Exhibit
10.1


 


EMPLOYMENT AGREEMENT


 


This
Employment Agreement (“Agreement”) is entered into as of June 10, 1996
(the “Effective Date”) between Golden Growers Cooperative, a North Dakota
Cooperative (“GGC”) and Mark Dillon (“Executive”).


 


WHEREAS,
GGC agrees to employ Executive as its Executive Vice President as of the
Effective Date and Executive accepts employment with GGC in such position; and


 


WHEREAS,
it is GGC’s high priority to arrive at an agreement with Executive as to the
terms and conditions of Executive’s employment and to protect valuable
confidential information and member and employee relationships of GGC and
ProGold Limited Liability Company (“ProGold”), an entity in which GGC has a
forty-nine percent (49%) ownership interest; and


 


WHEREAS,
Executive agrees, in consideration of his employment with GGC and GGC’s
obligations to him hereunder, to recognize and honor his obligations to GGC
with regard to his employment and such confidential information and valuable
relationships;


 


NOW,
THEREFORE, in consideration of the mutual covenants and conditions herein
described, the parties agree as follows:


 


1.                                       Term.  Subject to earlier termination as provided in
paragraph 6 herein, the term of such employment shall commence on the Effective
Date and shall end on the three (3)-year anniversary of the Effective
Date.  Executive’s employment will be
automatically renewed for a one (1)-year term on each said anniversary date
thereafter, on the terms and conditions herein contained or any additional or
modified terms mutually agreed upon in writing by the parties, unless either
party does not desire such renewal and communicates written notice of
nonrenewal to the other party prior to the renewal date.  All references to “year” in this Agreement
refer to the year beginning June 10 and ending the following June 9.


 


2.                                       Duties.  In his position as Executive Vice President,
Executive will faithfully and diligently perform his job as Executive Vice
President, will perform such duties as set forth on Exhibit A hereto and
such other duties as may be reasonably assigned to him from time to time by the
Board of Directors of GGC (the “Board”), excluding any periods of vacation,
sick, disability or other leave to which Executive is entitled, and will devote
reasonable attention and time to the business and affairs of GGC and use
Executive’s reasonable best efforts to execute fully his duties hereunder; and
promote GGC’s best interests.  Executive
represents that he will not take any action at any time while he is employed by
GGC which would in any way be reasonably anticipated to conflict with GGC’s
interests or objectives.  The principal
place of employment and the location of Executive’s principal office and normal
place of work shall be in the Fargo, North Dakota area.


 


3.                                       Compensation.  For all services rendered by Executive, GGC
shall pay Executive a base annual salary of One Hundred Twenty Thousand Dollars
($120,000.00), payable in substantially equal semi-monthly installments.


 


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4.                                       General
Benefits.  Executive shall be entitled to
receive additional salary as an allowance for health insurance, life insurance,
retirement benefits, disability insurance, pension benefits, flexible benefits
fund, educational assistance and tax preparation assistance which will allow
Executive to acquire on his own, and not through GGC, such benefits in amounts
comparable to those provided executives of American Crystal Sugar Company.  The allowance for such benefits may be less
than but shall not exceed thirty percent (30%) of current compensation per year
and shall be prorated and payable semi-monthly. 
Executive shall also be entitled to reimbursement of his reasonable and
necessary expenses incurred in connection with the performance of his duties
hereunder, including use of a GGC minivan or sport utility vehicle for business
and personal use, with personal use reimbursed to GGC at IRS mileage rates, one
(1) airline executive club membership, annual fee paid for one (1) premium
credit card and one (1) telephone credit card, membership in professional
associations as approved by the Board or its designated committee, and travel,
registration and reasonable expenses incurred attending such seminars, meetings
or conferences as approved by the Board or its designated committee.


