-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SCpbVg+uHXg0eBaHrzjV0x+tGJHCx/306yeKfE0n/K0CANbJVYGenUW9lF2om0Xh g7o2GrkoDyvSfMgY2P+OyQ== 0001193125-03-004356.txt : 20030512 0001193125-03-004356.hdr.sgml : 20030512 20030512150011 ACCESSION NUMBER: 0001193125-03-004356 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030512 EFFECTIVENESS DATE: 20030512 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMPERIAL SUGAR CO /NEW/ CENTRAL INDEX KEY: 0000831327 STANDARD INDUSTRIAL CLASSIFICATION: SUGAR & CONFECTIONERY PRODUCTS [2060] IRS NUMBER: 740704500 STATE OF INCORPORATION: TX FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-105160 FILM NUMBER: 03692592 BUSINESS ADDRESS: STREET 1: ONE IMPERIAL SQ STE 200 STREET 2: P O BOX 9 CITY: SUGAR LAND STATE: TX ZIP: 77487 BUSINESS PHONE: 2814919181 FORMER COMPANY: FORMER CONFORMED NAME: IMPERIAL HOLLY CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: IMPERIAL SUGAR CO /TX/ DATE OF NAME CHANGE: 19880606 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on May 12, 2003 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------- IMPERIAL SUGAR COMPANY (Exact name of registrant as specified in its charter) Texas 74-0704500 (State or other (I.R.S. Employer jurisdiction of Identification No.) incorporation or organization) One Imperial Square 77487-0009 8016 Highway 90-A (Zip Code) P.O. Box 9 Sugar Land, Texas (Address of Principal Executive Offices) ----------------- IMPERIAL SUGAR COMPANY LONG TERM INCENTIVE PLAN (Full title of the plan) ----------------- William F. Schwer Senior Vice President and General Counsel Imperial Sugar Company One Imperial Square 8016 Highway 90-A P.O. Box 9 Sugar Land, Texas 77487-0009 (Name and address of agent for service) (281) 491-9181 (Telephone number, including area code, of agent for service) ----------------- CALCULATION OF REGISTRATION FEE ================================================================================
Proposed Proposed maximum maximum Amount to be offering price aggregate Amount of Title of securities to be registered registered(1) per share (2) offering price (2) registration fee - ----------------------------------------------------------------------------------------------------- Common Stock, without par value (3) 450,000 $8.86 $3,987,000 $322.55 - -----------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------- (1) Pursuant to Rule 416 of the Securities Act of 1933, this Registration Statement also covers such indeterminate number of additional shares as may become issuable under the plan as a result of the antidilution provisions of the plan. (2) Estimated pursuant to Rules 457(c) and (h) solely for purposes of computing the registration fee and based on the average of the high and low sales prices reported on the Nasdaq National Market on May 9, 2003. (3) Includes the associated rights to purchase Series A Junior Participating Preferred Stock, which initially are attached to and trade with the shares of Common Stock being registered hereby. ================================================================================ EXPLANATORY NOTE In January, 2003, Imperial Sugar Company, a Texas corporation ("Imperial"), filed with the Securities and Exchange Commission a Registration Statement on Form S-8 (File No. 333-102876) (the "Initial Form S-8") with respect to an aggregate of 1,234,568 shares of Imperial common stock, without par value ("Common Stock"), issuable in accordance with the terms of the Imperial Sugar Company Long Term Incentive Plan. On January 10, 2003, the Executive Compensation Committee of the Board of Directors of Imperial approved an amendment to the Imperial Sugar Company Long Term Incentive Plan (as amended, the "Plan") to increase the number of shares of Common Stock subject to the Plan by 450,000 shares, subject to approval by the shareholders. At the annual meeting of the shareholders of Imperial held on February 28, 2003, the shareholders of Imperial also approved the Plan. Accordingly, this Registration Statement is being filed pursuant to General Instruction E of Form S-8 under the Securities Act of 1933, as amended, to register the 450,000 additional shares of Common Stock. The contents of the Initial Form S-8 are incorporated herein by this reference, and all required opinions and consents are filed as exhibits to this Registration Statement. EXPERTS The consolidated balance sheets of Imperial and subsidiaries as of September 30, 2002 and 2001 (Successor Company balance sheet) and the related consolidated statements of operations, shareholders' equity and cash flow for the year ended September 30, 2002 and the period from August 30, 2001 to September 30, 2001 (Successor Company operations), the period from October 1, 2000 to August 29, 2001 and the year ended September 30, 2000 (Predecessor Company operations) included in Imperial's Annual Report on Form 10-K for the year ended September 30, 2002 and incorporated by reference in this Registration Statement, have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference (which report expresses an unqualified opinion and includes an explanatory paragraph referring to the application of fresh start accounting in accordance with AICPA's Statement of Position 90-7 "Financial Reporting for Entities in Reorganization Under the Bankruptcy Code" and the lack of comparability of financial information between reporting periods), and has been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. Item 8. Exhibits.
