Exhibit 10(a)(3)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into as of
[Insert Date] (the "Effective Date"), by and between Imperial Sugar Company, a
Texas corporation (hereafter "Company") and [Name of Officer] (hereafter
"Executive"), an individual;
W I T N E S S E T H:
WHEREAS, Company shall secure the services of the Executive subject to the
terms and conditions hereafter set forth; and
WHEREAS, the Executive is willing to enter into this Agreement upon the
terms and conditions hereafter set forth,
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto agree as follows:
1. Employment. During the Employment Period (as defined in Section 4
hereof), the Company shall employ Executive, who shall serve as [List all
offices] of the company. Executive's principal place of employment shall be at
the corporate offices of the Company in Sugar Land, Texas. Executive's principal
place of employment shall not be moved more than 50 miles without his consent,
although Executive understands and agrees that he may be required to travel from
time to time for business purposes.
2. Compensation. The Company shall pay or cause to be paid to Executive
during the Employment Period an annual base salary for his services under this
Agreement of not less than $_______, payable in installments in accordance with
the Company's normal payroll procedures for its executives. The Executive's base
salary shall be subject to at least annual review and may be increased (but not
decreased without his consent), depending upon the performance of the Company
and Executive and the approval by the Executive Compensation Committee of the
Board of Directors of the Company (hereafter "Committee"). Executive shall
participate in the Company's annual bonus program (Section 5. g) and will be
granted annual opportunities thereunder on a basis that is substantially
comparable, in terms of amount and opportunity, to similar executives of the
Company.
3. Duties and Responsibilities of Executive. During the Employment Period,
Executive shall devote his services full time to the business of the Company and
perform the duties and responsibilities assigned to him by the Company's Board
of Directors ("Board of Directors" or "Board") to the best of his ability and
with reasonable diligence. In determining Executive's duties and
responsibilities, the Company's Board of Directors shall act in good faith and
shall not assign duties and responsibilities to Executive that are not
appropriate or customary with respect to the position of Executive hereunder.
The Executive shall report solely to the Board. This Section 3
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shall not be construed as preventing Executive from engaging in reasonable
volunteer services for charitable, educational or civic organizations, or from
investing his assets or time in such form or manner as will not require a
material amount of his services in the operations of the companies or businesses
in which such investments are made. Further, nothing in this Section 3, shall
prohibit (a) Executive from serving on the board of directors or advisory boards
of for-profit corporations or other entities that do not conflict or compete
with the Company, or (b) Executive's service on the advisory board of and
ownership of a limited partnership interest in a private investment firm known
as Wind Point Partners, as well as his ownership of stock of, limited
partnership interest in, or interests in limited liability companies
substantially equivalent to limited partnership interests in Wind Point Partners
sponsored investment funds or companies.
4. Term of Employment. Executive's initial term of employment with the
Company under this Agreement shall be for the period from the Effective Date
through September 30, 2004 (the "Initial Term of Employment"). Thereafter, the
term of employment hereunder shall be automatically extended repetitively for an
additional one (1) year period on October 1, 2004 and each anniversary thereof,
unless Notice of Termination pursuant to Section 7 is given by either the
Company or Executive to the other party at least ninety (90) days prior to the
end of the Initial Term of Employment, or any one-year extension thereof, as
applicable, that the Agreement will not be renewed for a successive one-year
period. The Company and Executive shall each have the right to give Notice of
Termination at will, with or without cause, at any time subject, however, to the
terms and conditions of this Agreement regarding the rights and duties of the
parties upon termination of employment. The Initial Term of Employment, and any
one-year extension of employment hereunder, shall each be referred to herein as
a "Term of Employment." The period from the Effective Date through the date of
Executive's termination of employment for whatever reason shall be referred to
herein as the "Employment Period."
5. Benefits. Subject to the terms and conditions of this Agreement, during
the Employment Period, Executive shall be entitled to the following:
(a) Reimbursement of Expenses. The Company shall pay or reimburse
Executive for all reasonable travel, entertainment and other
reasonable expenses paid or incurred by Executive in performing his
duties hereunder. The Company shall also provide Executive with
suitable office space, including secretarial and staff support.
Executive shall receive an automobile expense and operating allowance
of $________ per month.