 


5.                                       Vacation, Sick
Leave and Time Off.  Executive shall be
entitled to combined vacation and sick leave of twenty (20) business days per
year with pay through the initial three (3)-year employment term of this
Agreement.  In the event that Executive’s
employment is extended beyond the initial term, Executive shall be entitled to
twenty-five (25) business days per year of combined vacation and sick leave for
each of the next four (4) years, and thirty (30) business days per year
thereafter.  Executive shall also be
entitled to eight (8) holidays per year plus one (1) floating
holiday.  Executive shall advise the
Board annually of these holidays. 
Executive shall also be entitled to bereavement leave up to five (5) days
per occurrence for the death of a parent, spouse or child.  Vacation time in excess of one (1) day
at a time shall be coordinated with the Board or its designated committee and
taken subject to its approval.  Carryover
of unused vacation and sick leave shall be capped at fifty percent (50%) of the
prior year’s allowance.  In addition,
Executive shall be allowed leave without pay July 2-15, 1996.  Any additional days absent per year from a
five (5)-day work week, other than allowed in this paragraph, shall be without
compensation.


 


6.                                       Termination.  Either Executive or GGC may terminate the
employment relationship upon thirty (30) day’s advance written notice to the
other party for any reason, except as otherwise provided in the last sentence
of this paragraph.  If Executive
terminates this Agreement by resigning his employment, GGC may terminate his
employment at any time during the thirty (30)-day notice period, provided,
however, that GGC will continue to pay Executive’s base salary and benefit
allocation for the duration of the 30-day notice period.  If GGC terminates Executive’s employment
without Cause, GGC will pay Executive One Hundred Fifty Thousand Dollars
($150,000.00) as full and final payment to Executive following his execution of
the release agreement described in paragraph 9 of this Agreement.  If GGC terminates Executive’s employment for
Cause, said termination shall be effective immediately upon written notice to
Executive and GGC wilt pay Executive two semi-monthly paychecks following his
termination.


 


Cause
exists if Executive has (a) engaged in dishonesty, illegal or other
wrongful conduct substantially detrimental to the business or reputation of GGC
or ProGold; (b) violated any material provision in this Agreement or any
material existing or future GGC policies; (c) willfully and continuously
failed or refused to perform his duties with GGC, provided, 


 


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Executive
does not remedy such violation within thirty (30) days after written notice
thereof is given Executive; or (d) is convicted of a felony involving any
fraud, embezzlement, theft or dishonesty, or is convicted of any criminal
conduct affecting GGC.


 


Security
Agreement.  To secure performance by GGC
of its One Hundred Fifty Thousand Dollars ($150,000.00) obligation under
paragraph 6 of this Agreement, GGC shall, coincident with the signing of this
Agreement, deposit One Hundred Fifty Thousand Dollars ($150,000.00) in the form
of a three-year Certificate of Deposit with Community First Bank (the “Bank”).  GGC shall pledge to Executive the Certificate
of Deposit (by executing and delivering to Bank and Executive forms required by
the Bank or provided by Executive’s attorney) and it does hereby grant to
Executive a Uniform Commercial Code security interest in the Certificate of
Deposit to secure GGC’s obligations under paragraph 6 of this Agreement.  In the event of a default by GGC in said
obligations, Executive shall have the right if the default is not cured within
thirty (30) days following Executive’s written notice to GGC of default, to
deliver the Certificate of Deposit to the Bank and obtain the payment of the
proceeds, excluding all accrued interest thereon, to Executive and/or to resort
to any and all remedies which the Executive may have at law or in equity.  For such purposes, GGC irrevocably appoints
Executive as its attorney-in-fact to liquidate such Certificate of
Deposit.  The Bank may rely conclusively
upon the original or a photocopy of this document and the Executive’s affidavit
that a default has occurred, Executive’s affidavit and proof of personal
service by an independent third party that a notice of default has been given
GGC and that default has not been timely cured. 
GGC shall also execute and deliver to Executive all Uniform Commercial
Code Financing Statements reasonably requested by Executive to perfect his
security interest in the Certificate of Deposit.  The Certificate of Deposit shall also be
delivered to Executive.  Once three years
has passed following the Effective Date of this Agreement, the Certificate of
Deposit shall be returned to GGC by Executive and any and all Uniform
Commercial Code Financing Statements shall be terminated by Executive, provided
that GGC is not then in default under the terms of this Agreement.  GGC shall also reimburse Executive for any
expense incurred by Executive in protecting or enforcing his rights under this
Agreement, including, without limitation, reasonable attorneys’ fees and legal
expenses, and all expenses of liquidating the Certificate of Deposit.


