**Exhibit 10.21**

 

**AMERICAN CRYSTAL SUGAR COMPANY**

**BOARD OF DIRECTORS**

**RESTATED DEFERRED COMPENSATION PLAN**

 

**ARTICLE 1.**

**PURPOSE**

 

1.1                                 **Deferred Compensation.**  The purpose of the American Crystal SugarCompany Board of Directors Restated Deferred Compensation Plan (the “Plan”) isto provide deferred compensation to the members of the Board of Directors (“Board”)of American Crystal Sugar Company (the “Company”).  The Plan is an unfunded deferred compensationarrangement for a select group of advisors, management or highly compensatedemployees within the meaning of Sections 201(2), 301(a)(3), and 401(a)(1) ofthe Employee Retirement Income Security Act of 1974 (“ERISA”) and 29 C.F.R. §2520.104-23(b)(2), and is intended to comply with the requirements of Section 409Aof the Internal Revenue Code of 1986, as amended, and the notices, regulationsand other guidance of general applicability issued thereunder.

 

**ARTICLE 2.**

**ADMINISTRATION**

 

2.1                                 **Administration and Delegation of Authority.**  Except as provided in Section 5.11, thePlan shall be administered by the Chief Executive Officer of the Company or itsdelegate (hereinafter referred to as the “Administrator”).  No member of the Board shall participate inany decisions concerning the payments to be made to him or her, or othermatters relating to his or her benefits hereunder.

 

2.2                                 **Powers.** Except as otherwise provided, and subject to the provisions of the Plan,the Administrator shall have full power and authority to administer andinterpret the Plan, to adopt and revise rules, regulations and guidelinesrelating to the Plan and, to make all other determinations necessary oradvisable for the administration of the Plan. Decisions and determinations by the Administrator shall be final andbinding on all parties including, but not limited to, the Company and itsmembers, employees and officers, whether or not they participate in the Plan.

 

**ARTICLE 3.**

**DEFERREDCOMPENSATION**

 

3.1                                 **Deferral of Fees.**  Each member of the Board of Directors of theCompany (a “Participant”) may file, on a form prescribed by the Administrator,prior to January 1 of each year, an irrevocable election to defer thereceipt of all or a portion of the board and committee fees payable to theboard member during such calendar year. Such election shall apply only to fees earned for services performedafter the election is filed, and shall continue to apply to fees earned in allsubsequent calendar years unless the Participant files a new deferral electionprior to January 1st of such year. Amounts so deferred shall be credited to the Participant’s DeferredCompensation Account.  Further, suchelection shall specify the form of payment for all amounts credited to theParticipant’s Deferred Compensation Account.

 

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3.2                                 **Deferred Compensation Account****.**  All compensationdeferred by a Participant shall be credited from time to time to theParticipant’s Deferred Compensation Account. For calendar years ending prior to January 1, 2009, such DeferredCompensation Account shall be adjusted for earnings, compounded monthly, usingthe five-year Treasury Bond rate on the preceding December 31st. Effective January 1, 2009, the Participant’s Deferred CompensationAccount shall be adjusted for earnings, compounded monthly, at a rate equal tothe Company’s weighted average cost of short-term and long-term borrowing,which rate shall be determined as of the end of the immediately precedingfiscal year of the Company and shall remain in effect for the followingcalendar year.  By way of example, therate for the 2009 calendar year shall be determined as of the fiscal yearending August 31, 2008.  All suchearnings adjustments shall be made on each Annual Accounting Date and on suchother dates as selected by the Administrator, until all amounts credited tosuch Account have been distributed as provided in Section 3.4 below.

 

3.3                                 **Vesting.**  A Participant’s DeferredCompensation Account shall be fully vested at all times.