(b) Other Benefits. Executive shall be entitled to participate and shall
be included in any pension, profit-sharing, stock option (Section 5.
f), deferred compensation, prerequisites or similar plan or program of
the Company to the extent that he is eligible under the provisions
thereof. Executive shall also be entitled to participate in any group
insurance, hospitalization, medical, health
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and accident, disability or similar plan or program of the Company to
the extent that he is eligible under the provisions thereof. The
Company shall reimburse Executive for external COBRA expenses during
the ninety-day qualification period for Company sponsored health and
medical group insurance if any.
(c) Signing Bonus. Executive shall receive a signing bonus in the amount
of $______ to be paid on the Effective Date. Further, a maximum of
$_____ shall be reimbursed to Executive for legal expenses incurred
during the negotiation of this Agreement upon presentation of
transaction receipts.
(d) Paid Vacation. Executive shall be entitled to not less than four weeks
of paid vacation per year. The number of days of paid vacation may be
increased by the Company's Board of Directors at any time during the
Employment Period.
(e) Annual Physical. Each year the Company shall pay for a complete
physical examination of Executive by a physician selected by Executive
with the approval of the Company not to be unreasonably withheld.
(f) Options. As granted by the Committee and upon the Effective Date, the
Executive shall receive no less than _______ options under the
Company's long term incentive plan having terms including the
following: 25% vesting on the effective date and 25% on the three
subsequent anniversaries, 10-year option term, immediate vesting upon
Change of Control (as defined) with exercise rights running for the
remainder of the 10-year term or upon a termination as described in
Section 6(b)(i)
(g) Bonus. From and after Fiscal Year [2002] Executive's annual bonus
incentive plan shall have the target payment set at 100% of base
salary with performance criteria to be established by the Executive
Compensation Committee of the Board of Directors and mutually agreed
to by the Executive. Executive shall receive a signing bonus payment
of $______ upon the commencement of employment. For fiscal year [2002]
which ends September 30, [2002] Executive shall also be entitled to an
individual performance bonus of $_______ if certain mutually agreed
operating and fiscal targets are attained. This bonus payment, if
achieved, shall be made by December 15, [2002] and bonuses for
subsequent years will be paid within seventy-five (75) days of the end
of the fiscal year for which such bonus applies.
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(h) Relocation. The Executive shall be eligible to receive the residential
relocation expense reimbursement package for employees based on the
Company's current policy that has been distributed to the Executive.
The Executive shall also receive three months of temporary housing
mutually acceptable to the parties in their reasonable discretion at
the Company's expense. Executive shall receive reasonable
reimbursement for travel to his Tampa, Florida residence and for other
personal business trip commitments as mutually agreed to by the
Company which agreement shall not be unreasonably withheld.
6. Rights and Payments upon Termination. The Executive's right to
compensation and benefits for periods after the date on which his employment
with the Company terminates for whatever reason (the "Termination Date") shall
be determined in accordance with this Section 6:
(a) Minimum Payments. Executive shall be entitled to the following
payments, in addition to any payments or benefits to which the
Executive is entitled under the terms of any employee benefit,
compensation or stock plan or the following provisions of this
Section 6:
(i) his unpaid salary for the full month in which his Termination
Date occurred; provided, however, if Executive is terminated for
Cause (as defined in Section 6(c)), he shall only be entitled to
receive his accrued but unpaid salary through his Termination
Date; and
(ii) his accrued but unpaid vacation pay for the period ending on his
Termination Date, and
(iii) his earned but unpaid bonus payments.
Such salary and accrued vacation shall be paid to Executive within
five (5) business days following the Termination Date.
Any payments due Executive pursuant to Section 6(a) or (b) and not
timely paid by the Company as provided in this Section 6 shall bear
interest from the due date until the date paid at the maximum rate of
interest permitted by applicable law.
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(b) Other Termination Payments.
(1) In the event that (A) Executive's employment is terminated by the
Company for any reason other than a "Non-Severance Event" (as
defined in Section 6(c), (B) the Company does not renew the term
of employment of the Agreement pursuant to Section 4 for any
one-year renewal period at any time, or (C) Executive terminates
his own employment hereunder for "Good Reason" (as defined
below), then in any such event, the Company shall pay to
Executive as additional pay ("Additional Pay"), the product equal
to two (2) multiplied by Executive's annual base salary in effect
immediately prior to his Termination Date. The Company shall pay
the Additional Pay to Executive in a cash lump sum not later than
thirty (30) calendar days following the Termination Date.
