Exhibit 10.1
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EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AGREEMENT
(“Agreement”), made and entered into as of the
10 th
day of August, 2009
(“Effective Date”), by and between IMPERIAL SUGAR
COMPANY, a Texas corporation (the “Company”), and John
C. Sheptor (“Executive”), an employee of the
Company.
WHEREAS, the Company and Executive
entered into a Term Sheet dated October 21, 2007, outlining
the terms of Executive’s employment, which was amended
effective as of October 31, 2008 (the “Term
Sheet”); and
WHEREAS, the Company and Executive
desire to enter into this Agreement in order to formalize the Term
Sheet and more fully set forth the terms and conditions applicable
to Executive’s continuing employment with the Company;
and
WHEREAS, the parties acknowledge and
agree that this Agreement shall replace and supersede the Term
Sheet in its entirety.
NOW THEREFORE, in consideration of
the promises and other good and valuable consideration set forth
herein, the parties agree as follows:
1. Employment . The Company
hereby employs Executive, and Executive hereby accepts such
employment, upon the terms and conditions set forth
herein.
2. Position and Duties .
Executive is employed as the Company’s President and Chief
Executive Officer and is responsible for the day-to-day operations
of the Company. Executive reports to the Board of Directors of the
Company (the “Board”). Executive will render such
business and professional services in the performance of his duties
as shall be reasonably assigned to him by the Board.
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3. Best Efforts/Full Time .
Executive will devote his full business efforts and time on behalf
of the Company, and will use good faith efforts to discharge his
obligations under this Agreement to the best of his ability and in
accordance with the Company’s policies.
4. Employment at
Will
There shall be no specified term of
employment or of this Agreement, and Executive and the Company
agree that Executive’s employment with the Company
constitutes at-will employment. Executive and the Company further
agree that this employment relationship may be terminated at any
time, upon 15 days’ written notice to the other party, at the
option of either the Company or Executive; provided, however, that
the 15-day advance notice is not required in the event the Company
terminates Executive’s employment for Cause (as defined in
Section 6(a) of this Agreement).
5. Compensation .
(a) Base Salary . As of the
Effective Date, the Company will pay Executive an annual salary of
$577,500 as compensation for his services (such annual salary, as
is then effective, to be referred to herein as “Base
Salary”). The Base Salary will be paid periodically in
accordance with the Company’s normal payroll practices and
procedures and be subject to the usual, required withholdings.
Executive’s Base Salary will be reviewed by the Board at
least annually and may be increased on the basis of such reviews.
Executive’s Base Salary may not be decreased, however,
without Executive’s written consent.
(b) Annual Performance Bonus
. Executive will be eligible to receive an annual target bonus for
each fiscal year equal to 100% of Base Salary paid during such
fiscal year (the “Annual Target Bonus”). The actual
bonus earned and paid each fiscal year will depend upon the
achievement of Company and individual performance objectives
established by the Board or the Executive Compensation Committee of
the Board (the “Committee”). The maximum annual bonus
opportunity will be two times (2x) the Annual Target Bonus;
therefore, actual bonuses for each fiscal year may range from zero
to a maximum of two times (2x) the Annual Target Bonus,
depending upon achievement of performance objectives established by
the Board or Committee.
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(c) Long-Term Incentives .
Executive will be eligible for periodic grants of long-term
incentives. Such grants will be made at the discretion of the
Committee and will be made pursuant to a long-term incentive plan
(the “Long-Term Incentive Plan”) that has been approved
by shareholders. The terms and conditions of grants will be
established by the Committee at the time of each grant, subject to
the terms of the Long-Term Incentive Plan, including cash or equity
awards.
(d) Benefits . Executive will
be eligible to participate in all Company employee benefit plans,
policies and arrangements that are applicable to other officers of
the Company, including such plans, policies and arrangements as may
exist from time to time, in accordance with the terms of such
plans. Executive will be eligible to accrue vacation and other
leave in accordance with applicable Company policies.
6. Termination of Employment
. Subject to the applicable requirements and limitations of
Section 4 and any applicable requirements to make severance
payments under Section 7, Executive’s employment may be
terminated as provided in this Section 6.
