Exhibit 4.2
EAST KANSAS AGRI-ENERGY, L.L.C.
SUBSCRIPTION AGREEMENT
Membership Units
$1,000 PER XXXX
00 XXXX XXXXXXX XXXXXXXX ($10,000)
The undersigned subscriber, desiring to become a member of East Kansas
Agri-Energy, L.L.C. ("EKAE"), a Kansas limited liability company, with its
principal place of business at 00000 X.X. Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx
00000, hereby subscribes for the purchase of the membership interests of EKAE,
and agrees to pay the related purchase price, identified below.
A. SUBSCRIBER INFORMATION. Please print your individual or entity name and
address. Joint subscribers should provide their respective names. Your name and
address will be recorded exactly as printed below.
1. Subscriber's Printed Name ________________________________________
2. Title, if applicable: ________________________________________
3. Subscriber's Address:
Street ________________________________________
City, State, Zip Code ________________________________________
B. NUMBER OF UNITS PURCHASED. You must purchase at least 10 units. Your
ownership interest may not exceed 25% of all of our outstanding membership
units. Accordingly, assuming that we sell the minimum number of 9,000 Units in
this Offering, you may not purchase more than 4,805 Units. We presently have
1220 Units outstanding.
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C. PURCHASE PRICE. Indicate the dollar amount of your investment.
1. TOTAL PURCHASE PRICE = 2. TEN PERCENT (10%) 1ST + 3. NINETY PERCENT (90%) 2ND
-------------------- ---------------------- -------------------------
($1,000 Per Unit multiplied by the INSTALLMENT INSTALLMENT
number in box B above.) ----------- -----------
(10% of the Total Purchase Price) (90% of the Total Purchase
Price)
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= +
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D. GENERAL INSTRUCTIONS FOR SUBSCRIBERS:
You should read the Prospectus dated [Date of Effectiveness] (the "Prospectus")
in its entirety including financial statements and exhibits for a complete
explanation of an investment in EKAE. To subscribe, you must:
1. Complete all information required in this Subscription Agreement, and
date and sign this Subscription Agreement at page 5.
2. Complete all information required by the Member Signature Page of the
Operating Agreement, and date and sign the Member Signature Page (the last page
attached to this Subscription Agreement).
3. Immediately provide your personal (or business) check for the first
installment of ten percent (10%) of your investment amount made payable to
"XXXXXXX STATE SAVINGS BANK -- ESCROW AGENT FOR EKAE." You will determine this
amount in box C.2 on page 1 of this Subscription Agreement.
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4. Execute the Promissory
Note and Security Agreement on page 7 of this
Subscription Agreement evidencing your commitment to pay the remaining ninety
percent (90%) due for the Units that is attached to this Subscription Agreement
and your agreement to grant EKAE a security interest in your membership units.
5. Deliver each of the original executed documents referenced in Items 1,
2, and 4 of these Instructions, together with your personal check described in
Item 3 of these Instructions to:
Garnett State Savings Bank
5th and Oak
X.X. Xxx 000
Xxxxxxx, Xxxxxx 00000
6. Secure an additional personal (or business) check for the second
installment of ninety percent (90%) of your investment amount made payable to
"GARNETT STATE SAVINGS BANK -- ESCROW AGENT FOR EKAE" in satisfaction of the
Promissory Note. You will determine this amount in box C.3 on page 1 of this
Subscription Agreement. Deliver this check to the same address set forth above
in Instruction 5 within twenty (20) days of the date of EKAE's written notice
that its sales of Units have exceeded the Minimum Escrow Deposit of $9,000,000.
If you fail to pay the second installment pursuant to the Promissory Note, EKAE
shall be entitled to retain your first installment and to seek other damages, as
provided in the Promissory Note.
Your funds will be placed in EKAE's escrow account at Garnett State Savings
Bank, and the funds will be released to EKAE or returned to you in accordance
with the escrow arrangements described in the Prospectus. If EKAE rejects your
subscription, your Subscription Agreement and investment will be returned to you
within 30 days of such rejection, plus nominal interest, minus escrow fees. EKAE
may not consider the acceptance or rejection of your subscription until a future
date near the end of this Offering.
YOU MAY DIRECT YOUR QUESTIONS TO ONE OF OUR DIRECTORS LISTED BELOW OR TO EKAE AT
(000) 000-0000.