 

3.4                                 **Payment.**  Within ninety (90) days after theearliest of the Participant’s Separation from Service, death, or attainment ofage 65, the Company shall pay the Participant the balance of his or herDeferred Compensation Account in one of the following methods as elected by theParticipant:

 

3.4.1                        One lump sum payment; or

 

3.4.2                        Equal annual installments over a period notto exceed ten (10) years.

 

The Participant must elect the form ofdistribution for his or her Deferred Compensation Account at the same time heor she first completes a deferral election pursuant to Section 3.1.  If the Participant does not elect a form ofdistribution, payment shall be made in one lump sum payment.  The Participant may elect a new form ofdistribution; provided, however, that such election must be made at leasttwelve (12) months prior to the original distribution date and must postponepayment for at least five (5) years after such original distribution date;and provided, further, that such new election shall not be effective if itprecedes the Participant’s Separation from Service by less than one year.

 

**ARTICLE 4.**

**DEFINITIONS**

 

4.1                                 **Accounting Date.**  “Accounting Date” means any date as of whichthe Administrator elects to determine the value of the balance in a Participant’sDeferred Compensation Account, including Annual Accounting Dates.  An “Annual Accounting Date is August 31st of each year.

 

4.2                                 **Beneficiary.**  “Beneficiary” means the person or persons,natural or otherwise, designated by a Participant to receive benefits in theevent of the Participant’s death.  A

 

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Participant may revoke or change his or her beneficiary designation atany time without the consent of the Beneficiary.  To be effective, such designation, revocationor alteration shall be in writing, in a form approved by the Administrator, andshall be filed with and accepted by the Administrator.  The most recently dated beneficiarydesignation form which is validly filed with the Administrator by a Participantshall revoke all previously dated beneficiary designation forms filed by suchParticipant.  If a Participant fails todesignate a Beneficiary or if no Beneficiary designated by the Participantsurvives the Participant, any remaining payments shall be paid to theParticipant’s estate.  If a Beneficiarydies before receiving all of the payments to which such Beneficiary isentitled, any remaining payments shall be paid to such Beneficiary’s estate.

 

The dissolution of the marriage of a Participant shall void abeneficiary designation by the Participant in favor of the Participant’s spousein that marriage.  That dissolution,however, shall have no affect on any other Beneficiary named by the Participantin the beneficiary designation form on file with the Administrator at the timeof that dissolution or on any beneficiary designation form made by theParticipant subsequent to that dissolution. If, following a dissolution of marriage, the Participant has not namedany other Beneficiary, any benefit payable under the Plan shall be paid to theParticipant’s estate.

 

4.3                                 **Effective Date.**  The initial effective date of the Plan was June 30,1994.  The effective date of thisrestatement is January 1, 2005.

 

4.4**                                 Separationfrom Service****.**  “Separation from Service” or any variationthereof shall mean the Participant’s termination, resignation or withdrawalfrom the Board of Directors.

 

**ARTICLE 5.**

**MISCELLANEOUS PROVISIONS**

 

5.1                                 **Nontransferability.**  No Participant or any Beneficiary shall haveany right to assign, encumber or otherwise anticipate the right to receivepayment hereunder, and the value of the Participant’s Deferred CompensationAccount under the Plan shall not be subject to garnishment, attachment or anyother legal process by the creditors of any Participant or Beneficiaryhereunder.

 

5.2                                 **Liability of Company.**  The Company shall have no liability inconnection with the Plan except to pay any nonforfeitable benefits inaccordance with the terms of the Plan. The Company has made no representations to any Participant with respectto the tax implications of any transactions contemplated by the Plan.  Each Participant shall obtain his or her owncounsel to advise the Participant with respect to the tax effect of the Plan.

 

5.3                                 **Binding Effect.**  The Plan shall be binding upon theParticipants and the Company and their heirs, executors and assigns.

 

5.4                                 **Payment in Case of Incompetency.**  If, in the judgment of the Administratorbased upon facts and information readily available to it, any person entitledto receive a payment hereunder is incapable for any reason of personallyreceiving and giving a valid receipt for the

 

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payment of a benefit, the Administrator may cause such payment or anypart thereof to be made to the duly appointed guardian or legal representativeof such person, or to any person or institution contributing to or providingfor the care and maintenance of such person, provided that no prior claim forsaid payment has been made by a duly appointed guardian or legal representativeof such person.  The Administrator shall notbe required to see to the proper application of any such payment made inaccordance with the provisions hereof, and any such payment shall constitutepayment for the account of such person and a full discharge of any liability orobligation of the Company.