Exhibit Number Document Description - ------- -------------------- 4.1 --Amended and Restated Articles of Incorporation of Imperial (incorporated by reference to Exhibit 3.1 of Imperial's Current Report on Form 8-K dated September 12, 2001, File No. 001-10307). 4.2 --Articles of Amendment dated February 28, 2002, to the Amended and Restated Articles of Incorporation of Imperial (incorporated by reference to Exhibit 3(a)(2) of Imperial's Annual Report on Form 10-K for the year ended September 30, 2002, File No. 001-10307). 4.3 --Amended and Restated Bylaws of Imperial (incorporated by reference to Exhibit 3.2 of Imperial's Current Report on Form 8-K dated September 12, 2001, File No. 001-10307). 4.4 --Rights Agreement dated as of December 31, 2002 between Imperial and The Bank of New York, as Rights Agent, which includes as Exhibit A the form of Statement of Resolution Establishing Series of Shares designated Series A Junior Participating Preferred Stock, as Exhibit B the form of Rights Certificate and as Exhibit C the Summary of Rights to purchase units representing one- hundredth of a share of Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 4(a) of Imperial's Annual Report on Form 10-K for the year ended September 30, 2002, File No. 001-10307). 4.5 --Imperial Sugar Company Long Term Incentive Plan (incorporated by reference to Exhibit 10(f) of Imperial's Annual Report on Form 10-K for the year ended September 30, 2001, File No. 001-10307).
II-1
Exhibit Number Document Description - ------- -------------------- *4.6 --Imperial Sugar Company Long Term Incentive Plan (as Amended and Restated, effective January 10, 2003). *5.1 --Opinion of Baker Botts L.L.P. *23.1 --Consent of Deloitte & Touche LLP. *23.2 --Consent of Baker Botts L.L.P. (contained in Exhibit 5.1). *24.1 --Powers of Attorney (included on the signature page of the Registration Statement).
- -------- * Filed herewith. II-2 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sugar Land, State of Texas, on May 12, 2003. IMPERIAL SUGAR COMPANY By: /s/ ROBERT A. PEISER ----------------------------- Robert A. Peiser President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below appoints Robert A. Peiser, President and Chief Executive Officer of Imperial, Darrell D. Swank, Senior Vice President and Chief Financial Officer of Imperial, and William F. Schwer, Senior Vice President and General Counsel of Imperial, and each of them, severally, as his or her true and lawful attorney or attorneys-in-fact and agent or agents, each of whom shall be authorized to act with or without the other, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead in his capacity as a director or officer or both, as the case may be, of Imperial, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and all documents or instruments necessary or appropriate to enable Imperial to comply with the Securities Act, and to file the same with the Commission, with full power and authority to each of said attorneys-in-fact and agents to do and perform in the name and on behalf of each such director or officer, or both, as the case may be, each and every act whatsoever that is necessary, appropriate or advisable in connection with any or all of the above-described matters and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated and on May 12, 2003. Signature Title --------- ----- /s/ ROBERT A. PEISER Director, President and Chief - ----------------------------- Executive Officer Robert A. Peiser (Principal Executive Officer) /s/ DARRELL D. SWANK Senior Vice President and - ----------------------------- Chief Financial Officer Darrell D. Swank (Principal Financial Officer) /s/ H.P. MECHLER Vice President--Accounting - ----------------------------- (Principal Accounting H.P. Mechler Officer) /s/ JAMES J. GAFFNEY Chairman of the Board of - ----------------------------- Directors James J. Gaffney /s/ CURTIS G. ANDERSON Director - ----------------------------- Curtis G. Anderson /s/ GAYLORD O. COAN Director - ----------------------------- Gaylord O. Coan II-3 Signature Title --------- ----- /s/ YVES-ANDRE ISTEL Director - ----------------------------- Yves-Andre Istel /s/ ROBERT J. MCLAUGHLIN Director - ----------------------------- Robert J. McLaughlin /s/ JAMES A. SCHLINDWEIN Director - ----------------------------- James A. Schlindwein /s/ JOHN K. SWEENEY Director - ----------------------------- John K. Sweeney II-4 EXHIBIT INDEX
Exhibit Number Document Description - ------- -------------------- 4.1 --Amended and Restated Articles of Incorporation of Imperial (incorporated by reference to Exhibit 3.1 of Imperial's Current Report on Form 8-K dated September 12, 2001, File No. 001-10307). 4.2 --Articles of Amendment dated February 28, 2002, to the Amended and Restated Articles of Incorporation of Imperial (incorporated by reference to Exhibit 3(a)(2) of Imperial's Annual Report on Form 10-K for the year ended September 30, 2002, File No. 001-10307). 4.3 --Amended and Restated Bylaws of Imperial (incorporated by reference to Exhibit 3.2 of Imperial's Current Report on Form 8-K dated September 12, 2001, File No. 001-10307). 4.4 --Rights Agreement dated as of December 31, 2002 between Imperial and The Bank of New York, as Rights Agent, which includes as Exhibit A the form of Statement of Resolution Establishing Series of Shares designated Series A Junior Participating Preferred Stock, as Exhibit B the form of Rights Certificate and as Exhibit C the Summary of Rights to purchase units representing one- hundredth of a share of Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 4(a) of Imperial's Annual Report on Form 10-K for the year ended September 30, 2002, File No. 001-10307). 4.5 --Imperial Sugar Company Long Term Incentive Plan (incorporated by reference to Exhibit 10(f) of Imperial's Annual Report on Form 10-K for the year ended September 30, 2001, File No. 001-10307). *4.6 --Imperial Sugar Company Long Term Incentive Plan (as Amended and Restated, effective January 10, 2003). *5.1 --Opinion of Baker Botts L.L.P. *23.1 --Consent of Deloitte & Touche LLP. *23.2 --Consent of Baker Botts L.L.P. (contained in Exhibit 5.1). *24.1 --Powers of Attorney (included on the signature page of the Registration Statement).