DIRECTOR TELEPHONE NUMBER DIRECTOR TELEPHONE NUMBER
-------- ---------------- -------- ----------------
Xxxxxxx X. Xxxxxx (000) 000-0000 Xxxxx Xxxxxxx (000) 000-0000
Xxxxxx X. Xxxxxx (000) 000-0000 Xxxx X. Xxxxxxxxx (000) 000-0000
Xxxxx X. Xxxxxxxx (000) 000-0000 Xxxxx X. Xxxxxxxx (000) 000-0000
Xxxxxx X. Xxxxxxxxxx (000) 000-0000 Xxxxxx X. Meats (000) 000-0000
Xxxxxxx X. Xxxxxxxxx (000) 000-0000 Xxxxx Xxxxxxxxx (000) 000-0000
E. ADDITIONAL SUBSCRIBER INFORMATION. The subscriber, named above, certifies
the following under penalties of perjury:
1. FORM OF OWNERSHIP. Check the appropriate box (one only) to indicate
form of ownership. If the subscriber is a Custodian, Corporation,
Partnership or Trust, please provide the additional information
requested.
/ / Individual
/ / Joint Tenants with Right of Survivorship (Both signatures must
appear in Item 7)
/ / Corporation or Partnership (Corporate Resolutions or Partnership
Agreement must be enclosed)
/ / XXX
/ / XXXXX
/ / Pension or Profit Sharing Plan
/ / Trust
Trustee's Name: _________________________________________________
Trust Date: _____________________________________________________
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/ / Other: Provide detailed information in the space immediately
below.
2. SUBSCRIBER'S TAXPAYER INFORMATION. Check the appropriate box if you
are a non-resident alien, a U.S. Citizen residing outside the United
States or subject to back up withholding. KEOGHS should provide the
taxpayer identification number of the account and the social security
number of the accountholder. Trusts should provide their taxpayer
identification number. Custodians should provide the minor's social
security number. All individual subscribers and XXX subscribers should
provide their social security number. Other entities should provide
their taxpayer identification number.
/ / Check box if you are a non-resident alien
/ / Check box if you are a U.S. citizen residing outside of the
United States
/ / Check this box if you are subject to backup withholding
Subscriber's Social Security No. _____________________________________
Joint Subscriber's Social Security No. _______________________________
Taxpayer Identification No. __________________________________________
3. MEMBER REPORT ADDRESS. If you would like duplicate copies of member
reports sent to an address that is different than the address
identified in section A, please complete this section.
Address: _____________________________________________________________
_____________________________________________________________
4. STATE OF RESIDENCE.
State of Principal Residence: ________________________________________
State where driver's license is issued _______________________________
State where income taxes are filed ___________________________________
State(s) in which you have maintained your principal residence during
the past three years:
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a. b. c.
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5. SUITABILITY STANDARDS. You cannot invest in EKAE unless you meet one,
or more, of the suitability tests set forth below. Please review the
suitability tests and check the box(es) next to the following
suitability test that you meet. For husbands and wives purchasing
jointly, the tests above will be applied on a joint basis.
/ / I (We) have annual income from whatever source of at least
$30,000 and a net worth of at least $30,000, exclusive of home,
furnishings and automobiles; or
/ / I (We) have a net worth of at least $75,000, exclusive of home,
furnishings and automobiles.
6. SUBSCRIBER'S REPRESENTATIONS AND WARRANTIES. You must read and certify
your representations and warranties and sign and date this
Subscription Agreement.
