SERVICES AND MANAGEMENT AGREEMENT
This Services and Management Agreement is made and entered into as of the
25th day of August, 2000, by and between Minnesota Soybean Processors, a
Minnesota cooperative ("MnSP") and South Dakota Soybean Processors, Inc., a
South Dakota cooperative ("SDSP").
RECITALS:
A. MnSP was incorporated for the purpose of raising equity and
building and operating a soybean processing plant in southwest Minnesota (the
"Plant" or "Project").
B. SDSP is in the business of managing and operating a similar soybean
processing facility in South Dakota.
C. MnSP desires to engage the services of SDSP to:
i. Assist MnSP in the preparation of a business plan;
ii. Provide construction management services in building the
Plant;
iii. Manage the Plant; and
iv. Market the soybean products from the Plant.
D. SDSP desires to provide such services on the terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of mutual covenants contained herein, the
parties agree as follows:
I. INITIAL PHASE
1. SERVICES. SDSP shall not be responsible for preparation of the
Offering Circular, nor compliance of the offering made pursuant to the Offering
Circular with all applicable laws (other than its own conduct with respect
thereto). SDSP agrees to assist MnSP in the initial phase of the Project by
providing guidance in matters such as the business plan and review of the
business components of the offering circular. MnSP is responsible for insuring
that the equity drive complies with all applicable laws. Two (2) SDSP Board
members and two (2) SDSP management level employees intend to attend MnSP's
equity meetings as resource persons with respect to the business components of
the Project.
2. PROJECTED EQUITY. MnSP has set the minimum equity target as 50% of
the cost of an 80,000-bushel per day plant and the maximum equity target as 60%
of the cost of a 120,000 bushel per day plant. If the equity raised falls short
of the minimum target, the equity funds will be returned to the investors unless
an alternative agreement that is acceptable to the parties of this Agreement is
reached.
3. ESCROW. MnSP shall place all funds received from the sale of Class
A Preferred Shares into an escrow account to be held until the minimum equity
target is reached.
4. EQUITY DRIVE. The equity drive is anticipated to begin August 20,
2000 and end April 30, 2001.
II. CONSTRUCTION MANAGEMENT
1. SERVICES. SDSP agrees to provide the following construction
management services for the Project:
a. Assist MnSP in preparing and administering construction
contracts;
b. Assist MnSP in obtaining building permits and special permits
for permanent improvements;
c. Assist MnSP in selecting and arranging for the purchase of
equipment;
d. Assist MnSP in evaluating and selecting contractors;
e. Provide on-site, daily administrative, management and related
services to coordinate scheduled activities and responsibilities of the
contractors;
f Provide site engineering services;
g. Expedite and coordinate the delivery of materials;
h. Maintain cost accounting records and monitor the construction
budget;
i. Review and process applications for contractors for progress
and final payments.
2. PRICES. SDSP cannot and does not warrant or represent that bids or
negotiated prices will not vary from the Project budget proposed, established or
approved by MnSP, or from any cost estimate prepared by SDSP, SDSP shall not be
liable for any cost-overruns.
3. HAZARDOUS MATERIALS. SDSP shall have no responsibility for the
discovery, presence, handling, removal or disposal of or exposure of persons to
hazardous materials in any form at the Project site.
4. COMPENSATION. In consideration for SDSP's construction management
services, MnSP agrees to pay SDSP ten percent (10%) of the total equity raised
by MnSP in its equity drive within thirty (30) days following the availability
of funds raised. Funds from the sale of common shares will be available upon
collection from the members. Funds from the sale of equity shares will not be
available until the minimum equity target is reached. MnSP will establish a
payment schedule for its members to match its need for funds through the
construction phase. In the event MnSP chooses an early equity payment schedule
(such as all capital will be collected prior to
commencing construction) SDSP agrees that payments will be adjusted to
reflect the percentage of completion of the Project.
5. REINVESTMENT OF INCOME. SDSP agrees to reinvest a minimum of eighty
percent (80%) of the fees paid by MnSP into the Plant. SDSP will reinvest in
MnSP's equity units within ten (10) days of receipt of the final payment to be
made to SDSP. SDSP may invest up to one hundred twenty percent (120%) of the
fees paid by MnSP. The purchase price for the equity units sold to SDSP will be
$2.00 per unit.
6. EXPENSES. MnSP, at its own cost and expense, will furnish all
legal, accounting, insurance and design engineering services as may be
necessary at any time for the Project.
