Exhibit 10(cc)
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment is made effective as of the this _____ day of July, 1997 by
and between American Crystal Sugar Company, a Minnesota cooperative (the
"Company"), and Daniel McCarty ("Executive").
WHEREAS, the Company and Executive have entered into an Employment
Agreement dated April 8, 1996 (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement to include certain wage
continuation provisions to be made by the Company, and agreement by executive to
refrain from competing with the Company upon termination of his employment.
NOW, THEREFORE, in consideration of the foregoing and the respective
undertakings of the Company and Executive as set forth below, the parties agree
as follows:
1. Section 6.05 of the Agreement is hereby deleted in its entirety.
2. A new Section 6.05 is hereby added to the Agreement, which Section
shall read as follows:
6.05 WAGE AND BENEFIT CONTINUATION.
(a) In the event Executive's employment is terminated by the
Company without cause pursuant to Section 6.01(d) or Section 6.03, and
Executive signs a release of claims in a form satisfactory to the
Company which assures that Executive will not commence any legal
action against the Company as a result of the termination of
employment by the Company, the Company shall continue the payment of
Executive's base salary in effect at the time of the termination for a
period of thirty-six (36) months from the date of termination.
Payment shall be made on a bi-weekly basis in a manner consistent with
the normal payroll practices of the Company. The payments to be made
hereunder shall not be considered compensation in connection with
computing benefits under any benefit plan in which Executive
participates and the period of the payments hereunder shall not be
considered as "service" for purposes of benefit accrual under such
plan(s).
(b) In addition to the continuation of wages, the Company shall
continue to provide (or reimburse the Executive for the cost of)
medical insurance, dental insurance, and life insurance with coverages
generally consistent with coverage provided to Executive at the time
of termination. Such continuation of benefits shall continue until
such time as Executive becomes eligible for coverage provided by a
subsequent employer; provided, however, in no event will the Company
be obligated to provide such benefits for more than thirty-six (36)
months following the date of termination of employment.
(c) In the event the Company is for any reason prohibited from
providing the foregoing benefits to Executive by virtue of applicable
state or federal law, or would otherwise cause material adverse tax
consequences to the Company, the Company shall be relieved of its
obligation to provide such benefits and the parties hereto shall use
their best efforts to reach mutual agreement with respect to
permissible benefits to be provided in lieu of those set forth above.
(d) Any funds available to provide the benefits hereunder shall
continue for all purposes to be part of the general funds of the
Company; shall not be deemed to be income to Executive for purposes of
profit sharing, pension, or any stock purchase plans; no person other
than the Company shall, by virtue of the provisions of this Agreement,
have any interest in such funds. The Agreement shall at all time 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. This Agreement and rights, interest, and benefits hereunder
shall not be assigned, transferred or touched by Executive and shall
not be subject to execution, attachment or similar process; and any
such attempted assignment, transfer, pledge or other disposition of
this Agreement, or such rights, interest and benefits contrary to the
foregoing, or levy of any attachment or similar process thereupon,
shall be null and void and without effect.
(e) The parties understand and agree that the benefits provided
in this Section 6.05 shall not be payable by the Company to the
Executive if the termination of employment is as a result of death,
disability, retirement, termination for cause (as such term is defined
in the Agreement), or the voluntary resignation of the Executive. In
such cases, the Executive (or his surviving spouse) shall be entitled
to receive such benefits as would otherwise be payable to the
Executive (or his surviving spouse) in the absence of this Agreement.
3. A new Section 8 shall be added to the Agreement which provides as
follows:
8. RESTRICTIVE COVENANT. In consideration of the wage and
benefit continuation provisions of this Agreement, Executive
specifically agrees that except with the prior written consent of the
Company, during the term of his employment with the Company and for a
period of one (1) year thereafter, he will not render services in any
manner or capacity (e.g., as an employee, independent contractor,
advisor, consultant, principal, agent, partner, officer, director,
stockholder, or otherwise) to any person or organization which is
engaged in or about to become engaged in the production, marketing, or
sale of refined sugar. In light of the unique
2
knowledge of Executive with respect to the business of the Company,
Executive hereby acknowledges and agrees that the restrictive
covenant contained herein is reasonable in duration and scope, and
necessary to protect the legitimate business interests of the
Company. The parties agree that if any provision of this Section 8
is held to be unlawful or unenforceable in any respect, such
illegality or unenforceability shall not affect any other provision
of this Agreement. In the event terms of this restrictive covenant
is determined by a Court of competent jurisdiction to be unreasonable
or overly broad, the parties hereby authorize and request the Court
to apply the "blue pencil doctrine" to modify the unreasonable or
overly broad covenant to make it valid and enforceable against
Executive.
4. Except as otherwise specifically provided in this Amendment, all
other terms and conditions of the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, this Amendment has been executed by the Company and
Executive as of the date first above written.
AMERICAN CRYSTAL SUGAR COMPANY
____________________________________ By:___________________________________
Daniel J. McCarty Wayne Langen, Chairman of the Board
DCM:als:917255
3