- -------- * Filed herewith EX-4.6 3 dex46.txt LONG TERM INCENTIVE PLAN EXHIBIT 4.6 IMPERIAL SUGAR COMPANY LONG TERM INCENTIVE PLAN (As Amended and Restated, Effective January 10, 2003) ARTICLE ONE SCOPE AND PURPOSE OF THE PLAN 1.1 Plan. This Imperial Sugar Company Long Term Incentive Plan ("Plan") was adopted by the Imperial Sugar Company (the "Company") in accordance with and subject to the terms and conditions of the Company's Second Amended and Restated Joint Plan of Reorganization (the "Plan of Reorganization") in Case No. 01-00140-01-00176 before the United States Bankruptcy Court for the District of Delaware the to reward certain key employees, who provide services to or for the Company or its Subsidiaries and Nonemployee Directors of the Company. Thereafter, on January 10, 2003, the Executive Compensation Committee of the Board of Directors of the Company approved a proposed amendment of the Plan to increase the number of shares of Common Stock of the Company available for issuance to certain key employees and Nonemployee Directors under the Plan by 450,000 shares, subject to shareholder approval. The Company's shareholders approved such increase in the aggregate number of shares of Common Stock of the Company available for issuance under the Incentive Plan at the Company's Annual Meeting of Shareholders held on February 28, 2003. 1.2 Objectives. This Plan is designed to attract and retain key employees and Nonemployee Directors of the Company or any Subsidiaries which may later be created or acquired and is maintained in order to encourage a sense of proprietorship and to stimulate the active interest of such persons in the development and financial success of the Company and such Subsidiaries. These objectives are to be accomplished by making Awards under this Plan. ARTICLE TWO GENERAL DEFINITIONS 2.1 General Definitions. As used herein, the terms set forth below shall have the following respective meanings: (a) "Authorized Officer" means the Chairman of the Board or the Chief Executive Officer of the Company (or any other senior officer of the Company to whom either the Chairman or the Chief Executive Officer shall delegate the authority to execute any Award Agreement). (b) "Award" means an Employee Award or a Nonemployee Director Award. (c) "Award Agreement" means an Employee Award Agreement or a Nonemployee Director Award Agreement. (d) "Board" means the Board of Directors of the Company. (e) "Cash Award" means an Award denominated in cash. (f) "Change of Control" means the occurrence of one or more of the following events: (i) The occurrence of an event or series of events that would be required to be reported in a response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, or any successor regulation of similar import; (ii) After the date the Board adopts this Plan, a change in ownership of the Company through a transaction or series of transactions, such that any Person (as described in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the Beneficial Owner (as described in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company's then outstanding securities; 1 (iii) A change in identity of a majority of the members of the Board within any twelve month period, excluding any changes in member identity approved by a majority of the Board at the time of such change; (iv) A transfer, sale or disposition of 50% or more of the Company's assets through a transaction or series of transactions during any 12 month period; or (v) The execution or approval by the Board (or by the Shareholders of if Shareholder approval is required by applicable law or under the terms of any relevant agreement) of any agreement, the consummation of which would result in one of the foregoing. (g) "Code" means the Internal Revenue Code of 1986, as amended from time to time. (h) "Committee" means the Compensation Committee of the Board or a committee designated by the Board to administer the Plan. (i) "Common Stock" means the Common Stock of the Company. (j) "Company" means the Imperial Sugar Company, a Texas corporation. (k) "Nonemployee Director" means an individual serving as a member of the Board who is not an Employee of the Company or any of its Subsidiaries. (l) "Disability" means permanent and total disability as defined in Code section 22(e)(3). (m) "Dividend Equivalents" means, with respect to shares of Restricted Stock that are to be issued at the end of the Restriction Period (including conditional stock), an amount equal to all dividends and other distributions (or the economic equivalent thereof) that are payable to stockholders of record during the Restriction Period on a like number of shares of Common Stock. (n) "Effective Date" means August 29, 2001. (o) "Employee" means an employee of the Company or a Subsidiary (if any). (p) "Employee Award" means the grant of any Option, SAR, Stock Award, Cash Award or Performance Award, whether granted singly, in combination or in tandem, to an Employee (or an individual expected to become an Employee within six months of the date of the Award) pursuant to such applicable terms, conditions and limitations as the Committee may establish in order to fulfill the objectives of the Plan. (q) "Employee Award Agreement" means a written agreement between the Company and an Employee setting forth the terms, conditions and limitations applicable to an Employee Award. (r) "Exchange Act" means the Securities and Exchange Act of 1934, as amended. (s) "Fair Market Value" of a share of Common Stock means, as of a particular date, (i) if shares of Common Stock are listed on a national securities exchange, the mean between the highest and lowest sales price per share of Common Stock reported on the consolidated transaction reporting system for the principal national securities exchange on which shares of Common Stock are listed on that date, or, if there shall have been no such sale so reported on that date, on the last preceding date on which such a sale was so reported or, at the discretion of the Committee, the price prevailing on the exchange at the time of exercise, (ii) if shares of Common Stock are not so listed but are quoted on the Nasdaq National Market, the mean between the highest and lowest sales price per share of Common Stock reported by the Nasdaq National Market on that date, or, if there shall have been no such sale so reported on that date, on the last preceding date on which such a sale was so reported or, at the discretion of the Committee, the price prevailing on the exchange at the time of exercise, (iii) if the Common Stock is not so listed or quoted, the mean between the closing bid and asked price on that date, or, if there are no quotations available for such date, on the last preceding date on which such quotations are available, as reported by the Nasdaq Stock Market, or, if not reported by the Nasdaq Stock Market, by the National Quotation Bureau Incorporated or, at the discretion of 2 the Committee, the price prevailing on the exchange at the time of exercise or (iv) if shares of Common Stock