EXHIBIT 10(a)(2)
SPECIMEN
EMPLOYMENT AGREEMENT
(FORM B)
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into as of
the first day of March, 2000 (the "Effective Date"), by and between Imperial
Sugar Company, a Texas corporation (hereafter "Company") and ___________________
(hereafter "Executive"), an individual;
W I T N E S S E T H:
WHEREAS, Company wishes to continue to 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, and Executive shall serve as
_______________________. 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 25 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, upon the recommendation of the Company's President and approved
by the Executive Compensation Committee of the Board of Directors of the Company
(hereafter "Committee"). Nothing contained herein shall preclude the payment of
any bonus or other compensation to Executive.
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
President or 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
President and 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
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hereunder. This Section 3 shall not be construed as preventing Executive from
engaging in reasonable volunteer services for charitable, educational or civic
organizations, or from investing his assets 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.
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 February 28, 2001 (the "Initial Term Of Employment"). Thereafter, the
term of employment hereunder shall be automatically extended repetitively for an
additional one (1) year period on March 1, 2001 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 (including
club dues appropriate in the performance of Executive's service
hereunder) 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.
(b) Other Benefits. Executive shall be entitled to participate and
shall be included in any pension, profit-sharing, stock option,
deferred compensation, 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 and accident,
disability or similar plan or program of the Company to the
extent that he is eligible under the provisions thereof.
(c) Paid Vacation. Executive shall be entitled to the number of days
of paid vacation each year that is accorded under the Company's
vacation policy for senior officers in the Office of the
President of the Company, but not less than four weeks of paid
vacation. The number of days of paid vacation may be increased by
the Company's President or Board of Directors at any time during
the Employment Period.
(d) Annual Physical. Each year the Company shall pay for a complete
physical examination of Executive at the ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Institute
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in Houston, Texas, or any comparable facility designated by the
Company's President.
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
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. Such salary and accrued vacation
shall be paid to Executive within five (5) business days
following the Termination Date.
(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 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.
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(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 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). Notwithstanding the
foregoing, Executive shall not be deemed to have been
terminated for Cause unless and until there has been
delivered to him a copy of a resolution duly adopted by the
Board at a meeting of the Board called and held for such
purpose (after reasonable notice to Executive and an
opportunity for Executive, together with his counsel, to be
heard before the Board), finding that, in the good faith
opinion of the Board, Executive was guilty of conduct set
forth above and specifying the particulars thereof in
reasonable detail.
(3) "Code" means the Internal Revenue Code of 1986, as amended,
or its successor.
(4) "Disability" shall mean a "permanent and total disability"
as defined in Section 22(e)(3) of the Code and Treasury
regulations thereunder. Evidence of such Disability shall be
certified by a physician acceptable to both the Company and
Executive. In the event that the parties are not able to
agree on the choice of a
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physician, each shall select a physician who, in turn, shall
select a third physician to render such certification. All
costs relating to the determination of whether Executive
has incurred a Disability shall be paid by the Company.
Executive agrees to submit to any examination that is
reasonably required by the physician.
(5) "Good Reason" means the occurrence of any of the following
events without Executive's express written consent:
(A) A reduction in Executive's base salary;
(B) Any material breach by the Company or its successor of
any provision of this Agreement; or
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. Post-Employment Medical Benefits. If Executive's Employment With the
Company is terminated for any reason except Cause (as defined in Section 6(c))
after Executive has completed at least five (5) complete years of service with
the Company or its predecessors (including, for this purpose, prior service with
any corporation acquired by or merged into the Company), then the Company shall
provide post-employment medical coverage in accordance with the terms and
conditions of this Section 9 for a period of two years. The Company shall
continue to cover Executive and his spouse (hereinafter referred to as "Spouse")
and his eligible dependent children, if any, from the date of Executive's
termination of employment with the Company, under the group health care plan
maintained by the Company to provide major medical insurance coverage for
employees and their dependents (such group medical plan or its successor(s)
shall be hereinafter referred to as the "Health Care Plan"). The coverage of
Executive and his Spouse under the Health Care Plan shall continue for each of
their lives without interruption, but such coverage of his eligible dependent
children shall continue only for such time period that they otherwise qualify
for dependent coverage under the terms of the Health Care Plan. In the event of
any change to the Health Care Plan following the Termination Date, Executive,
his Spouse and dependents shall be treated consistently with the then-current
senior officers of the Company (or its successor) with respect to the terms and
conditions of coverage and other substantive provisions of the Health Care Plan.
