Exhibit 10(a)(7)
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT (this "Agreement"), made and entered into as of the 1st day
of April, 2002 by and between IMPERIAL SUGAR COMPANY, a Texas corporation, and
[name] ("Employee"), an individual residing in [county], [texas];
W I T N E S S E T H:
WHEREAS, the Company wishes to secure the continued services of Employee
and, subject to the provisions of this Agreement, desires to provide a benefit
to Employee in the event of Employee's involuntary termination or Termination
for Good Reason after a Change in Control of the Company, as such terms are
hereinafter defined;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Affiliate" means (i) any corporation in which the shares owned or
controlled, directly or indirectly, by the Company represent eighty percent
(80%) or more of the voting power of the issued and outstanding capital stock of
such corporation, (ii) any corporation which owns or controls, directly or
indirectly, eighty percent (80%) or more of the voting power of the issued and
outstanding capital stock of the Company, and (iii) any corporation in which
eighty percent (80%) or more of the voting power of the issued and outstanding
capital stock is owned or controlled, directly or indirectly, by any corporation
which owns or controls, directly or indirectly, eighty percent (80%) or more of
the voting power of the issued and outstanding capital stock of the Company.
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(b) The Company shall have "Cause" to terminate Employee's employment with
the Company (i) if Employee grossly and deliberately disregards Employee's
duties and responsibilities as an officer of the Company, (ii) if Employee
engages in an act or acts of dishonesty constituting a felony which adversely
affects the Company or (iii) for any reason which constitutes cause under any
written employment agreement between Employee and the Company that was entered
into prior to the Effective Date of the Change of Control. Notwithstanding the
foregoing, Employee shall not be deemed to have been terminated for Cause unless
and until Employee shall have received a copy of a resolution duly adopted by
the affirmative vote of two-thirds of the entire membership of the Board of
Directors finding that in the good faith opinion of the Board of Directors the
Company has Cause to terminate Employee's employment with the Company. For the
purposes of this subsection (b), Employee shall not be considered to have
disregarded Employee's duties and responsibilities as an officer of the Company
if (i) there is a Termination For Good Reason or by reason of (ii) Employee's
reasonable participation in volunteer services for a church or other charitable,
educational or civic organization, (iii) Employee's reasonable participation as
a director of any corporation, or (iv) any absence from employment because of
Employee's illness, incapacity, Disability or reasonable vacation periods.
(c) "Company" means Imperial Sugar Company a Texas corporation, or any
successor and its Affiliates.
(d) A "Change in Control" shall be deemed to have occurred if any of the
following shall have taken place: (i) change in control is reported by the
Company in response to either Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or Item 1 of Form 8-K promulgated under the Exchange Act; (ii) any
"person" (as such term is used in
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Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing forty percent (40%) or
more of the combined voting power of the Company's then outstanding securities;
or (iii) following the election or removal of directors, a majority of the Board
of Directors consists of individuals who were not members of the Board of
Directors one (1) year before such election or removal, unless the election of
each director who was not a director at the beginning of such one-year period
has been approved in advance by directors representing at least a majority of
the directors then in office who were directors at the beginning of the one-year
period.
(e) "Disability" means Employee's inability to fulfill Employee's duties
and responsibilities as an officer of the Company due to physical or mental
disability that continues for 180 consecutive days or more, or for an aggregate
of 180 days in any period of twelve months. Evidence of such disability shall be
certified by a physician acceptable to both the Company and Employee.
(f) The "Effective Date" of a Change in Control shall mean the date of
occurrence of the specified event constituting such Change in Control.
(g) "Involuntary Termination of Employment" means an involuntary
termination of employment of Employee by the Company and shall include
Employee's Termination for Good Reason. Notwithstanding the foregoing,
Involuntary Termination of Employment shall not include termination of
Employee's employment by reason of death, Disability or Cause.
(h) "Termination for Good Reason" means Employee's termination of
employment with the Company following the occurrence of any of the following
events that occurs on or after the Effective Date of a Change in Control without
Employee's prior written consent:
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(i) a diminution of Employee's duties and responsibilities from those
assigned to Employee immediately prior to the Effective Date of the Change
in Control.
(ii) a reduction in Employee's salary from the rate in effect
immediately prior to the Effective Date of the Change in Control or, except
for any reduction applied as part of any Company-wide policy, a reduction
in Employee's other compensation or benefits (other than salary) from those
available to Employee immediately prior to the Effective Date of the Change
in Control;
(iii) a relocation of Employee's primary office from the metropolitan
area of its location on the Effective Date of the Change in Control; or
(iv) the failure of the Company to obtain the unconditional assumption in
writing or by operation of law of the Company's obligations to Employee
under this Agreement by any successor prior to or at the time of a
reorganization, merger, consolidation, or disposition of all or
substantially all of the assets of the Company or similar transaction.
2. Change in Control Benefit. In the event Employee experiences an
Involuntary Termination of Employment during the period commencing on the
Effective Date of a Change in Control and ending one year after that date,
Employee shall be entitled to receive, within 30 days after Employee's
Involuntary Termination of Employment a lump sum payment equal to one times
Employee's base salary amount. The term "base amount", as used herein, shall
have the meaning assigned thereto under Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code").
