Exhibit 10.20


 


 


AMERICAN CRYSTAL SUGAR COMPANY


 


RESTATED SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN


 


Amended
and Restated November 2008


 


 





















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  INTRODUCTION

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  PARTICIPATION

  	
  4

  
	
   

  	
  2.01.

  	
  ELIGIBILITY TO PARTICIPATE

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  SUPPLEMENTAL RETIREMENT
  BENEFIT

  	
  4

  
	
   

  	
  3.01.

  	
  COMPANY CONTRIBUTIONS

  	
  4

  
	
   

  	
  3.02.

  	
  EMPLOYEE CONTRIBUTIONS

  	
  5

  
	
   

  	
  3.03.

  	
  ADJUSTMENT TO ACCOUNTS

  	
  6

  
	
   

  	
  3.04.

  	
  INVESTMENTS

  	
  6

  
	
   

  	
  3.05.

  	
  VESTING

  	
  6

  
	
   

  	
  3.06.

  	
  PAYMENT OF BENEFITS

  	
  7

  
	
   

  	
  3.07.

  	
  DEATH BENEFIT

  	
  8

  
	
   

  	
  3.08.

  	
  CONTRIBUTIONS TO TRUST

  	
  8

  
	
   

  	
  3.09.

  	
  BENEFITS UNDER LONG TERM
  INCENTIVE PLAN

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  ADMINISTRATION

  	
  8

  
	
   

  	
  4.01.

  	
  POWERS

  	
  8

  
	
   

  	
  4.02.

  	
  COMPANY

  	
  10

  
	
   

  	
  4.03.

  	
  LIABILITY

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  MISCELLANEOUS

  	
  10

  
	
   

  	
  5.01.

  	
  AMENDMENT AND TERMINATION

  	
  10

  
	
   

  	
  5.02.

  	
  NO ALIENATION OF BENEFITS

  	
  11

  
	
   

  	
  5.03.

  	
  NO CONTRACT OF EMPLOYMENT

  	
  11

  
	
   

  	
  5.04.

  	
  EXPENSES

  	
  11

  
	
   

  	
  5.05.

  	
  FUNDING

  	
  11

  
	
   

  	
  5.06.

  	
  GOVERNING LAW

  	
  11

  
	
   

  	
  5.07.

  	
  SEVERABILITY

  	
  11

  
	
   

  	
  5.08.

  	
  INCOMPETENT PARTICIPANTS

  	
  12

  
											



 





















 


AMERICAN CRYSTAL SUGAR COMPANY


 


SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN


 


Introduction


 


WHEREAS, American
Crystal Sugar Company, a Minnesota agriculture cooperative corporation (the “Company”),
maintains the American Crystal Sugar Company 401(k) Partnership Plan and
Trust and Retirement Plan A for Employees of American Crystal Sugar Company;
and


 


WHEREAS, Code Sections
401(a)(17), 402(g), 414(s) and 415 place limits on the contributions which
can be made on behalf of a participant under a qualified defined contribution
plan and a qualified defined benefit plan; and


 


WHEREAS, Code Sections
401(a)(4), 401(k), and 401(m) impose nondiscrimination requirements on
salary reduction and employer matching contributions made on behalf of a
participant under a qualified defined contribution plan; and


 


WHEREAS, the Company adopted the American Crystal Sugar
Company Supplemental Executive Retirement Plan (the “Plan”), effective October 2,
1994, to provide a select group of management or highly compensated employees
with supplemental retirement benefits and the opportunity to make additional
deferrals; and


 


WHEREAS, the Company has amended the Plan from time to
time, including amendments required to comply with Code Section 409A and
the notices, regulations and other guidance of general applicability issued
thereunder; and


 


WHEREAS, the Company desires to amend and restate the
American Crystal Sugar Company Supplemental Executive Retirement Plan to
reflect all such amendments and to further clarify certain provisions of the
Plan;


 


NOW, THEREFORE, the Company hereby adopts the amended and
restated Plan, generally effective January 1, 2008.  Participation Agreements in effect prior to
the adoption of this amended and restated Plan shall remain in effect pursuant
to Section 3.02(C).


