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EXHIBIT 10.9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"Agreement") is dated as of the day of March, 2000 by and between The
Enstar Group, Inc., a Georgia corporation (the "Company"), and Xxxx Xxxx
("Employee").
W I T N E S S E T H:
WHEREAS, the parties previously entered into that certain Employment
Agreement dated as of March , 2000 (the "Prior Employment Agreement");
WHEREAS, the parties desire to amend and restate the Prior Employment
Agreement and to replace the Prior Employment Agreement with this Agreement;
WHEREAS, this Agreement supercedes and replaces the Prior Employment
Agreement in its entirety and upon the parties entering into this Agreement,
the Prior Employment Agreement shall terminate and shall have no further force
or effect;
NOW, THEREFORE, for good and valuable consideration, the parties
hereto agree as follows:
Section 1. Engagement; Initial Term; Renewal. Subject to the terms
hereof, the Company hereby employs Employee on its behalf on and after the
"Commencement Date" (as hereinafter defined), and Employee hereby accepts such
employment. The initial term of the Agreement shall commence on , 2000
(the "Commencement Date") and continue until one (1) year therefrom ("Initial
Term"), subject to earlier termination as provided herein. Upon the expiration
of the Initial Term, this Agreement shall automatically renew for successive one
(1) year terms (each, a "Renewal Term"), subject to earlier termination as
provided herein, unless the parties mutually agree not to renew the Agreement.
Section 2. Duties. During the term of this Agreement, Employee shall
serve as Executive Vice President of the Company, with such responsibilities as
shall be specified from time to time by the Chief Executive Officer, and
subject at all times to the bylaws of the Company and the right of the Board of
Directors of the Company (the "Board") to determine the officers of the
Company, respectively. Employee shall, during the term of this Agreement, serve
the Company on a full-time basis, faithfully, diligently and competently and to
the best of Employee's ability, and will hold, in addition to the position set
forth above, such other positions in the Company and its subsidiaries and
affiliates, if any, to which Employee may be elected, appointed or assigned by
the Chief Executive Officer, from time to time, and will discharge such duties
in connection therewith as may from time to time be assigned to Employee.
During the term of this Agreement, Employee shall not engage in any other
employment without the prior consent of the Board of Directors of the Company
or the Chief Executive Officer.
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Section 3. Compensation; Benefits; Office Related Expenses;
Reimbursement of Travel Expenses. During the term of this Agreement, the
Company shall pay Employee for the services rendered to the Company an annual
salary ("Salary") of $50,000 payable in accordance with the Company's standard
payroll policies. At the end of each year during the term of this Agreement or
at such other time as deemed appropriate by the Board, the Board shall review
the Salary and the Board, in its sole discretion, may adjust the Salary (up or
down) by an amount determined by the Board. The Board may award such bonuses,
if any, at such times and in such amounts as the Board shall determine in its
sole discretion. Employee shall be entitled to such paid holidays, vacation and
other benefits customarily received by senior officers in accordance with
company policy. The Company shall not provide an office for the Employee and
the parties understand and agree that Employee shall be responsible for the
payment of any office related expenses (including, without limitation, expenses
related to office space, office personnel and office supplies) incurred by the
Employee during the term of this Agreement; provided, however, the Company
shall reimburse Employee up to $50,000 annually for office related expenses
incurred by Employee in connection with the performance of Employee's duties
and obligations under this Agreement upon receipt by the Company of itemized
written statements describing such expenses, together with such back-up
documentation as may be required by the Company under its business
reimbursement policies and procedures. The Company shall reimburse Employee for
reasonable travel and other direct out-of-pocket expenses that relate to the
Company which are incurred by Employee in connection with the performance of
Employee's duties and obligations under this Agreement upon receipt by the
Company of itemized written statements describing such expenses, together with
such back-up documentation as may be required by the Company under its business
reimbursement policies and procedures.
