MANAGEMENT SERVICES AGREEMENT
Exhibit 10.1
This MANAGEMENT SERVICES AGREEMENT (“Agreement”) is made and entered into to be effective as
of the 15th day of December, 2008, by and between Golden Grain Energy, LLC, an Iowa
Limited Liability Company (“Golden”) and Homeland Energy Solutions, LLC, an Iowa Limited Liability
Company (“Homeland”) and is as follows:
RECITALS
1. WHEREAS, Golden currently owns and operates an ethanol facility; and Homeland is currently
constructing an ethanol facility which Homeland will own and operate;
2. WHEREAS, the highly competitive nature of the ethanol industry requires that both Golden
and Homeland take advantage of all possible costs savings measures — with one such cost saving
measure being the reduction of administrative overhead through sharing of management services;
3. WHEREAS, Golden and Homeland wish to share management services so as to reduce overhead but
still have available a full management team for carrying out ethanol production;
4. WHEREAS, Golden and Homeland, in connection with accomplishing the sharing of management
services, each requires other terms and conditions as necessary to protect each company’s
confidential/proprietary/trade secret information; and such terms and conditions as will cause all
shared management employees to respect the separate interests and objectives of each company; and
5. WHEREAS, the parties have had discussions regarding such shared management services, have
reached agreement as to the same, and which to put their understandings and agreements in writing.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1. SHARED MANAGEMENT SERVICES. Each of Golden and Homeland shall provide shared
management services to the other with respect to the following job descriptions and titles:
| a. | Positions Shared by Golden. Golden shall provide to
Homeland the following management services, to-wit: |
| i. | Chief Executive Officer (CEO) |
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| ii. | Chief Financial Officer (CFO) |
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| iii. | Plant Manager |
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| iv. | OSHA/Safety Manager — Environmental Protection Agency (EPA)
Compliance officer |
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| v. | Human Resources Manager |
| b. | Positions Shared by Homeland. Homeland shall provide
to Golden the following management services, to-wit: |
| i. | Accounting Controller |
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| ii. | Financial Accountant. |
| c. | Time Commitment. |
| i. | Each Person filling the above described
positions shall devote approximately 50% of their time to Homeland and
50% of their time to Golden. |
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| ii. | Each person shall use their best efforts when
performing work irrespective of whether that work is for Homeland or
Golden. Those best efforts may, from time to time, require that time
reasonably necessary to perform work for Homeland or for Golden will
result in a departure from the time sharing goals as stated above. |
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| iii. | Approximate hours worked per week by each
shared position for each party shall be disclosed at monthly
management/CEO meetings; and reported to the Homeland Board and to the
Golden Board no less than quarterly. |
| d. | Reporting and Organization. Each person filling one of
the above described positions shall report in accordance with the ongoing
organizational chart attached hereto as Exhibit 1 and made a part hereof. In
connection therewith: |
| i. | The CEO and CFO shall report directly to the
Homeland Board of Directors. |
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| ii. | Each Board of Directors reserves the right to
require, from time to time, any of the above named persons to do such
work or make such reports directly to or for the Board. |
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| iii. | Pursuant to the Operating Agreement of Homeland,
the persons holding the following positions shall serve, until a
successor is duly appointed and qualified by Homeland, as the Officers
required pursuant to Section 5.19 of the Operating Agreement of
Homeland, to-wit: |
| Office | Appointed Person | |
| President | Xxxx Xxxxxxxx | |
| Vice-President | current holder of position | |
| Secretary | current holder of position | |
| Treasurer | Xxxxxxx Xxxxxxxx |
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| iv. | Homeland and Golden shall adopt a mutual agreed
job description for each position identified at Section 1(a) and Section
1(b) above. |
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| v. | Homeland and Golden shall use their best efforts
to create and adopt substantially similar personnel policies and
procedures so as to enhance the ability to coordinate the work required
hereunder. |
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| vi. | Subject to the policies and procedures of each Company, the CEO
shall be primarily responsible for hiring and firing of persons
providing shared management services as described herein. |
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| vii. | Nothing herein is intended to create an employment contract, or
guaranty of employment, or a guaranty of employment for any length
of time to any person. Each person providing management services
hereunder shall, at all times, remain the employee of the Company
designated to share services as provided above. |
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| viii. | To the extent that the CEO and/or CFO provide certifications or
reports to the SEC on behalf of Homeland, Homeland shall provide
reasonable cooperation with respect to securing, if necessary, back
up certifications with respect to accuracy of information provided
by Homeland employees for use in preparing such reports and which
information is not otherwise available to the CEO/CFO. |
2. TERM AND TERMINATION. The initial term of this Agreement, subject to the remaining
terms and conditions hereof, shall be for three years from the effective date as stated in the