 


RESOLVED, FURTHER, that, for purposes of P.L. 104-95, 4 U.S.C.
Section 114, governing state taxation of nonqualified deferred
compensation, the Pension SERP Account shall constitute a separate plan
maintained solely for the purpose of providing retirement benefits in excess of
the limitations imposed on the Pension Plan by Code Sections 401(a)(17) or 415,
or any other limitation on contributions or benefits imposed on the Pension
Plan by the Code.  Further, the rules governing
state taxation of nonqualified deferred compensation under P.L. 104-95, 4 U.S.C.
Section 114, shall apply to the 401(k) SERP Account, Employee SERP
Contribution Account and Employer SERP Contribution Account only if the
Participant elects to receive his or her Accounts in the form of equal annual
installments over a period of ten (10) years.


 


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ARTICLE I


DEFINITIONS


 


Whenever used herein with
the initial letter capitalized, words and phrases shall have the meaning stated
below unless a different meaning is plainly required by the context.  For purposes of construction of this Plan,
the masculine term shall include the feminine and the singular shall include
the plural in all cases in which they could thus be applied.


 


ACCOUNTS shall mean the
401(k) SERP Account, Pension SERP Account, Employer SERP Contribution
Account and Employee SERP Contribution Account, maintained for the benefit of
each Participant pursuant to Sections 3.01 and 3.02, and any other account
established under and described in any other provision of this Plan.


 


BENEFICIARY means the
persons or person or other entity designated by a Participant to receive any
benefit under the Plan which may be due upon the Participant’s death.  The dissolution of the marriage of a
Participant shall void a beneficiary designation by the Participant in favor of
the Participant’s spouse in that marriage. 
That dissolution, however, shall have no affect on any other Beneficiary
named by the Participant in the beneficiary designation form on file with the
Administrator at the time of that dissolution or on any beneficiary designation
form made by the Participant subsequent to that dissolution.  If the Participant has not designated a
Beneficiary, if no Beneficiary designated by the Participant survives the
Participant, or if, following a dissolution of marriage, the Participant has
not named any other Beneficiary, any benefit payable under the Plan shall be
paid to the Participant’s estate.


 


BOARD OF
DIRECTORS means the Board of Directors of American Crystal
Sugar Company.


 


CODE means the
Internal Revenue Code of 1986, as amended from time to time.


 


COMPANY means American Crystal Sugar Company, a Minnesota
agriculture cooperative corporation.


 


COMPENSATION means Compensation as
defined in Section 1.12(A) of the 401(k) Plan, except however,
Compensation shall include amounts deferred under Section 3.02 of this
Plan.


 


DISABILITY means the Participant is unable to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can be expected
to last for a continuous period of not less than twelve (12) months.


 


EMPLOYEE
SERP CONTRIBUTION ACCOUNT means the account established on behalf of
each Participant pursuant to Section 3.02.


 


EMPLOYER CONTRIBUTION means the
Employer Contribution provided for under the terms of the 401(k) Plan for
employees who are hired or rehired on or after September 1, 2007, or who
transfer from a union position to a nonunion position on or after September 1,
2007.


 


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EMPLOYER
SERP CONTRIBUTION ACCOUNT means the account established on behalf of
each Participant pursuant to Section 3.02.


 


401(k) PLAN means the
American Crystal Sugar Company 401(k) Partnership Plan and Trust.


 


401(k) SERP
ACCOUNT means the account with that name established on behalf of a
Participant pursuant to Section 3.01.


 


PARTICIPANT means a person
who has satisfied the requirements of Section 2.01.


 


PARTICIPATION
AGREEMENT means an agreement executed by a Participant and the
Company authorizing the Company to deliver a portion of the Participant’s
Compensation through regular payroll deductions.


 


PENSION
PLAN means Retirement Plan A for Employees of American Crystal Sugar
Company.


 


PENSION
SERP ACCOUNT means the account with that name established on
behalf of a Participant pursuant to Section 3.01.