(2) Notwithstanding any provision of this Section 6(b) to the
contrary, the Executive must first execute an appropriate release
agreement whereby he agrees to release and waive, in return for
the Additional Pay described in Section 6(b)(1) only, any claims
that he may have against the Company for (A) unlawful
discrimination (including, without limitation, age
discrimination) and (B) termination pay under any severance pay
plan or program maintained by the Company that covers Executive;
provided, however, such release shall not release any claims by
Executive for payments due under this Agreement, without
Executive's express written consent. Executive shall not be
required to mitigate any payments due under this Section 6(b) or
any other provision of this Agreement.
(c) Definitions.
(1) "Non-Severance Event" means termination of Executive for "Cause"
(as defined below), or due to his death or Disability (as defined
below).
(2) "Cause" means a termination of Executive's employment directly
resulting from (a) an act of dishonesty on the part of Executive
constituting a felony which has a direct and adverse effect on
the Company, (b) a breach by the Executive of any of the
provisions of Sections 10, 11, 12 or 13, if such breach has a
material adverse effect on the Company, or (c) the willful,
material and repeated nonperformance of Executive's duties to the
Company (other than by
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reason of Executive's illness, incapacity or Disability) after
written notice from the Board of such nonperformance (which
notice specifically identifies the manner and sets forth specific
facts, circumstances and examples in which the Board believes
that Executive has not substantially performed his duties) and
his continued willful, material and repeated nonperformance of
such duties for at least thirty (30) days after his receipt of
such notice; and, for purposes of this clause (c), no act or
failure to act on Executive's part shall be deemed "willful"
unless done, or omitted to be done, by Executive not in good
faith and without reasonable belief that his action or omission
was in the best interest of the Company (assuming the disclosure
of the pertinent facts, any action or omission by Executive after
consultation with, and in accordance with the advice of, legal
counsel reasonably acceptable to the Company shall be deemed to
have been taken in good faith and to not be willful under this
Agreement).
(3) "Code" means the Internal Revenue Code of 1986, as amended, or
its successor.
(4) "Disability" shall mean a disability (or such other similar term)
as that term is defined in the long-term disability insurance
policy then in effect provided by the Company to the Executive,
and the decision regarding whether Executive has a Disability
under this Agreement shall be the same as the determination of
whether Executive is disabled by the carrier providing
Executive's long term disability insurance.
(5) "Good Reason" means the occurrence of any of the following events
without Executive's express written consent:
(A) A reduction in Executive's then base salary;
(B) Any material breach by the Company or its successor of any
provision of this Agreement;
(C) A relocation of more than fifty (50) miles of either
Executive's or the Company's principal office from the
location of such office;
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(D) The Company or its successor fails to continue in effect any
life insurance plan, health-and-accident plan, 401(k) plan,
employee stock ownership plan, disability plan or executive
incentive compensation plan in which Executive was
participating (or plans providing Executive with
substantially equal and similar benefits), or the taking of
any action by the Company or its successor which would
adversely affect Executive's participation in or materially
reduce his benefits under any such plan, or deprive him of
any material fringe benefit enjoyed by him; or
(E) A substantial and adverse change in the Executive's duties,
control, authority, status or position, including reporting
line as specified in Section 3, or the assignment to the
Executive of any duties or responsibilities which are
materially inconsistent with such status or position, or a
material reduction in the duties and responsibilities
previously exercised by the Executive, or a loss of title,
loss of office, loss of significant authority, power or
control, or any removal of Executive from, or any failure to
reappoint or reelect him to, such positions, except in
connection with the termination of his employment for Cause,
Disability or death.
7. Notice of Termination. Any termination by the Company or the Executive
shall be communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, the term "Notice of Termination" means a written
notice which indicates the specific termination provision of this Agreement
relied upon and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
8. No Mitigation Required. Executive shall not be required to mitigate the
amount of any payment provided for under this Agreement by seeking other
employment or in any other manner.