preamble hereof. With respect to the term and termination hereof:
| a. | Evergreen. At the expiration of the initial term, this
Agreement shall continue from year to year under its then existing conditions
unless and until a party hereto gives the other no less than 90 days written
notice of termination prior to expiration of the initial term or of the one
year extension then in effect. |
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| b. | Termination of CEO
Services Only. Notwithstanding the foregoing, Homeland may
terminate its obligation to use the CEO services provided by Golden by giving to
Golden no less than 90 days written notice of termination of use of such services on
or before the first anniversary date of this Agreement; or 90 days on or before any
extension then in effect. Upon appointment by Homeland of a separate CEO, all
persons providing management services to Homeland as provided for herein, shall
report to the appointed by Homeland CEO. The parties agree that, except as
otherwise provided herein, Golden shall provide CEO services for at least one year. |
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| c. | Termination for
Cause. Notwithstanding the forgoing, this Agreement may be
terminated for cause, as follows: |
| i. | If a party seeks to terminate this Agreement for
cause, it shall deliver to the other party written notice of
termination; which notice shall describe the basis for determining cause
exists; and which notice shall provide 30 days notice and opportunity to
cure. In the event that basis for determining cause has not been cured
to the reasonable satisfaction of the party giving notice within 30
days, then the party may deliver notice that this Agreement has been
terminated. |
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| ii. | Cause means: |
| A. | A material breach of this
Agreement. Material breach shall be: a failure of a party (to
include failure of the person being provided by a party) to
comply with applicable laws or regulations; a willful breach by
a party (to include a person being provided by a party) of a
term of this Agreement; or acts or conduct by a party (to
include a person being provided by a party) which demonstrates
intentional misconduct, reckless misconduct or grossly
negligent misconduct. |
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| B. | A deadlock in the management of
Golden and/or Homeland. Deadlock shall be the occurrence of
disagreements between the Board of Homeland and the Board of
Golden which, in the opinion of one or both Boards, has
impaired the ability of the management team to carry out the
policies and/or procedures as directed by one or both Boards of
Directors. |
| d. | Return of Confidential Information. Upon termination
each party shall return to the other all of the other’s Confidential
Information that may be in possession of the returning party. |
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| e. | Surviving Obligations. Payment of any reimbursement
obligations which have accrued and are unpaid as of the date of termination,
together with the obligations of the parties as set forth at Sections 4 — 7
hereof, shall survive termination. In all other respects the obligations of
the parties to each other shall cease upon termination hereof. |
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3. REIMBURSEMENT. The parties intend and agree that compensation by each party to the
other party shall occur as follows:
| a. | Compensation. Each party shall be responsible for and
shall directly pay salary, wages, and/or benefits to their respective
employees, who are providing management services hereunder. |
| b. | Reimbursement of Compensation. Each party shall be
reimbursed by the other for wages, salaries and/or benefits of persons
providing management services hereunder at the rate of 50% of such wages,
salaries, and/or benefits. |
| c. | Reimbursement of Costs. With respect to costs,
reimbursement shall also include 50% of all costs associated with employment of
such persons, to include, social security taxes, health insurance, workers’
compensation and mileage. |
| d. | Income in Compensation. Compensation for any person
providing management services shall be as agreed by Golden and Homeland at the
time of execution hereof; or at the time such position is subsequently filled.
Thereafter, compensation for such persons shall be reviewed annually; but the
party with the obligation to reimburse shall not be required to provide
reimbursement of compensation in excess of cost of living adjustment announced
by the U.S. Department of Labor absent its advance consent. In no event shall
any bonus program or bonus payment be included in reimbursement obligations of
either party. |
| e. | Bonuses. In the exercise of their respective sole
discretion, Golden may pay bonuses to employees of Homeland and Homeland may
pay bonuses to employees of Golden; provided that any such bonuses will be to
reward performance for shared services as provided for herein. The party
proposing a bonus to a person holding a shared position as provided for herein
shall report to the other the bonus proposal in advance of awarding the same to
the subject employee. |
| f. | Payment. Payment by each party to the other for shall
occur on the 10th day of each month. |
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4. SEPARATE RIGHTS AND RESPONSIBILITIES OF GOLDEN AND HOMELAND. The parties agree
that to the following reservation of their separate rights and statement of their separate
responsibilities, to-wit:
| a. | Separate Authority. Nothing herein shall be construed
as a grant of authority by Golden as to Homeland, or by Homeland as to Golden,
to make any management or other business decision for the other; or to exercise
or seek to exercise a controlling influence over any management policies of the
other. |
| b. | Preserve Competition. Golden and Homeland acknowledge
that they are competing business entities with different ownership. This
Agreement has been entered into for purposes of enhancing the ability of each
Company to compete by enabling each Company to have a complete management team.
