TEAMING AGREEMENT
BETWEEN
▇▇▇▇▇, INC.
AND
ICM, INC.
This Agreement (the "Agreement"), dated _________________, sets forth the
mutual understanding and intent of ▇▇▇▇▇, Inc., a Minnesota corporation
("▇▇▇▇▇"), and ICM, Inc., a Kansas corporation ("ICM"), regarding their joint
pursuit of contracts in the Continental United States to engineer, procure and
construct dry mill ethanol plants, and to develop enhanced methods of design,
procurement and construction for use on such projects. The Appendices to this
Agreement are incorporated by reference herein.
1. PARTIES
1.1 AFFILIATES. ▇▇▇▇▇ and ICM (collectively, the "Parties" and
individually, a "Party") intend that their Affiliates be bound by this
Agreement. The Parties acknowledge that they do not intend to cause or
use their Affiliates to frustrate the purposes hereof by establishing
or using separate affiliates to pursue Potential Projects outside the
framework of this Agreement. However, either Party may use its
Affiliates in the pursuit and completion of Potential Projects under
this Agreement.
1.2 THIRD PARTIES. On certain Approved Projects it may be desirable to add
third parties (a "Third Party") to the project team. With the mutual
consent of both Parties, a Third Party may be included as part of the
project team.
1.3 DEFINITIONS.
"Affiliate" refers to any individual, partnership, corporation or other
entity that directly or indirectly controls or is controlled by or is
under common control with a Party.
"Approved Project" refers to any Potential Project that the Executive
Committee has agreed the Parties will jointly pursue and the Owner has
executed a Letter of Intent.
"Awarded Project" refers to any Approved Project that has been awarded
to the Parties.
"Person" refers to any natural person, partnership, corporation or
other entity.
"Potential Project" means any project which a Party or a Third Party
refers to the Operations Committee for consideration to become an
Approved Project.
"Project Team" refers to a group of individuals selected to manage a
particular project by the Operations Committee.
2. PURPOSE
2.1 ▇▇▇▇▇ and ICM confirm that they are entering into the relationship set
forth in this Agreement for the sole and limited purpose of preparing
and submitting proposals for Approved Projects (the "Proposals"),
performing contracts for Awarded Projects, and pursuing certain
activities to enhance the Parties' joint competitiveness in the ethanol
industry Design-Build contracting business, as further set forth in
this Agreement.
2.2 Nothing contained in this Agreement shall be construed as creating a
corporation, partnership, joint stock company, business trust, joint
venture, whether incorporated or not, involving the Parties. This
Agreement shall not limit the activities of each of them or their
respective Affiliates in carrying on their respective business or
businesses for their own benefit, unless specifically prohibited
hereunder.
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2.3 Nothing contained in this Agreement shall be construed as creating any
fiduciary relationship of any nature between the Parties; provided,
however, that the Parties shall always act in good faith toward each
other.
2.4 Neither Party shall have the authority or right, nor shall either Party
hold itself out as having the authority or right, to assume, create or
undertake any obligation of any kind whatsoever, expressed or implied,
on behalf of or in the name of the other Party without the express
prior written consent of the other Party.
2.5 If the Parties agree to pursue a Potential Project, each Party
undertakes to cooperate with the other Party and to negotiate for the
purpose of agreeing to and executing a legally binding project
agreement ("Project Agreement") for such Approved Project prior to the
submission of any Proposal pursuant to which each of the Parties agrees
to participate in the Approved Project. It is the present intention
that the Project Agreement may provide for the formation of a limited
liability company, limited partnership, joint venture or consortium to
proceed with the work or may create a prime contractor-subcontractor
relationship.
2.6 It is the Parties' intent to pursue the design, procurement and
construction of the Approved Projects exclusively with each other and
their Affiliates in accordance with the terms of this Agreement.
