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EXHIBIT 10.30
AMERICAN CRYSTAL SUGAR COMPANY
1995 LONG TERM INCENTIVE PLAN
American Crystal Sugar Company, a Minnesota corporation, established the
American Crystal Sugar Company Long Term Incentive Plan in order to provide
deferred compensation to certain key employees of American Crystal Sugar Company
effective September 1, 1995. American Crystal Sugar Company determined that it
is in its interest to provide certain key employees with financial incentives to
reward the employees for their performance and to encourage long term commitment
to employment with the Company, which are essential to the success of the
Company. Such incentives are based upon Contract Rights which are available to
the employees under the terms of the Plan, the value of which is related to the
value of preferred shares of the Company. The American Crystal Sugar Company
Long Term Incentive Plan was established effective as of September 1, 1995, and
this document restates that plan.
ARTICLE I.
DEFINITIONS
Section 1.1 DEFINITIONS. When used in this document with initial
capital letters, the following terms have the meanings indicated unless a
different meaning is plainly required by the context:
"Account" or "Accounts" means the account or accounts established and
maintained for a Participant pursuant to Section 3.1.
"Board of Directors" means the Board of Directors of American Crystal
Sugar Company.
"Company" means the American Crystal Sugar Company.
"Contract Right" means the unit of measurement used to value deferred
compensation described in the Plan. The value of a Contract Right is related to
the value of a regular preferred share of the Company.
"Contract Rights Account" means an account maintained for a Participant
which reflects the Contract Rights credited under the Plan for the benefit of
the Participant pursuant to Section 3.1.
"Disability" means a medically determinable physical or mental
condition which is expected to result in death or to be of long continued and
indefinite duration and which renders a Participant unable to engage in any
employment or occupation for remuneration for which the Participant is
reasonably qualified by reason of the Participant's training, education and
experience.
The existence or nonexistence of such Disability shall be established by the
certificate of a medical doctor selected by or satisfactory to the Company.
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"Elective Deferrals Account" means an account maintained for a
Participant which reflects the elective deferrals credited under the Plan for
the benefit of the Participant pursuant to Section 3.1.
"Participant" means any employee or individual described in
Section 2.1.
"Plan" means the American Crystal Sugar Company Long Term Incentive
Plan, as of its original effective date, including any amendments thereto, which
is maintained by the Company primarily for the purpose of providing financial
incentives for certain key employees.
"SERP" means the American Crystal Sugar Company Supplemental Executive
Retirement Plan, including any amendments thereto, which is maintained by the
Company primarily for the purpose of providing deferred compensation for certain
key employees.
ARTICLE II.
PARTICIPATION
Section 2.1 ELIGIBILITY. The only highly compensated or management
level employees of the Company who are eligible to become Participants in the
Plan are the Chief Executive Officer of the Company, the Chief Operating Officer
of the Company, and officers of the Company who have attained the level of a
Vice President or above with the Company. Once an employee becomes a
Participant, which shall be evidenced by the execution of the Election Form
provided to the Participant by the Company and which is hereby incorporated
herein by this reference, the employee shall remain a Participant until all
benefits to which he or she is entitled under the Plan have been distributed.
ARTICLE III.
CONTRACT RIGHTS
Section 3.1 CONTRACT RIGHTS.
(a) Unless specifically provided otherwise in this Plan, the Board of
Directors of the Company shall have the authority to grant Participants the
option of having their benefits measured by the value of the Contract Rights,
determine the number of Contract Rights which may be made available with respect
to each Participant and determine the time or times when the Contract Rights are
to be made available. Contract Rights shall be made available at the end of a
three-year period. The Contract Rights to be made available at the end of a
three-year period shall be determined at the beginning of the three-year period
and valued as of the beginning of that three-year period. The first such
three-year period shall begin as of September 1, 1995, and end as of August 31,
1998. Subsequent three-year periods, if any, shall be established by the Board
of Directors in its sole discretion. The Contract Rights shall also be valued at
the time the value of a Participant's benefits are distributed to or on behalf
of a Participant pursuant to Article V. Such Contract Rights shall be subject to
such terms and conditions, in addition to the terms and conditions set forth in
the Plan, as the Board of Directors shall determine.
(b) A Participant shall have the option to elect to have his or her
benefits measured by the value of the Contract Rights which are made available
to the Participant during the period that begins immediately after the end of a
three-year period described in subsection (a) and ends
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on the April 1 immediately following the end of such three-year period. The
number of Contract Rights to be made available during this period shall be
determined in accordance with Article VII. A Participant shall be permitted to
exercise his or her option of having his or her benefits measured by the value
of the Contract Rights for each three-year period only during this window period
and the value of such Contract Rights during this period shall be determined in
accordance with Article VI. If a Participant exercises his or her option to have
his or her benefits measured by the value of the Contract Rights made available
to the Participant, amounts credited to the Participant's Elective Deferrals
Account and the Participant's 401K Plan Account under the SERP (which have been
determined under the SERP to be measured by the value of the Contract Rights)
shall be measured by the Contract Rights made available to the Participant
during said window period. In the event a Participant exercises said option with
respect to the manner in which his or her benefits are to be measured, (i) the
amounts credited to the Participant's Elective Deferrals Account and the
Participant's 401K Plan Account under the SERP shall be converted, to the extent
necessary, to an amount equal to the value of the Contract Rights made available
to the Participant during said window period (valued as of the beginning of the
three-year period), (ii) the number of Contract Rights that reflect that value
shall be credited to the Participant's Contract Rights Account, and (iii) the
amounts credited to the Participant's Elective Deferrals Account and the
Participant's 401K Plan Account under the SERP shall be reduced by the value
corresponding to the value credited to the Participant's Contract Rights
Account. The conversion shall be made by first converting amounts credited under
the Participant's Elective Deferrals Account and then, to the extent necessary,
converting amounts credited to the Participant's 401K Plan Account under the
SERP. Such Contract Rights shall be credited to a separate Contract Rights
Account established and maintained for such Participant. A Participant's
Contract Rights Account shall be the record of Contract Rights credited to the
Participant under the Plan, and shall be used solely for accounting purposes and
shall not require a segregation of any assets of the Company. If such an option
is not exercised by a Participant, the Contract Rights made available to the
Participant shall be terminated. The determination of the number of Contract
Rights that may be made available to a Participant after a three-year period and
the value of such Contract Rights as of the date such Contract Rights may be
made available shall be communicated by the Board of Directors in writing to the
Participant within thirty (30) days after the beginning of such three-year
period.
