Exhibit 10(a)(6)
CHANGE OF CONTROL
AGREEMENT
THIS AGREEMENT (this”
Agreement”) made and entered into as of the
day of December,
2008 (the “Commencement Date”) by and between IMPERIAL
SUGAR COMPANY, a Texas corporation (“Company”), and
(“Employee”), an individual residing in Sugar Land,
TX;
W I T N E S S E T H
:
WHEREAS, the Company and Employee
previously set forth in an agreement titled “Change in
Control Agreement” (the “Prior Agreement”),
certain contractual rights of the Employee in the event of
Employee’s Involuntary Termination of Employment with the
Company with respect to a Change of Control (as such terms are
defined in the Prior Agreement) of the Company; and
WHEREAS, the Company and Employee
desire to amend and restate the Prior Agreement to clarify that the
benefits provided thereunder constitute a short-term deferral
within the meaning of Subsections (a)(4) and (b)(4) of Treasury
Regulations Section 1.409A-1, and accordingly are exempt from
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”).
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.
(b) “Board” shall mean
the Board of Directors of Imperial Sugar Company, or its
successor.
(c) The Company shall have
“Cause” to terminate Employee’s employment with
the Company (i) if Employee fails to make a good faith effort
to carry out any lawful directive of the Board or Employee’s
supervisor which failure is not cured within five days of notice
thereof; (ii) if Employee engages in any act which results in
or may reasonably be expected to result in the Employee’s
conviction, plea of guilty or no contest, or imposition of
un-adjudicated probation, for a crime (other than minor traffic
violations) involving moral turpitude; (iii) if Employee uses
alcohol, narcotics or other controlled substances which use is, or
could reasonably be expected to become, materially injurious to the
reputation or business of the Company or which impairs, or could
reasonably be expected to impair, the Employee’s performance
of Employee’s duties to the Company; (iv) if Employee
engages in an act or acts of dishonesty which adversely affects or
could reasonably be expected to adversely affect the Company; or
(v) 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.
(d) A “Change of
Control” shall be deemed to have occurred if any of the
following shall have taken place: (i) any “person”
(as such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), other than (A) the Company or any of its
Affiliates or subsidiaries; (B) an employee benefit plan of
the Company or
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trustee or other fiduciary holding
securities under an employee benefit plan of the Company or person
or entity organized, appointed or established by the Company for or
pursuant to the terms of any such employee benefit plan;
(C) an underwriter temporarily holding securities pursuant to
an offering of such securities; (D) an entity owned, directly
or indirectly, by the Company’s stockholders in substantially
the same proportions as their ownership of Common Stock; or
(E) Barclays PLC or any of its domestic or foreign
subsidiaries or affiliates (including, without limitation, Barclays
PLC) 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; (ii) the Company has sold
substantially all of its assets to an unrelated third party; or
(iii) following the election or removal of directors, a
majority of the Board of Directors consists of individuals who were
neither members of the Board of Directors one (1) year before
such election or removal nor 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 or were
similarly approved.
(e) “Company” means
Imperial Sugar Company, a Texas corporation, or any successor, and
its Affiliates.
(f) “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.
(g) The “Effective Date”
of a Change of Control shall mean the date of occurrence of the
specified event constituting such Change of Control.
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(h) “Termination for Good
Reason” means Employee’s termination of employment with
the Company following the occurrence of any of the following events
that occur on or after the Effective Date of a Change of Control
without Employee’s prior written consent:
(i) a material diminution of
Employee’s authority, duties or responsibilities from those
assigned to Employee immediately prior to the Effective Date of the
Change of Control;
(ii) material reduction in
Employee’s base salary;
(iii) a material relocation of
Employee’s primary office at which he/she must provide
services from its location on the Effective Date of the Change of
Control; or
(iv) any action or inaction that
constitutes a material breach of this Agreement by the Company or
its successor.
(i) “Involuntary Termination
of Employment” means a termination of Employee’s
employment by the Company without Cause and shall also include
Employee’s Termination for Good Reason; provided, an
Involuntary Termination of Employment shall not be deemed to have
occurred unless it constitutes a separation fro