(a) Termination by the
Company . The Company may terminate Executive’s
employment with the Company at any time with or without Cause. The
Company shall have “Cause” to terminate
Executive’s employment with the Company: (i) if
Executive fails to make a good faith effort to carry out any lawful
directive of the Board or Executive’s supervisor, which
failure is not cured within five days of notice thereof;
(ii) if Executive engages in any act which results in or may
reasonably be expected to result in Executive’s conviction,
plea of guilty or no contest, or imposition of an unadjudicated
probation, for a felony or a crime (other than minor traffic
violations) involving moral turpitude; (iii) if Executive 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 performance of
Executive’s duties to the
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Company; or (iv) if Executive engages in an
act or acts of dishonesty which adversely affects or could
reasonably be expected to adversely affect the Company.
Notwithstanding the foregoing, Executive shall not be deemed to
have been terminated for Cause unless and until Executive shall
have received a copy of a resolution duly adopted by the Board
determining that the Company has “Cause” to terminate
Executive’s employment.
(b) Termination by Executive
. Executive may terminate employment with or without Good Reason.
For purposes of this Agreement, “Good Reason” means
Executive’s termination of employment with the Company
following the initial occurrence of any of the following events
(each a “Good Reason Event”) without Executive’s
prior written consent: (i) any material breach by the Company
of this Agreement; or (ii) a material, adverse change in
Executive’s authority, duties or responsibilities.
Notwithstanding the foregoing, no termination shall be deemed to be
for Good Reason unless (i) Executive provides written notice
to the Board reasonably describing the Good Reason Event within 90
days of the initial occurrence of a Good Reason Event, and
(ii) the Company fails to remedy the Good Reason Event within
thirty (30) days after receiving such written notice from
Executive.
(c) Termination on Account of
Death or Disability . Executive’s employment shall
terminate automatically upon Executive’s death or Disability.
For purposes of this Agreement, “Disability” means
Executive’s inability to fulfill Executive’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 Executive.
7. Severance .
(a) Termination for Cause .
Upon termination for Cause, Executive shall be entitled to receive
his accrued but unpaid cash compensation and vacation days
(“Accrued Benefits”), paid within thirty (30) days
of termination.
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(b) Termination by Executive
Without Good Reason . Upon termination by the Executive without
Good Reason, Executive shall be entitled to receive his Accrued
Benefits, paid within thirty (30) days of
termination.
(c) Death or Disability .
Upon termination due to death or Disability, Executive (or his
estate), shall be entitled to his Accrued Benefits, paid within
thirty (30) days of termination.
(d) Termination by the Company
Without Cause or Termination by Executive for Good Reason . If
Company terminates Executive’s employment hereunder without
Cause or if Executive terminates his employment hereunder for Good
Reason, Executive shall be entitled to receive his Accrued
Benefits, plus a pro rata bonus based upon the actual
achievement of the performance objectives as determined by the
Committee for the fiscal year of termination. Executive shall also
be entitled to a cash severance payment equal to two (2) times
Executive’s Base Salary (determined without regard to any
change in Base Salary that would constitute Good Reason),
provided, however , that if such termination of employment
occurs during the one-(1-) year period following a Change of
Control (as defined in Section 8(b)), subject to the reduction
set forth in Section 8(a) of this Agreement, such cash
severance payment shall be equal to three (3) times
Executive’s Base Salary (determined without regard to any
change in Base Salary that would constitute Good Reason). All of
the foregoing amounts, except for the pro rata bonus, shall
be paid in the form of a single lump sum payment within thirty
(30) days after the date of termination, provided Executive
has executed a release of liability in the form reasonably required
by the Company and any revocation period with respect to such
release has expired. The amount of any pro rata bonus for
the fiscal year in which Executive’s termination occurs shall
be paid in a lump sum at the same time as the Company makes bonus
payments to its executive employees who are entitled to receive an
annual bonus for the fiscal year. The Company will pay or reimburse
Executive for premiums paid for continued health benefits for
Executive (and any eligible dependents) under the Company’s
health plans until the earlier of (i) two (2) years
following Executive’s separation from servi