(c) A Participant may elect to reduce the compensation (base salary and
any bonuses or incentive awards) payable to him or her for services performed or
rendered during a calendar year by completing an election form provided by the
Company, which election form is made part of this Plan and is hereby
incorporated herein by this reference. The election for any calendar year shall
be shall be made before the beginning of that calendar year and shall remain in
effect unless revoked or revised by the Participant for such subsequent calendar
years by written instrument delivered to the Company in accordance with the
terms and conditions of this Plan and prior to the beginning of the period for
which such revocation or revision is to be effective. The Participant shall have
the right to file a new election form following the revocation of an election,
or change an existing election by filing a revised election form; provided,
however, that any such revised election form must be filed in advance of the
calendar year to which it applies. Any elections or revocations of such
elections under this subsection (c) shall apply only to compensation earned
subsequent to the calendar year during which such election or revocation is
filed. Amounts deferred under this -- subsection (c) shall be credited to the
Elective Deferrals Account as of the end of each calendar quarter or at any
other time as determined by the
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Company and shall be valued in accordance with Article VI. A Participant's
Elective Deferrals Account shall be the record of elective deferrals credited to
the Participant under the Plan, and shall be used solely for accounting purposes
and shall not require a segregation of any assets of the Company.
Section 3.2 INITIAL CREDIT OF CONTRACT RIGHTS. As of the effective date
of this Plan, the Board of Directors shall credit each Participant's Contract
Rights Account with the number of Contract Rights set forth in Exhibit A, which
is attached hereto and incorporated herein by this reference. This initial
credit of Contract Rights shall reduce the number of Contract Rights to be made
available to each Participant after the initial three-year period described in
Section 3.1. The number of Contract Rights to be made available to each
Participant after the initial three-year period is stated in Section 7.2. The
Board of Directors shall also have the authority to grant additional Contract
Rights to the Participants at any time and from time to time.
ARTICLE IV.
VESTING AND LIMITATIONS ON CONTRACT RIGHTS
Section 4.1 VESTING. After the end of each three-year period described
in Section 3.1 of the Plan, a Participant shall be vested (the term "vested" for
purposes of this Plan means an interest in the benefit which may be payable
under the Plan, subject to forfeiture in the event of the Company's bankruptcy
or insolvency) in the percentage of Contract Rights credited to the
Participant's Contract Rights Account with respect to that three-year period in
accordance with the following schedule:
Contract Rights for each Period Vested Percentage
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the September 1 immediately following
the end of such three-year period 50%
the September 1 following the first anniversary
of the end of such three-year period 75%
the September 1 following the second anniversary
of the end of such three-year period 100%
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Notwithstanding any provision herein to the contrary, a Participant shall be
vested in the Contract Rights initially credited to the Participant under
Section 3.2 as follows: 50% vested on the September 1 immediately after the
date of such initial credit; 75% vested on the September 1 following the
first anniversary of the date of such initial credit; and 100% vested on the
September 1 following the second anniversary of the date of such initial
credit. Furthermore, notwithstanding any provision herein to the contrary, a
Participant shall be 100% vested in any Contract Rights credited to his or
her Contract Rights Account in the event of the Participant's death,
Disability or attainment of age 62 while employed with the Company, and in
amounts credited to his or her Elective Deferrals Account.
Section 4.2 LIMITATION ON BENEFITS. The total amount that may be
distributed to or on behalf of a Participant under the Plan shall be the
amount equal to the value of the amounts credited to the
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Participant's Elective Deferrals Account and the vested Contract Rights credited
to the Participant's Contract Rights Account under the Plan.
Section 4.3 MAXIMUM NUMBER OF CONTRACT RIGHTS. The maximum number of
Contract Rights that may be credited to the Contract Rights Account of each
Participant under the Plan is to be determined by the Board of Directors in
its sole discretion, but based upon the base compensation of the Participant,
per acre profit payments, and the number of Contract Rights to be made
available to the Participant as determined in accordance with Section 7.1.
ARTICLE V.