3. ADMINISTRATION
3.1 ESTABLISHMENT OF COMMITTEES. The overall business commitment of each
Party under this Agreement shall be the responsibility of the
"Executive Committee" which shall be comprised of two persons from each
Party. Overall management, leadership, day-to-day administration of
this Agreement, direction of the preparation of Proposals and
completion of Awarded Projects shall be the responsibility of the
"Operations Committee" which shall be comprised of two persons from
each Party. At least one person from each Party shall be common to both
the Executive Committee and the Operations Committee. Each Party may
change its representatives by written notice to each other. Each person
shall be entitled to one vote on each committee, and all decisions of
each Committee shall be unanimous. To facilitate decision making, a
party may bring to an Executive Committee or Operations Committee
meeting such non-voting advisory personnel as the party deems
appropriate, subject to the consent of the other party, which consent
shall not be unreasonably withheld.
3.1.1 The initial Executive Committee representatives are:
▇▇▇▇▇, INC. ICM, INC.
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
3.1.2 The initial Operations Committee representatives are:
▇▇▇▇▇, INC. ICM, INC.
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
3.2 EXECUTIVE COMMITTEE. The Executive Committee shall have the overall
power to administer this Agreement, direct the actions of the
Operations Committee, and to resolve disputes of the Operations
Committee. The Executive Committee shall meet as necessary, but not
less than quarterly, to determine matters related to this Agreement.
The Executive Committee may hold, and any representative may
participate in, a meeting by means of conference telephone or similar
communications equipment that enables all representatives participating
in the meeting to hear each other. One representative from each Party
shall constitute a quorum.
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3.2.1 The duties and responsibilities of the Executive Committee include:
- To review and approve overall policies and procedures prepared by the
Operations Committee;
- To review and approve the business plans prepared by the Operations
Committee;
- To settle disputes not resolved by the Operations Committee;
- To define, from time to time, the scope of projects the Parties
desire to pursue;
- To determine which Potential Projects to pursue;
- To approve a project price; and
- To take any other action the Executive Committee deems appropriate.
3.3 OPERATIONS COMMITTEE. The Operations Committee shall meet as necessary,
but not less than monthly, to determine matters related to this
Agreement as directed by the Executive Committee. The Operations
Committee may hold, and any representative may participate in, a
meeting by means of conference telephone or similar communications
equipment that enables all representatives participating in the meeting
to hear each other. One representative from each Party shall constitute
a quorum.
3.3.1 The Operations Committee shall have the following authority and
responsibilities and such additional authority and responsibility as
delegated by the Executive Committee. The Operations Committee may
further delegate these duties and responsibilities to a project
management committee pursuant to a Project Agreement. The initial
duties and responsibilities of the Operations Committee include:
- To oversee selection and approve the members of a Project Team;
- To appoint a project executive;
- To prepare an overall business plan for operations pursuant to this
Agreement for approval by the Executive Committee;
- To prepare overall policies and procedures for approval by the
Executive Committee;
- To establish limits of authority for marketers and contract
negotiators;
- To discuss identified Potential Projects and make recommendations
to the Executive Committee;
- To allocate resources to Approved and Awarded Projects;
- To determine the best method of proceeding with Approved and Awarded
Projects;
- To approve project policies and procedures; and
- To oversee execution of Awarded Projects.
4. PROJECT PURSUIT
4.1 IDENTIFICATION OF PROJECTS. The Executive Committee shall establish and
maintain a description of the type of project opportunities the Parties
desire to pursue jointly. If a Party learns of a project within such
description, then such Party shall refer the project to the Operations
Committee as a Potential Project. The Parties shall provide each other
with all relevant information and all leads and suggestions obtained
through each Party's contacts in the ethanol industry. This Agreement
shall not apply to the following:
- A Project that a Party can demonstrate was underway prior to the date
of this Agreement.
- A Project for which a confidentially agreement prevents disclosure.
4.2 PURSUIT OF PROJECTS. The Operations Committee shall review which
Potential Projects to pursue within this Agreement. Within 15 days
after referral of a Potential Project by a Party or a Third Party, the
Operations Committee shall determine by unanimous vote whether to make
a favorable recommendation to the Executive Committee to pursue the
Potential Project. The Executive Committee will have an additional 15
days to make its decision. Unless delayed by agreement of
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the Parties, if within 30 days after referral, the Executive Committee
does not elect to pursue the referred Potential Project, either Party
may pursue the Potential Project on its own or with others. If ICM
elects not to pursue a Potential Project, ▇▇▇▇▇ will be granted a
Limited License to use ICM's Confidential Data for a mutually
agreeable fee.