9. Conflicts of Interest. In keeping with his fiduciary duties to Company,
Executive hereby agrees that he shall not become involved in a conflict of
interest, or upon discovery thereof, allow such a conflict to continue at any
time during the Employment Period. Moreover, Executive agrees that he shall
immediately disclose to the Board of Directors any known facts that might
involve a conflict of interest of which the Board is not aware.
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Executive and Company recognize and acknowledge that it is not possible to
provide an exhaustive list of actions or interests that may constitute a
"conflict of interest." Moreover, Company and Executive recognize there are many
borderline situations. In some instances, full disclosure of facts by the
Executive to the Board of Directors may be all that is necessary to enable
Company to protect its interests. In others, if no improper motivation appears
to exist and Company's interests have not demonstrably suffered, prompt
elimination of the outside interest may suffice. The Board of Directors reserves
the right to take such action that does not otherwise violate this Agreement
which it determines in its good faith judgment will resolve the conflict of
interest.
Executive hereby agrees that any interest in, connection with, or benefit
from any outside activities, particularly commercial activities, which interest
might adversely affect the Company or any of its affiliated entities, involves a
possible conflict of interest. Circumstances in which a conflict of interest on
the part of Executive would or might arise, and which should be reported
immediately to the Board of Directors, include, but are not limited to, any of
the following:
(a) Ownership of more than a de minimis interest in any lender, supplier,
contractor, customer or other entity with which Company or any of its
affiliated entities does business;
(b) Intentional misuse of information, property or facilities to which
Executive has access in a manner which is demonstrably injurious to
the interests of Company or any of its affiliated entities, including
its business, reputation or goodwill; or
(c) Materially trading in products or services connected with products or
services designed or marketed by or for the Company or any of its
affiliated entities.
For purposes of this Agreement, "affiliated entity" means any entity which
owns or controls, is owned or controlled by, or is under common ownership or
control with, the Company.
10. Confidential Information.
(a) Confidential Information Defined. Executive hereby acknowledges that in
his senior management position, he will create, acquire and have access to
confidential information and trade secrets pertaining to the business of Company
(hereafter "Confidential Information" as defined below). Executive hereby
acknowledges that such Confidential Information is unique and valuable to
Company's business and that Company could suffer irreparable injury if
Confidential Information was divulged to the public or to persons or to
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keep in strict secrecy and confidence, both during and after the Employment
Period, any Confidential Information. Executive specifically agrees that he will
not at any time disclose to others, use, copy or permit to be copied, except in
pursuance of his duties on behalf of Company or with the prior consent of
Company, Confidential Information relating to the Company or any of its
affiliated entities.
For purposes of this Agreement, "Confidential Information" shall mean and
include, without limitation, information related to the business affairs,
property, methods of operation, future plans, financial information, customer or
client information, or other data which relates to the business or operations of
Company or any of its affiliated entities, and other information obtained by
Executive during the Employment Period which concerns the affairs of Company or
any of its affiliated entities and which Company has requested be held in
confidence or could reasonably be expected to desire be held in confidence, or
the disclosure of which would likely be materially embarrassing, detrimental or
disadvantageous to the Company or any of its affiliated entities, or its and
their directors, officers, employees or shareholders. Confidential Information,
however, shall not include:
(i) Information that is at the time of receipt by Executive in the
public domain or is otherwise generally known in the industry or
subsequently enters the public domain or becomes generally known in the
industry through no fault of Executive; or
(ii) Information that at any time is received in good faith by
Executive from a third party who was lawfully in possession of the same and
had the right to disclose the same.
(b) Required Disclosure. In the event that Executive is required by law to
disclose any Confidential Information, Executive agrees that he will provide
prompt notice of such potential disclosure to Company so that an appropriate
protective order may be sought and/or a waiver of compliance with the provisions
of this Agreement may be granted. In the event that (i) the Company does not
seek protection of the information or such protection is not obtained by the
Company, (ii) the Company waives its right to demand Executive's compliance with
this Section, or (iii) a court or government agency orders Executive to comply
with providing information, Executive will not be in violation of this Section
10 by providing the information sought, however, Executive will seek to obtain
assurances from the party to which the information is disclosed that it will be
kept confidential. The Company agrees to reimburse Executive for any expenses,
including attorney's fees and court costs, expended by Executive in furtherance
of his obligation under this Section.