III. MANAGEMENT AND MARKETING SERVICES
1. MANAGEMENT.
a. DUTIES AND RESPONSIBILITIES. MnSP hereby contracts with SDSP
exclusively and SDSP hereby accepts responsibility as manager and operator
of the Plant. SDSP shall have the day-to-day management control of the
business of the Plant and shall have the responsibility and authority to
take all actions necessary or appropriate to accomplish the purposes of
the Plant including, without limitation, the power and authority:
i. To manage, supervise and conduct in good faith the
day-to-day affairs of the Plant.
ii. To hire such employees and independent contractors as
SDSP shall determine to be reasonably necessary to the operations
of the Plant.
iii. To purchase or otherwise obtain the right to use
equipment, supplies, hardware and software technology associated
with the Plant, except that new purchases in amounts exceeding
$250,000 must be approved in advance by MnSP, which approval shall
not be unreasonably withheld. As used in the preceding sentence,
"new purchases" does not refer to equipment, supplies, hardware and
software technology associated with the initial construction of the
Plant or associated with future expansions of the Plant approved by
MnSP, nor does it refer to repairs to or replacements of the
equipment, supplies, hardware and software technology associated
with the initial Plant or the expanded Plant. The MnSP Board will
provide resolutions to allow SDSP management to enter into contracts
and approve expenditures below the $250,000 threshold according to
SDSP's expenditure authorization limit policy.
iv. To maintain adequate records and accounts of all
operations and expenditures relating to the operations of the Plant.
v. To execute all instruments of any kind or character
which SDSP in its discretion shall deem necessary or appropriate to
carry out its duties and responsibilities.
vi. To establish bank accounts, collect customer payments,
disburse cash and make other payments.
vii. To obtain liability and other insurance at the expense
of MnSP, to protect the Plant properties and assets.
viii. To carry on any other activities necessary to, in
connection with, or incidental to any of the foregoing or the
day-to-day operations of the Plant.
ix. To maintain, at the expense of MnSP, adequate records
and accounts of all operations mid expenditures and furnish MnSP
with monthly statements of account as of the close of each month,
together with all necessary annual tax reporting information, and
patronage distributions.
x. Overseeing all business operations, Plant operations,
purchasing operations, marketing operations, personnel operations,
and any and all other items relating to Plant operations and
profitability.
xi. Maintaining a positive company image and relationship
in the city, community; county, state and nation.
xii. Administering the wage and benefit package of MnSP's
employees as approved by MnSP's Board of Directors.
xiii. Ensuring that all city, county, state and federal rules
and regulations are being met with respect to the operation of the
Plant. This would include but not be limited to: air quality
regulations, storm water discharge regulations, BATF regulations,
OSHA regulations, state fuel regulations, state feed regulations,
and any and all other regulations pertaining to Plant operations.
xiv. Working with any state or federal legislative effort
that is positive to the soybean industry.
xv. Approving all plant purchases involving new items, and
reviewing all invoices on a timely basis. Raw material and
replacement purchases may be handled by individual departments.
xvi. Insuring that all raw product costs are minimized and
that all finished product revenues are maximized.
2. MARKETING.
a. During the term of this Agreement, MnSP gives SDSP exclusive
rights to market all products from the Plant. SDSP will sell MnSP's
products using customary industry practices in an attempt to obtain the
best market prices under market conditions known by SDSP at the time. SDSP
gives no guaranty of profitability. SDSP shall perform its services in a
manner that will maximize the long-term success and profitability of MnSP.
b. SDSP will be responsible for invoicing all loads, receiving
payments from customers, and paying freight when necessary.
c. SDSP will be responsible for billing and receipt of payment
for all soybean products marketed.
d. SDSP will make reasonable efforts to collect any past due
accounts. Any collection agency fees resulting from the collections
process will be borne by MnSP. All accounts receivable losses arising from
the marketing of soybean products are the sole responsibility of MnSP.
e. SDSP will provide MnSP monthly financial statements and other
information as requested by MnSP's Board of Directors.
3. EXPENSES. To the extent possible, all costs and expenses directly
incurred by or on behalf of MnSP will be paid or allocated directly by or to
MnSP. Any costs or expenses incurred by SDSP in performing its duties under this
Agreement on behalf of the Plant or MnSP, shall be reimbursed by MnSP to SDSP.