 


PLAN means the
American Crystal Sugar Company Supplemental Executive Retirement Plan as it may
be amended from time to time.


 


PLAN YEAR means, for the
purposes of the 401(k) Plan, the twelve (12) month period which begins on January 1,
and ends on December 31.  For the
purposes of the Pension Plan, Plan Year means the twelve (12) month period
which begins on March 1 and ends on February 28.


 


SEPARATION FROM SERVICE means termination of
employment with the Company and all affiliates for any reason, including but
not limited to voluntary resignation, termination by the Company (either with
or without cause) or retirement.  A
Participant shall not be deemed to have a Separation from Service if the
Participant is on military leave, sick leave, or other bona fide leave of
absence if the period of such leave does not exceed six (6) months, or, if
longer, so long as the Participant’s right to reemployment with the Company is
provided either by statute or contract. 
If the period of leave exceeds six (6) months and the Participant’s
right to reemployment is not provided either by statute or contract, the
Participant shall be deemed to have a Separation from Service on the first day
immediately following such six-month period.


 


TRUST means the
trust established or maintained by the Company that is used in connection with
this Plan to assist the Company in meeting its obligations under the Plan and
which is hereby incorporated into the Plan by this reference.


 


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ARTICLE II


PARTICIPATION


 


2.01.                     ELIGIBILITY TO PARTICIPATE


 


The Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer and any Vice-President shall be eligible to
participate in the Plan.  In addition,
the Board of Directors or its delegate may, from time to time, identify other
employees of the Company who are select management or highly compensated
employees of the Company as eligible to participate in this Plan on the date
designated by the Board of Directors. 
The Company shall designate whether such employee is eligible to be
credited with Company contributions pursuant to Section 3.01, to make employee
contributions pursuant to Section 3.02, or both.


 


ARTICLE III


SUPPLEMENTAL RETIREMENT BENEFIT


 


3.01.                     COMPANY CONTRIBUTIONS


 


(a)                                  The Company
shall maintain a 401(k) SERP Account and a Pension SERP Account on its
books on behalf of each Participant. 
Each Plan Year, the Company shall credit each Participant’s Accounts
with the amounts determined in (1) and (2) below:


 


(1)                                  The 401(k) SERP
Account of a Participant who participates in the 401(k) Plan shall be
credited with a contribution equal to (A) reduced by (B) as follows:


 


(A)                              An amount equal
to the lesser of:


 


(i)                                     The amount deferred under
the 401(k) Plan; plus the amount deferred under Section 3.02 of this
Plan; or


 


(ii)                                  Four percent (4%) of the
Participant’s Compensation.


 


(B)                                The amount the Company
actually contributed as a matching contribution on the Participant’s behalf
under the 401(k) Plan.


 


(2)                                  The Pension SERP Account of
a Participant who participates in the Pension Plan shall be provided a benefit
equal to (A) reduced by (B) as follows:


 


(A)                              The Participant’s Pension
Plan benefit if the limitation of Code Sections 415 and 401(a)(17) did not
apply and amounts deferred under Section 3.02 of this Plan had been
included in the definition of compensation under the Pension Plan,


 


4

















 


(B)                                The benefit amount actually
provided on the Participant’s behalf under the Pension Plan.


 


(b)                                 A Participant’s Accounts
shall be credited with the amounts determined pursuant to Section 3.01(a) above
at the same time such amounts would have been credited to the Participant’s
account in the 401(k) Plan and the Pension Plan, respectively.


 


(c)                                  The Company shall maintain
an Employer SERP Contribution Account on its books on behalf of each
Participant who is eligible for an Employer Contribution under the 401(k) Plan.  Throughout the Plan Year, the Company shall
credit such Participant’s Employer SERP Contribution Account with an amount
equal to (A) reduced by (B) as follows:


 


(A)                              The Participant’s Employer
Contribution calculated by assuming that the limitations of Code Sections 415
and 401(a)(17) did not apply and that the amounts deferred under Section 3.02
of this Plan had been included in the definition of compensation under the 401(k) Plan,


 


(B)                                The amount of the Employer
Contribution actually contributed on the Participant’s behalf under the 401(k) Plan.