(c) Delivery of Documents. Executive further agrees to deliver to Company
at the termination of his employment, all correspondence, memoranda, notes,
records, drawings, plans, customer lists or other documents, and all copies
thereof made, composed or
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received by Executive, solely or jointly with others, and which are in
Executive's possession, custody or control at such date and which relate in any
manner to the past, present or anticipated business of Company or any of its
affiliated entities.
(d) Remedies. In the event of a breach or threatened breach of any of the
provisions of this Section 10, Company shall be entitled to an injunction
ordering the return of all such documents, and any and all copies thereof, and
restraining Executive from using or disclosing, for his benefit or the benefit
of others, in whole or in part, any Confidential Information, including, but not
limited to, the Confidential Information which such documents contain,
constitute or embody. Executive further agrees that any breach or threatened
breach of any of the provisions of this Section 10 could cause irreparable
injury to Company, for which it would have no adequate remedy at law. Nothing
herein shall be construed as prohibiting Company from pursuing any other
remedies available to it for any such breach or threatened breach, including the
recovery of damages.
11. Agreement Not to Compete. Executive hereby recognizes and acknowledges
that: (a) in his executive capacity with Company he will be given knowledge of,
and access to, the Confidential Information (as described in Section 10); (b) in
the event that Executive was to enter into competition with Company, Executive's
knowledge of such Confidential Information would be of invaluable benefit to a
competitor of Company, and could cause irreparable harm to Company's business
interests; and (c) Executive's consent and agreement to enter into the
non-competition provisions and covenants set forth herein is an integral
condition of this Agreement, without which Company would not have agreed to
provide Confidential Information to Executive nor to his compensation, benefits,
and other terms of this Agreement. Accordingly, in consideration for his
employment, compensation, benefits, access to and entrustment of Confidential
Information, and the goodwill, training and experience provided to Executive
during his Employment Period, Executive hereby covenants, consents and agrees
that during the Employment Period, and for a period of one (1) year after his
employment is terminated for any reason except (i) termination by the Company
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without Cause (as defined in Section 6(c)) or termination by Executive for Good
Reason (as defined in Section 6(c)) or (ii) termination of employment after
expiration of the Term of Employment due to non-renewal of this Agreement by the
Company pursuant to Section 4, Executive shall not, directly or indirectly,
acting alone or in conjunction with others, for his own account or for the
account of others, including, without limitation, as an officer, director,
stockholder, owner, partner, joint venturer, employee, promoter, consultant,
agent, representative, or otherwise:
(a) Solicit, canvass, or accept any fees or business from any customer of
Company for himself if he is engaged in a "Similar Business to
Company" or any other person or entity engaged in a "Similar Business
to Company" (as defined below);
(b) Engage or participate in any Similar Business to Company within the
entire continental United States (referred to herein as the
"Restricted Area");
(c) Request or advise any service provider, supplier, or customer to
reduce or cancel any business that it may transact with Company or any
of its affiliated entities;
(d) Solicit, induce, or otherwise attempt to influence any employee of the
Company or any of its affiliated entities, to terminate his or her
relationship with the Company or any of its affiliated entities except
any administrative staff employee who is hired by the Company at or
about the same time as Executive begins his employment with the
Company and who previously worked for or with Executive at another
business; or
(e) Make any statement or perform any act intended to advance an interest
of an existing or prospective competitor of the Company or any of its
affiliated
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entities in any way that demonstrably injures the reputation, goodwill
or any other business interest of Company or any of its affiliated
entities.
For purposes of this Agreement, "Similar Business to Company" means any
business or other enterprise that is competitive with the then current or
planned businesses, products, services or operations of the Company or any of
its affiliated entities at the time of termination of Executive's employment.
The parties acknowledge that the Company currently is engaged in the
manufacture, refinement and sale of sugar and the manufacture and sale of
certain dry food products. For purposes of this paragraph, "planned" shall mean
that the Company has taken substantial efforts and expended funds to develop
such business, product operation or service and Executive has been involved in
such efforts.
For purposes of clarity and not limitation, the non-compete and other
provisions of this Section 11 shall not apply to Executive if Executive's
employment hereunder is terminated (a) by the Company without Cause (as defined
in Section 6(c)), (b) by the Executive for Good Reason (as defined in Section
6(c)), or (c) after the Term of Employment (as defined in Section 4) has expired
due to non-renewal by the Company.