are not publicly traded, the most recent value determined by an independent appraiser appointed by the Company for such purpose. (t) "Incentive Option" means an Option that is intended to comply with the requirements set forth in Section 422 of the Code. (u) "Nonemployee Director" means an individual serving as a member of the Board who is not an Employee of the Company or any of its Subsidiaries. (v) "Nonemployee Director Award" means any Stock Award or Performance Award granted, whether singly, in combination, or in tandem, to a Participant who is a Nonemployee Director pursuant to such applicable terms, conditions and limitations (including treatment as a Performance Award) as a Board may establish in order to fulfill the objectives of the Plan. (w) "Nonemployee Director Award Agreement" means a written agreement between the Company and a Nonemployee Director setting forth the terms, conditions and limitations to a Nonemployee Director Award, to the extent the Board determines such an agreement is necessary. (x) "Nonqualified Stock Option" means an Option that is not an Incentive Option. (y) "Option" means a right to purchase a specified number of shares of Common Stock at a specified price, which may be an Incentive Option or a Nonqualified Stock Option. (z) "Participant" means an Employee or Nonemployee Director to whom an Award has been made under this Plan. (aa) "Performance Award" means an Award made to an Employee or a Nonemployee Director pursuant to this Plan that is subject to the attainment of one or more Performance Goals. (bb) "Performance Goal" means a standard established by the Committee to determine in whole or in part whether a Performance Award shall be earned. (cc) "Plan" means Imperial Sugar Company Long Term Incentive Plan, as amended from time to time. (dd) "Restricted Stock" means any Common Stock that is restricted or subject to forfeiture provisions. (ee) "Restriction Period" means a period of time beginning as of the date upon which an Award of Restricted Stock is made pursuant to this Plan and ending as of the date upon which the Common Stock subject to such Award is no longer restricted or subject to forfeiture provisions. (ff) "SAR" means a right to receive a payment, in cash or Common Stock, equal to the excess of the Fair Market Value (or other specified valuation) of a specified number of shares of Common Stock on the date the right is exercised over a specified strike price, in each case, as determined by the Committee. (gg) "Stock Award" means an award in the form of shares of Common Stock or units denominated in shares of Common Stock, including an award of Restricted Stock. (hh) "Stock Based Awards Limitations" shall have the meaning set forth in Article Seven. (ii) "Subsidiary" means (i) in the case of a corporation, any corporation of which the Company directly or indirectly owns shares representing more than 50% of the combined voting power of the shares of all classes or series of capital stock of such corporation which have the right to vote generally on matters submitted to a vote of the stockholders of such corporation and (ii) in the case of a partnership or other business entity not organized as a corporation, any such business entity of which the Company directly or indirectly owns more than 50% of the voting, capital or profits interests (whether in the form of partnership interests, membership interests or otherwise). 3 ARTICLE THREE ELIGIBILITY 3.1 Eligibility for Awards. (a) Employees. Individuals eligible for Employee Awards under this Plan are (i) those key Employees who hold positions of responsibility and whose performance, in the judgment of the Committee, can have a significant effect on the success of the Company and its Subsidiaries and (ii) individuals who are expected to become such Employees within six months of the date of the Award. (b) Nonemployee Directors. Members of the Board who are Nonemployee Directors are eligible for Nonemployee Director Awards under this Plan. ARTICLE FOUR SHARES OF COMMON STOCK SUBJECT TO THE PLAN 4.1 Maximum Number of Shares Available for Awards. Subject to the provisions of Article Fifteen, there shall be available for Awards under this Plan granted wholly or partly in Common Stock (including rights or options that may be exercised for or settled in Common Stock) an aggregate of 1,684,568 shares of Common Stock. All 1,684,568 shares of Common Stock shall be available for Incentive Options. The number of shares of Common Stock that are the subject of Awards under this Plan, if forfeited or terminated, unexercised upon expiration, are settled in cash in lieu of Common Stock or in a manner such that all or some of the shares covered by an Award are not issued to a Participant, or if exchanged for Awards that do not involve Common Stock, shall again immediately become available for Awards hereunder. The Committee may from time to time adopt and observe such procedures concerning the counting of shares against the Plan maximum as it may deem appropriate. The Board and the appropriate officers of the Company shall from time to time take whatever actions are necessary to file any required documents with governmental authorities, stock exchanges and transaction reporting systems to ensure that shares of Common Stock are available for issuance pursuant to Awards. ARTICLE FIVE ADMINISTRATION OF THE PLAN 5.1 The Committee. (a) This Plan shall be administered by the Committee, except as otherwise provided herein. The Committee shall consist of at least two Nonemployee Directors. Subject to the provisions hereof, the Committee shall have full and exclusive power and authority to administer this Plan and to take all actions that are specifically contemplated hereby or are necessary or appropriate in connection with the administration hereof. The Committee shall also have full and exclusive power to interpret this Plan and to adopt such rules, regulations and guidelines for carrying out this Plan as it may deem necessary or proper, all of which powers shall be exercised in the best interests of the Company and in keeping with the objectives of this Plan. The Committee may, in its discretion, subject only to the legal requirements or restrictions which relate to Awards, provide for the extension of the exercisability of an Award, accelerate the vesting or exercisability of an Award, eliminate or make less restrictive any restrictions contained in an Award, waive any restriction or other provision of this Plan or an Award or otherwise amend or modify an Award in any manner that is either (i) not adverse to the Participant to whom such Award was granted or (ii) consented to by such Participant. The Committee may make an Award to an individual whom it expects to become an Employee within the next six months, provided that such award shall be subject to the individual actually becoming an Employee within such time period. The Committee may correct any defect or supply any omission or reconcile any inconsistency in this Plan or in any 4 Award in the manner and to the extent the Committee deems necessary or desirable to further the Plan purposes. Any decision of the Committee in the interpretation and administration of this Plan shall lie within its sole and absolute discretion and shall be final, conclusive and binding on all parties concerned. (b) The Board shall have the same powers, duties and authority to administer the Plan with respect to Nonemployee Director Awards as the Committee retains with respect to other Awards as described above. 