The provisions of this Section 9 shall be effective regardless of the reason for
Executive's termination of employment with the Company except for Cause.
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The continuation coverage under the Health Care Plan provided to Executive
and his Spouse pursuant to this Agreement shall continue and remain in full
force and effect until the later of (a) Executive's date of death or (b) his
Spouse's date of death. Executive and his Spouse hereby agree and consent to
acquire and maintain any and all coverage that either or both of them are
entitled to at any time during their lives under the Medicare program or any
similar or succeeding plan or program that is maintained by the United States
Government or any agency thereof (hereinafter referred to as "Medicare"). The
coverage described in the immediately preceding sentence includes, without
limitation, parts A and B of Medicare and any additional or successor parts of
Medicare. Executive and his Spouse further agree and consent to pay all required
premiums and other costs for Medicare coverage from their personal funds.
If Executive or Spouse are covered under Medicare, the "retiree" coverage
provided under the Health Care Plan to such person shall be secondary payor to
Medicare to the full extent permitted by law. In addition, if Executive or his
Spouse or other dependents should become covered under another major medical
plan maintained by another employer or other entity, such coverage shall be
primary payor to the coverage provided pursuant to this Section 9 to the full
extent permitted by law.
Executive, on behalf of himself and his Spouse and other dependents, if
any, shall be required to pay premiums for their coverage under the Health Care
Plan at the rates, if any, charged by the Company to active employees who are
senior officers of the Company (or its successor) at the time the premium is
charged. The Company shall not be responsible for the payment of any income or
other taxes which may be imposed on Executive, or on his Spouse or dependents,
as the result of receiving continuation coverage under the Health Care Plan
pursuant to this Section 9.
10. 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 which might
involve a conflict of interest of which the Board is not aware.
Executive and Company recognize and acknowledge that it is not possible to
provide an exhaustive list of actions or interests which 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. In egregious and material
instances it may be necessary for Company to terminate Executive's employment
for Cause (as defined in Section 6(c)). The Board of Directors reserves the
right to take such action as, 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:
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(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.
11. 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 entities in
competition with Company. Therefore, Executive hereby covenants and agrees to
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
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(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 which cannot be waived 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) such protection or other remedy is not obtained or (ii) Company waives
in writing the compliance by Executive with this provision, Executive agrees
that he may furnish only that portion of the Confidential Information which
Executive is advised by written opinion of counsel is legally required to be
disclosed, and Executive shall exercise reasonable effort to obtain assurances
that confidential treatment will be accorded such Confidential Information.
(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 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 11, 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 11 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.
12. Property Rights. In keeping with his fiduciary duties to Company,
Executive hereby covenants and agrees that during his Employment Period, and for
a period of six (6) months following his Termination Date, Executive shall
promptly disclose in writing to Company any and all information, ideas,
concepts, improvements, discoveries, inventions and other intellectual
properties, whether patentable or not, and whether or not reduced to practice,
which are conceived, developed, made or acquired by Executive, either
individually or jointly with others, and which relate to the business, products
or services of Company or any of its affiliated entities. In consideration for
his employment hereunder, Executive hereby specifically sells, assigns and
transfers to Company all of his worldwide right, title and interest in and to
all such information, ideas, concepts, improvements, discoveries, inventions and
other intellectual properties.