Executive hereby agrees that the limitations set forth in this Section 11
on his rights to compete with Company after his termination of employment are
reasonable and necessary for the protection of Company. In this regard,
Executive specifically agrees that such limitations as to the period of time,
geographic area and types and scopes of restriction on his activities, as
specified above, are reasonable and necessary to protect the goodwill and other
business interests of Company. However, should the time period, the geographic
area or any other non-competition provision set forth herein be deemed invalid
or unenforceable in any respect, then Executive acknowledges and agrees that, as
set forth in Section 15 hereof, reformation may be made with respect to such
time period, geographic area or other non-competition provision in order to
protect Company's reasonable business interests to the maximum permissible
extent.
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12. Remedies. In the event of any pending, threatened or actual breach of
any of the covenants or provisions of Section 9, 10, or 11, it is understood and
agreed by Executive that the remedy at law for a breach of any of the covenants
or provisions of these Sections may be inadequate and, therefore, Company shall
be entitled to a restraining order or injunctive relief from any court of
competent jurisdiction, in addition to any other remedies at law and in equity.
Should a court of competent jurisdiction or an arbitrator (pursuant to Section
22) declare any provision of Section 9, 10, or 11 to be unenforceable due to an
unreasonable restriction of duration or geographical are, or for any other
reason, such court or arbitrator is hereby granted the consent of each of the
Executive and Company to reform such provision and/or to grant the Company any
relief, at law or in equity, reasonably necessary to protect the reasonable
business interests of Company or any of its affiliated entities. Executive
hereby acknowledges and agrees that all of the covenants and other provisions of
Sections 9, 10, or 11 are reasonable and necessary for the protection of the
Company's reasonable business interests. Executive hereby agrees that if the
Company prevails in any action, suit or proceeding with respect to any matter
arising out of or in connection with Section 9, 10, or 11, Company shall be
entitled to all equitable and legal remedies, including, but not limited to,
injunctive relief and compensatory damages.
13. Defense of Claims. Executive agrees that during the Employment Period
and for a period of one (1) year after his Termination Date, upon reasonable
request from the Company, he will cooperate with the Company and its affiliated
entities in the defense of any claims or actions that may be made by or against
the Company or any of its affiliated entities that affect his prior areas of
responsibility, except if Executive's reasonable interests are adverse to the
Company (or affiliated entity) in such claim or action as determined by
Executive or his counsel. To the extent travel is required to comply with the
requirements of this Section 13, the Company shall, to the extent possible,
provide Executive with notice at least 10 days prior to the date on which such
travel would be required. Executive shall receive a consulting fee of the
greater of $250 per hour or $1500 per day for all time related to his compliance
with this Section, including without limitation preparation, consulting and
travel time. The Company agrees to promptly pay or reimburse Executive upon
demand for all of his reasonable travel and other direct expenses incurred, or
to be reasonably incurred, to comply with his obligations under this Section 13.
14. Determinations by the Committee. Any question regarding salary, bonus
and other compensation payable to Executive pursuant to this Agreement shall be
determined in good faith by the Committee.
15. Withholdings: Right of Offset. Company may withhold and deduct from any
benefits and payments made or to be made pursuant to this Agreement (a) all
federal, state, local and other taxes as may be required pursuant to any law or
governmental regulation or ruling, (b) all other
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normal employee deductions made with respect to Company's employees generally,
and (c) any advances made to Executive and owed to Company.
16. Nonalienation. The right to receive payments under this Agreement shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge or encumbrance by Executive, his dependents or beneficiaries,
or to any other person who is or may become entitled to receive such payments
hereunder. The right to receive payments hereunder shall not be subject to or
liable for the debts, contracts, liabilities, engagements or torts of any person
who is or may become entitled to receive such payments, nor may the same be
subject to attachment or seizure by any creditor of such person under any
circumstances, and any such attempted attachment or seizure shall be void and of
no force and effect.