 


8.                                       Confidential
Information.  Executive acknowledges that
in the course of his employment by GGC, he will have access to GGC’s and
ProGold’s confidential information consisting of member stock subscriptions and
stock transactions, correspondence, communications and other information;
procedures, methods, records and standards relating to the manufacture,
distribution, sales and marketing of ProGold’s products; the terms of any
contracts entered into by GGC and ProGold; any information on any computer
database; sales, marketing and prospect plans and identities; unpublished
promotional brochures and cover designs; fiduciary information; records, data,
formulae, specifications, trade secrets, developments, research activity,
processes, designs, sketches and drawings; short term and long range plans;
financial status, statements and information; and personnel data including
specifically all compensation and other personal information relating to any
GGC or ProGold employee.  Confidential
information also includes any confidential information relating to any business
of any company affiliated with GGC or ProGold, which is disclosed to Executive
either purposely or inadvertently in the course of his employment with GGC.  Executive agrees that such information shall
be considered secret and disclosed to him in confidence.  Executive recognizes 


 


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that
such information is the sole property of GGC, and where appropriate, ProGold,
and shall be used for the exclusive benefit of GGC or ProGold.  During his employment by GGC and thereafter,
Executive will not directly or indirectly disclose or use any such confidential
information except as required in the conduct of GGC’s business.


 


Confidential
information may be written, stored in a computer, merged with other
information, or simply memorized.  Just
because it is memorized, however, this does not in any way reduce its
confidentiality or its proprietary nature. 
While some of this confidential information may be generally public
knowledge, its compilation in a form useful to GGC and ProGold and their
competitors makes it unique and valuable.


 


Executive
agrees that all records, files, documents, equipment, computer discs, video
tapes and the like relating to GGC’s or ProGold’s business which he may
prepare, use or obtain shall be and remain the sole property of GGC or ProGold
and shall not be removed from GGC’s or ProGold’s premises or control without
written authorization from the Board. 
Executive further agrees that prior to his separation from the employ of
GGC for any reason he will meet with such person as GGC may designate for a
separation interview and he will deliver to the Board or its designee any and
all materials in his possession relating to and within the scope of the current
or projected business of GGC and ProGold, including, but not limited to, all
the items listed above.


 


9.                                       Releases.  Executive hereby releases GGC, ProGold,
United Sugars Corporation, Midwest Agri-Commodities Company, and their
respective affiliates, employees, directors, shareholders, officers, agents,
insurers and indemnitors from certain claims and causes of action, known or
unknown, described below, which he may have against them up to his signing of
this Agreement.  This release does not
include any claims which arise after Executive signs this Agreement.  The claims and causes of action which
Executive is releasing hereunder include all compensation, benefit, commission
and contract claims; defamation, emotional distress and other employment
related tort claims except workers compensation; all claims under any federal,
state or local statute, regulation or case law for discrimination claims under
the Americans With Disabilities Act, the Age Discrimination in Employment Act,
the Minnesota Human Rights Act and Title VII of the Civil Rights Act of
1964.  Executive has twenty-one (21) days
to consider this release before he signs this Agreement and he has fifteen (15)
days after he signs it to rescind this release. 
If Executive rescinds his release of his claims under this paragraph, he
will thereby be rescinding this Agreement in its entirety and will have no
rights to any benefits hereunder.  If
Executive desires to rescind his release hereunder, he must deliver written
notice of rescission, by mail or in person, to Mr. Patrick Benedict,
Chairman of the Board, Golden Growers Cooperative, RR 1, Box 9, Sabin, MN 56580
within fifteen (15) days after he signs this Agreement.  If Executive mails his rescission to Mr. Benedict,
he shall send it by certified mail, return receipt requested.  Executive is hereby advised that he has the
right to consult with his own legal counsel regarding his rights hereunder.