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3. Events Terminating This Agreement.
(a) If Employee's employment with the Company is terminated for any
reason before the Effective Date of a Change in Control, this Agreement shall
terminate upon the date of termination of Employee's employment and Employee
shall not be entitled to any benefits or payments under this Agreement.
(b) If Employee's employment with the Company terminates on or after the
Effective Date of a Change in Control due to Employee's (i) Disability, (ii)
termination by the Company for Cause, (iii) death, or (iv) voluntary termination
for reasons other than Termination for Good Reason, Employee shall not be
entitled to receive any payments or benefits under this Agreement.
4. Status of Agreement. The benefits payable under this Agreement shall
be independent of, and in addition to, any other agreement relating to
Employee's employment that may exist from time to time between the parties
hereto, or any other compensation payable by the Company to Employee, whether
salary, bonus or otherwise. This Agreement shall not be deemed to constitute a
contract of employment between the parties hereto, nor shall any provision
hereof, except as expressly stated, restrict the right of the Company to
discharge Employee or restrict the right of Employee to terminate his
employment.
5. Term of Agreement. Subject to Employee's earlier termination of
employment with the Company, as provided herein, this Agreement shall remain in
effect until twelve months after its effective date, and shall be automatically
renewed and extended for successive one- year terms commencing on that
anniversary date until the Company, acting upon the directions of the Board of
Directors, gives Employee written notice of its decision not to renew this
Agreement for the following term provided that such notice is delivered to
Employee at least 90 days before the then current term expires.
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Notwithstanding the foregoing, if this Agreement is in effect as of the
Effective Date of a Change in Control, this Agreement shall automatically be
renewed for an additional one-year term as of the Effective Date of a Change in
Control and may not be terminated by the Company until the completion of such
one-year term.
6. Source of Payments. All payments provided in this Agreement shall be
paid in cash from the general funds of the Company. Employee shall have no
right, title, or interest whatsoever in or to any investments that the Company
may make to aid the Company in meeting its obligations hereunder. Employee shall
cooperate and provide to the Company any documentation as may be required to aid
the Company in meeting its obligations hereunder. Nothing contained in this
Agreement, and no action taken pursuant to this paragraph, shall create or be
construed to create a trust of any kind, or a fiduciary relationship, between
the Company and Employee or any other person. The rights of Employee or
Employee's estate to benefits under this Agreement shall be solely those of an
unsecured creditor of the Company.
7. Sale of the Company. The sale of all or substantially all of the
property and assets of the Company otherwise than in the usual and regular
course of its business, or a merger of the Company wherein the Company is not
the "surviving corporation" or any other transaction that in effect amounts to
the sale of the Company, shall not serve to terminate this Agreement.
8. Termination For Cause. The Company may terminate Employee's
employment at any time for Cause, in which event Employee shall not be entitled
to receive any payments or other benefits under this Agreement.
9. Death of Employee. In the event Employee dies subsequent to
Employee's entitlement to benefits under this Agreement but prior to the payment
of such benefits, such benefits payable to Employee shall be paid to Employee's
estate.
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10. Withholding of Taxes. The Company may deduct from the amount of any
benefits payable hereunder any taxes required to be withheld by the federal or
any state or local government.
11. Prohibition Against Assignment. The right of Employee to benefits
under this Agreement shall not be assigned, transferred, pledged or encumbered
in any way, and any attempted assignment, transfer, pledge, encumbrance or other
disposition of such benefits shall be null and void and without effect;
provided, however, that the Company may assign this entire Agreement to any
successor to all or substantially all of the Company's capital stock or business
and assets and this Agreement shall be binding on any such successor.
12. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns, and Employee, his heirs,
executors, administrators and legal representatives. As used in this Agreement,
the term "successor" shall include any person, firm, corporation or other
business entity which at any time, whether by merger, purchase or otherwise,
acquires all or substantially all of the assets or business of the Company.
13. Entire Agreement. This Agreement constitutes the entire understanding
between parties hereto with respect to the subject matter hereof, and may be
modified only by a written instrument executed by both parties hereto.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
15. Severability. If, for any reason, any provision of this Agreement is
held invalid, in whole or in part, such invalidity shall not affect
any other provision of this Agreement not so held invalid, and each
such other provision shall to the full extent consistent with law
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continue in full force and effect. If this Agreement or any portion
thereof conflicts with law or regulation governing the activities of
the Company, the Agreement or appropriate portion thereof shall be
deemed invalid and of no force or effect.
16. Confidentiality. Employee shall retain in confidence any and all
confidential information known to him concerning the Company and its business so
long as such information is not otherwise publicly disclosed.
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SIGNATURE PAGE FOLLOWS
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IN WITNESS THEREOF, the Company has caused this Agreement to be executed
and its seal affixed hereunto by its officers thereunto duly authorized, and
Employee has signed this Agreement, all as of the day and year first above
written.
IMPERIAL SUGAR COMPANY
X.X. Xxxxxx
Executive Vice President and
General Counsel
ATTEST:
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Secretary
[SEAL]
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[name]
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