Section 4. Confidentiality. Employee shall not at any time after the
date of this Agreement divulge, furnish or make accessible to anyone (who has
not been authorized by the Company to have access to such information) any
"Confidential Information" (as herein defined) of the Company. "Confidential
Information" means any confidential or secret or internal data or information
concerning the Company which is not generally known to its competitors or which
is not generally available to the public and shall include, but not be limited
to (i) confidential or secret processes, inventions, discoveries, improvements,
formulas, research and development techniques, computer programs, software,
electronic codes, strategies, plans, material, devices, ideas, know-how, data,
whether patentable or not, with respect to any operations of the Company; (ii)
information about costs, profits, markets, sales, contracts and lists of
customers and suppliers of the Company; (iii) business, marketing and strategic
plans of the Company; (iv) forecasts, unpublished financial information,
budgets, projections, pricing arrangements with customers and suppliers, and
customer identities, characteristics and agreements of the Company; (v) Company
employee personnel files and compensation information; and (vi) any information
related to confidential or secret aspects of the Company's business.
Confidential Information includes all information that has or could have
commercial value or other utility in the business in which the Company is
engaged or contemplates engaging, and all information the unauthorized
disclosure of which could be detrimental to the interests of the Company,
whether or not such information is identified as Confidential Information of
the Company. Confidential Information includes not only information disclosed
by the Company to the Employee, but also information developed or learned by
the Employee during the term of this Agreement and Employee's
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employment with the Company. The covenant herein contained shall extend for so
long as any such information constitutes a "trade secret" as defined by Georgia
law and shall extend for two (2) years after termination or expiration of this
Agreement and Employee's employment hereunder for any reason with respect to
matters that are confidential to the business of the Company but do not
constitute "trade secrets" as defined by Georgia law.
Section 5. Remedies. Employee acknowledges that irreparable damage
would result to the Company if the provisions of Section 4 of this Agreement
were not specifically enforced, and agrees that the Company shall be entitled
to all appropriate legal, equitable and other remedies, including injunctive
relief, in respect of any failure to comply with the provisions of such
Section. The covenants contained in Section 4 hereof may be enforced separate
and apart from any other agreement among the parties hereto, and Employee
agrees that no breach by the Company of any of its obligations to Employee
shall constitute a defense to the enforcement by Company of the covenants and
agreements of Employee contained in Section 4 hereof.
Section 6. Termination.
(a) Either party may, without cause, terminate this Agreement
and Employee's employment hereunder by providing thirty (30) days' prior
written notice to the other party.
(b) The Company shall have the right to terminate this
Agreement and Employee's employment by the Company immediately upon written
notice to the Employee (i) if Employee dies (in which case termination will
occur automatically on the date of death); (ii) upon the "disability" of
Employee (as defined herein); (iii) habitual absenteeism, chronic alcoholism or
any other form of addiction to illegal substances on the part of Employee; (iv)
if Employee breaches Section 4 of this Agreement; (v) if Employee is convicted
of, or pleads nolo contendere with respect to a charge of, a felony or a crime
involving moral turpitude; (vi) if Employee commits an act of personal
dishonesty or breach of fiduciary duty involving personal profit in connection
with Employee's employment by the Company; or (vii) if Employee fails to
perform duties under this Agreement, which failure continues for, or is not
remedied within, a period of five (5) days after Employee has received written
notice thereof from Company. For purposes of this Agreement, "disability" shall
have the meaning set forth in Internal Revenue Code Section 22(e)(3).