However, the CEO and CFO shall be advised by Golden to observe all laws
related to price and/or competition in carrying out this Agreement; and to
implement such processes to ensure ongoing compliance with such laws by all
employees providing management services hereunder. |
| c. | Sharing of Intellectual Property. Golden and Homeland
agree that during the term hereof any and all inventions, discoveries,
formulas, processes, other intellectual property or improvements to the same if
already in existence, regarding production of ethanol or business activities
related thereto shall be owned fifty percent (50%) by Golden and fifty percent
(50%) by Homeland. In the event that one party seeks to exploit jointly owned
intellectual property and the other does not; or in the event that the parties
dispute the ownership of intellectual property on termination of this
Agreement, then unless the parties can mutually agree as to ownership, the
matter will be resolved pursuant to the dispute resolution process set forth at
Section 7 hereof. Dispute resolution shall seek to achieve a result, which to
the greatest extent possible, matches risk of intellectual property development
with the reward for such development — and to the greatest extent possible
such risk/reward shall be divided equally. |
| d. | Insurance. During the term hereof each party shall
maintain Workers’ Compensation Insurance at statutory limits; as well as
comprehensive liability insurance for all injuries or property damage which may
occur on account of services performed hereunder — with such insurance having
mutually acceptable terms and limits; with each party being named as an
additional insured of the other (except regarding the Worker’s Compensation
policy whereby each party shall add the Alternate Employer endorsement to the
respective Workers’ Compensation policy naming the other party as the Alternate
Employer); with such policies having an endorsement of no cancellation without
notice to both parties hereto; and said policies having a Waiver of Subrogation
on all policies, including the property, where allowed by law. |
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5. CONFIDENTIALITY AND COMPETITION COVENANTS. With respect to confidentiality and
competition covenants, the parties agree:
| a. | Confidentiality. With respect to confidentiality: |
| i. | Each person providing management services
hereunder shall protect from unauthorized disclosure — either to third
parties (with respect to shared management services), or to Golden or
Homeland as the case may be (with respect to information that is beyond
the scope of shared management service) — information which Golden
and/or Homeland consider non-public, confidential, or proprietary in
nature. Such non-public, confidential, and/or proprietary information
(collectively “Confidential Information”) may include, without
limitation, customer lists, contracts, planning and financial
information, business plans and strategies, marketing plans, development
plans, technical and business information, customer information, pricing
information, sales information, any formulas/devices/methods/techniques,
or other information which has independent economic value because of not
being generally known, and which Golden or Homeland, as the case may be,
has protected through reasonable efforts regarding maintenance of
secrecy. |
| ii. | The parties agree that Confidential Information
shall not include: information that, at the time of disclosure
hereunder, is in the public domain; information that, after disclosure
hereunder, enters the public domain other than by breach of this
Agreement or the obligation of confidentiality stated herein;
information that, prior to disclosure hereunder, was already in a
party’s possession, either without limitation on disclosure to others or
subsequently becoming free of such limitation; information obtained by
either party from a third party having an independent right to disclose
the information; information that is available through discovery by
independent research without use of or access to the confidential
information acquired from the other party; information disclosed upon
the order of a court or other authorized governmental entity, or
pursuant to other legal requirements — provided that prior to such
disclosure, the disclosing party shall first timely inform the other
party of such disclosure request so that the other party may seek a
protective or equivalent order for non-disclosure — and provided that
the disclosing party shall limit any such disclosure to the greatest
extent permitted by law. |
| iii. | The persons performing services pursuant to this
Agreement shall sign Confidentiality Agreements binding each such person
to the confidentiality obligations set forth above. |
| b. | No Solicitation. Golden hereby warrants to Homeland
and Homeland hereby warrants to Golden that each shall not, directly or
indirectly, either for itself or for any other person, firm or corporation
solicit for employment, retain or employ any past or present employee of the
other party, or request, induce or advise any employee to leave the employ of or
