EXHIBIT 10.24
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of September 1, 2000 by and between
John D. Johnson (hereafter "Johnson") and Cenex Harvest States Cooperatives, a
Minnesota cooperative corporation (together with all affiliates, the "Company").
1. Employment
The Company hereby agrees to and does hereby employ Johnson as its
Chief Executive Officer, and Johnson hereby agrees to accept employment
with the Company as Chief Executive Officer, for the period set forth
in Paragraph 2 below (the period of employment) upon the other terms
and conditions set forth in this Agreement.
2. Period of Employment; Termination of Agreement
The period of employment shall commence on the date of this Agreement
and, subject to the provisions of Paragraphs 5 and 6 below, shall
continue for a rolling three (3) year period, provided that Johnson's
employment may be earlier terminated by either party subject to the
rights and obligations of the parties set forth herein.
3. Performance
Throughout the period of employment, Johnson agrees to devote his full
time and attention during normal business hours to the business of the
Company, except for earned vacations and except for illness or
incapacity.
4. Compensation
(a) For all services to be rendered by Johnson in any capacity
during the period of employment, Johnson shall be paid as
annual compensation a base salary of at least $787,500. The
Board will annually review Johnson's annual compensation and
determine what is appropriate for a cost of living increase,
merit increase, and/or increase in responsibilities or duties.
(b) During the term of his employment hereunder, Johnson shall be
compensated pursuant to the plan in effect on September 1,
2000 with annual variable pay pursuant to the plan in effect
during the term of this agreement. In addition, Johnson shall
be eligible for long term variable pay including the years
2001, 2002 and 2003. Johnson shall further be entitled to any
additional employee benefits separately made available to him
from time to time by the Board in its discretion.
(c) The Company shall bear such ordinary and necessary business
expenses incurred by Johnson in performing his duties
hereunder as the Company determines from time to time,
provided that Johnson accounts promptly for such expenses to
the Company in the manner prescribed from time to time by the
Company.
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5. Termination with Severance Allowance
(a) Termination by the Company Not for Cause. In the event of
termination of the employment of Johnson by the Company during
the period of employment for any reason other than for cause,
as defined in paragraph 6(a), death or disability, the Company
shall:
(i) pay Johnson a severance allowance in the amount of 2.99
times the greater of
(A) his then-current base salary plus
short-term and long-term target bonus ("Target
Bonus"), or
(B) the amount payable in base salary plus
Target Bonus for calendar year 2000;
(ii) provide a five-year enhancement to his retirement plan,
except that no such enhancement shall be provided if the
termination occurs after Johnson has attained the age of 60;
(iii) include the amount of the severance paid as salary for
purposes of pension cash balance calculation;
(iv) bear the entire cost of Johnson's COBRA family health
insurance coverage for one (1) year;
(v) continue his family health insurance thereafter up to age
65 (or any revised age for Medicare eligibility), upon
Johnson's payment of the retiree premium rate, except for any
period during which Johnson is eligible for coverage, without
any exclusions for preexisting conditions, through another
employee group plan; and
(vi) continue his existing executive perquisites for a period
of three (3) years.
Said severance allowance shall be in lieu of all other severance
payable to Johnson under Company severance policies.
(b) Termination by Johnson in the event of Consolidation. In the event of a
full consolidation of the Company's business with the business of any
other entity, if Johnson is not offered the position of Chief Executive
Officer of the combined entity, this may be deemed at Johnson's option
to be an event of termination without cause. In that event, the Company
shall:
(i) pay Johnson a severance allowance in the amount of 2.99
times the greater of
(A) his then-current base salary plus Target
Bonus, or
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(B) the amount payable in base salary plus
Target Bonus for calendar year 2000;
(ii) provide a five-year enhancement to his retirement plan,
except that no such enhancement shall be provided if the
termination occurs after Johnson has attained the age of 60;
(iii) include the amount of the severance paid as salary for
purposes of pension cash balance calculation;
(iv) bear the entire cost of Johnson's COBRA family health
insurance coverage for one (1) year;
(v) continue his family health insurance thereafter up to age
65 (or any revised age for Medicare eligibility), upon
Johnson's payment of the retiree premium rate, except for any
period during which Johnson is eligible for coverage, without
any exclusions for preexisting conditions, through another
employee group plan; and
(vi) continue his existing executive perquisites for a period
of three (3) years.
Said severance allowance shall be in lieu of all other severance
payable to Johnson under Company severance policies.
(c) Additional Payments. In the event that Johnson becomes
entitled to payments under paragraph 5(a) or 5(b) of this
Agreement, the Company shall cause its independent auditors
promptly to review, at the Company's sole expense, the
applicability of Section 4999 of the Code to such payments. If
such auditors shall determine that any payment or distribution
of any type by the Company to Johnson or for his benefit,
whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (the
"Total Payments"), would be subject to the excise tax imposed
by Section 4999 of the Code, or any interest or penalties with
respect to such excise tax (such excise tax, together with any
such interest and penalties, are collectively referred to as
the "Excise Tax"), then Johnson shall be entitled to receive
an additional cash payment (a "Gross-Up Payment") within 30
days of such determination equal to an amount such that after
payment by Johnson of all taxes (including any interest or
penalties imposed with respect to such taxes), including any
Excise Tax, imposed upon the Gross-Up Payment, Johnson would
retain an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Total Payments. For purposes of the
foregoing determination, Johnson's tax rate shall be deemed to
be the highest statutory marginal state and Federal tax rate
(on a combined basis) (including Johnson's share of F.I.C.A.
and Medicare taxes) then in effect. If no determination by the
Company's auditors is made prior to the time a tax return
reflecting the Total Payments is required to be filed by
Johnson, he will be entitled to receive a Gross-Up Payment
calculated on the basis of the Total Payments reported by
Johnson in such tax return, within 30 days of the filing of
such tax return. In all events, if any tax authority
determines that a greater Excise Tax should be imposed upon
the Total Payments than is determined by the Company's
independent auditors or
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reflected in Johnson's tax return pursuant to this Section 6,
Johnson shall be entitled to receive the full Gross-Up Payment
calculated on the basis of the amount of Excise Tax determined
to be payable by such tax authority from the Company within 30
days of such determination.