 


Executive
will also be required to sign a release identical to the above release but
including any new legal requirements to assure its enforceability which may be
effective at the time of his termination, along with his agreement to keep
confidential and not disclose the circumstances of his termination or
derogatory comments regarding GGC or ProGold or its owners or employees, at the
time of any termination of employment prior to expiration of the initial three
(3)-year term 


 


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of
Executive’s employment, as a condition of receiving the One Hundred Fifty
Thousand Dollar ($150,000.00) payment provided to him at the time of his
termination by GGC without Cause.  If
Executive elects not to execute the release described in this paragraph at the
time of termination he will nonetheless receive two (2) semi-monthly
paychecks following his termination for any reason.


 


10.                                 Remedies.  Each party consents that, in the case of any
violation or threatened violation of this Agreement, the other party may secure
injunctive relief, without bond but upon due notice, in addition to any other
relief available to it.  In the event
either party is found to have violated this Agreement, said party understands
and agrees that it will be liable to the other party for reasonable attorney’s
fees and costs incurred in litigation to enforce this Agreement.  No waiver of any violation of this Agreement
shall be implied from any failure by either party to take action under this
paragraph.


 


11.                                 Severability;
Governing Law; Assignment.  If for any
reason a court of competent jurisdiction determines any provision of this
Agreement to be unenforceable as written, the parties expressly grant the court
authority to modify this provision and to enforce this provision to the maximum
extent possible.  The parties further agree
that this Agreement shall be governed and construed under North Dakota law,
without regard to that body of law commonly known as “conflict of laws.”  Any dispute arising out of or relating to
this Agreement shall be heard by a state or federal court sitting in Fargo,
North Dakota, and Executive consents to the personal jurisdiction of both such
courts.  Executive agrees that his
obligations under this Agreement shall be binding on his heirs, assigns and his
legal representatives and that these obligations are enforceable with respect
to the affiliates, successors and assigns of GGC, any person or entity which
purchases substantially all of the assets of GGC.


 


12.                                 Integration
Clause.  This Agreement is being entered
into substantially contemporaneously with the commencement of Executive’s
employment by GGC and constitutes the complete agreement of the parties,
superseding any and all prior written or oral agreements or understandings
between it and between Executive.  Any amendment
hereto or expansion or revision to Executive’s terms of employment must be
reflected in a writing executed by the parties hereto.


 


13.                                 Survival.  The parties expressly acknowledge and agree
that the provisions of this Agreement which by their express or implied terms
extend beyond the termination of Executive’s employment hereunder or beyond the
termination of this Agreement, shall continue in full force and effect
notwithstanding the Executive’s termination of employment hereunder or the
termination of this Agreement, respectively.


 


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  SIGNED
  AT Fargo, N.D.

  	
  this
  2ndd day of
  August, 1996.

  
	
   

  	
   

  
	
   

  	
  (s)     Mark
  C. Dillon

  
	
   

  	
   

  
	
   

  	
  Golden
  Growers Cooperative

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  (s) Patrick
  Benedict

  
	
   

  	
   

  
	
   

  	
  Its:     chair

  



 


County
of Cass


State
of North Dakota


 


The
above document was signed in the presence of Bradley J. Keller, a Notary
Public, in and for the state of North Dakota.


 


	
   

  	
  (s) Bradley
  J. Keller

  
	
   

  	
  My
  commission expires March 28, 2001

  



 


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EXHIBIT A


 


Duties of Mark Dillon


 


Member
Relations


Member
communications


Memberandum:


Annual
Report


Disclosure
Statements


Advertising
premiums


Member
meetings including Annual Meeting


Share
transfers


Member
records/mailing lists


Elections


 


Board
Relations


Board
meeting logistics/agenda preparation


Board
communications


Board
education


Director
compensation


Attend
ProGold board meetings


 


Public/Community
Relations


Image
advertising


Philanthropy


GGC
representation on committees, boards


 


Industry
Relations


GGC
representation on state corn councils, etc.