By signing below the subscriber represents and warrants to EKAE that
he, she or it:
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a. has received a copy of EKAE's Prospectus;
b. has been informed that the Units of EKAE are offered and sold in
reliance upon a federal securities registration, Kansas and
Missouri securities registrations, and exemptions from securities
registrations in various other states, and understands that the
Units to be issued pursuant to this subscription agreement can
only be sold to a person meeting requirements of suitability;
c. has been informed that the securities purchased pursuant to this
Subscription Agreement have not been registered under the
securities laws of any state other than the States of Kansas and
Missouri, and that EKAE is relying in part upon the
representations of the undersigned Subscriber contained herein;
d. has been informed that the securities subscribed for have not
been approved or disapproved by the Kansas or Missouri Securities
Departments or any other regulatory authority, nor has any
regulatory authority passed upon the accuracy or adequacy of the
Prospectus;
e. intends to acquire the Units for his/her/its own account without
a view to public distribution or resale and that he/she/it has no
contract, undertaking, agreement or arrangement to sell or
otherwise transfer or dispose of any Units or any portion thereof
to any other person;
f. understands that there is no present market for EKAE's membership
units, that the membership units will not trade on an exchange or
automatic quotation system, that no such market is expected to
develop in the future and that there are significant restrictions
on the transferability of the membership units;
g. has received a copy of the EKAE Operating Agreement, and
understands that upon closing the escrow by EKAE, the subscriber
and the membership units will be bound by the provisions of the
Operating Agreement which contains, among other things,
provisions that restrict the transfer of membership units;
h. understands that the Units are subject to substantial
restrictions on transfer under state securities laws along with
restrictions in the EKAE Operating Agreement and agrees that if
the membership units or any part thereof are sold or distributed
in the future, the subscriber shall sell or distribute them
pursuant to the terms of the Operating Agreement, and the
requirements of the Securities Act of 1933, as amended, and
applicable state securities laws;
i. meets the suitability test marked in Item 6 above and is capable
of bearing the economic risk of this investment, including the
possible total loss of the investment;
j. understands that EKAE will place a restrictive legend on any
certificate representing any unit containing substantially the
following language as the same may be amended by the Directors of
EKAE in their sole discretion:
THE TRANSFERABILITY OF THE UNITS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED. SUCH UNITS MAY NOT BE SOLD,
ASSIGNED, OR TRANSFERRED, NOR WILL ANY ASSIGNEE, VENDEE,
TRANSFEREE, OR ENDORSEE THEREOF BE RECOGNIZED AS HAVING
ACQUIRED ANY SUCH UNITS FOR ANY PURPOSES, UNLESS AND TO THE
EXTENT SUCH SALE, TRANSFER, HYPOTHECATION, OR ASSIGNMENT IS
PERMITTED BY, AND IS COMPLETED IN STRICT ACCORDANCE WITH,
APPLICABLE STATE AND FEDERAL LAW AND THE TERMS AND
CONDITIONS SET FORTH IN THE AMENDED AND RESTATED OPERATING
AGREEMENT AS AGREED TO BY EACH MEMBER.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, OFFERED FOR SALE, OR TRANSFERRED IN THE ABSENCE OF
EITHER AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND UNDER APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND UNDER APPLICABLE
STATE SECURITIES LAWS.
k. understands that, to enforce the above legend, EKAE may place a
stop transfer order with its registrar and stock transfer agent
(if any) covering all certificates representing any of the
membership units;
l. has knowledge and experience in business and financial matters as
to be able to evaluate the merits and risks of an investment in
the Units, believes that the investment in Units is suitable
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for the subscriber and can bear the economic risk of the purchase
of Units including the total loss of the undersigned's
investment;
m. may not transfer or assign this subscription agreement, or any of
the subscriber's interest herein;
n. has written his, her, or its correct taxpayer identification
number under Item 3 on this subscription agreement;
o. is not subject to back up withholding either because he, she or
it has not been notified by the Internal Revenue Service ("IRS")
that he, she or it is subject to backup withholding as a result
of a failure to report all interest or dividends, or the IRS has
notified him, her or it that he is no longer subject to backup
withholding (Note this clause (p) should be crossed out if the
backup withholding box in Item 3 is checked);
p. understands that execution of the attached Promissory Note will
allow EKAE or its assigns to pursue the obligor for payment of
the amount due thereon by any legal means, including, but not
limited to, acquisition of a judgment against the obligor in the
event that the subscriber defaults on that Promissory Note; and
q. Acknowledges that EKAE may retain possession of certificates
representing subscriber's Units to perfect its security interest
in those Units.
SIGNATURE OF SUBSCRIBER/ JOINT SUBSCRIBER:
DATE: __________________________________
INDIVIDUALS: ENTITIES:
____________________________________________ ____________________________________________
Name of Individual Subscriber (Please Print) Name of Entity (Please Print)
____________________________________________ ____________________________________________
Signature of Individual Print Name and Title of Officer
____________________________________________ ____________________________________________
Name of Joint Individual Subscriber Signature of Officer
(Please Print)
____________________________________________
Signature of Joint Individual Subscriber
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ACCEPTANCE OF SUBSCRIPTION BY EAST KANSAS AGRI-ENERGY, L.L.C.:
East Kansas Agri-Energy, L.L.C. hereby accepts the subscription for the above
Units.
Dated this ___ day of _______________________, 200_.