17. Incompetent or Minor Payees. Should the Board of Directors determine
that any person to whom any payment is payable under this Agreement has been
determined to be legally incompetent or is a minor, any payment due hereunder
may, notwithstanding any other provision of this Agreement to the contrary, be
made in any one or more of the following ways: (a) directly to such minor or
person; (b) to the legal guardian or other duly appointed personal
representative of the person or estate of such minor or person; or (c) to such
adult or adults as have, in the good faith knowledge of the Board of Directors,
assumed custody and support of such minor or person; and any payment so made
shall constitute full and complete discharge of any liability under this
Agreement in respect to the amount paid.
18. Indemnification. The Company shall, to the fullest extent permitted by
law, indemnify and hold harmless the Executive from and against any and all
liability arising from his service as an employee, officer or director of the
Company and its affiliates. To the fullest extent permitted by law, the Company
shall retain counsel to defend Executive or shall advance legal fees and
expenses to Executive for counsel selected by Executive in connection with any
litigation or proceeding related to service as an employee, officer and director
of the Company or any of its affiliates. This Section 18 shall not limit in any
way the rights of Executive to any other indemnification from the Company, as a
matter of law, contract or otherwise.
19. Severability. It is the desire of the parties hereto that this
Agreement be enforced to the maximum extent permitted by law, and should any
provision contained herein be held unenforceable by a court of competent
jurisdiction or arbitrator (pursuant to Section 22), the parties hereby agree
and consent that such provision shall be reformed to create a valid and
enforceable provision to the maximum extent permitted by law; provided, however,
if such provision cannot be reformed, it shall be deemed ineffective and deleted
herefrom without affecting any other provision of this Agreement.
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20. Title and Headings; Construction. Titles and headings to Sections
hereof are for the purpose of reference only and shall in no way limit, define
or otherwise affect the provisions hereof. Any and all Exhibits referred to in
this Agreement are, by such reference, incorporated herein and made a part
hereof for all purposes. The words "herein", "hereof", "hereunder" and other
compounds of the word "here" shall refer to the entire Agreement and not to any
particular provision hereof.
21. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAW.
22. Arbitration.
(a) Arbitrable Matters. If any dispute or controversy arises between
Executive and the Company as to their respective rights or obligations
under this Agreement, then either party may submit the dispute or
controversy to arbitration under the then-current National Employment
Dispute Resolution Rules of the American Arbitration Association (AAA) (the
"Rules"); provided, however, the Company shall retain its rights to seek a
restraining order or injunctive relief pursuant to Section 12. Any
arbitration hereunder shall be conducted before a panel of three
arbitrators unless the parties mutually agree to a single arbitrator. The
site for any arbitration hereunder shall be either Xxxxxx County or Fort
Bend County, Texas, unless otherwise mutually agreed by the parties.
(b) Submission to Arbitration. The party submitting any matter to
arbitration shall do so in accordance with the Rules. Notice to the other
party shall state the question or questions to be submitted for decision or
award by arbitration. Notwithstanding any provision in this Section 22,
Executive shall be entitled to seek specific performance of the Executive's
right to be paid during the pendency of any dispute or controversy arising
under this Agreement. In order to prevent irreparable harm, the arbitrator
may grant temporary or permanent injunctive or other equitable relief for
the protection of property rights.
(c) Arbitration Procedures. The arbitrator shall set the date, time
and place for each hearing, and shall give the parties advance written
notice in accordance with the Rules. Any party may be represented by
counsel or other authorized representative at any hearing. The arbitration
shall be governed by the Federal Arbitration Act, 9 U.S.C.(S)(S)1 et. seq.
(or its successor). The arbitrator shall apply the substantive law (and the
law of remedies, if
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applicable) of the State of Texas to the claims asserted to the extent that
the arbitrator determines that federal law is not controlling.
(d) Compliance with Award
(i) Any award of an arbitrator shall be final and binding upon
the parties to such arbitration, and each party shall immediately make
such changes in its conduct or provide such monetary payment or other
relief as such award requires. The parties agree that the award of the
arbitrator shall be final and binding and shall be subject only to the
judicial review permitted by the Federal Arbitration Act.