DISTRIBUTIONS
Section 5.1 DISTRIBUTION OF CONTRACT RIGHTS. Subject to Article IV and
the provisions of this Article V, a Participant may, at any time following the
end of the three-year period that follows the initial three-year period
described in Section 3.1 or such other time as determined by the Board of
Directors, and after the date on which the Participant's Contract Rights Account
is credited with the minimum number of Contract Rights for that Participant, as
determined by the Board of Directors (but based upon the base compensation of
the Participant, per acre profit payments, and the number of Contract Rights to
be made available to the Participant as determined in accordance with Section
7.1), make a written request to the Human Resources Committee of the Board of
Directors for a distribution of the value of all or a portion of the vested
Contract Rights credited to the Participant's Contract Rights Account. The value
of the Contract Rights at the time of distribution shall be determined in the
manner described in Article VI of the Plan. The determination of whether a
distribution will be made under this provision and the date of such distribution
shall be made by said Human Resources Committee in its sole discretion.
Section 5.2 HARDSHIP DISTRIBUTIONS. Subject to the requirements of this
Section 5.2, in the event that the Participant incurs a financial hardship as
herein described, the Participant may make a written request to the Human
Resources Committee of the Board of Directors for a distribution of the value of
that portion of the vested benefits then credited to the Participant's Accounts
necessary to satisfy the financial hardship. The value of the benefits at the
time of distribution shall be determined in the manner described in Article VI
of the Plan. The determination of whether a distribution will be made under this
provision and the date of such distribution shall be made by said Human
Resources Committee in its sole discretion. A financial hardship for purposes of
this Section 5.2 is a severe financial hardship to the Participant resulting
from a sudden and unexpected illness or accident of the Participant or of a
dependent (as defined in Section 152(a) of the Internal Revenue Code) of the
Participant, loss of the Participant's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. This section shall be interpreted
in a manner consistent with Sections 1.457-2(h) (4) and 1.457-2(h) (5) of the
Treasury Regulations.
Section 5.3 TERMINATION OF EMPLOYMENT.
(a) In the event a Participant's employment with the Company is
terminated for any reason, except death or Disability, prior to reaching age 55,
the Participant shall cease to be a
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Participant in the Plan as of the date of such termination and the entire value
of any vested Contract Rights credited to his or her Contract Rights Account
shall be distributed to the Participant as soon as administratively feasible.
The value of the Contract Rights at the time of distribution shall be determined
in the manner described in Article VI of the Plan. However, if the value cannot
be determined because no agricultural producer has been designated by the
Participant within 90 days of said termination of employment, then the value of
any Contract Rights then credited to the Participant's Contract Rights Account
will be terminated. No minimum number of Contract Rights shall be imposed or
required for such distribution. The value of any amounts credited to the
Participant's Elective Deferrals Account as determined under Article VI shall
also be distributed as soon as administratively feasible after such termination
of employment. Any nonvested Contract Rights shall be terminated and an amount
equal to the value of such nonvested Contract Rights determined at the time the
Participant exercised his or her option to have his or her benefits measured by
the value of such nonvested Contract Rights, plus an amount equal to the
interest payable on such amount measured by using the prime rate of interest
stated in the Wall Street Journal, shall be distributed to the Participant as
soon as administratively feasible after such termination of employment. The
Board of Directors shall have sole discretion with respect to the interpretation
and application of this Section 5.3 and such exercise of discretion shall be
conclusive and binding upon the Participant, and all other persons.
(b) In the event a Participant's employment with the Company is
terminated for any reason, except death or Disability, on or after the date on
which the Participant attains age 55, the Participant may, at any time after
such termination but not later than the fifth anniversary of such termination,
make a written request to the Human Resources Committee of the Board of
Directors for a distribution of the entire value of the vested Contract Rights
credited to the Participant's Contract Rights Account. The value of the Contract
Rights at the time of distribution shall be determined in the manner described
in Article VI of the Plan. Distribution of the value of such vested Contract
Rights shall be made as soon as administratively feasible after such request.
Also, any C that are not vested at the time of distribution shall be terminated
and an amount equal to the value of such nonvested Contract Rights determined at
the time the Participant exercised his or her option to have his or her benefits
measured by the value of such nonvested Contract Rights, plus an amount equal to
the interest payable on such amount measured by j using the prime rate of
interest stated in the WALL STREET JOURNAL, J shall be distributed to the
Participant at the same time. No minimum number of Contract Rights shall be
imposed or required for such distribution. The value of any amounts credited to
the Participant's Elective Deferrals Account, as determined under Article VI,
shall be distributed as of the first day of the first month of the calendar year
immediately following the calendar year in which the termination occurs.
Section 5.4 DEATH OF PARTICIPANT. In the event of a Participant's
termination of employment on account of the Participant's death, the
Participant's beneficiary may, at any time after the Participant's death but not
later than the date on which occurs the fifth anniversary of the date of the
Participant's death, make a written request to the Human Resources Committee of
the Board of Directors for a distribution of the entire value of the Contract
Rights credited to the Participant's Contract Rights Account. The value of the
Contract Rights at the time of distribution shall be determined in the manner
described in Article VI of the Plan. Distribution of the value of such Contract
Rights shall be made to the Participant's beneficiary as soon as
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administratively feasible after such request. No minimum number of Contract
Rights shall be imposed or required for purposes of such distribution. The value
of any amounts credited to the Participant's Elective Deferrals Account, as
determined under Article VI, shall be distributed to the beneficiary as of the
first day of the first month of the calendar year immediately following the
calendar year in which the Participant's death occurs.
