EXHIBIT 10(a)(1)
SPECIMEN
EMPLOYMENT AGREEMENT
(FORM A)
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 hereunder. This Section 3 shall not be construed as
preventing Executive from engaging in
1
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 Xxx Xxxxxxxxxx Institute 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
2
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(d)), 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) Payments Under The Salary Continuation Agreement. Executive is a
party to a Salary Continuation Agreement, made as of August 1, 1994 by and
between Executive and the Company, as said agreement may be amended from
time to time or terminated as provided therein (hereafter "Salary
Continuation Agreement"). In accordance with the terms of the Salary
Continuation Agreement as in effect on the Termination Date, Executive may
be entitled to the following payments:
(1) Termination After Normal Retirement. If the employment of
Executive with the Company is terminated on or after the
date that Executive attains the age of 65 ("Normal
Retirement") for any reason other than due to his death,
Disability (as defined in the Salary Continuation Agreement)
or for Cause (as defined in the Salary Continuation
Agreement), then Company shall pay to Executive a
supplemental retirement benefit pursuant to the terms of
the Salary Continuation Agreement.
(2) Early Retirement. If the employment of Executive with the
Company is terminated prior to his Normal Retirement, but
after the date that (i) he attains the age of 62 and
completes 10 Years of Service (as defined in the Salary
Continuation Agreement) or (ii) attains the age of 55 but
before the age of 62 and completes 10 Years of Service, for
any reason other than due to his death, Disability (as
defined in the Salary Continuation Agreement) or for Cause
(as defined in the Salary Continuation Agreement), then
Company shall pay to Executive a supplemental retirement
benefit pursuant to the terms of the Salary Continuation
Agreement.
(3) Termination Of Employment Due To Disability. If the
employment of Executive with the Company is terminated
prior to
3
his Normal Retirement due to his Disability (as defined in
the Salary Continuation Agreement), Executive shall be
entitled to a supplemental disability benefit pursuant to
the terms of the Salary Continuation Agreement.
(4) Termination Of Employment Due To Death While In Employment
Or During Disability. If Executive dies during the Term of
Employment or during Disability (as defined in the Salary
Continuation Agreement), Executive's Beneficiary (as defined
in the Salary Continuation Agreement) shall be entitled to a
supplemental death benefit pursuant to the terms of the
Salary Continuation Agreement.
(5) Termination For Cause. If Executive's employment with the
Company is terminated by the Company for Cause (as defined
in the Salary Continuation Agreement), Executive shall have
no right to payments under the Salary Continuation Agreement
pursuant to the terms of the Salary Continuation Agreement.
(6) Termination Without Cause. If Executive's employment with
the Company is terminated prior to the Executive's Early
Retirement (as defined in the Salary Continuation Agreement)
for any reason other than death, Disability (as defined in
the Salary Continuation Agreement), or termination for Cause
(as defined in the Salary Continuation Agreement), Executive
shall be entitled to a supplemental termination benefit
pursuant to the terms of the Salary Continuation Agreement.
(7) Salary Continuation Agreement Controls. In the event of any
discrepancy between the terms of this Section 6(b) and the
terms of the Salary Continuation Agreement, the Salary
Continuation Agreement shall control and govern. This
Agreement does not affect the rights of the parties to the
Salary Continuation Agreement to amend or terminate the
Salary Continuation Agreement in accordance with its terms.
(c) 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(d)), (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
4
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(c) 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(c)(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(c) or any other provision of this
Agreement.
(d) 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
5
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 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.
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(d))
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
6
with the terms and conditions of this Section 9. 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.
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.
7
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(d)). 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:
(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
8
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 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
9
any of the provisions of this Section 12 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 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
10
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(d)) or termination by Executive for Good Reason (as
defined in Section 6(d)) 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");
(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(d)), (b) by the Executive for Good Reason (as defined in Section
6(d)), 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-
11
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 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 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.
12
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 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",
13
"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 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 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
14
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.
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
15
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.
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
X.X. Xxx 0
Xxxxx Xxxx, Xxxxx 00000-0000
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.
16
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 [February 1, 1998] 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, including, but not limited to, the obligations of
the Company under (a) the Salary Continuation Agreement which is referenced
herein and (b) any benefit restoration agreement to provide supplemental
retirement and death benefits.
[Signature page follows.]
17
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:
--------------------------------- ----------------------------------
18