 


Such amount shall be
credited to the Participant’s Employer SERP Contribution Account at the same
time such amounts would have been credited to the Participant’s Employer
Contribution Account maintained for the Participant under the 401(k) Plan.


 


3.02.                     EMPLOYEE CONTRIBUTIONS


 


(a)                                  Each Participant may irrevocably
elect to defer Compensation under the Plan by authorizing, on a Participation
Agreement, regular payroll deductions equal to between two percent (2%) and
twenty percent (20%) of his Compensation in integral percentages.


 


(b)                                 Each participant may also
irrevocably elect to defer up to one hundred percent (100%) of any bonuses he
is paid by the Company during the Plan Year or any Per Acre Profit Payments he
receives during the Plan Year; provided, however, that deferrals of Per Acre
Profit Payments shall not be permitted under this Plan on or after January 1,
2005.


 


(c)                                  Prior to the later of (i) the
first day of the Plan Year, or (ii) the 31st day after the
Participant becomes eligible to participate in the Plan, each Participant shall
enter into a Participation Agreement. 
Such Participation Agreement shall be irrevocable, shall apply only to
Compensation earned after the date of the Participation Agreement and shall
remain in effect for the Plan Year unless the Participant has a Separation from
Service.  A Participant may not modify
his Participation Agreement during a Plan Year.


 


5

















 


(d)                                 The Company shall maintain
an Employee SERP Contribution Account on its books on behalf of each
Participant electing to defer Compensation, bonuses or Per Acre Profit Payments
pursuant to this Section 3.02; provided, however, that deferrals of Per
Acre Profit Payments shall not be permitted under this Plan on or after January 1,
2005.  During each Plan Year, the Company
shall credit each Participant’s Employee SERP Contribution Account with an
amount equal to the amounts deferred pursuant to Section 3.02(a) and
3.02(b).


 


3.03.                     ADJUSTMENT TO ACCOUNTS


 


Each Participant’s Accounts
shall be valued at fair market value as of the last day of each Plan Year and
such other dates as are selected by the Company.  The Accounts shall reflect the Participant’s
aggregate deferral amounts and any earnings or losses attributable to such
amounts.


 


The Participant’s Pension
SERP Account shall not be valued under this Section 3.03 but shall reflect
the benefit described in Section 3.01(a)(2).


 


The earnings or losses
credited to a Participant’s Accounts shall be based upon the earnings or losses
of the investment options applicable to those Accounts pursuant to Section 3.04.  For purposes of crediting earnings or losses
as of a valuation date, all contributions under this Plan that have been
credited to those Accounts since the prior valuation date will be treated as
having been credited as of the prior valuation date.


 


3.04.                     INVESTMENTS


 


A Participant may request
that his deferrals be allocated among the available investment options
established by the Company.  The initial
allocation request shall remain in effect for all subsequent deferrals until
changed by the Participant.  A
Participant may change his or her investment allocation by completing such
written or electronic forms as may be required by the Company, and shall become
effective as soon as administratively feasible after the Company or other
person identified on such forms receives the Participant’s request.  Although the Company intends to invest
deferrals according to the Participant’s requests, it reserves the right to
invest deferrals without regard to such requests.


 


The Company may make
investment options available pursuant to the Trust.


 


3.05.                     VESTING


 


(a)                                  Except as otherwise provided
in Appendix B, amounts credited pursuant to Section 3.01(a)(2), as
adjusted pursuant to Section 3.03, shall become nonforfeitable when and to
the extent they would have become nonforfeitable had they been contributed to
the Pension Plan.


 


(b)                                 Amounts credited pursuant to
Sections 3.01(a)(1) and 3.02, as adjusted pursuant to Section 3.03,
shall be nonforfeitable at all times.


