Employment Agreement between Imperial Sugar Company and Executive

Summary

This agreement is between Imperial Sugar Company and an executive, outlining the terms of the executive's employment. It specifies the executive's role, compensation, benefits, and responsibilities, including salary, bonus eligibility, stock options, and other benefits such as vacation and insurance. The agreement sets an initial employment term through September 30, 2004, with automatic one-year renewals unless either party gives notice. It also details conditions for termination and reimbursement of certain expenses. The executive is required to work full-time for the company and report to the Board of Directors.

EX-10.(A)(3) 6 dex10a3.txt EMPLOYMENT AGREEMENT Exhibit 10(a)(3) EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into as of [Insert Date] (the "Effective Date"), by and between Imperial Sugar Company, a Texas corporation (hereafter "Company") and [Name of Officer] (hereafter "Executive"), an individual; W I T N E S S E T H: WHEREAS, Company shall 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, who shall serve as [List all offices] of the company. 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 50 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 and the approval by the Executive Compensation Committee of the Board of Directors of the Company (hereafter "Committee"). Executive shall participate in the Company's annual bonus program (Section 5. g) and will be granted annual opportunities thereunder on a basis that is substantially comparable, in terms of amount and opportunity, to similar executives of the Company. 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 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 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. The Executive shall report solely to the Board. This Section 3 Initials:___________ Initials:___________ shall not be construed as preventing Executive from engaging in reasonable volunteer services for charitable, educational or civic organizations, or from investing his assets or time 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. Further, nothing in this Section 3, shall prohibit (a) Executive from serving on the board of directors or advisory boards of for-profit corporations or other entities that do not conflict or compete with the Company, or (b) Executive's service on the advisory board of and ownership of a limited partnership interest in a private investment firm known as Wind Point Partners, as well as his ownership of stock of, limited partnership interest in, or interests in limited liability companies substantially equivalent to limited partnership interests in Wind Point Partners sponsored investment funds or companies. 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 September 30, 2004 (the "Initial Term of Employment"). Thereafter, the term of employment hereunder shall be automatically extended repetitively for an additional one (1) year period on October 1, 2004 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 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. Executive shall receive an automobile expense and operating allowance of $________ per month. (b) Other Benefits. Executive shall be entitled to participate and shall be included in any pension, profit-sharing, stock option (Section 5. f), deferred compensation, prerequisites 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 Initials:___________ Initials:___________ 2 and accident, disability or similar plan or program of the Company to the extent that he is eligible under the provisions thereof. The Company shall reimburse Executive for external COBRA expenses during the ninety-day qualification period for Company sponsored health and medical group insurance if any. (c) Signing Bonus. Executive shall receive a signing bonus in the amount of $______ to be paid on the Effective Date. Further, a maximum of $_____ shall be reimbursed to Executive for legal expenses incurred during the negotiation of this Agreement upon presentation of transaction receipts. (d) Paid Vacation. Executive shall be entitled to not less than four weeks of paid vacation per year. The number of days of paid vacation may be increased by the Company's Board of Directors at any time during the Employment Period. (e) Annual Physical. Each year the Company shall pay for a complete physical examination of Executive by a physician selected by Executive with the approval of the Company not to be unreasonably withheld. (f) Options. As granted by the Committee and upon the Effective Date, the Executive shall receive no less than _______ options under the Company's long term incentive plan having terms including the following: 25% vesting on the effective date and 25% on the three subsequent anniversaries, 10-year option term, immediate vesting upon Change of Control (as defined) with exercise rights running for the remainder of the 10-year term or upon a termination as described in Section 6(b)(i) (g) Bonus. From and after Fiscal Year [2002] Executive's annual bonus incentive plan shall have the target payment set at 100% of base salary with performance criteria to be established by the Executive Compensation Committee of the Board of Directors and mutually agreed to by the Executive. Executive shall receive a signing bonus payment of $______ upon the commencement of employment. For fiscal year [2002] which ends September 30, [2002] Executive shall also be entitled to an individual performance bonus of $_______ if certain mutually agreed operating and fiscal targets are attained. This bonus payment, if achieved, shall be made by December 15, [2002] and bonuses for subsequent years will be paid within seventy-five (75) days of the end of the fiscal year for which such bonus applies. Initials:___________ Initials:___________ 3 (h) Relocation. The Executive shall be eligible to receive the residential relocation expense reimbursement package for employees based on the Company's current policy that has been distributed to the Executive. The Executive shall also receive three months of temporary housing mutually acceptable to the parties in their reasonable discretion at the Company's expense. Executive shall receive reasonable reimbursement for travel to his Tampa, Florida residence and for other personal business trip commitments as mutually agreed to by the Company which agreement shall not be unreasonably withheld. 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 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, compensation or stock 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(c)), 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, and (iii) his earned but unpaid bonus payments. Such salary and accrued vacation shall be paid to Executive within five (5) business days following the Termination Date. Any payments due Executive pursuant to Section 6(a) or (b) and not timely paid by the Company as provided in this Section 6 shall bear interest from the due date until the date paid at the maximum rate of interest permitted by applicable law. Initials:___________ Initials:___________ 4 (b) 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(c), (B) the Company does not renew the term of employment of 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 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(b) 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(b)(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(b) or any other provision of this Agreement. (c) 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 Initials:___________ Initials:___________ 5 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). (3) "Code" means the Internal Revenue Code of 1986, as amended, or its successor. (4) "Disability" shall mean a disability (or such other similar term) as that term is defined in the long-term disability insurance policy then in effect provided by the Company to the Executive, and the decision regarding whether Executive has a Disability under this Agreement shall be the same as the determination of whether Executive is disabled by the carrier providing Executive's long term disability insurance. (5) "Good Reason" means the occurrence of any of the following events without Executive's express written consent: (A) A reduction in Executive's then base salary; (B) Any material breach by the Company or its successor of any provision of this Agreement; (C) A relocation of more than fifty (50) miles of either Executive's or the Company's principal office from the location of such office; Initials:___________ Initials:___________ 6 (D) The Company or its successor fails to continue in effect any life insurance plan, health-and-accident plan, 401(k) plan, employee stock ownership plan, disability plan or executive incentive compensation plan in which Executive was participating (or plans providing Executive with substantially equal and similar benefits), or the taking of any action by the Company or its successor which would adversely affect Executive's participation in or materially reduce his benefits under any such plan, or deprive him of any material fringe benefit enjoyed by him; or (E) A substantial and adverse change in the Executive's duties, control, authority, status or position, including reporting line as specified in Section 3, or the assignment to the Executive of any duties or responsibilities which are materially inconsistent with such status or position, or a material reduction in the duties and responsibilities previously exercised by the Executive, or a loss of title, loss of office, loss of significant authority, power or control, or any removal of Executive from, or any failure to reappoint or reelect him to, such positions, except in connection with the termination of his employment for Cause, Disability or death. 