EAST KANSAS AGRI-ENERGY, L.L.C.
By: _______________________________________
Its: ______________________________________
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PROMISSORY
NOTE AND SECURITY AGREEMENT
Date of Subscription Agreement: ___________________________________, 200_.
$1,000 PER XXXX
00 XXXX XXXXXXX XXXXXXXX ($10,000)
_____________________ Number of Units subscribed
_____________________ Total Purchase Price ($1,000 per Unit multiplied by number
of Units subscribed)
( ) Less Initial Payment (10% of Principal Amount)
---------------------
_____________________ Principal Balance
FOR VALUE RECEIVED, the undersigned hereby promises to pay to the order of East
Kansas Agri-Energy, L.L.C., a Kansas limited liability company ("EKAE"), at its
principal office located at 00000 X.X. Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx 00000,
or at such other place as required by EKAE, the Principal Balance set forth
abovein one lump sum to be paid without interest within 20 days following the
call of the EKAE Board of Directors, as described in the Subscription Agreement.
In the event the undersigned fails to timely make any payment owed, the entire
balance of any amounts due under this full recourse Promissory Note shall be
immediately due and payable in full with interest at the rate of 12% per annum
from the due date and any amounts previously paid in relation to the obligation
evidenced by this Promissory Note may be forfeited at the discretion of EKAE.
The undersigned agrees to pay to EKAE on demand, all costs and expenses incurred
to collect any indebtedness evidenced by this Promissory Note, including,
without limitation, reasonable attorneys' fees. This Promissory Note may not be
modified orally and shall in all respects be governed by, construed, and
enforced in accordance with the laws of the State of Kansas.
The provisions of this Promissory Note shall inure to the benefit of EKAE and
its successors and assigns, which expressly reserves the right to pursue the
undersigned for payment of the amount due thereon by any legal means in the
event that the undersigned defaults on obligations provided in this Promissory
Note.
The undersigned waives presentment, demand for payment, notice of dishonor,
notice of protest, and all other notices or demands in connection with the
delivery, acceptance, performance or default of this Promissory Note.
The undersigned grants to EKAE, and its successors and assigns ("Secured
Party"), a purchase money security interest in all of the undersigned's
Membership Units of EKAE now owned or hereafter acquired. This security interest
is granted as non-exclusive collateral to secure payment and performance on the
obligation owed Secured Party from the undersigned evidenced by this Promissory
Note. The undersigned further authorizes Secured Party to retain possession of
certificates representing such Membership Units and to take any other actions
necessary to perfect the security interest granted herein.
Dated: , 200 .
OBLIGOR/DEBTOR: JOINT OBLIGOR/DEBTOR:
____________________________________________ ____________________________________________
Printed or Typed Name of Joint Obligor Printed or Typed Name of Obligor
By: ________________________________________ By: ________________________________________
(Signature) (Signature)
____________________________________________
Officer Title if Obligor is an Entity
____________________________________________
____________________________________________
Address of Obligor
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MEMBER SIGNATURE PAGE
ADDENDA
TO THE
EAST KANSAS AGRI-ENERGY, L.L.C.
AMENDED AND RESTATED OPERATING AGREEMENT
The undersigned does hereby represent and warrant that the undersigned, as a
condition to becoming a Member in East Kansas Agri-Energy, L.L.C. (the
"Company"), has received a copy of the Amended and Restated Operating Agreement,
dated March 13, 2002, and, if applicable, all amendments and modifications
thereto, and does hereby agree that the undersigned, along with the other
parties to the Amended and Restated Operating Agreement, shall be subject to and
comply with all terms and conditions of said Amended and Restated Operating
Agreement in all respects as if the undersigned had executed said Amended and
Restated Operating Agreement on the original date thereof and that the
undersigned is and shall be bound by all of the provisions of said Agreement
from and after the date of execution hereof.
INDIVIDUALS: ENTITIES:
____________________________________________ ____________________________________________
Name of Individual Subscriber (Please Print) Name of Entity (Please Print)
____________________________________________ ____________________________________________
Signature of Individual Print Name and Title of Officer
____________________________________________ ____________________________________________
Name of Joint Individual Subscriber Signature of Officer
(Please Print)
____________________________________________
Signature of Joint Individual Subscriber
Agreed and accepted on behalf of the
Company and its Members:
EAST KANSAS AGRI-ENERGY, L.L.C.
By: ________________________________________
Its: _______________________________________