5.2 Liability of Committee Members. No member of the Committee or officer of the Company to whom the Committee has delegated authority in accordance with the provisions of Section 5.3 of this Plan shall be liable for anything done or omitted to be done by him or her, by any member of the Committee or by any officer of the Company in connection with the performance of any duties under this Plan, except for his or her own willful misconduct or as expressly provided by statute. 5.3 Delegation of Authority. The Committee may delegate to the Chief Executive Officer and to other senior officers of the Company its duties under this Plan pursuant to such conditions or limitations as the Committee may establish. ARTICLE SIX AWARDS 6.1 Employee Awards. (a) The Committee shall determine the type or types of Employee Awards to be made under this Plan and shall designate from time to time the individuals who are to be the recipients of such Awards. Each Employee Award shall be embodied in an Employee Award Agreement, which shall contain such terms, conditions and limitations as shall be determined by the Committee in its sole discretion and shall be signed by the individual to whom the Award is made and by an Authorized Officer for and on behalf of the Company. Employee Awards may consist of those reflected in Section 6.1(a) and may be granted singly, in combination or in tandem. Employee Awards may also be made in combination or in tandem with, in replacement of, or as alternatives to, grants or rights under this Plan or any other employee plan of the Company or any of its Subsidiaries, including the plan of any acquired entity. An Employee Award may provide for the grant or issuance of additional, replacement or alternative Awards upon the occurrence of specified events, including the exercise of the original Employee Award granted to a Participant. All or part of an Employee Award may be subject to conditions established by the Committee, which may include, but are not limited to, continuous service with the Company and its Subsidiaries, achievement of specific business objectives, increases in specified indices, attainment of specified growth rates and other comparable measurements of performance. Upon the termination of employment by a Participant who is an Employee any unexercised, deferred, unvested or unpaid Awards shall be treated as set forth in the applicable Employee Award Agreement. (i) Option. An Employee Award may be in the form of an Option. An Option awarded pursuant to this Plan may consist of an Incentive Option or a Nonqualified Stock Option. The price at which shares of Common Stock may be purchased upon the exercise of an Option shall not be less than the Fair Market Value of the Common Stock on the date of grant; provided, however, that the initial exercise price of any Options granted to the Initial Management of the Company and its subsidiaries, pursuant to the grant allocation set forth in the Plan or Reorganization, shall not exceed the lessor of (i) $9.00 per share or (ii) the initial exercise price determined by the Committee. Subject to the foregoing provisions, the terms, conditions and limitations applicable to any Option awarded pursuant to this Plan, including the term of any Option and the date or dates upon which it becomes exercisable, shall be determined by the Committee. Capitalized terms used in Section 6.2 that are not otherwise defined herein shall have the meanings assigned to such terms in the Plan or Reorganization. (ii) SAR. An Employee Award may be in the form of an SAR. The terms, conditions and limitations applicable to any SAR awarded pursuant to this Plan, including the term of any SAR and the date or dates upon which it becomes exercisable, shall be determined by the Committee. 5 (iii) Stock Award. An Employee Award may be in the form of a Stock Award, including the award of Restricted Stock or conditional stock units. The terms, conditions and limitations applicable to any Stock Award granted pursuant to this Plan shall be determined by the Committee. (iv) Cash Award. An Employee Award may be in the form of a Cash Award. The terms, conditions and limitations applicable to any Cash Award granted pursuant to this Plan shall be determined by the Committee. (v) Performance Award. Without limiting the type or number of Employee Awards that may be made under the other provisions of this Plan, an Employee Award may be in the form of a Performance Award. A Performance Award shall be paid, vested or otherwise deliverable solely on account of the attainment of one or more pre-established, objective Performance Goals established by the Committee prior to the earlier to occur of (i) 90 days after the commencement of such period of service to which the Performance Goal relates and (ii) the lapse of 25% of such period of service (as scheduled in good faith at the time the goal is established), and in any event while the outcome is substantially uncertain. A Performance Goal is objective if a third party having knowledge of the relevant facts could determine whether the goal is met. Such a Performance Goal may be based on one or more business criteria that apply to the individual, one or more business units of the Company, or the Company as a whole, and may include one or more of the following: increased revenue; net income; earnings before interest, taxes, depreciation and amortization; other earnings measures; economic value added; cash flow measures; stock price; market share; return on equity or capital; return on revenue measures; costs; and safety and environmental performance measures. Unless otherwise stated, such a Performance Goal need not be based upon an increase or positive result under a particular business criterion and could include, for example, maintaining the status quo or limiting economic losses (measured, in each case, by reference to specific business criteria). In interpreting Plan provisions applicable to Performance Goals and Performance Awards, it is the intent of the Plan to conform with the standards of Section 162(m) of the Code and Treasury Regulation (S) 1.162-27(e)(2), and the Committee in establishing such goals and interpreting the Plan shall be guided by such provisions. Prior to the payment of any compensation based on the achievement of Performance Goals, the Committee must certify in writing that applicable Performance Goals and any of the material terms thereof were, in fact, satisfied. Subject to the foregoing provisions, the terms, conditions and limitations applicable to any Performance Awards made pursuant to this Plan shall be determined by the Committee. 