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Exhibit 10(a)(4)
SEVERANCE AGREEMENT
THIS AGREEMENT (this "Agreement"), made and entered into as of
the day of
2008 by and between IMPERIAL SUGAR COMPANY , a Texas
corporation, ("Company") and
("Executive"), an individual;
W I T N ES S E T H:
WHEREAS, the Company wishes to secure the continued services of
Executive and, subject to the provisions of this Agreement, desires
to provide a benefit to Executive in the event of Executive’s
Involuntary Termination of Employment (as such term is defined in
this Agreement), and,
NOW , THEREFORE, in consideration of the promises and
other good and valuable consideration, the parties hereto agree,
effective
,
2008 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) The Company shall have "Cause" to terminate
Executive’s employment with the Company (i) if Executive
grossly and deliberately disregards Executive’s duties
and
responsibilities as an officer of the Company, or
(ii) if Executive engages in an act or acts of dishonesty
constituting a felony which adversely affects 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
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
Executive’s employment with the Company. For the purposes of
this Subsection (b), Executive shall not be considered to have
disregarded Executive’s duties and responsibilities as an
officer of the Company if (i) there is a Termination For Good
Reason or (ii) by reason of Executive’s reasonable
participation in volunteer services for a church or other
charitable, educational or civic organization, or
(iii) Executive’s actions (or inactions, as applicable)
result from absence from employment because of Executive’s
illness, incapacity, Disability or reasonable vacation
periods.
(c) "Company" means Imperial Sugar Company a Texas corporation,
or any successor and its Affiliates.
(d) "Confidential Information" means and includes, 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:
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(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.
(e) "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.
(f) "Involuntary Termination of Employment" means an involuntary
termination of employment of Executive by the Company and shall
also include Executive’s Termination for Good Reason.
Notwithstanding the foregoing, Involuntary Termination of
Employment shall not include termination of Executive’s
employment by reason of death, Disability or Cause. Further, an
Involuntary Termination of Employment shall not be deemed to have
occurred unless it constitutes a separation from service within the
meaning of Treasury Regulations Section 1.409A-1(h).
(g) "Salary" shall be Executive’s annual base compensation
level, which is
$
as of the date of this Agreement, but may change from time to
time.
(h) "Termination for Good Reason" means Executive’s
termination of employment with the Company within the two
(2) year period following the initial occurrence of any of the
following events without Executive’s prior written
consent:
(i) a material diminution of Executive’s duties and
responsibilities;
(ii) a material reduction in Executive’s base salary;
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(iii) a material relocation of the primary office
at which Executive performs services; or
(iv) any action or inaction that constitutes a material breach
of this Agreement by the Company or its successor.
2. Events Terminating Agreement . If Executive’s
employment with the Company terminates due to Executive’s
(i) Disability, (ii) termination by the Company for
Cause, (iii) death, or (iv) voluntary termination for
reasons other than Termination for Good Reason, Executive shall not
be entitled to receive any payments or benefits under this
Agreement. Further, if Executive’s termination of employment
with the Company results in a benefit under a "Change of Control
Agreement" entered into between Executive and the Company, then
Executive shall not be entitled to receive any payments or benefits
under this Agreement.
3. Severance Benefit . In the event Executive experiences
an Involuntary Termination of Employment not due to Cause,
Executive shall be entitled to receive a severance payment equal to
one-times Executive’s then current Salary amount paid in the
form of a single lump sum within thirty (30) days of the
Involuntary Termination, provided Executive has executed a mutually
agreeable release of liability and non-competition covenants.
Notwithstanding the foregoing, no benefit under this Section 3
shall be paid to Executive with respect to a Termination for Good
Reason unless Executive provides notice to the Company of the
existence of a Good Reason event (as defined in Section 1(h)
herein) within ninety (90) days of the event’s initial
existence. Further, if the Company remedies the Good Reason event
within thirty (30) days of notice by Executive, no benefit
under this Section 3 shall be paid for Termination for Good
Reason with respect to that event.
4. Status of Agreement . The benefits payable under this
Agreement shall be independent of, and in addition to, any other
agreement relating to Executive’s employment that may exist
from time to time between the parties hereto, or any other
compensation payable by the Company to Executive, whether salary,
bonus or otherwise. This Agreement shall not be deemed to
constitute a contract of
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employment between the parties hereto, nor shall
any provision hereof, except as expressly stated, restrict the
right of the Company to discharge Executive or restrict the right
of Executive to terminate his employment.
5. Term of Agreement . Subject to Executive’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 Executive written notice of its
decision not to renew this Agreement for the following term
provided that such notice is delivered to Executive at least
90 days before the then current term expires.
6. Source of Payments . All payments provided in this
Agreement shall be paid in cash from the general funds of the
Company. Executive 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. Executive
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
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