To the extent funds are expended by SDSP which are to be reimbursed to it, MnSP
shall reimburse SDSP within five (5) days of receipt of an expense report from
SDSP.
An allocation of the following expenses will be made directly to MnSP:
a. Salaries and benefits of associates employed by SDSP whose
hours can either be completely or partially identified as work completed
directly for MnSP.
The parties will share the following operational costs:
a. Salaries and benefits of the employees of SDSP who are
commonly shared between the two plants, i.e. such as the Chief Executive
Officer, Chief Financial Officer, and Commercial Manager.
b. Salaries and benefits of all employees working at SDSP's plant
and administrative office in Volga, South Dakota whose job duties include
working for both MnSP and SDSP.
c. All administrative expenses, such as computer maintenance,
depreciation of office equipment, office supplies, and all other expenses
which cannot be directly allocated to a specific plant.
Operational costs, which are shared by the parties, will be allocated according
to the bushels of soybeans processed by each facility. The allocation
percentages will be adjusted annually on August 31. Payments for the operational
costs shall be made monthly, on or before the fifth business day of each month.
All operational costs shall be allocated at their actual cost with no xxxx-up
for the benefit of SDSP.
4. PERFORMANCE. A committee of MnSP's Board will meet semi-annually
with the officers of SDSP to evaluate SDSP's performance under this Agreement.
5. BOOKS AND RECORDS. MnSP, its employees and agents, shall at all
times have access to SDSP's records regarding the operation of MnSP's Plant and
the services provided by SDSP hereunder.
IV. MISCELLANEOUS
1. EFFECTIVE DATE. This Agreement shall be effective upon execution,
but SDSP's management and operational duties and MnSP's payment obligations
shall not commence until two (2) months prior to the projected start of Plant
operations, as determined by MnSP. MnSP shall provide written notice of
commencement to SDSP sixty (60) days prior to the commencement of SDSP's
management and marketing duties.
2. TERM. SDSP shall provide management and operational duties pursuant
to this Agreement for five (5) years.
3. RENEWAL TERM. The term of SDSP's management and operational duties
shall be automatically extended for an additional five (5) year term following
the end of the initial term unless either party gives notice of termination by
giving written notice at least one (1) year prior to the last day of the current
term. This renewal provision shall apply in the same manner for all subsequent
expiring terms. Therefore, every five (5) years this Agreement shall be either
automatically extended or terminated by the giving of proper notice of
termination by either party as provided.
4. TERMINATION.
a. WITH CAUSE. Either party has the right to terminate this
Agreement for cause by giving written notice to the other party of such
termination, and this Agreement will be terminated immediately after such
notice. As relates to termination for cause by MnSP, "for cause" means
SDSP's failure or refusal to perform under this Agreement or willful
misconduct, embezzlement, or other illegal or unethical acts by SDSP. As
relates to termination for cause by SDSP, "for cause" means MnSP's failure
or refusal to pay any fees when due.
b. WITHOUT CAUSE. Either party may initiate the process to
terminate this Agreement by giving one (1) year written notice to the
other party of such termination. Such termination may be subject to costs
as determined by the other party.
5. COVENANT NOT TO HIRE SDSP EMPLOYEES. In the event of the termination
of this Agreement, MnSP shall not solicit or hire any management level
employee(s) of SDSP without the written consent of SDSP for one (1) year
subsequent to the termination of SDSP's services.
6. MnSP REPRESENTATION IN CEO SELECTION. In the event that SDSP's Board
of Directors needs to hire a Chief Executive Officer for SDSP, MnSP will have
representation on the selection committee with SDSP's Board of Directors having
the authority to hire the Chief Executive Officer.
7. MnSP CONTRACTS WITH SDSP. Neither SDSP nor any of its respective
officers, directors, or shareholders shall be prohibited from contracting with
the Plant, nor shall such parties be prevented from entering into any
transactions to sell to or purchase from the Plant any goods, supplies,
equipment, or services of any kind whatsoever, or to loan money on terms not
less favorable than those available pursuant to transactions negotiated on an
arm's length basis by non-affiliated persons or entities.
8. INDEPENDENT CONTRACTOR STATUS. SDSP, in the performance of its
duties under this Agreement, shall occupy the position of an independent
contractor with respect to MnSP. Nothing contained herein shall be construed as
making the parties partners or joint venturers nor, except as expressly provided
herein, construed as making SDSP an employee of MnSP.