Section 5.5 DISABILITY OF PARTICIPANT. In the event of a Participant's
termination of employment on account of the Participant's Disability, the
Participant may, at any time after such determination of a Disability, or the
date on which the Participant attains age 70, whichever is later, make a written
request to the Human Resources Committee of the Board of Directors for a
distribution of the entire value of the Contract Rights credited to the
Participant's Contract Rights Account. The value of the Contract Rights at the
time of distribution shall be determined in the manner described in Article VI
of the Plan. Distribution of the value of such Contract Rights shall be made as
soon as administratively feasible after such request. No minimum number of
Contract Rights shall be imposed or required for such distribution. The value of
any amounts credited to the Participant's Elective Deferrals Account, as
determined under Article VI, shall be distributed as of the first day of the
first month of the calendar year immediately following the calendar year in
which the Participant's Disability is determined.
Section 5.6 DISTRIBUTION REQUIREMENTS.
(a) Payment to or on behalf of a Participant of any amount payable
under this Plan shall be made in a lump sum payment of cash.
(b) A Participant will be eligible to receive any profit payments on
the value of the Contract Rights credited to his or her Contract Rights Account
with respect to the period between the date on which amounts are payable to the
Participant under the Plan and the receipt of payments under the Plan.
(c) Notwithstanding any provision in this Plan to the contrary, the
value of any Contract Rights that are not vested (as determined in accordance
with Section 4.1) may not be distributed under the terms of the Plan.
(d) Notwithstanding any other provision of the Plan to the contrary,
if, at any time, a court or the Internal Revenue Service determines that an
amount is includable in the gross income of a Participant under this Plan and
subject to tax, the Board of Directors may, in its sole discretion, permit a
lump sum cash distribution of an amount equal to the amount determined to be
includable in the Participant's gross income.
(e) If an election has been made under the SERP to have the amounts
credited to the 401K Plan Account under the SERP valued in accordance with the
terms of this Plan, said amounts shall be valued under this Plan relative to the
value of the Contract Rights and the following provisions shall apply:
(i) If any nonvested Contract Rights were used for
purposes of valuing the benefits under the SERP and such
nonvested Contract Rights are terminated under the terms of
the Plan, then an amount equal to the value of such nonvested
Contract Rights at the time the Participant exercised his or
her option
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to have his or her benefits measured by the value of such
nonvested Contract Rights such nonvested Contract Rights,
plus an amount equal to the value of interest payable
on such amount measured by using the prime rate of interest
stated in the Wall Street Journal, shall be credited to an
account for the Participant under the SERP.
(ii) If any vested Contract Rights were used for
purposes of valuing the benefits under the SERP and the value
of all or any portion of any such Contract Rights was
distributed to or on behalf of a Participant under the terms
of the Plan, then such distribution shall cause a
corresponding reduction in the value of the amounts credited
under the SERP that had been converted to the value of the
Contract Rights pursuant to Section 3.1 of the Plan.
Section 5.7 PROFIT PAYMENTS. Each Participant shall be eligible to
receive an annual profit payment, determined in accordance with this Section
5.7, for each Contract Right credited to the Participant's Contract Rights
Account under the Plan, irrespective of whether the Contract Right is vested or
nonvested. The annual profit payments payable to or on behalf of a Participant
shall be paid by the Company to the Participant, or the Participant's
beneficiary, unless the Participant has made an election to defer the payments
pursuant to the terms of the American Crystal Sugar Company Supplemental
Executive Retirement Plan. If such an election has been made, no profit payments
shall be paid to the Participant or the Participant's beneficiary under this
Section 5.7. The amount of each profit payment shall be equal to the difference
between the average gross beet payment per acre net of unit retains and the
average cost of production (as established by the Board of Directors on advice
of the Human Resources Committee and based upon reputable cost surveys) for the
most recent year for which data is available. A profit payment shall be made on
the same schedule and with the same adjustments and partial payouts as beet
payments are made to beet sugar growers. Annual profit payments payable under
this Section 5.7 shall not be credited to the Participant's Accounts under this
Plan.
ARTICLE VI.
VALUATION OF CONTRACT RIGHTS
Section 6.1 VALUATION OF CONTRACT RIGHTS. The value of a Contract Right
shall be determined by the Board of Directors in its sole discretion, but based
upon the advice of its Human Resources Committee. The Board of Directors shall
determine the value of a Contract Right at the beginning of each three-year
period described under Section 3.1. The beginning value of a Contract Right for
the initial three-year period is $1,485, which, as of effective date of the
Plan, was the last price at which preferred shares of the Company were offered
to an agricultural producer eligible to hold such shares. The Board of Directors
shall also determine the value of a Contract Right as of the date of any
distribution of benefits under the Plan. This determination shall be based upon
a sale of regular preferred shares of the Company to an agricultural producer
eligible to hold such shares. Except as otherwise provided in this Plan, the
agricultural producer shall be designated by the Participant. However, an
agricultural producer may be designated by the Participant's designated
beneficiary in the event the Participant dies prior to designating an
agricultural producer. A designation of an agricultural producer shall be made
on a form provided by the Company within the period of time provided under the
terms of
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the Plan. If no agricultural producer has been designated as provided
under the Plan and a value of a Contract Right cannot be determined, the
Contract Right shall be terminated.