If during the Employment Period, Executive creates any original work
of authorship or other property fixed in any tangible medium of expression which
(a) is the subject matter of
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copyright (including computer programs) and (b) relates to Company's present or
planned business, products, or services, whether such property is created solely
by Executive or jointly with others, such property shall be deemed a work for
hire, with the copyright automatically vesting in Company. To the extent that
any such writing or other property is determined not to be a work for hire for
whatever reason, Executive hereby consents and agrees to the unconditional
waiver of "moral rights" in such writing or other property, and to assign to
Company all of his right, title and interest, including copyright, in such
writing or other property.
Executive hereby agrees to (a) exercise reasonable effort to assist Company
or its nominee in the protection of any and all property subject to this Section
12, (b) not to disclose any such property to others without the written consent
of Company or its nominee, except as required by his employment hereunder, and
(c) at the request of Company, to execute such assignments, certificates or
other interests as Company or its nominee may from time to time deem desirable
to evidence, establish, maintain, perfect, protect or enforce its rights, title
or interests in or to any such property.
13. 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 11); (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
noncompetition 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
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 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");
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(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; 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 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 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.
For purposes of clarity and not limitation, the non-compete and other
provisions of this Section 13 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 13
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 14 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.
14. Remedies. In the event of any pending, threatened or actual breach of
any of the covenants or provisions of Section 10, 11, 12 or 13, 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. In the event that Company seeks to obtain a restraining order or
injunctive relief, Executive hereby agrees that Company shall not be required to
post any bond in connection therewith. Should a court of competent jurisdiction
or an arbitrator (pursuant to Section 24) declare any provision of Section 10,
11, 12 or 13 to be unenforceable due to an unreasonable restriction of duration
or geographical area, 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
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interests of Company or any of its affiliated entities. Executive hereby
acknowledges and agrees that all of the covenants and other provisions of
Sections 10, 11, 12 and 13 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 10, 11, 12 or 13, Company shall be
entitled to all equitable and legal remedies, including, but not limited to,
injunctive relief and compensatory damages.
15. Defense Of Claims. Executive agrees that during the Employment Period
and for a period of two (2) years 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 15, 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. 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 15.
16. Determinations By The Committee.
(a) Termination Of Employment. Any question as to whether and when
there has been a termination of Executive's employment, and the cause of such
termination, shall be determined in good faith by the Committee.
(b) Compensation. Any question regarding salary, bonus and other
compensation payable to Executive pursuant to this Agreement shall be
determined in good faith by the Committee.
17. 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 normal employee deductions
made with respect to Company's employees generally, and (c) any advances made
to Executive and owed to Company.
18. 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.
19. 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
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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.
20. 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 20 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.
21. 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 24), 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.
22. 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.
23. 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.
24. 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 14. 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
▇▇▇▇▇▇ County or Fort Bend County, Texas, unless otherwise mutually agreed by
the parties.
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(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 24, 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
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 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.
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25. 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.
26. 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 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.
27. 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 16 and 24 hereof, shall survive any termination or expiration of this
Agreement.
28. 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.
29. 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.
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30. 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, (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
▇.▇. ▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
(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 30.
31. 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.
32. 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.
33. Termination Of Prior Employment Agreement/Survival Of Other Agreements.
After this Agreement is effective and enforceable upon execution of this
Agreement by the parties hereto, that certain Employment Agreement between the
Company and _______________ dated _________________ shall terminate and be
superseded in all respects by this Agreement. All other agreements or
arrangements between the Executive and Company in effect on the date hereof
shall remain fully effective.
[Signature page follows.]
15
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.
WITNESS: EXECUTIVE:
Signature: Signature:
-------------------------- ----------------------------
Name: Name:
------------------------------- ---------------------------------
Date: Date:
------------------------------- ---------------------------------
Address for Notices:
------------------
-----------------------------
-----------------------------
-----------------------------
ATTEST: IMPERIAL SUGAR COMPANY:
By: By:
--------------------------------- -----------------------------------
Title: Its:
------------------------------ ----------------------------------
Name: Name:
------------------------------- ---------------------------------
Date: Date:
------------------------------- ---------------------------------
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