4.3 LIMITS OF AUTHORITY. Upon approval of a Potential Project (an "Approved
Project"), the Operations Committee shall establish the terms of
participation by the Parties in the Approved Project. Neither Party
will be allowed to withdraw from the Approved Project without the
consent of the other unless it becomes necessary to exceed such terms
of participation in order to obtain the Approved Project. Either Party
may then elect to withdraw from the Approved Project.
4.4 PROJECT AGREEMENT. After designation of a project as an Approved
Project, the Operations Committee shall approve a Project Agreement for
the specified Approved Project which, among other things, shall
establish the entity (the "Project Entity") to be used by the Parties
for the purpose of designing, procuring and constructing the Approved
Project if a contract is awarded. Approval of the Operations Committee
will be required for participation by a Third Party in the Project
Entity. If the Parties cannot agree upon an acceptable Project
Agreement for an Approved Project, then either Party may elect to
withdraw from the Approved Project and the Parties may thereafter
pursue the project on their own or with others.
5. DEVELOPMENT COSTS
Prior to the execution of an applicable Project Agreement for an
Approved Project, all costs and expenses incurred by the Parties with
respect to an Approved Project and this Agreement shall be borne by the
Party incurring such costs and expenses. The Project Agreement will
provide for handling of such costs in the event the Parties' Proposal
is accepted and a contract is awarded.
6. CONFIDENTIALITY
6.1 DATA. To the extent of their respective rights and abilities to do so,
the Parties shall exchange such information and data as are reasonably
required of each to perform its part of this Agreement and any Project
Agreement. All technical information, information systems, and
confidential business information received from a Party under this
Agreement, disclosed and designated to be confidential or proprietary
whether in hard copy or electronic form (hereinafter called
"Confidential Data"), shall not be disclosed to other Persons except as
provided herein. After five (5) days prior notice to the other Party, a
Party may disclose Confidential Data of the other Party on a need to
know basis (i) to an employee of a Party or its Affiliates and (ii)
subject to a confidentiality agreement to a subcontractor or supplier
or prospective subcontractor or supplier. The restrictions on the
disclosure of Confidential Data shall not apply to the extent such
data: (a) were in the public domain at the time of the disclosure or
later came under the public domain; (b) were known to the receiving
Party at the time of the disclosure; (c) are authorized for disclosure
by the written approval of the transmitting Party; (d) are lawfully
derived by the receiving Party from a source other than the disclosing
Party without restriction as to the use or disclosure of the data; or,
(e) are independently developed by the receiving Party without recourse
to any proprietary data provided under this Agreement. The Parties
shall not be restricted in any way from releasing information in
response to a subpoena, court order, or legal process, but shall notify
the other Party of the demand for information before responding to such
demand. The foregoing restrictions shall cease to apply five years
after the expiration of this Agreement.
6.2 EXISTENCE OF THIS AGREEMENT. The Parties agree not to make a formal
announcement or to disclose the existence of this Agreement without
prior approval of the Executive Committee. Without disclosing the terms
of this Agreement, promotional materials may be created for use in the
promotion of ethanol industry Design-Build contracting services and
such materials may be provided to prospective customers, either
individually or through a form of distribution.
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7. OTHER ACTIVITIES
The Operations Committee may appoint appropriate personnel from the Parties to
one or more committees to investigate, review and develop process integration or
process improvement methods for project controls, estimating, materials
management, engineering deliverables or such other matters as they deem
appropriate.
8. PERSONNEL EXCHANGE AND TRAINING
8.1 TRAINING. Each Party agrees to notify the other of in-house training
programs and opportunities that may be available for employees of the
other Party.
8.2 PERSONNEL EXCHANGE. The Operations Committee shall endeavor to
integrate personnel between the Parties as appropriate to enhance
project implementation, project profitability, or to meet other
mutually agreed objectives.