Section 6.2 VALUATION OF ELECTIVE DEFERRALS. Amounts credited to an
Elective Deferrals Account in accordance with Section 3.1 shall be credited
with an amount equal to the value of the prime rate of interest stated in the
Wall Street Journal. Such Account shall be valued at such times as determined
by the Board of Directors.
ARTICLE VII.
CALCULATION OF CONTRACT RIGHTS
Section 7.1 CALCULATION OF CONTRACT RIGHTS. Subject to Section 7.3, at
the beginning of each three-year period, the Board of Directors shall determine
the Contract Rights that are to be Available to each Participant based upon the
following formula: annual base compensation of the Participant multiplied by the
annual present value of long term incentive plans target (which has been
determined to be a specific percentage for each Participant: Chief Executive
Officer, 0%; Chief Operating Officer, 45%; VP Operations, 26%; VP Joint
Ventures, 26%; VP Finance, 26%; VP Agriculture, 26%; VP Human Resources, 24%; VP
Public & Governmental Affairs, 18%; and VP Strategy, 18%) multiplied by three
and that number is then divided by the compensation value of Contract Rights
available at the end of a three-year period, rounded to the nearest whole number
(for example, VP Strategy: $110,000 x 18% = 19,800, 19,800 x 3 = 59,400, 59,400
+ 1315 = 45). Compensation value is defined as the estimated fair market value
as of the beginning of a three-year period, plus estimated per acre profit
payments for three years, reduced by the value of the Contract Rights set by the
Human Resources Committee. The result is the minimum number of Contract Rights
described in Section 5.1.
Section 7.2 CONTRACT RIGHTS FOR THE FIRST PERIOD. The number of
Contract Rights to be made available to each Participant under the Plan after
the end of the initial three-year period is the number of Contract Rights set
forth in Exhibit B, which is attached hereto and incorporated herein by this
reference.
Section 7.3 NO CONTRACT RIGHTS. Notwithstanding any provision herein to
the contrary, if the three year average net beet payment (after unit retains)
falls below 60.5% of net sugar revenues, no Contract Rights will be made
available to any Participant for that three-year period.
ARTICLE VIII.
NONTRANSFERABILITY
Section 8.1 ANTI-ALIENATION OF CONTRACT RIGHTS. Benefits credited to
the Contract Rights Account and the Elective Deferrals Account of a Participant,
and any rights and privileges pertaining thereto, may not be anticipated,
alienated, sold, transferred, assigned, pledged, encumbered, or subjected to any
charge or legal process; and no interest or right to receive a benefit may be
taken, either voluntarily or involuntarily, for the satisfaction of the debts
of, or other obligations or claims against, such person or entity, including
claims for alimony, support, separate maintenance and claims in bankruptcy
proceedings.
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Section 8.2 INCOMPETENT PARTICIPANTS. If any person entitled to a
payment under the Plan has been declared incompetent and a conservator or other
person legally charged with the care of such person or of his or her estate has
been appointed, any payment under the Plan to which the person is entitled shall
be paid to such conservator or other person legally charged with the care of the
person or his or her estate. Except as provided above, when the Company has
determined that such person is unable to manage his or her affairs, the Company
may provide for such payment or any part thereof to be made to any other person
or institution then contributing toward or providing for the care and
maintenance of such person. Any such payment shall be a payment for the account
of such person and a complete discharge of any liability of the Company and the
Plan therefor.
Section 8.3 DESIGNATED BENEFICIARY. In the event of a Participant's
death prior to the lump sum payment of any amounts payable under the Plan, the
payment of any amounts payable on behalf of the Participant under the Plan shall
be made to the Participant's beneficiary designated on a form provided to the
Participant by the Company. If no such beneficiary has been designated, payment
shall be made to the duly appointed and qualified executor or other personal
representative of the Participant to be distributed in accordance with the
Participant's will or applicable intestacy law; or in the event that there shall
be no such representative duly appointed and qualified within six (6) months
after the date of death of such deceased Participant, then to such persons as,
at the date of the Participant's death, would be entitled to share in the
distribution of such deceased Participant's personal estate under the provisions
of the applicable statute then in force governing the descent of intestate
property, in the proportions specified in such statute.
ARTICLE IX.
WITHHOLDING
Section 9.1 WITHHOLDING. The Company shall have the right to deduct
from all amounts paid pursuant to the Plan any federal or state taxes required
by law to be withheld with respect to such payments.
ARTICLE X.
VOTING AND PROFIT PAYMENTS
Section 10.1 VOTING AND PROFIT PAYMENTS. Except as otherwise provided
under the Plan, no Participant shall be entitled to any voting rights, to
receive any dividends, or to have his or her Accounts credited or increased as a
result of any profit payments or other distribution with respect to the shares
or stock of the Company.
ARTICLE XI.
ADMINISTRATION OF THE PLAN
Section 11.1 ADMINISTRATOR. The administrator and named fiduciary of
the Plan shall be the Company and the Board of Directors shall act on behalf of
the Company, unless the Board of Directors designates another person or persons
to act on behalf of the Company.
Section 11.2 AUTHORITY OF ADMINISTRATOR. The Company shall have
authority, duty and power to interpret and construe the provisions of the Plan
as it deems appropriate, to adopt,
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establish and revise rules, procedures and regulations relating to the Plan, to
determine the conditions subject to which the value of any Contract Rights may
be made or payable, and to make any other determinations which it believes
necessary or advisable for the administration of the Plan. The Company shall
have the duty and responsibility of maintaining records, making the requisite
calculations and dispersing payments hereunder. The Company's determinations,
interpretations, regulations and calculations shall be final and binding on all
persons and parties concerned. The Chief Executive Officer of the Company shall
be the agent of the Plan for the service of legal process in accordance with
Section 502 of the Employee Retirement Income Security Act of 1974, as amended.