cease affiliation with the other party. |
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| c. | The provisions as set forth in this Section 5 shall survive
termination of this Agreement for a period of three (3) years. |
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6. INDEMNIFICATION. From and after the date hereof, and except as otherwise provided
for herein:
| a. | Golden Indemnification of Homeland. Golden shall
indemnify, defend and hold harmless Homeland against: (i) all losses, claims,
damages, costs, expenses, liabilities or judgments or amounts that are paid in
settlement of or in connection with any claim, action, suit, proceeding or
investigation to the extent the same is caused in whole or in part by Golden,
(ii) or, on account of a breach of Golden’s obligations hereunder. |
| b. | Homeland Indemnification of Golden. Homeland shall
indemnify, defend and hold harmless Golden against: (i) all losses, claims,
damages, costs, expenses, liabilities or judgments or amounts that are paid in
settlement of or in connection with any claim, action, suit, proceeding or
investigation to the extent the same is caused in whole or in part by Homeland,
(ii) or, on account of a breach of Homeland’s obligations hereunder. |
| c. | Limitations on Indemnification Obligation. Neither
Homeland nor Golden shall be required to indemnify the other for any direct
claim by the other that it has suffered consequential damages or lost profits;
nor shall the requirement to indemnify extend to consequential damages or lost
profits claimed by a third party and which — but for this Section 6(c) —
would be included in the indemnification obligations listed at Sections 6(a)
and 6(b) above. |
| d. | Survival of Obligations. The provisions of this
Section 6 shall survive the termination of this Agreement. |
7. DISPUTE RESOLUTION. Any controversy, claim or dispute arising out of or relating
to this Agreement or the breach hereof, including a dispute arising out of the negotiation,
formation and execution of this Agreement, and the interpretation of this Agreement, shall be
resolved as follows:
| a. | Meet and Confer. The Dispute Resolution Team (“DRT”)
of Golden shall meet and confer — in person — with the DRT of Homeland to
discuss the controversy, claim or dispute in an attempt to resolve differences
and reach agreement. Each party may elect to be represented by counsel or
other professional advisors at such meeting. The meeting shall occur as soon
as reasonably possible, but no later than ten (10) days from a written
notice by a party to the other the dispute, and the request for a meeting of
the Boards. |
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| b. | Mediation. If the controversy, claim or dispute is not
resolved by a face-to-face meeting of the respective DRTs, then the DRTs shall
meet with a neutral mediator in an attempt to reach a mediated settlement. The
mediator shall be jointly agreed to by the parties and if they cannot agree,
the court for Blackhawk County, Iowa, shall be petitioned and shall appoint the
mediator. Such mediation shall occur within twenty-one (21) business days of
when the mediator is selected. |
| c. | Arbitration. If the controversy is not resolved by
mediation, then the controversy shall be resolved by resort to binding
arbitration conducted pursuant to Iowa Code Chapter 679A and subject to the
following additional requirements: |
| i. | Arbitration and proceeds related thereto shall be
venued in Black Hawk county, Iowa. The District Court in and for Black
Hawk County shall have jurisdiction to direct the arbitration process;
and to preserve the status quo of the parties during the pondery of
arbitration. |
| ii. | The arbitration shall proceed as a private
arbitration, without involvement of the American Arbitration
Association, but otherwise pursuant to the then existing Rules of the
American Arbitration Association applicable to commercial disputes. |
| iii. | Each DRT shall select an arbitrator and the two
arbitrators shall select a neutral third arbitrator. |
| iv. | The arbitration shall occur within sixty (60)
days of the appointment of the final arbitrator. |
| v. | The determination of the arbitrators shall be
final and binding and each party waives the right to appeal any such
decision. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. The arbitrators shall
decide who shall pay the costs, expenses, and /or attorneys fees
associated with arbitration. Each party shall pay their own attorneys’
fees related to the arbitration. |
| d. | Conflict. The parties agree that any person who is a
Director of both Homeland and Golden, or an employee of one and a Director of
the other, shall excuse themselves from and not be a party to any dispute
resolution process. |
| e. | Role of DRT. The Dispute Resolution Team of each party
shall consist of that party’s then existing Committee of Disinterested Persons
together with that party’s Executive Committee. Each party’s DRT shall
represent it during the dispute resolution proceedings; and the DRT shall make
recommendations for final decisions regarding dispute resolution to its Board.