(ii) The parties hereto agree that the arbitration award may be
entered with any court having jurisdiction and the award may then be
enforced as between the parties, without further evidentiary
proceedings, the same as if entered by the court at the conclusion of
a judicial proceeding in which no appeal was taken. The Company and
the Executive hereby agree that a judgment upon any award rendered by
an arbitrator may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(e) Costs and Expenses. Each party shall pay any monetary amount
required by the arbitrator's award, and the fees, costs and expenses for
its own counsel, witnesses and exhibits, unless otherwise determined by the
arbitrator in the award. The compensation and costs and expenses assessed
by the arbitrator and the AAA for the hearing process shall be paid by the
Company, unless otherwise determined by the arbitrator in the award such
as, for example, if the arbitrator determines that Executive's claim was
frivolous or not brought in good faith. If court proceedings to stay
litigation or compel arbitration are necessary, the party who
unsuccessfully opposes such proceedings shall pay all associated costs,
expenses, and attorney's fees which are reasonably incurred by the other
party as determined by the arbitrator.
23. Binding Effect: Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and to their
respective heirs, executors, beneficiaries, personal representatives, successors
and permitted assigns hereunder, but otherwise this Agreement shall not be for
the benefit of any third parties.
24. Entire Agreement and Amendment. This Agreement contains the entire
agreement of the parties with respect to Executive's employment and the other
matters covered herein; moreover, this Agreement supersedes all prior and
contemporaneous agreements and
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understandings, oral or written, between the parties hereto concerning the
subject matter hereof. This Agreement may be amended, waived or terminated only
by a written instrument executed by both parties hereto.
25. Survival of Certain Provisions. Wherever appropriate to the intention
of the parties hereto, the respective rights and obligations of said parties,
including, but not limited to, the rights and obligations set forth in Sections
6 through 15, 17 and 22 hereof, shall survive any termination or expiration of
this Agreement.
26. Waiver of Breach. No waiver by either party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party or any similar or dissimilar provision or condition at the same or any
subsequent time. The failure of either party hereto to take any action by reason
of any breach will not deprive such party of the right to take action at any
time while such breach continues.
27. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Company and its affiliated entities, and its and their
successors, and upon any person or entity acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all of the
business and/or assets of Company. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place; provided, however, no such assumption shall relieve the Company
of its obligations hereunder.
This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representative, executors, administrators,
successors, heirs, distributees, devisees and legatees or other Beneficiary. In
the event of the death of Executive while any amount would still be payable
hereunder if such death had not occurred, all such amounts, unless otherwise
specifically provided herein, shall be paid in accordance with the terms of this
Agreement to Executive's Beneficiary. "Beneficiary", for this purpose, shall
mean the person or persons designated by Executive in writing to receive any
benefits payable to Executive hereunder in the event of his death or, if no such
person is so designated, Executive's surviving spouse if any, or, if not, then
Executive's estate. No Beneficiary designation shall be effective unless it is
in writing and received by the Company prior to the date of Executive's death.
28. Notices. Notices provided for in this Agreement shall be in writing and
shall be deemed to have been duly received (a) when delivered in person or sent
by facsimile transmission,
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(b) on the first business day after it is sent by air express overnight courier
service, or (c) on the third business day following deposit in the United States
mail, registered or certified mail, return receipt requested, postage prepaid
and addressed, to the following address, as applicable:
(i) If to Company, addressed to:
Imperial Sugar Company
X.X. Xxx 0
Xxxxx Xxxx, Xxxxx 00000-0000
Attention: Chairman of the Board
(ii) If to Executive, addressed to the address set forth below his
name on the execution page hereof;
or to such other address as either party may have furnished to the other party
in writing in accordance with this Section 28.
29. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature
pages, each signed by one party hereto, but together signed by both parties.
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30. Executive Acknowledgment. Executive acknowledges that (a) he is
knowledgeable and sophisticated as to business matters, including the subject
matter of this Agreement, (b) he has read the Agreement, and (c) he understands
its terms and conditions. Executive represents that he is free to enter into
this Agreement including, without limitation, that he is not subject to any
other contract of employment or covenant not to compete that would conflict with
his duties under this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, Executive has hereunto set his hand and Company has
caused this Agreement to be executed in its name and on its behalf by its duly
authorized officer, to be effective as of the Effective Date.
EXECUTIVE:
Signature:
---------------------------------
Name:
--------------------------------------
Date:
--------------------------------------
Address for Notices:
----------------------
IMPERIAL SUGAR COMPANY:
By:
----------------------------------------
Its:
----------------------------------------
Name:
---------------------------------------
Date
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