Section 11.3 OPERATION OF PLAN AND CLAIMS PROCEDURES. The Company shall
be responsible for the general operation and administration of the Plan and for
carrying out the provisions thereof. The Company shall be responsible for the
expenses incurred in the administration of the Plan. The Company shall also be
responsible for determining eligibility for payments and the amounts payable
pursuant to the Plan. The Company shall be entitled to rely conclusively upon
all tables, valuations, certificates, opinions and reports furnished by any
actuary, accountant, controller, counsel or other person employed or engaged by
the Company with respect to the Plan. The procedures for filing claims for
payments under the Plan are described below. For claims procedures purposes, the
"Claims Manager" shall be the Company.
(a) It is the intent of the Company to make payments under the Plan
without the Participant having to complete or submit any claims forms. However,
a Participant who believes he or she is entitled to a payment under the Plan may
submit a claim for payments in writing to the Company. Any claim for payments
under the Plan must be made by the Participant or his or her beneficiary in
writing and state the claimant's name and the nature of benefits payable under
the Plan on a form acceptable to the Company. If for any reason a claim for
payments under this Plan is denied by the Company, the Claims Manager shall
deliver to the claimant a written explanation setting forth the specific reasons
for the denial, specific references to the pertinent provisions under the Plan
on which the denial is based, a description of any additional material or
information necessary for the claimant to perfect the claim and an explanation
of why such material or information is necessary, and information on the
procedures to be followed by the claimant in obtaining a review of his or her
claim, all written in a manner calculated to be understood by the claimant. For
this purpose:
(i) The claimant's claim shall be deemed to be filed
when presented orally or in writing to the Claims Manager.
(ii) The Claims Manager's explanation shall be in writing
delivered to the claimant within 90 days of the date the
claim is filed.
(b) The claimant shall have 60 days following his or her receipt of the
denial of the claim to file with the Claims Manager a written request for review
of the denial. For such review, the claimant or the claimant's representative
may review pertinent documents and submit written issues and comments.
(c) The Claims Manager shall decide the issue on review and furnish the
claimant with a copy within 60 days of receipt of the claimant's request for
review of the claimant's
11
<PAGE>
claim. The decision on review shall be in writing and shall include specific
reasons for the decision, written in a manner calculated to be understood by the
claimant, as well as specific references to the pertinent provisions in the Plan
on which the decision is based. If a copy of the decision is not so furnished to
the claimant within such 60 days, the claim shall be deemed denied on review. In
no event may a claimant commence legal action for benefits the claimant believes
are due the claimant until the claimant has exhausted all of the remedies and
procedures afforded the claimant by this Section 11.3.
Section 11.4 PARTICIPANT'S ADDRESS. Each Participant shall keep the
Company informed of his or her current address and the current address of his or
her beneficiary. The Company shall not be obligated to search for any person. If
the location of a Participant is not made known to the Company within three (3)
years after the date on which payment of the Participant's benefits payable
under this Plan may be made, payment may be made as though the Participant had
died at the end of the three-year period. If, within one (1) additional year
after such three-year period has elapsed, or, within three (3) years after the
actual death of a Participant, the Company is unable to locate any designated
beneficiary of the Participant, then the Company shall have no further
obligation to pay any benefit hereunder to such Participant or designated
beneficiary and such benefits shall be irrevocably forfeited.
Section 11.5 LIABILITY. Notwithstanding any of the provisions of the
Plan to the contrary, neither the Company nor any individual acting as an
employee or agent of the Company shall be liable to any Participant or any other
person for any claim, loss, liability or expense incurred in connection with the
Plan, unless attributable to fraud or willful misconduct on the part of the
Company or any such employee or agent of the Company.
ARTICLE XII.
MISCELLANEOUS PROVISIONS
Section 12.1 NO EMPLOYMENT RIGHTS. Neither the Plan nor any action
taken hereunder shall be construed as giving any employee any right to be
retained in the employ of the Company.
Section 12.2 UNFUNDED AND UNSECURED. The Plan shall at all times be
considered entirely unfunded both for tax purposes and for purposes of Title I
of the Employee Retirement Income Security Act of 1974, as amended, and no
provision shall at any time be made with respect to segregating assets of the
Company for payment of any amounts hereunder. Any funds invested hereunder shall
continue for all purposes to be part of the general assets of the Company and
available to the general creditors of the Company in the event of the Company's
bankruptcy (when the Company is involved in a pending proceeding under the
Federal Bankruptcy Code) or insolvency (when the Company is unable to pay its
debts as they mature). In the event of the Company's bankruptcy or insolvency,
the Company's Board of Directors and Chief Executive Officer are required to
notify the trustee (if any) and each Participant in writing of such an
occurrence within one (1) day of the Company's knowledge of such occurrence. No
Participant or any other person shall have any interests in any particular
assets of the Company by reason of the right to receive a benefit under the Plan
and to the extent the Participant or any other person acquires a right to
receive benefits under this Plan, such right shall be no greater than the right
of any general unsecured creditor of the Company. The Plan constitutes a mere
promise by the
12
<PAGE>
Company to make payments to the Participants in the future. Nothing contained in
the Plan shall constitute a guaranty by the Company or any other person or
entity that any funds in any trust or the assets of the Company will be
sufficient to pay any benefit hereunder. Furthermore, no Participant shall have
any right to a benefit under the Plan except in accordance with the terms of the
Plan.