9. DUTIES OF MnSP. MnSP agrees to cooperate with SDSP in the
performance of SDSP's duties and responsibilities under this Agreement, to act
in good faith; and to do all reasonable things necessary to aid SDSP's
performance as an independent contractor under the terms of this Agreement.
MnSP, through its Board of Directors, shall be responsible for getting and
overseeing its membership policies, for insuring that MnSP complies with all
securities and taxation laws, for determining the MnSP's insurance needs, and
for setting forth the policy guidelines under which SDSP shall perform its
responsibilities set forth herein.
10. EQUIPMENT. MnSP shall cause all of the equipment initially
installed in the Plant to remain with the Plant for the duration of this
Agreement.
11. MnSP-OWNED PROPERTY. The ownership of all MnSP-owned nonexpendable
property and equipment shall remain with MnSP and shall not be removed from the
Plant, except in the ordinary course of business, without MnSP's prior written
approval. SDSP shall have the use of all MnSP-owned equipment during the term of
this Agreement.
12. ADDITIONAL AND REPLACEMENT EQUIPMENT. SDSP may, from time to time
during the term of this Agreement, install machinery, equipment, and other
property in the Plant, which may be attached or affixed to property. All such
machinery, equipment and other personal property purchased by SDSP and not paid
for from operational revenues shall remain the sole property of
SDSP. Upon termination of this Agreement, SDSP shall remove its machinery,
equipment and other personal property and repair any damage caused by said
removal.
13. PROPRIETARY INFORMATION. SDSP has furnished, or will furnish, to
MnSP information including, but not limited to, specifications, photocopies,
magnetic tapes, drawings, sketches, models, samples. tools, technical
information, data, know-how, customer and market information, financial reports,
pre-contractual negotiations, engineering studies, consultants' studies, options
for site purchases, and relationships established with experts, consultants and
governmental agencies (all hereinafter designated as "Proprietary Information")
for the purpose of enabling the Plant to be constructed and operated. The
Proprietary Information is and shall remain SDSP's property to use as it sees
fit in its sole discretion.
14. ASSIGNMENT. This Agreement shall be assignable by either party upon
mutual written consent of the other party.
15. INSURANCE.
a. MnSP'S INSURANCE. MnSP shall carry and maintain at its
expense the following minimum insurance policies:
i. A commercial liability insurance policy to afford
protection with limits for each occurrence of not less than
$1,000,000.00 with respect to personal injury or death of any one
person, $1,000,000.00 with respect to the personal injury or death
occurring or resulting from one occurrence, and $2,000,000.00
general aggregate. SDSP shall be added as an additional insured on a
primary basis.
ii. An all-risk property and casualty insurance policy,
written at full insurable value and with replacement cost
endorsement, covering MnSP's buildings, improvements, equipment,
boiler and machinery, business interruption, and personal property.
iii. An umbrella policy to afford protection with a limit of
not less than $5,000,000.00.
iv. Workers' compensation insurance required by Minnesota
and South Dakota law.
v. Automobile liability and collision insurance with a
combined single limit of not less than $1,000,000.00 for all owned
and non-owned automobiles.
b. SDSP'S INSURANCE. SDSP shall carry quid maintain at its
expense the following insurance policies:
i. A commercial liability insurance policy to afford
protection with limits for each occurrence of not less than
$1,000,000.00 with respect to personal injury or death or any one
person, $1,000,000.00 with respect to the personal injury
or death occurring or resulting from one occurrence and
$2,000,000.00 general aggregate.
ii. In the event that property is owned by SDSP, an all-risk
property and casualty insurance policy, written at full insurable
value and with replacement cost endorsement, covering SDSP's
personal property.
iii. An umbrella policy to afford protection with a limit of
not less than $5,000,000.00.
iv. Workers' compensation insurance required by Minnesota
and South Dakota law.
v. In the event autos are owned by SDSP, automobile
liability and collision insurance with the combined single limit of
not less than $1,000,000.00.
vi. Non-owned automobile liability insurance in the amount
of $1,000,000.00.
vii. Errors and omissions insurance in the amount to be
determined by SDSP.
c. POLICY REQUIREMENTS. Any insurance required to be carried or
maintained pursuant to this Agreement shall be with a company or companies
who shall be licensed to do business in Minnesota and South Dakota. Each
party's commercial general liability insurance shall name the other party
as an additional insured. All policies shall contain a provision by which
the insurer agrees that such policy shall not be canceled except after
thirty (30) days' written notice to the other party. A certificate of
insurance shall be provided to each party upon request.
d. WAIVER OF CLAIMS. Neither MnSP nor SDSP shall be liable to the
other party for any loss or damage to any building, improvement or other
tangible property owned by the other including, but not limited to, lost
rents, income and profits, even though such loss or damage might have been
occasioned by the negligence of such, party, its employees, agents or
contractors.