Coordinate
lobbying efforts


Memberships


State
corn councils


NCFC


ND
Coordinating Council of Cooperatives


 


Finance


Liaison
with auditors


Liaison
with accounting service supplier(s)


Coordinate
budgeting


Coordinate
dividend payments


 


Office
Management/Policy Coordination/Staffing/Supervision


 


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AMENDMENT TO EMPLOYMENT AGREEMENT


 


WHEREAS,
Golden Growers Cooperative, a North Dakota cooperative (“GGC”) and Mark Dillon
(“Executive”) entered into an Employment Agreement as of June 10, 1996, (“Employment
Agreement”); and


 


WHEREAS,
GGC and Executive desire to extend the terms of that Employment Agreement.


 


NOW,
THEREFORE, in consideration of the mutual covenants and conditions herein
described.  The parties agree to amend
the Employment Agreement as follows:


 


1.                                       The first full
sentence of paragraph 1 entitled “Term” is amended to read as follows:


 


Subject
to earlier termination as provided in paragraph 6 herein, the term of such
employment shall commence on the Effective Date and shall end on the five (5)-year
anniversary of the Effective Date.


 


2.                                       Paragraph 7 is
amended to read as follows:


 


Security
Agreement.  To secure
performance by GGC of its One Hundred Fifty Thousand Dollar ($150,000.00)
obligation under paragraph 6 of this Agreement, GGC shall, coincident with the
signing of this Agreement, deposit One Hundred Fifty Thousand Dollars
($150,000.00) in the form of a Certificate of Deposit with Community First Bank
(the “Bank”).  GGG shall pledge to
Executive the Certificate of Deposit (by executing and delivering to Bank and
Executive forms required by the Bank or provided by Executive’s attorney) and
it does hereby grant to Executive a Uniform Commercial Code security interest
in the Certificate of Deposit to secure GGC’s obligations under paragraph 6 of
this Agreement.  In the event of a
default by GGC in said obligations, Executive shall have the right if the
default is not cured within thirty (30) days following Executive’s written
notice to GGC of default, to deliver the Certificate of Deposit to the Bank and
obtain the payment of the proceeds, excluding all accrued interest thereon, to
Executive and/or to resort to any and all remedies which the Executive may have
at law or in equity.  For such purposes,
GGC irrevocably appoints Executive as its attorney-in-fact to liquidate such
Certificate of Deposit.  The Bank may
rely conclusively upon the original or a photocopy of this document and the
Executive’s affidavit that a default has occurred, Executive’s affidavit and
proof of personal service by an independent third party that a notice of
default has been given GGC and that default has not been timely cured.  GGC shall also execute and
deliver to Executive all Uniform Commercial Code Financing Statements
reasonably requested by Executive to perfect his security interest
in the Certificate of Deposit.  The
Certificate of Deposit shall also be delivered to Executive.  Once five years have passed following the
Effective Date of this Agreement, the Certificate of Deposit shall be returned
to GGC by Executive and any and all Uniform Commercial Code Financing
Statements shall be terminated by Executive, provided that GGC is not then in
default under the terms of this Agreement. 
GGC shall also reimburse Executive for any expense incurred by Executive
in protecting or enforcing his rights under this Agreement including, without
limitation, reasonable attorneys’ fees and legal expenses, and all expenses of
liquidating the Certificate of Deposit.


 


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3.                                       The
second-to-last sentence in paragraph 9 entitled “Releases” is amended to read
as follows:


 


Executive
will also be required to sign a release identical to the above release but
including any new legal requirements to assure its enforceability which may be
effective at the time of his termination, along with his agreement to keep
confidential and not disclose the circumstances of his termination or
derogatory comments regarding GGC or ProGold or its owners or employees, at the
time of any termination of employment prior to expiration of the initial five
(5)-year term of Executive’s employment, as a condition of receiving the One
Hundred Fifty Thousand Dollar ($150,000.00) payment provided to him at the time
of his termination by GGC without Cause.


 


4.                                       Except as
modified herein, the terms of the Employment Agreement entered into as of June 10,
1996, shall remain in full force and effect.


 


SIGNED
AT Fargo, North Dakota, this 15th day of August, 1997.


 


Mark
Dillon


 


Golden
Growers Cooperative


 


Patrick
Benedict


Its
Chairman


 


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