Exhibit 10.23
SOUTHERN ENERGY HOMES, INC.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT, amended and restated effective as of the 14th day of June,
1996 by and between Southern Energy Homes, Inc., a Delaware corporation
(hereinafter called the "Company"), and Xxxxx X. Xxxxx (hereinafter called the
"Executive").
WHEREAS, the Executive has served since June 8, 1989 as the Controller
and Chief Financial Officer of the Company and its predecessor, Southern Energy
Homes, Inc., an Alabama corporation ("SEH-Alabama"), pursuant to that Employment
Agreement dated as of June 8, 1989 by and between the Executive and SEH-Alabama,
as amended by an Amendment to Employment Agreement dated as of January 1, 1993
(as so amended, the "Original Agreement");
WHEREAS, in light of the Executive's performance and his contributions
to the growth and profitability of the Company, the Company is prepared to
increase the Executive's Base Salary and to amend and restate the Original
Agreement to reflect such increase and the Executive's position as Controller
and Chief Financial Officer;
WHEREAS, the Executive is prepared to so amend and restate the Original
Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree to amend and restate the Original Agreement pursuant to Section
8.1 of the Original Agreement as follows:
1. Employment. The Company hereby agrees to employ the Executive as
Controller and Chief Financial Officer of the Company and the Executive hereby
agrees to accept such employment, under and subject to the terms and conditions
hereinafter set forth.
2. Duties. The Executive agrees to perform faithfully such duties as
are consistent with his position as the Controller and Chief Financial Officer
of the Company as may be assigned to him from time to time by the Board of
Directors of the Company, and shall report to the Board of Directors. The
Company shall provide the Executive with such support personnel and office
facilities as the Board of Directors shall deem reasonably necessary to permit
the Executive to perform the duties assigned to him hereunder. The Executive
agrees, during the Term (as hereinafter defined), to devote his full business
time and efforts to the performance of his duties hereunder to the exclusion of
all other business activities. The foregoing shall not prohibit the Executive
from acting as a passive investor in such investments and enterprises as the
Executive may choose, provided, however, that such activity does not interfere
with the performance of his duties hereunder and does not involve the use of the
Company resources or personnel.
3. Compensation. In consideration of the services rendered by the
Executive under this Agreement, the Company shall pay the Executive compensation
as follows:
(a) Base Salary: The Company shall pay the Executive a base
salary (the "Base Salary") of Eleven Thousand Two Hundred and Fifty Dollars
($11,250.00) per month during the term of this Agreement. The Executive's Base
Salary shall be paid in arrears on a weekly, bi-weekly or monthly basis in
accordance with such Company payroll policy and practice as may obtain from time
to time. The Base Salary may be reviewed from time to time by the Board of
Directors to determine whether, in light of the scope of the Executive's duties
and his performance, it may be appropriate to increase the Base Salary.
(b) Incentive Compensation: In addition to his Base Salary,
the Executive shall be entitled to receive incentive bonus compensation as set
forth on the attached Schedule A.
4. Insurance and Other Benefits. During the Term of this Agreement the
Executive shall be entitled to the following benefits:
(a) health and medical insurance, disability insurance and
life insurance benefits comparable in cost and coverage to the benefits
presently provided by the Company to the Executive as of the date hereof;
(b) automobile expense allowance which is permitted under, and
is in accordance with, policies which may be established with respect thereto by
the Board of Directors from time to time;
(c) travel and entertainment allowances which are permitted
under, and are in accordance with, policies which may be established with
respect thereto by the Board of Directors from time to time;
(d) paid vacation and holidays as permitted under, and in
accordance with, policies which may be established with respect thereto by the
Board of Directors from time to time; and
(e) paid sick leave as permitted under, and in accordance
with, policies which may be established with respect thereto by the Board of
Directors from time to time.
5. Term. The term of employment under this Agreement (the "Term") shall
continue until June 30, 1997, and shall thereafter automatically renew for
additional one (1) year periods unless sooner terminated (i) by either of the
parties hereto by notice not less than ninety (90) days prior to the date of
renewal of (ii) as provided in Section 6.
6. Termination.
6.1 Termination by the Company. This Agreement and the employment of
the Executive by the Company may be terminated by the Company in accordance with
the provisions of this Section 6.1, as follows:
(a) If the Executive has been convicted of, or pleads guilty
or nolo contendere to a felony, or to a misdemeanor involving moral turpitude,
the Company may terminate the Executive's employment immediately upon the
occurrence of such conviction or plea.
(b) If the Executive has, in the good faith determination of
the Board of Directors, (i) engaged in willful misconduct with respect to the
Company, or (ii) grossly neglected his duties to the Company, the Company may
terminate the Executive's employment immediately by notice, which notice shall
specify in reasonable detail the alleged misconduct or neglect.