The final decision on such recommendation shall, however, be reserved to and
made by the respective Boards of the parties. |
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8. FORCE MAJEURE. The performance of a party may be excused upon the occurrence a
Force Majeure event. A Force Majeure event shall be fire, flood, storm, act of God, governmental
action or intervention, or other circumstance which is beyond the reasonable control of the party
claiming the event and which renders the performance of this Agreement by a party hereto
impossible. A party affected by a Force Majeure event shall not be relieved of performance unless
such party has used reasonable efforts to remedy the conditions giving rise to such event; and
unless and until such party has given written notice of the occurrence of such event. Either party
may terminate this Agreement upon not less than thirty (30) days prior written notice if the Force
Majeure event has been continuously in existence for a period of ninety (90) days.
9. MISCELLANEOUS.
| a. | Independent Contractors. At all times during this
Agreement, Golden and its employees on the one hand, and Homeland and its
employees on the other, shall be deemed independent contractors of the other.
Nothing herein shall be construed to create a partnership, joint venture,
agency, or any other form of business relationship between Golden and Homeland.
Golden and Homeland acknowledge that their Agreement is strictly contractual
in nature. |
| b. | Further Assurance. Each party agrees to execute and
deliver all further instruments, legal opinions and documents, and take all
further action not inconsistent with the provisions of this Agreement that may
be reasonably necessary to complete performance of a party’s obligations
hereunder and to effectuate the purposes and intent of this Agreement. |
| c. | Notice. Any and all notices provided for herein shall
be given in writing by registered or certified mail, postage prepaid, which
shall be addressed by either party and delivered to the other at its then
existing registered office — with the initial address for notice being as
follows: |
| i. If to Golden: | Golden Grain Energy, LLC | |||
| Attn: Chairman of the Board of Directors | ||||
| Address: 0000 00xx Xx. XX | ||||
| Xxxxx Xxxx, XX 00000 | ||||
| ii. If to Homeland: | Homeland Energy Solutions, LLC | |||
| Attn: Chairman of the Board of Directors | ||||
| Address: 0000 Xxxx Xxx 00 | ||||
| Xxxxxx, XX 00000 |
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| d. | Binding Effect. This Agreement shall be binding upon the successors,
legal representatives and assigns of the parties hereto, all of whom,
regardless of the number of intervening transfers, shall be bound in
the same manner as the parties hereto. |
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| e. | No Assignment. This Agreement shall not be assigned by either party
except upon the written consent of the other party. Nothing in this
Agreement, express or implied, is intended to confer upon any other
person any rights or remedies under or by reason of this Agreement. |
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| f. | Integration and Amendment. This Agreement supersedes and takes
precedence over any previous agreement entered into between the
parties hereto, whether written or oral, regarding the matters covered
herein. This Agreement sets forth the entire understanding of the
parties and may not be amended, altered or modified except by written
agreement between the parties. |
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| g. | Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement, or affecting the
validity or enforceability of any of the other terms of this Agreement
in any other jurisdiction. In the event a term or provision is
invalid or unenforceable, a Court or Arbitrators (as the case may be)
are granted the authority to construe, interpret, or modify this
Agreement in a manner which is intended to remedy such invalidity or
unenforceability while giving effect, to the greatest extent possible,
to all remaining terms and provisions hereof. |
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| h. | No Waiver. Any waiver of any of terms and/or conditions of this
Agreement by a party shall not be construed to be a general waiver of
such terms and/or conditions; and no waiver shall be effective absent
the written agreement of the parties. |
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| i. | Counter Parts. This Agreement may be executed in one or more
counterparts, all of which, taken together, shall be deemed one and
the same Agreement. |
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| j. | Captions. The captions herein are inserted for the
convenience of reference only and shall be ignored in the construction
or interpretation hereof. |
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| k. | Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Iowa. |
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IN WITNESS WHEREOF, each party hereto has executed this Agreement effective as of the date
first above written.
| GOLDEN GRAIN ENERGY, LLC |
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| By: | /s/ Xxxxx Sovereign | |||
| Its: Chairman of the Board of Directors | ||||
| HOMELAND ENERGY SOLUTIONS, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Its: Chairman of the Board of Directors | ||||
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EXHIBIT 1
ORGANIZATIONAL CHART
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