 


6

















 


(c)                                  Except as
otherwise provided in Appendix B, amounts credited pursuant to Section 3.01(c),
as adjusted pursuant to Section 3.03, shall become nonforfeitable when and
to the extent they would have become nonforfeitable had they been contributed
to the Participant’s Employer Contribution Account maintained for the
Participant under the 401(k) Plan.


 


3.06.                     PAYMENT OF BENEFITS


 


Within ninety (90) days after the earliest of
the Participant’s Separation from Service, Disability, death or the date
specified by the Participant, the Company shall pay the Participant the vested
portion of his Accounts in one of the following methods as elected by the
Participant:


 


(a)                  one lump sum payment; or


 


(b)                 equal annual
installments over a period not to exceed ten (10) years.


 


The Participant shall elect the date and form
of distribution at the same time he or she first completes a Participation
Agreement pursuant to Section 3.02. 
If the Participant does not elect a date and form of distribution, payment
shall be made in one lump sum payment within ninety (90) days after the
earliest of the Participant’s Separation from Service, Disability or death.


 


Notwithstanding the foregoing, prior to December 31,
2007, a Participant may file a one-time election (the “Special Election”) to
select a distribution date and method of distribution for his or her Accounts;
provided, however, that, with respect to a Special Election made on or after January 1,
2006, and on or before December 31, 2006, such Special Election shall not
postpone any payment that was otherwise scheduled to be made during calendar
year 2006 nor accelerate payment of any portion of the Participant’s Accounts
to a date within calendar year 2006; and provided, further, that, with respect
to a Special Election made on or after January 1, 2007, and on or before December 31,
2007, such Special Election shall not postpone any payment that was otherwise
scheduled to be made during calendar year 2007 nor accelerate payment of any
portion of the Participant’s Accounts to a date within calendar year 2007.  Under any such Special Election, the
Participant shall not be required to postpone payment for at least five (5) years
after the distribution event.  Such
election shall be subject to such administrative rules as the Company may
deem necessary or desirable for compliance with Code Section 409A and the
notices, regulations and other guidance of general applicability issued
thereunder.


 


With the exception of a Participant’s Special
Election, the Participant may elect a
new form of distribution; provided, however, that such election must be made at
least twelve (12) months prior to the original distribution date and must
postpone payment for at least five (5) years after such original
distribution date; and provided, further, that such new election shall not be
effective if it precedes the Participant’s Separation from Service with the
Company by less than one year.


 


7

















 


Actuarial equivalence under the foregoing paragraphs
shall be determined on the basis of the published 1984 Unisex Pension Mortality
Table and a 7% interest rate assumption. 
Early retirement reductions outlined in Section 4.2 of Retirement
Plan A for Employees of American Crystal Sugar Company shall apply; however,
additional reductions applied to benefit payments which commence later than the
first day of the month following retirement shall not apply.


 


3.07.                     DEATH BENEFIT


 


In the event of the death of
a Participant prior to payment of a vested portion of the Participant’s
Accounts, any unpaid vested amounts shall be paid to the Participant’s
Beneficiary pursuant to method of distribution previously elected by the
Participant pursuant to Section 3.06. 
If no form of distribution has been elected, such amounts shall be paid
to such Beneficiary in one lump sum payment as soon as feasible after the
Participant’s death.


 


3.08.                     CONTRIBUTIONS TO TRUST


 


The Company shall make
contributions to the Trust each Plan Year which shall be sufficient to meet the
Company’s obligations under the Plan. 
These contributions shall be made throughout the Plan Year at such times
as the Company may determine and as may be agreed upon with the trustee of the
Trust.  Contributions with respect to
Accounts other than the Pension SERP Account shall match allocations under this
Plan, including any earnings not generated in the Trust (such as earnings
attributable to a fixed rate investment option).


 


3.09.                     BENEFITS UNDER LONG TERM INCENTIVE PLAN


 


The American Crystal Sugar
Company Long Term Incentive Plan established in the year 2000 provides for
amounts to be credited to an Account under this Plan.  Accordingly, an Account shall be established
under this Plan with respect to those amounts and shall be credited with
earnings and losses under the terms of the Plan.  Such Account shall be vested and shall be
subject to any additional terms and conditions applicable to that Account under
the terms of that Incentive Plan.  Except
to the extent permitted by Code Section 409A and the notices, regulations
and other guidance of general applicability issued thereunder, this Section 3.09
shall have no further force and effect on or after January 1, 2005.