 

5.5                                 **Withholding.**  The Company shall have the right to deductfrom all amounts payable hereunder any state or federal taxes required by lawto be withheld with respect to such awards.

 

5.6                                 **Right to Terminate.**  No member of the Board of Directors or otherperson shall have any claim or right to receive awards under or otherwiseparticipate in the Plan.  Neither thePlan nor any action taken hereunder shall be construed as giving any member ofthe Board of Directors any right to be retained in any service relationshipwith the Company, interfere with the right of the Company to discharge anymember at any time, give the Company the right to require a member to continueto provide services, or interfere with the member’s right to terminate his orher relationship at any time.

 

5.7                                 **Plan Shall be Unfunded.**  The Plan shall at all times be entirelyunfunded, no action shall be taken at any time which would have the effect ofsegregating assets of the Company for payment of any benefit hereunder, and noParticipant or other person shall have any interest in any particular assets ofthe Company by reason of the right to receive a benefit hereunder.  Any Participant or other person shall haveonly the rights of a general unsecured creditor of the Company with respect toany rights hereunder.

 

5.8                                 **Compliance with Applicable Laws.** TheCompany and Participants intend that the Plan comply with the applicableprovisions of the Internal Revenue Code of 1986, as amended from time to time,and the regulations thereunder, with the applicable provisions of ERISA, asamended, and the regulations thereunder, and with any provisions of theSecurities Exchange Act of 1934, as amended, that may be applicable.  If, at a later date, these provisions areconstrued in such a way as to make the Plan null and void, the Plan shall begiven effect in a manner that shall best carry out this intention.  The Plan shall be construed in all events sothat Section 409A of the Internal Revenue Code and the notices,regulations and other guidance of general applicability issued thereunder shallnot cause the inclusion of the amounts set forth above in income to theParticipants prior to the payment of such amounts.

 

5.9                                 **Notices.**  Any notice, election or form to be deliveredpursuant to the Plan shall be given in writing and delivered, personally or byfirst-class mail, postage prepaid, to the Company, the Participant or any otherperson, as the case may be, at their last known address.

 

5.10                           **Headings.**  Headings or titles at the beginning ofarticles and sections are for convenience of reference, shall not be considereda part of the Plan, and shall not influence its construction.

 

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5.11                           **Amendment and Termination.**  The Board, and only the Board, may alter,amend or terminate the Plan at any time; provided, however, that, no amendmentto the Plan may alter, impair or reduce the value of any Participant’s DeferredCompensation Account to the extent vested prior to the effective date of suchamendment, without the written consent of any affected Participant.  Notwithstanding the foregoing, the Companyexpressly reserves the right to amend the Plan to the extent necessary ordesirable to comply with the requirements of Code Section 409A and thenotices, regulations and other guidance of general applicability issuedthereunder.  Further, in the event theBoard of Directors terminates the Plan, such termination and the distributionof all Participants’ benefits shall be made within the time prescribed by andin compliance with Code Section 409A and the regulations, notices andother guidance of general applicability issued thereunder.

 

5.12                           **Governing Law.**  The provisions of the Plan shall be construedand enforced according to the laws of the State of Minnesota to the extent thatsuch laws are not preempted by any applicable federal law.

 

The Company has caused this Plan to be executed by its duly authorizedofficer effective as of this 8th day of December, 2008.

 
| ** ** | **AMERICAN CRYSTAL SUGAR COMPANY** |
|------------|------------------------------------|
|       |                               |   |
|       |                               |   |
|       | By                                 | /s/ David Berg |
|       |                               | Its  | President/CEO |

 

 

4395952

 

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