6.2 Nonemployee Director Awards. (a) The Board may grant Nonemployee Director Awards to the Nonemployee Directors of the Company from time to time in accordance with Section 6.2. Nonemployee Director Awards may consist of those listed in Section 6.2(a) and may be granted singly, in combination or in tandem. Each Nonemployee Director Award may, in the discretion of the Board, be embodied in a Nonemployee Director Award Agreement, which shall contain such terms, conditions and limitations as shall be determined by the Board in its sole discretion and, if required by the Board, shall be accepted by the Participant to whom the Nonemployee Director Award is granted and signed by an Authorized Officer for and on behalf of the Company. (i) Stock Awards. A Nonemployee Director Award may be in the form of a Stock Award. A Nonemployee Director may not sell, transfer, assign, pledge or otherwise encumber or dispose of any portion of a Stock Award until he or she terminates service as a Nonemployee Director, and any attempt to sell, transfer, assign, pledge or encumber any portion of the Stock Award prior to such time shall have no effect. Any additional terms, conditions and limitations applicable to any Stock Awards granted to a Nonemployee Director pursuant to this Plan shall be determined by the Board. (ii) Performance Awards. Without limiting the type or number of Nonemployee Director Awards that may be made under the other provisions of this Plan, a Nonemployee Director Award may be in the form of a Performance Award. A Nonemployee Director may not sell, transfer, assign, pledge or otherwise encumber or dispose of any portion of the Performance Award until he or she terminates service as a Nonemployee Director, and any attempt to sell, transfer, assign, pledge or encumber any portion of the 6 Performance Award prior to such time shall have no effect. Any additional terms, conditions and limitations applicable to any Performance Awards granted to a Nonemployee Director pursuant to this Plan shall be determined by the Board. The Board shall set performance goals in its discretion which, depending on the extent to which they are met, will determine the value and/or amount of Performance Awards that will be paid out to the Nonemployee Director. (b) Notwithstanding anything to the contrary contained in this Plan, no Participant may be granted, during any calendar year, Nonemployee Director Awards consisting of Stock Awards (including Stock Awards that are granted as Performance Awards) covering or relating to more than 10,000 shares of Common Stock (the limitation set forth in this Section 6.2(b) being hereinafter referred to as a "Stock Based Awards Limitation"). ARTICLE SEVEN EMPLOYEE AWARD LIMITATIONS The following limitations shall apply to any Employee Award made hereunder: (1) no Participant may be granted, during any one calendar year period, Employee Awards consisting of Options or SARs that are exercisable for more than 300,000 shares of Common Stock; (2) no Participant may be granted, during any one calendar year period, Stock Awards covering or relating to more than 300,000 shares of Common Stock (the limitation set forth in this clause (2), together with the limitation set forth in clause (1) above and the limitation set forth in Section 8.2 of this Plan, being hereinafter collectively referred to as the "Stock Based Awards Limitations"); and (3) no Participant may be granted Employee Awards consisting of cash or in any other form permitted under this Plan (other than Employee Awards consisting of Options or SARs or otherwise consisting of shares of Common Stock or units denominated in such shares) in respect of any one calendar year period having a value determined on the date of grant in excess of $3,000,000. ARTICLE EIGHT PAYMENT OF AWARDS 8.1 Payment of Awards Generally. Payment of Awards may be made in the form of cash or Common Stock, or a combination thereof, and may include such restrictions as the Committee shall determine, including, in the case of Common Stock, restrictions on transfer and forfeiture provisions. If payment of an Award is made in the form of Restricted Stock, the applicable Award Agreement relating to such shares shall specify whether they are to be issued at the beginning or end of the Restriction Period. In the event that shares of Restricted Stock are to be issued at the beginning of the Restriction Period, the certificates evidencing such shares (to the extent that such shares are so evidenced) shall contain appropriate legends and restrictions that describe the terms and conditions of the restrictions applicable thereto. In the event that shares of Restricted Stock are to be issued at the end of the Restricted Period, the right to receive such shares shall be evidenced by book entry registration or in such other manner as the Committee may determine. 8.2 Deferral. With the approval of the Committee, amounts payable in respect of Awards may be deferred and paid either in the form of installments or as a lump-sum payment. The Committee may permit selected Participants to elect to defer payments of some or all types of Awards in accordance with procedures established by the Committee. Any deferred payment of an Award, whether elected by the Participant or specified by the Award Agreement or by the Committee, may be forfeited if and to the extent that the Award Agreement so provides. 7 8.3 Dividends, Earnings and Interest. Rights to dividends or Dividend Equivalents may be extended to and made part of any Award consisting of shares of Common Stock or units denominated in shares of Common Stock, subject to such terms, conditions and restrictions as the Committee may establish. The Committee may also establish rules and procedures for the crediting of interest and other earnings on deferred cash payments and on Dividend Equivalents for Awards consisting of shares of Common Stock or units denominated in shares of Common Stock. 8.4 Substitution of Awards. Subject to the limitations of Section 5.1 and Article Seven, at the discretion of the Committee, a Participant who has been granted an Award may be offered an election to substitute an the Award received for another Award or Awards of the same or different type. 8.5 Cash-out of Awards. At the discretion of the Committee, an Award that is an Option or SAR may be settled by a cash payment equal to the difference between the Fair Market Value per share of Common Stock on the date of exercise and the exercise price of the Award, multiplied by the number of shares with respect to which the Award is exercised. ARTICLE NINE OPTION EXERCISE The price at which shares of Common Stock may be purchased under an Option shall be paid in full at the time of exercise in cash or, if elected by the optionee, the optionee may purchase such shares by means of tendering Common Stock or surrendering another Award, including Restricted Stock, valued at Fair Market Value on the date of exercise, or any combination thereof. The Committee shall determine