(c) If the Executive has, in the good faith determination of
the Board of Directors, (i) engaged in misconduct with respect to the Company,
(ii) neglected his duties to the Company, (iii) failed substantially in areas of
his direct responsibility to achieve satisfactory operating results over
repeated quarterly periods, or (iv) failed substantially to exercise reasonably
prudent skills in the performance of his duties hereunder, but in such cases the
alleged misconduct, neglect or failure is not willful or gross, but is worse
than mere mediocre or ordinary performance, the Company may terminate the
Executive's employment immediately by written notice of the same to the
Executive, specifying in reasonable detail the alleged misconduct, neglect or
failure.
(d) The Company may also terminate the Executive's employment
without assignment of cause upon thirty (30) days prior written notice.
In the event of termination under paragraphs (a) or (b) of this Section 6.1, all
salary, incentive bonus compensation and other benefit obligations of the
Company under Sections 3 and 4 of this Agreement shall cease effective with
termination of employment. In the event of termination under paragraph (c) of
this Section 6.1, all salary, incentive bonus compensation and other benefit
obligations of the Company shall cease as of the last day of the month in which
the termination occurs, provided, however that the Executive shall be paid a
severance benefit equal to one (1) months Base Salary, payable on the last day
of the month in which the termination occurs. In the event of termination under
paragraph (d) of this Section 6.1, all salary, incentive bonus compensation and
other benefit obligations of the Company shall cease as of the last day of the
month in which the termination occurs, provided, however that the Executive
shall be paid a severance benefit equal to six (6) months Base Salary payable in
six (6) equal monthly installments on the last day of the each of the six (6)
months following the month in which the termination occurs.
6.2 Death. In the event of the death of the Executive during the term
of this Agreement, his employment by the Company shall be deemed to terminate as
of the date of his death and a death benefit equal to six (6) months Base Salary
shall be payable in six (6) equal monthly installments to the Executive's
estate, commencing with the month following the date of the Executive's death.
All other payments and benefits shall cease as of the last day of the month in
which the Executive's death occurred.
6.3 Permanent Disability. In the event that the Executive suffers
Permanent Disability (as hereinafter defined), the Company may terminate the
Executive's employment by notice to the Executive and in the event of such
termination, the Executive shall be entitled to receive a disability severance
benefit equal to six (6) months Base Salary payable in six (6) equal monthly
installments commencing on the last day of the month in which such termination
occurs. All other payments and benefits, except for disability insurance
benefits provided pursuant to Section 4(a) hereof, shall cease as of the last
day of the calendar month in which such termination occurs. For the purposes
hereof, "Permanent Disability" shall be determined by a qualified physician and
shall mean the inability of the Executive, due to physical or mental illness,
disability or infirmity, to perform his duties hereunder for a period which has
continued, or could reasonably be expected to continue, for a period of four
consecutive months. Permanent Disability shall not be considered grounds for
termination by the Company under Section 6.1(a), (b) or (c) above.
7. Relocation. The Company agrees that it shall not require that the
Executive relocate from his residence in the State of Alabama.
8. Notices. All notices hereunder, to be effective, shall be in writing
and shall be delivered by hand or mailed by certified or registered mail,
postage and fees prepaid, as follows:
(i) If to the Company to:
Southern Energy Homes, Inc.
c/x Xxx Capital Holdings
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxx
With a copy to:
Xxxx X. Xxxxxxxx, Xx.
Xxxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(ii) If to Executive to:
Xxxxxxx X. Xxxxxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxx 00000
With a copy to:
Xxxx X. Xxxx
Lanier, Ford, Shaves and Xxxxx, P.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
unless and until notice of another or different address shall be given as
provided herein.
8. Miscellaneous.
8.1 Modification. This Agreement, together with the Noncompetion
Agreement, constitutes the entire agreement between the parties hereto with
regard to the subject matter hereof, superseding all prior understandings and
agreements, whether written or oral. This Agreement may not be amended or
revised except by a writing signed by the parties.
8.2 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, although the obligations of the Executive are personal and may be
performed only by him.
8.3 Captions. Captions herein have been inserted solely for convenience
of reference and in no way define, limit or describe the scope or substance of
any provision of this Agreement.
8.4 Severability. The provisions of this Agreement are severable, and
invalidity of any provision shall not affect the validity of any other
provision. In the event that any court of competent jurisdiction shall determine
that any provision of this Agreement or the application thereof is unenforceable
because of the duration or scope thereof, the parties hereto agree that said
court in making such determinations shall have the power to reduce the duration
and scope of such provision to the extent necessary to make if enforceable, and
that the Agreement in its reduced form shall be valid and enforceable to the
full extent permitted by law.
8.5 Arbitration. Any and all disputes arising hereunder shall be
subject to binding arbitration in Washington, D.C., in accordance with the
Commercial Rules of the American Arbitration Association, as then amended and in
effect, and any award thereunder shall be binding and conclusive and may be
entered for judgment in any court of competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a sealed instrument as of the day and year first above written.
SOUTHERN ENERGY HOMES, INC.
By: ___________________________
Xxxxxxxx X. Xxx, Chairman
of the Board
EXECUTIVE:
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Xxxxx X. Xxxxx