16. INDEMNITY.
a. BY MnSP. MnSP shall indemnify, hold harmless and defend SDSP
and its officers, directors, employees and agents from and against any and
all claims, actions, damages, liabilities and expenses including, but not
limited to, attorneys' and other professional fees in connection with loss
of life, personal injury and/or damage to property of third parties
arising from or out of SDSP's services provided under the terms and
conditions of this Agreement except that MnSP shall not indemnify, hold
harmless and defend SDSP from (i) the negligent or intentional acts of
SDSP and its officers, directors, employees and agents, (ii) any act
beyond the scope of SDSP's services to be rendered
under the terms and conditions of this Agreement, and (iii) any
violation of laws, regulations, ordinances and/or court orders arising
from the acts or omissions of SDSP or its officers, directors, employees
and agents.
b. INDEMNITY BY SDSP. SDSP shall indemnify, hold harmless and
defend MnSP and its officers, directors, employees and agents from and
against any and all claims, actions, damages, liabilities and expenses,
including, but not limited to, attorneys' and other professional fees in
connection with loss of life, personal injury and/or damage to property of
third parties arising from or out of (i) the negligent or intentional acts
of SDSP and its officers, directors, employees and agents, (ii) any act
beyond the scope of SDSP's services to be rendered under the terms and
conditions of this Agreement, and (iii) any violation of laws,
regulations, ordinances and/or court orders arising from the acts or
omissions or SDSP of its officers, directors, employees and agents.
17. GOVERNING LAW. This Agreement has been executed in South Dakota and
shall be governed by the laws of the State of South Dakota. The parties consent
to the jurisdiction of the courts of the State of South Dakota and agree that
any action arising out or to enforce this Agreement must be brought and
maintained in South Dakota.
18. NOTICES. Any notice required or permitted herein to be given shall
be given in writing and shall be delivered by United States registered or
certified mail, return receipt requested, to the Chief Executive Officer of SDSP
or Chairman of MnSP, as the case may be, at the addresses set forth below or
such address as MnSP or SDSP shall provide notice of from time to time during
the term of this Agreement:
MnSP: Minnesota Soybean Processors
Attention: Xxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxxx 00000
With a copy to: Xxxxxxxxx & Xxxxxx, XXXX
0000 IDS Center
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
SDSP: South Dakota Soybean Processors
Attention: Xxxxxx Xxxxxxxxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxxxxx
Woods, Fuller, Xxxxxx & Xxxxx P.C.
Xxxx Xxxxxx Xxx 0000
Xxxxx Xxxxx, XX 00000-0000
Fax: 000-000-0000
19. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the respective parties and their permitted assigns and successors in
interest.
20. SEVERABILITY. Should any term or provision hereof be deemed invalid,
void, or unenforceable either in its entirety or in a particular application,
the remainder of this Agreement shall nonetheless remain in full force and
effect and, if the subject term or provision is determined to be invalid, void
or unenforceable only with respect to a particular application, such term or
provision shall remain in full force and effect with respect to all other
applications.
21. WAIVERS. No waiver of any breach of any of the terms or conditions
of this Agreement shall beheld to, be a waiver of any other subsequent breach;
nor shall any waiver be valid or binding unless the same shall be in writing and
signed by the party alleged to have granted the waiver.
22. COUNTERPARTS. This Agreement will be executed in multiple
counterparts, all of which shall constitute but one Agreement.
23. AMENDMENT. This Agreement may be amended with the written consent
of MnSP and SDSP.
24. ENTIRE AGREEMENT. This Agreement is the entire Agreement between
the parties. Any amendment hereto must be in writing and signed by both parties
to come into full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first set forth above.
MINNESOTA SOYBEAN PROCESSORS
By /s/ Xxxxxx Xxxxxxxx
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Its President
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SOUTH DAKOTA SOYBEAN PROCESSORS
By /s/ Xxxx X. Xxxxxx
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Its President
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