acceptable methods for Participants to tender Common Stock or other Awards; provided that any Common Stock that is or was the subject of an Award may be so tendered only if it has been held by the Participant for six months. The Committee may provide for procedures to permit the exercise or purchase of such Awards by use of the proceeds to be received from the sale of Common Stock issuable pursuant to an Award. Unless otherwise provided in the applicable Award Agreement, in the event shares of Restricted Stock are tendered as consideration for the exercise of an Option, a number of the shares issued upon the exercise of the Option, equal to the number of shares of Restricted Stock used as consideration therefor, shall be subject to the same restrictions as the Restricted Stock so submitted as well as any additional restrictions that may be imposed by the Committee. The Committee may adopt additional rules and procedures regarding the exercise of Options from time to time, provided that such rules and procedures are not inconsistent with the provisions of this paragraph. ARTICLE TEN CHANGE OF CONTROL 10.1 Change of Control. In the event of a "Change of Control" of the Company, the Committee may, in its discretion, without obtaining shareholder approval, take any one or more of the following actions, with respect to any Participant: (a) Accelerate the exercise dates of any or all SARs or Options or make some or all such SARs or Options immediately fully vested and exercisable; (b) Accelerate the restriction (lapse of forfeiture provision) period of any Restricted Stock subject to restrictions; (c) Grant SARs to holders of outstanding Options; (d) Pay cash to any or all holders of Options in exchange for the cancellation of their outstanding Options; (e) Make payment for any outstanding Performance Awards based on such amounts as the Committee may determine; 8 (f) Grant new Awards to any Participants; or (g) Make any other adjustments or amendments to outstanding Awards and substitute new Awards for outstanding Awards. ARTICLE ELEVEN TAXES The Company shall have the right to deduct applicable taxes from any Employee Award payment and withhold, at the time of delivery or vesting of cash or shares of Common Stock under this Plan, an appropriate amount of cash or number of shares of Common Stock or a combination thereof for payment of taxes required by law or to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for withholding of such taxes. The Committee may also permit withholding to be satisfied by the transfer to the Company of shares of Common Stock theretofore owned by the holder of the Employee Award with respect to which withholding is required. If shares of Common Stock are used to satisfy tax withholding, such shares shall be valued based on the Fair Market Value when the tax withholding is required to be made. The Committee may provide for loans, on either a short term or demand basis, from the Company to a Participant to permit the payment of taxes required by law. ARTICLE TWELVE AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION The Board may amend, modify, suspend or terminate this Plan for the purpose of meeting or addressing any changes in legal requirements or for any other purpose permitted by law, except that (i) no amendment or alteration that would adversely affect the rights of any Participant under any Award previously granted to such Participant shall be made without the consent of such Participant and (ii) no amendment or alteration shall be effective prior to its approval by the stockholders of the Company to the extent such approval is required by applicable legal requirements. ARTICLE THIRTEEN ASSIGNABILITY Unless otherwise determined by the Committee and provided in the Award Agreement, no Award or any other benefit under this Plan shall be assignable or otherwise transferable, except by will or the laws of descent and distribution or pursuant to a qualified domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder. The Committee may prescribe and include in applicable Award Agreements other restrictions on transfer. Any attempted assignment of an Award or any other benefit under this Plan in violation of this Article Fourteen shall be null and void. ARTICLE FOURTEEN ADJUSTMENTS 14.1 General. The existence of outstanding Awards shall not affect in any manner the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the capital stock of the Company or its business or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock (whether or not such issue is prior to, on a parity with or junior to the Common Stock) or the dissolution or liquidation of the Company, or any sale or 9 transfer of all or any part of its assets or business, or any other corporate act or proceeding of any kind, whether or not of a character similar to that of the acts or proceedings enumerated above. 14.2 Following Subdivision of Consolidation. In the event of any subdivision or consolidation of outstanding shares of Common Stock, declaration of a dividend payable in shares of Common Stock or other stock split, then (i) the number of shares of Common Stock reserved under this Plan, (ii) the number of shares of Common Stock covered by outstanding Awards in the form of Common Stock or units denominated in Common Stock, (iii) the exercise or other price in respect of such Awards, (iv) the appropriate Fair Market Value and other price determinations for such Awards and (v) the Stock Based Awards Limitations shall each be proportionately adjusted by the Board to reflect such transaction. In the event of any other recapitalization or capital reorganization of the Company, any consolidation or merger of the Company with another corporation or entity, the adoption by the Company of any plan of exchange affecting the Common Stock or any distribution to holders of Common Stock of securities or property (other than normal cash dividends or dividends payable in Common Stock), then (i) the number of shares of Common Stock covered by outstanding Awards in the form of Common Stock or units denominated in Common Stock, (ii) the exercise or other price in respect of such Awards, (iii) the appropriate Fair Market Value and other price determinations for such Awards and (iv) the Stock Based Awards Limitations shall each be proportionately adjusted by the Board to reflect such transaction; provided that such adjustments shall only be such as are necessary to maintain the proportionate interest of the holders of the Awards and preserve, without exceeding, the value of such Awards. In the event of a corporate merger, consolidation, acquisition of property or stock, separation, reorganization or liquidation, the Board shall be authorized (x) to issue or assume Awards by means of substitution of new substitute Awards, as appropriate, for previously issued Awards or to assume previously issued Awards as part of such adjustment or (y) to cancel the Awards that are Options or SARs by giving the holder notice and opportunity to exercise for 30 days prior to such cancellation. Any