.8           Severability.  If any portion of this Agreement shall beinvalid or unenforceable, the parties agree that such invalidity orunenforceability shall in no way affect the validity or enforceability of anyother portion of this Agreement.

 

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

 

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

 

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

 

Datedthis 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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