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. 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 that might involve a conflict of interest of which the Board is not aware. Initials:___________ Initials:___________ 7 Executive and Company recognize and acknowledge that it is not possible to provide an exhaustive list of actions or interests that 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. The Board of Directors reserves the right to take such action that does not otherwise violate this Agreement which it determines 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. 10. 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 to Initials:___________ Initials:___________ 8 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 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 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) the Company does not seek protection of the information or such protection is not obtained by the Company, (ii) the Company waives its right to demand Executive's compliance with this Section, or (iii) a court or government agency orders Executive to comply with providing information, Executive will not be in violation of this Section 10 by providing the information sought, however, Executive will seek to obtain assurances from the party to which the information is disclosed that it will be kept confidential. The Company agrees to reimburse Executive for any expenses, including attorney's fees and court costs, expended by Executive in furtherance of his obligation under this Section. (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 Initials:___________ Initials:___________ 9 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 10, 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 any of the provisions of this Section 10 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. 11. 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 10); (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 non-competition 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 Employment Period, and for a period of one (1) year after his employment is terminated for any reason except (i) termination by the Company Initials:___________ Initials:___________ Initials:___________ 10 without Cause (as defined in Section 6(c)) or termination by Executive for Good Reason (as defined in Section 6(c)) 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 if he is engaged in a "Similar Business to Company" 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 except any administrative staff employee who is hired by the Company at or about the same time as Executive begins his employment with the Company and who previously worked for or with Executive at another business; 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 Initials:___________ Initials:___________ Initials:___________ 11 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 then 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. The parties acknowledge that the Company currently is engaged in the manufacture, refinement and sale of sugar and the manufacture and sale of certain dry food products. For purposes of this paragraph, "planned" shall mean that the Company has taken substantial efforts and expended funds to develop such business, product operation or service and Executive has been involved in such efforts. For purposes of clarity and not limitation, the non-compete and other provisions of this Section 11 shall not apply to Executive if Executive's employment hereunder is terminated (a) by the Company without Cause (as defined in Section 6(c)), (b) by the Executive for Good Reason (as defined in Section 6(c)), 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 11 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-competition provision set forth herein be deemed invalid or unenforceable in any respect, then Executive acknowledges and agrees that, as set forth in Section 15 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. Initials:___________ Initials:___________ Initials:___________ 12 12. Remedies. In the event of any pending, threatened or actual breach of any of the covenants or provisions of Section 9, 10, or 11, 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. Should a court of competent jurisdiction or an arbitrator (pursuant to Section 22) declare any provision of Section 9, 10, or 11 to be unenforceable due to an unreasonable restriction of duration or geographical are, 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 9, 10, or 11 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 Section 9, 10, or 11, Company shall be entitled to all equitable and legal remedies, including, but not limited to, injunctive relief and compensatory damages. 13. Defense of Claims. Executive agrees that during the Employment Period and for a period of one (1) year 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 13, 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. Executive shall receive a consulting fee of the greater of $250 per hour or $1500 per day for all time related to his compliance with this Section, including without limitation preparation, consulting and travel time. 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 13. 14. Determinations by the Committee. Any question regarding salary, bonus and other compensation payable to Executive pursuant to this Agreement shall be determined in good faith by the Committee. 15. 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 Initials:___________ Initials:___________ 13 normal employee deductions made with respect to Company's employees generally, and (c) any advances made to Executive and owed to Company. 16. 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. 17. 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. 18. 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 18 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. 19. 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 22), 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. Initials:___________ Initials:___________ 14 20. 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", "hereunder" and other compounds of the word "here" shall refer to the entire Agreement and not to any particular provision hereof. 21. 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. 22. 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 12. 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 Harris 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 22, 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 Initials:___________ Initials:___________ 15 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 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 for the hearing process 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. 23. 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. 24. 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 Initials:___________ Initials:___________ 16 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. 25. 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 15, 17 and 22 hereof, shall survive any termination or expiration of this Agreement. 26. 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. 27. 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 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. 28. 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, Initials:___________ Initials:___________ 17 (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 P.O. Box 9 Sugar Land, Texas ###-###-#### Attention: Chairman of the Board (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 28. 29. 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. Initials:___________ Initials:___________ 18 30. 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. [Signature page follows.] Initials:___________ Initials:___________ 19 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. EXECUTIVE: Signature: --------------------------------- Name: -------------------------------------- Date: -------------------------------------- Address for Notices: ---------------------- IMPERIAL SUGAR COMPANY: By: ---------------------------------------- Its: ---------------------------------------- Name: --------------------------------------- Date --------------------------------------- Initials:___________ Initials:___________ 20