9. TERM & TERMINATION
9.1 TERMINATION. The term of this Agreement shall commence as of the date
hereof, and shall continue for a period of one year, at which time it
shall be automatically extended for successive one year terms, unless
either Party hereto terminates this Agreement at the end of any one
year term by giving written notice to the other Party at least thirty
(30) days prior to the expiration of such one year term.
9.2 EFFECT OF TERMINATION. Unless otherwise mutually agreed, upon
expiration or termination of this Agreement (a) all Potential or
Approved Projects for which the Parties have not submitted a Proposal
shall cease to be joint projects and any Party shall be free to pursue
any of such Potential or Approved Projects, either alone or in
cooperation with others, and (b) all Approved Projects for which
Proposals have been submitted shall continue to be pursued as joint
projects in accordance with the applicable terms of this Agreement and
any applicable Project Agreement. The expiration or termination of this
Agreement shall have no effect upon any Project Entity organized in
accordance with any Project Agreement executed pursuant to this
Agreement.
10. PARENT COMPANY GUARANTEES
Each Party shall provide to the other a guarantee of its and its
Affiliates' obligations under this Agreement and any Project
Implementation Agreement in a form mutually agreeable to the Parties
and their respective corporate counsels. The Parties agree to exchange
annually their audited financial statements. Each Party agrees to
promptly inform the other of any material adverse change in its
financial condition since the date of any audited financial statement
furnished hereunder.
11. WAIVER OF CONSEQUENTIAL DAMAGES
To the fullest extent permitted by law, neither Party nor its
Affiliates shall be liable to the other Party or its Affiliates for any
special, indirect, exemplary, punitive or consequential damages arising
out of this Agreement or any Project Agreement, regardless of how the
same may be caused, including the fault, negligence, strict liability,
breach of contract, or liability arising by statute of either Party.
12. ASSIGNMENT
This Agreement shall not be assigned by a Party without written consent
of the other Party, except that a Party may assign its interest to such
Party's Affiliate. This Agreement shall be binding upon and inure to
the benefit of the Parties' successors and assigns.
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13. INSURANCE
The Parties will provide and maintain insurance in the manner described
in the Project Agreement.
14. ADDITION OF THIRD PARTIES
No third party shall become a party to this Agreement without the prior
written consent of all Parties. Upon the mutual agreement of both
Parties, a third party may be added to a Project Agreement.
15. DISPUTE RESOLUTION
The Executive Committee shall attempt to settle amicably any dispute or
difference of any kind whatsoever, arising out of or in connection with
the validity or invalidity, construction, execution, meaning, operation
or effect or breach of this Agreement. If the Executive Committee does
not promptly do so, such dispute or difference shall be referred to the
Parties' respective CEOs (or equivalents) who shall meet together with
a view to resolving the same within a period of not more than 30 days
from the date of the submission. If the Parties' respective CEOs are
unable to amicably resolve such dispute or difference within such 30
days, then the Parties agree to proceed to mediation under the
Construction Industry Mediation Rules of the American Arbitration
Association (AAA) and to conclude such mediation within sixty (60) days
of the filing by a Party of a request to AAA for mediation. Mediation
shall take place at the offices of AAA in Omaha, Nebraska or at such
other location as the Parties may agree. Each Party will pay its own
costs, plus an equal share of the cost of the mediator and mediation
facilities.
If a dispute between the Parties to this Agreement cannot be resolved
by mediation within sixty (60) days as agreed to above, then the
Parties shall submit the dispute to binding arbitration. AAA under its
Construction Industry Arbitration Rules shall administer the
Arbitration Proceedings. One or more arbitrators shall be appointed in
accordance with said Rules. Such arbitration shall be held at the
offices of AAA in Omaha, Nebraska, or at such other location as the
Parties may agree, and conducted in the English Language. Discovery
will be strictly limited: (i) each Party will promptly produce to the
other all relevant and non-privileged documents for inspection and
copying; and (ii) each Party will promptly submit written reports of
its testifying expert witnesses to the other Party, and permit the
other Party reasonable opportunity to depose such expert witnesses. No
further discovery will be permitted unless the arbitrator(s) requires
otherwise, for good cause shown. The decision of the arbitration
tribunal shall be rendered in writing and shall be final and binding
upon the Parties. Judgment upon the award rendered may be entered by
either Party and enforced in any court having competent jurisdiction.