Section 12.3 PLAN PROVISIONS. Except when otherwise required by the
context, any singular terminology shall include the plural.
Section 12.4 SEVERABILITY. If a provision of the Plan shall be held to
be illegal or invalid, the illegality or invalidity shall not affect the
remaining parts of the Plan and the Plan shall be construed and enforced as if
the illegal or invalid provision had not been included.
Section 12.5 APPLICABLE LAW. To the extent not preempted by the laws of
the United States, the laws of the State of Minnesota shall apply with respect
to this Plan.
Section 12.6 SUCCESSOR TO COMPANY. In the event there is a successor or
assignee to or of the Company, whether direct or indirect, by purchase, merger,
consolidation or otherwise, to all or substantially all (at least 85% of the
assets or the common stock) of the Company, the Company, in its sole discretion,
may either require such successor or assignee to assume and agree to perform the
Company's obligations under the Plan, in the same manner and to the same extent
that the Company would be required to perform if no such succession or
assignment had occurred or terminate the Plan pursuant to the provisions of
Section 14.1. If a successor or assignee assumes the Plan pursuant to this
Section 12.6, the term "Company," as used in the Plan, shall mean the Company as
hereinbefore defined and any successor or assignee to the Company which by
reason hereof becomes bound by the terms and provisions of the Plan.
ARTICLE XIII.
AMENDMENTS
Section 13.1 AMENDMENT OF THE PLAN. The Company reserves the power to
alter, amend or wholly revise the Plan at any time and from time to time by the
action of the Board of Directors and the interest of each Participant is subject
to the powers so reserved. An amendment shall be authorized by the Board of
Directors and shall be stated in an instrument in writing signed in the name of
the Company by a person or persons authorized by the Board of Directors. After
the instrument has been so executed, the Plan shall be deemed to have been
amended in the manner therein set forth, and all parties interested herein shall
be bound thereby. No amendment to the Plan may alter, impair, or reduce the
vested benefits credited to the Accounts under the Plan prior to the effective
date of such amendment without the written consent of any affected Participant.
ARTICLE XIV.
TERM OF PLAN
Section 14.1 TERM OF THE PLAN. The Company may at any time terminate
the Plan by action of the Board of Directors. No Contract Rights shall be made
available pursuant to the Plan and no further elective deferrals will be
permitted after the date of termination of the Plan,
13
<PAGE>
although after such date payments shall be made with respect to benefits
credited to Accounts prior to the date of termination.
Dated this 20TH day of MARCH 1996
AMERICAN CRYSTAL SUGAR COMPANY
By: /s/ Robert Nyquist
---------------------
Title: Chairman of the Board
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Grant of Contract
Participant Rights under Section 3.2
----------- ------------------------
<S> <C>
Chief Executive
Officer 0
Chief Operating
Officer 83
VP Operations 28
VP Joint Ventures 34
VP Finance 0
VP Agriculture 32
VP Human Resources 27
VP Public and Gov't Affairs 15
VP Strategy 15
</TABLE>
15
<PAGE>
EXHIBIT B
<TABLE>
<CAPTION>
Contract Rights Available
Participant Under Section 7.2
----------- --------------------------
<S> <C>
Chief Executive
Officer 0
Chief Operating
Officer 166
VP Operations 56
VP Joint Ventures 68
VP Finance 0
VP Agriculture 64
VP Human Resources 54
VP Public and Gov't Affairs 30
VP Strategy 30
</TABLE>
16
<PAGE>
FIRST AMENDMENT TO THE
AMERICAN CRYSTAL SUGAR COMPANY
LONG TERM INCENTIVE PLAN
American Crystal Sugar Company, a Minnesota corporation, pursuant to
the power of amendment reserved to it in Section 13.1 of the American Crystal
Sugar Company Long Term Incentive Plan (the "Plan") hereby adopts and publishes
this First Amendment to said Plan.
ARTICLE I. Exhibit A, which is attached to the Plan and is incorporated
into the Plan by the reference to said Exhibit A in Section 3.2 of said Plan,
shall be, and hereby is, amended by deleting the number designated as the number
of Contract Rights initially credited to the Chief Executive Officer pursuant to
said Section 3.2 as set forth in said Exhibit A, which number is "0," and
substituting therefor the number "155." A revised Exhibit A has been attached
hereto and is hereby incorporated into the Plan by this reference.
ARTICLE II. Article IV of said Plan shall be, and hereby is, amended by
deleting the last paragraph of Section 4.1 thereof in its entirety and
substituting therefor the following new paragraph:
"Notwithstanding any provision herein to the contrary, a Participant
shall be vested in the Contract Rights initially credited to the
Participant under Section 3.2 as follows: 50. vested on September 1,
1995, the date of such initial credit; 75. vested on September 1, 1996,
the first anniversary of the date of such initial credit; and 100.
vested on September 1, 1997, the second anniversary of the date of such
initial credit. Furthermore, notwithstanding any provision herein to
the contrary, a Participant shall be 100. vested in any Contract Rights
credited to his or her Contract Rights Account in the event of the
Participant's death, Disability or attainment of age 62 while employed
with the Company, and in amounts credited to his or her Elective
Deferrals Account."