(d) Request and Release. In order to obtain the severance
allowance provided for in this Agreement, Johnson must submit
a request for severance and must sign a complete release of
all claims. The Company shall have no obligation to pay any
severance allowance unless and until Johnson shall have
submitted the request for severance and signed a full and
complete release of all claims, to be drafted by Legal Counsel
for the Company.
6. Termination without Severance Allowance
(a) Termination by the Company for Cause. The Company may
terminate Johnson's employment for cause without incurring
further obligation. For the purpose of this Agreement,
termination of Johnson's employment shall be deemed to have
been for cause only:
(i) if termination of Johnson's employment shall have
been the result of an act or acts of fraud, theft or
embezzlement on the part of Johnson which, if
convicted, would constitute a felony and which
results or which is intended to result directly or
indirectly in gain or personal enrichment of Johnson
at the expense of the Company; or
(ii) if termination of Johnson's employment results from
Johnson's willful and material misconduct, including
willful and material failure to perform his duties,
and Johnson has been given written notice by the
Board of Directors with respect to such and Johnson
does not cure within a reasonable time; or
(iii) if there has been a breach by Johnson during the
period of employment of the provisions of Paragraph 3
above, relating to the time to be devoted to the
affairs of the Company, and with respect to any
alleged breach of Paragraph 3 hereof, Johnson shall
have substantially failed to remedy such alleged
breach within thirty days from Johnson's receipt of
notice from the Board of Directors.
(b) Nonrenewal of Agreement. The Company may elect not to renew
this Agreement, and thereby to terminate Johnson's employment
hereunder without any severance obligations, upon at least
three (3) years' prior written notice to Johnson.
(c) Termination by Johnson. Johnson shall have the right to
terminate his employment in his sole discretion, with or
without cause, by providing thirty (30) days notice of his
intent to resign. Johnson shall in that event receive no
further compensation or severance allowance.
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(d) Death. In the event of Johnson's death during the period of
employment, the legal representative of Johnson shall be
entitled to the base or fixed salary provided for in Paragraph
4(a) above for the month in which death shall have occurred,
at the rate being paid at the time of death, and the period of
employment shall be deemed to have ended as of the close of
business on the last day of the month in which death shall
have occurred but without prejudice to any benefits, such as
life insurance, otherwise due in respect of Johnson's death.
(e) Disability
(i) In the event of Johnson's disability during the
period of employment, Johnson shall be entitled to an
amount equal to the base or fixed salary provided for
in Paragraph 4(a) above, at the rate being paid at
the time of the commencement of disability, for the
period of such disability but not in excess of twelve
(12) months from the beginning of the period that
establishes such disability, as described in
Paragraph 6(e)(iii) below.
(ii) The amount of any payments due under Paragraph
6(e)(i) shall be reduced by any payments to which
Johnson may be entitled for the same period because
of disability under any disability or pension plan of
the Company or of any division, subsidiary, or
affiliate thereof, or as the result of workers'
compensation or nonoccupational disability payments
received from any government entity.
(iii) The term "Disability" as used in this Agreement,
shall mean an illness or accident occurring during
the period of employment which prevents Johnson from
performing the essential functions of his job under
this Agreement, with reasonable accommodations (as
defined by federal and Minnesota disability laws),
for a period of six consecutive months. The period of
employment shall be deemed to have ended as of the
close of business on the last day of such six-month
period but without prejudice to any payments due
Johnson from any disability policy or disability
insurance.
7. Noncompetition
Johnson agrees that during the term of his employment and thereafter
for a period of two (2) years, he will not directly or indirectly
engage in or carry on a business that is in direct competition with any
significant business unit of the Company as conclusively determined by
the Board of Directors. Further, Johnson agrees that during this same
period of time he will not act as an agent, representative, consultant,
officer, director, independent contractor or employee of any entity or
enterprise that is in direct competition with any significant business
unit of the Company as conclusively determined by the Board of
Directors.
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8. Successor in Interest
This Agreement and the rights and obligations hereunder shall be
binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, and shall also bind and inure to the
benefit of any successor of the Company by merger or consolidation or
any purchaser or assignee of all or substantially all of its assets,
but, except to any such successor, purchaser, or assignee of the
Company, neither this Agreement nor any rights or benefits hereunder
may be assigned by either party hereto.
9. Construction
Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
10. Governing Laws
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Minnesota.
11. Notices
Any notice required or permitted to be given under this Agreement shall
be sufficient if in writing, sent by Certified Mail, Return Receipt
Requested:
If to Johnson: John D. Johnson
10 Echo Lake Blvd.
Mahtomedi, MN 55115
If to the Company: Chairman of the Board
Cenex Harvest States Cooperatives
5500 CENEX Drive
Inver Grove Heights, MN 55077
With a copy to: General Counsel
Cenex Harvest States Cooperatives
5500 CENEX Drive
Inver Grove Heights, MN 55077
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12. Entire Agreement
This agreement shall constitute the entire agreement between the
parties, superseding the parties' Agreement of January __, 2000 and any
prior agreements. This Agreement may not be modified or amended, and no
waiver shall be effective, unless by written document signed by the
Chairman of the Board and Johnson.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
CENEX HARVEST STATES COOPERATIVES
/s/ John D. Johnson By: /s/ Steven Burnet
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John D. Johnson Its: Chairman
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