(c) In the event of termination or expiration of this
Agreement and Employee's employment with the Company for any reason whatsoever,
the Company shall pay Employee the full Salary provided herein through the
effective date of termination or expiration (or if Employee shall cease
performing services prior to the effective date of termination or expiration,
through the date Employee ceases performing services for the Company), and the
Company shall have no further obligations to Employee except as otherwise
required by law, provided, however, that if this Agreement is terminated by the
Company without cause during the first year of this Agreement, Employee shall
be entitled to the remainder of his salary for the first year. Notwithstanding
any termination or expiration of this Agreement and Employee's employment
hereunder, in consideration of Employee's employment hereunder to the date of
such termination or expiration, Employee shall remain bound by the provisions
of Section 4 hereof. Upon termination or expiration of the Agreement, whether
pursuant to Section 1 or this Section 6,
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Employee or Employee's personal representative shall promptly, and in any event
within ten (10) days after such termination or expiration, deliver to the
Company all documents, books, memoranda, plans, records, reports, notes, lists,
computer disks (and other computer-generated files and data) and any other data
and records of every kind and copies thereof relating to the Confidential
Information, or the business and affairs of the Company which are then in
Employee's possession.
(d) Upon the termination or expiration of this Agreement and
Employee's employment with the Company for any reason, Employee agrees to
resign as Director of the Company if requested by the Board of Directors
(excluding Employee) as evidenced by a majority vote.
Section 7. Insurance. The Company shall have the right at its own cost
and expense to apply for and to secure in its own name or otherwise life,
health and/or accident insurance covering Employee. Employee agrees to submit
to usual and customary medical examinations and otherwise to cooperate with the
Company in connection with the procurement of any such insurance and the
assertion of any claims thereunder.
Section 8. Notices. All notices, requests and other communications
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given if delivered in person or by courier, telegraphed, telexed,
transmitted by facsimile or mailed by registered or certified mail, postage
prepaid, addressed as follows:
If to Employee:
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------------------------
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If to the Company:
The Enstar Group, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Either party may, by written notice to the other, change the address to which
notices to such party are to be delivered or mailed.
Section 9. General. Any waiver of any breach of this Agreement shall
not be construed to be a continuing waiver or consent to any subsequent breach
on the part of either party hereto. Employee may not assign Employee's rights
or delegate Employee's duties under this Agreement without the prior written
consent of the Company. The terms and provisions of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Georgia, shall constitute the entire agreement between the Company and
Employee with respect to the subject matter hereof, and shall supersede,
replace and terminate any and all prior agreements or understandings between
Employee and the Company, whether written or oral, including, without
limitation the Prior Employment Agreement. This Agreement may be amended or
modified only by a written instrument executed by Employee and the Company. To
the extent
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any provision of this Agreement shall be invalid or unenforceable, it shall be
considered deleted and the remainder of such provision and this Agreement shall
be unaffected and shall continue in full force and effect. The prevailing party
in any action arising out of this Agreement shall be entitled to recover
reasonable attorneys' and witness fees and expenses including, without
limitation, those incurred at trial and all appellate court levels.
Section 10. Rules of Construction. Time is of the essence of this
Agreement. The titles of sections and subsections herein have been inserted as
a matter of convenience of reference only and shall not control or affect the
meaning or construction of any of the terms or provisions herein. All
references herein to the singular shall include the plural, and vice versa. All
pronouns shall be deemed to refer to the masculine, feminine or neuter as the
context may require. When general words or terms are used herein followed by
the word "including" (or another form of the word "include") and words of
particular and specific meaning, the general words shall be construed in their
widest extent, and shall not be limited to persons or things of the same
general kind or class as those specifically mentioned in the words of
particular and specific meaning. No provision of this Agreement shall be
construed against or interpreted to the disadvantage of a party by reason of
such party having (or being deemed to have) drafted, structured or dictated any
such provision.
Section 11. Certain Representations. Employee hereby represents and
warrants to the Company that neither the execution and delivery of this
Agreement nor the performance by Employee of his obligations hereunder violates
or constitutes a breach of any agreement or undertaking to which Employee is a
party or by which he is bound.
Section 12. Survival. All obligations of the parties which have
accrued at termination or expiration of this Agreement shall survive any
termination of this Agreement. In addition, the provisions of Sections 4, 5,
6(c), 6(d), 8, 9 and 10 shall survive any termination or expiration of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
COMPANY:
THE ENSTAR GROUP, INC.
By:
Title:
EMPLOYEE:
Xxxx Xxxx