The Parties shall share the procedural costs of the arbitration equally
unless the arbitrator(s) decides otherwise. Each Party shall pay its
own attorney's fees and costs incurred by it relating to the
arbitration unless the arbitrator(s) decides otherwise. The
arbitrator(s) shall have the authority to allow the joinder of any
Affiliate of ▇▇▇▇▇ and/or any Affiliate of ICM, to consolidate claims
of ▇▇▇▇▇ and its Affiliates and ICM and its Affiliates into a single
arbitration proceeding, and to order that claims and disputes under
this Agreement be resolved in other pending dispute resolution
proceedings involving ▇▇▇▇▇ or its Affiliates and ICM or its
Affiliates, as determined in the discretion of the arbitrator(s).
Disputes under this Agreement that are resolved in other pending
dispute resolution proceedings, where such resolution has been ordered
by the arbitrator(s), shall be binding on the Parties as fully as if
decided by arbitration under this Agreement. This agreement is subject
to the Federal Arbitration Act, 9 U.S.C.>>1-16.
Pending resolution of such dispute or difference and without prejudice
to their rights, the Parties shall continue to respect all their
obligations and to perform all their duties under this Agreement and
any Project Agreement.
16. ASSIGNMENT OF PERSONNEL TO AWARDED PROJECTS
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Individuals assigned to Awarded Projects pursuant to this Agreement or
a Project Agreement shall remain the employees of the assigning Party
for purposes of salary payments, employee benefits and payment of
Worker" Compensation insurance premiums.
17. ENGINEERING AND CONTRATOR'S LICENSES
The Project Agreement will provide a project arrangement that best
allows use of the licenses of the Parties for engineering and
construction work in accordance with the law of the jurisdiction of the
Awarded Project.
18. RECORD KEEPING AND RETENTION
The Operations Committee shall designate a location for storage of
Awarded Project records, and shall develop a record retention policy.
19. INTELLECTUAL PROPERTY
Each Party shall retain all of its rights to any intellectual property
developed, utilized, or modified in the performance of this Agreement
or any Project Agreement. If the Parties jointly conceive of any
discovery, invention, or other intellectual property in connection with
this Agreement, the Parties shall jointly own such intellectual
property.
20. NOTICE PROVISIONS
Communication required by this Agreement shall be in writing, signed by
an authorized representative of the Party giving notice, and shall be
delivered either by: (i) personal delivery; (ii) registered or
certified mail, return receipt requested or its equivalent where
mailed; (iii) facsimile, with receipt confirmed; or (iv) overnight
courier service, addressed to the Party for whom intended at the
following address:
To ICM: ICM, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Office)
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
To ▇▇▇▇▇: ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (Office)
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
or at such other address as the intended recipient previously
has designated by written notice to the other Party. Unless
otherwise provided in this Agreement, notice by registered or
certified mail shall be effective on the date it is officially
recorded as delivered, or refused, by return receipt or
equivalent, or next business day if sent by couriers. All
communications delivered in person or sent by facsimile shall
be deemed to have been delivered to and received by the
addressee on the date of personal delivery or on the date
sent, respectively.
21. GOVERNING LAW
The laws of the State of Nebraska shall govern this Agreement.
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22. AMENDMENT AND MODIFICATION
No change, amendment or modification of this Agreement shall be valid
or binding upon the Parties unless such change, amendment or
modification shall be in writing and duly executed by both Parties.
The Parties hereto have executed this Agreement on the dates indicated
below effective as of the date first above written.
▇▇▇▇▇, INC.
By: _________________________________ By: _______________________________
Title: ______________________________ Title: ____________________________
ICM, INC.
By: _________________________________ By: _______________________________
Title: ______________________________ Title: ____________________________
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