ARTICLE III. Article V of said Plan shall be, and hereby is, amended by
deleting Section 5.7 thereof in its entirety and substituting therefor the
following Section 5.7:
"Section 5.7 PROFIT PAYMENTS. Each Participant shall be eligible to
receive an annual profit payment, determined in accordance with this
Section 5.7, for each Contract Right credited to the Participant's
Contract Rights Account under the Plan, irrespective of whether the
Contract Right is vested or nonvested. The annual profit payments
payable to or on behalf of a Participant shall be paid by the Company
to the Participant, or the Participant's beneficiary, unless the
Participant has made an election to defer the payments pursuant to the
terms of the American Crystal Sugar Company Supplemental Executive
Retirement Plan. If such an election has been made, no profit payments
shall be paid to the Participant or the Participant's beneficiary under
this Section 5.7. The amount of each profit payment shall be equal to
the difference between the average gross beet payment per acre net of
unit retains and the average cost of production (as established by the
Board of Directors on advice of the Human Resources Committee and based
upon reputable cost surveys) for the most recent year for which data is
available. A profit payment shall be made on the same schedule and with
the same adjustments and partial payouts as beet payments are made to
beet sugar growers. Annual profit payments payable under this Section
5.7 shall not be credited to the Participant's Accounts under this
Plan. Notwithstanding any provision in this Section 5.7 to the
contrary, the Chief Executive Officer shall not
17
<PAGE>
be eligible to receive an annual profit payment as determined in
accordance with this Section 5.7 and accounted for in the fiscal year
ending August 31, 1996, for the 155 Contract Rights initially credited
to his Contract Rights Account under Section 3.2 of the Plan, and no
annual profit payments accounted for in the fiscal year ending August
31, 1996, shall be payable to or on behalf of the Chief Executive
Officer with respect to said 155 Contract Rights."
ARTICLE IV. Article VII of said Plan shall be, and hereby is, amended
by deleting Section 7.1 thereof in its entirety and substituting therefor the
following Section 7.1:
"Section 7.1 CALCULATION OF CONTRACT RIGHTS. Subject to Section 7.3, at
the beginning of each three-year period, the Board of Directors shall
determine the Contract Rights that are to be available to each
Participant based upon the following formula: annual base compensation
of the Participant multiplied by the annual present value of long term
incentive plan targets (which has been determined to be a specific
percentage for each Participant: Chief Executive Officer, 500; Chief
Operating Officer, 450; VP Operations, 26%; VP Joint Ventures, 260; VP
Finance, 260; VP Agriculture, 260; VP Human Resources, 24%; VP Public &
Governmental Affairs, 180; and VP Strategy, 18a) multiplied by three
and that number is then divided by the compensation value of Contract
Rights available at the end of a three-year period, rounded to the
nearest whole number (for example, VP Strategy: $110,000 x 180 =
19,800, 19,800 x 3 = 59,400, 59,400 - 1315 = 45). Compensation value is
defined as the estimated fair market value as of the beginning of a
three-year period, plus estimated per acre profit payments for three
years, reduced by the value of the Contract Rights set by the Human
Resources Committee. The result is the minimum number of Contract
Rights described in Section 5.1."
ARTICLE V. Exhibit B, which is attached to the Plan and is incorporated
into the Plan by the reference to said Exhibit B in Section 7.2 of said Plan,
shall be, and hereby is, amended by deleting the number designated as the number
of Contract Rights to be made available to the Chief Executive Officer pursuant
to said Section 7.2 as set forth in said Exhibit B, which number is "0," and
substituting therefor the number "310". A revised Exhibit B has been attached
hereto and is hereby incorporated into the Plan by this reference.
ARTICLE VI. This First Amendment to said Plan shall be effective as of
September 1, 1995. It is the intention of the Company that, except with respect
to the annual profit payments that are not to be paid to the Chief Executive
Officer as provided in Section 5.7, as amended by this First Amendment, the
provisions of the Plan are to be interpreted and construed in a manner which
allows the Chief Executive Officer to be considered -to be a participant in the
Plan effective as of September 1, 1995.
18
<PAGE>
IN WITNESS WHEREOF, the American Crystal Sugar Company has caused this
First Amendment to the Plan to be executed by its duly appointed officer and the
appropriate corporate seal to be hereunto affixed, this 23rd day of July, 1997.
AMERICAN CRYSTAL SUGAR COMPANY
By: /s/ Wayne Langen
------------------------
Title: Chairman of the Board
19
<PAGE>
EXHIBIT A
Grant of Contract
Participant Rights Under Section 3.2
---------- ------------------------
Chief Executive
Officer 155
Chief Operating
Officer 83
VP Operations 28
VP Joint Ventures 34
VP Finance 0
VP Agriculture 32
VP Human Resources 27
VP Public and Gov't Affairs 15
VP Strategy 15
20
<PAGE>
EXHIBIT B
<TABLE>
<CAPTION>
Contract Rights Available
Participant Under Section 7.2
------------- -------------------------
<S> <C>
Chief Executive Officer 310
Chief Operating Officer 166
VP Operations 56
VP Joint Ventures 68
VP Finance 0
VP Agriculture 64
VP Human Resources 54
VP Public and Gov't Affairs 30
VP Strategy 30
</TABLE>
21