substitute Awards shall not be subject to the limitations on Common Stock available for Awards under Section 4.1 or the limitations of Article Seven. ARTICLE FIFTEEN RESTRICTIONS No Common Stock or other form of payment shall be issued with respect to any Award unless the Company shall be satisfied based on the advice of its counsel that such issuance will be in compliance with applicable federal and state securities laws. Certificates evidencing shares of Common Stock delivered under this Plan (to the extent that such shares are so evidenced) may be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any securities exchange or transaction reporting system upon which the Common Stock is then listed or to which it is admitted for quotation and any applicable federal or state securities law. The Committee may cause a legend or legends to be placed upon such certificates (if any) to make appropriate reference to such restrictions. ARTICLE SIXTEEN MISCELLANEOUS PROVISIONS 16.1 Unfunded Plan. Insofar as it provides for Awards of cash, Common Stock or rights thereto, this Plan shall be unfunded. Although bookkeeping accounts may be established with respect to Participants who are entitled to cash, Common Stock or rights thereto under this Plan, any such accounts shall be used merely as a bookkeeping convenience. The Company shall not be required to segregate any assets that may at any time be represented by cash, Common Stock or rights thereto, nor shall this Plan be construed as providing for such segregation, nor shall the Company, the Board or the Committee be deemed to be a trustee of any cash, Common Stock or rights thereto to be granted under this Plan. Any liability or obligation of the Company to any 10 Participant with respect to an Award of cash, Common Stock or rights thereto under this Plan shall be based solely upon any contractual obligations that may be created by this Plan and any Award Agreement, and no such liability or obligation of the Company shall be deemed to be secured by any pledge or other encumbrance on any property of the Company. Neither the Company nor the Board nor the Committee shall be required to give any security or bond for the performance of any obligation that may be created by this Plan. 16.2 Governing Law. This Plan and all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by mandatory provisions of the Code or the securities laws of the United States, shall be governed by and construed in accordance with the laws of the State of Texas. 16.3 Effective Date. This Plan shall be effective without need for further action, including shareholder approval, on the date on which the Second Amended and Restated Joint Plan for Reorganization in Case No. 01-00140 before the United States Bankruptcy Court for the District of Delaware becomes effective. 11 EX-5.1 4 dex51.txt OPINION OF BAKER BOTTS L.L.P. EXHIBIT 5.1 Baker Botts L.L.P. One Shell Plaza 910 Louisiana Street Houston, Texas 77002-4995 May 12, 2003 Imperial Sugar Company One Imperial Square 8016 Highway 90-A Sugar Land, Texas 77478 Ladies and Gentlemen: As set forth in the Registration Statement on Form S-8 (the "Registration Statement") to be filed by Imperial Sugar Company, a Texas corporation (the "Company"), with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), relating to up to 450,000 shares (the "Shares") of Common Stock of the Company, without par value, issuable pursuant to the Imperial Sugar Company Long Term Incentive Plan, as Amended and Restated effective January 10, 2003 (the "Plan"), we are passing upon certain legal matters in connection with the Shares. At your request, we are furnishing this opinion to you for filing as Exhibit 5.1 to the Registration Statement. In our capacity as your counsel in the connection referred to above, we have examined (i) the originals, or copies certified or otherwise identified, of the Plan, the Amended and Restated Articles of Incorporation and the Amended and Restated Bylaws of the Company, each as amended to date, and (ii) the originals, or copies certified or otherwise identified, of corporate records of the Company, including minute books of the Company as furnished to us by the Company, certificates of public officials and of representatives of the Company, statutes and other instruments and documents as a basis for the opinions hereinafter expressed. In giving such opinions, we have relied upon certificates of officers of the Company and of public officials with respect to the accuracy of the material factual matters contained in such certificates. We have assumed that all signatures on all documents examined by us are genuine, that all documents submitted to us as originals are accurate and complete, that all documents submitted to us as copies are true and correct copies of the originals thereof and that all information submitted to us was accurate and complete. On the basis of the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that when issued by the Company pursuant to the provisions of the Plan following due authorization of a particular award thereunder by the Board of Directors of the Company or a duly constituted and acting committee thereof as provided in and in accordance with the Plan, the Shares issuable pursuant to such award will have been duly authorized by all necessary corporate action on the part of the Company. Upon issuance and delivery of such Shares from time to time pursuant to the terms of such award for the consideration established pursuant to the terms of the Plan and otherwise in accordance with the terms and conditions of such award, including, if applicable, the lapse of any restrictions relating thereto, the satisfaction of any performance conditions associated therewith and any requisite determinations by or pursuant to the authority of the Board of Directors or a duly constituted and acting committee thereof as provided therein, and, in the case of stock options, the exercise thereof and payment for such Shares as provided therein, such Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. Very truly yours, BAKER BOTTS L.L.P. EX-23.1 5 dex231.txt CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 INDEPENDENT AUDITOR'S CONSENT We consent to the incorporation by reference in this Registration Statement of Imperial Sugar Company ("Imperial") on Form S-8 of our report dated December 31, 2002, appearing in the Annual Report on Form 10-K of Imperial for the year ended September 30, 2002 (which report expresses an unqualified opinion and includes an explanatory paragraph referring to the application of fresh start accounting in accordance with AICPA's Statement of Position 90-7 "Financial Reporting for Entities in Reorganization Under the Bankruptcy Code" and the lack of comparability of financial information between reporting periods). We also consent to the reference to us under the heading "Experts" in the paragraph immediately preceding Item 8 of this Registration Statement. /s/ Deloitte & Touche LLP Houston, Texas May 12, 2003 -----END PRIVACY-ENHANCED MESSAGE-----