 


ARTICLE IV


ADMINISTRATION


 


4.01.                     POWERS


 


(a)                                  The Company
shall appoint one or more persons to administer the Plan.  Such persons shall have, and shall exercise
and perform, all of the powers, rights, authorities, and duties necessary to
administer the Plan, including the authority and discretion to construe and
interpret the Plan, decide all questions of eligibility


 


8

















 


for and the amount, manner and time of
payment of any benefit payable hereunder. 
Such persons 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.


 


(b)                                 The procedures
for filing claims for payments under the Plan are described below.  For claims procedures purposes, the “Claims
Manager” shall be the Company.


 


(1)                                  A Participant
who believes he or she is entitled to a payment under the Plan may submit a
claim for such payment in writing to the Company.  Any claim must be made by the Participant or
his or her Beneficiary in writing and state the claimant’s name and the nature
of the payment to be made under the Plan on a form acceptable to the
Company.  If for any reason a claim 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 in writing to the Claims Manager and (ii) the
Claims Manager’s explanation shall be in writing delivered to the claimant
within 90 days of the date the claim is filed.


 


(2)                                  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.


 


(3)                                  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
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 4.01(b).


 


9

















 


4.02.                     COMPANY


 


Whenever the Company, under
the terms of the Plan, is permitted or required to do or perform any act or
matter or thing, it shall be done and performed by the Chief Executive Officer
of the Company or such officer’s delegate, except with respect to those matters
as to which authority is specifically reserved to the Company’s Board of
Directors and except for those matters described in Section 2.01.


 


4.03.                     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 V


MISCELLANEOUS


 


5.01.                     AMENDMENT
AND TERMINATION


 


The Company reserves the power to alter,
amend or terminate 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 benefits of a Participant that are vested
under the Plan prior to the effective date of such amendment without the
written consent of the affected Participant.


 


Notwithstanding the foregoing, the Company
expressly reserves the right to amend the Plan to the extent necessary or
desirable to comply with the requirements of Code Section 409A and the
regulations, notices and other guidance of general applicability issued
thereunder without the consent of any Participant.  Further, in the event the Board of Directors
terminates the Plan, such termination and the distribution of all Participants’
benefits shall be made within the time prescribed by and in compliance with
Code Section 409A and the regulations, notices and other guidance of
general applicability issued thereunder.


 


10

















 


5.02.                     NO ALIENATION OF BENEFITS


 


No payee may assign,
anticipate, or otherwise encumber any payment due him under this Plan.  Any payment due to a payee under this Plan
shall be exempt from the claims of his creditors.


 


5.03.                     NO CONTRACT OF EMPLOYMENT


 


Nothing herein contained
shall be construed to constitute a contract of employment between the Company
and any Participant.


 


5.04.                     EXPENSES


 


The expenses of
administering the Plan shall be paid by the Company.


 


5.05.                     FUNDING


 


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 with
respect to payment to be made 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).  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 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.


 


5.06.                     GOVERNING LAW


 


To the extent not preempted
by the laws of the United States of America, the laws of the State of Minnesota
shall be the controlling state law in all matters relating to this Plan.


 


5.07.                     SEVERABILITY


 


If any provisions of this
Plan shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of this Plan, but this Plan shall be
construed and enforced as if the illegal and invalid provisions never had been
included herein.


 


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5.08.                     INCOMPETENT
PARTICIPANTS


 


If any person entitled to 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 distribution 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
distribution 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 distribution shall be a
payment for the account of such person and a complete discharge of any
liability of the Company and the Plan therefor.


 


IN WITNESS WHEREOF, this Plan has
been executed on behalf of the Company by its duly authorized officers as of
the 5th day of December, 2008.


 


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Berg

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  President/CEO

  



 


	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
				



 


 


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