AMAIZING ENERGY HOLDING COMPANY, LLC Units Placement Agency Agreement
Exhibit 10.41
Units
, 2008
Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Section 1. Introductory. Amaizing Energy Holding Company, LLC an Iowa limited
liability company (the “Company”), proposes to issue and sell an aggregate of up to [ ]
membership units, (the “Units”) in the Company directly to certain investors (the “Offering”). The
Company has engaged Xxxxxxx Xxxxx & Company, L.L.C. (“you,” “your” or the “Placement Agent”) to act
as Placement Agent to sell the Units to certain investors identified by you (the “Investors”) on a
reasonable best efforts basis. The Offering will be governed by this Agreement, including, without
limitation, the provisions regarding the scope of services and payment of fees to you as set forth
on Exhibit A attached hereto. This Agreement shall not give rise to any commitment by the
Placement Agent to purchase any of the Units, and the Placement Agent shall have no authority to
bind the Company.
Section 2. Representations and Warranties of the Company. The Company represents and
warrants to the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-142792), a related preliminary
prospectus relating to the Units has been prepared and filed with the Securities and
Exchange Commission (“Commission”) by the Company in conformity with the requirements of the
Securities Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “1933 Act;” unless otherwise indicated, all references herein
to specific rules are rules promulgated under the 0000 Xxx); and the Company has so prepared
and has filed such amendments thereto, if any, and such amended preliminary prospectuses as
may have been required to the date hereof and will file such additional amendments thereto
and such amended prospectuses as may hereafter be required. The Company will, with respect
to each preliminary prospectus, prepare and file a prospectus pursuant to Rule 424(b) that
discloses the information previously omitted from such preliminary prospectus in reliance
upon Rule 430A. There have been or will promptly be delivered to you three signed copies of
such registration statement and amendments, three copies of each exhibit filed therewith,
and conformed copies of such registration statement and amendments (but without exhibits)
and of the related preliminary prospectuses and final forms of prospectus for each of the
Underwriters.
Such registration statement (as amended, if applicable) at the time it becomes
effective, the prospectus relating to the Units (in each case, including the information, if
any, deemed to be
part thereof pursuant to Rule 430A(b)), as from time to time amended or supplemented,
are hereinafter referred to as the “Registration Statement” and the “Prospectus,”
respectively, except that if the Company provides any revised prospectus to you for use in
connection with the Offering which revised prospectus differs from the Prospectus on file at
the Commission at the time the Registration Statement became or becomes effective (whether
or not such revised prospectus is required to be filed by the Company pursuant to Rule
424(b)), the term Prospectus shall refer to such revised prospectus from and after the time
it was provided to you. Any registration statement (including any amendment or supplement
thereto or information which is deemed part thereof) filed by the Company under Rule 462(b)
(“Rule 462(b) Registration Statement”) shall be deemed to be part of the “Registration
Statement” as defined herein, and any prospectus (including any amendment or supplement
thereto or information which is deemed part thereof) included in such registration statement
shall be deemed to be part of the “Prospectus” as defined herein. The Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission thereunder are
hereinafter collectively referred to as the “Exchange Act.”
(b) The Commission has not issued any order preventing or suspending the use of any
preliminary prospectus, and each preliminary prospectus has conformed in all material
respects with the requirements of the 1933 Act and, as of its date, has not included any
untrue statement of a material fact or omitted to state a material fact necessary to make
the statements therein not misleading; and when the Registration Statement becomes
effective, and at all times subsequent thereto, the Registration Statement, including the
information deemed to be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A(b), if applicable, the Prospectus and any amendments or supplements
thereto, contained or will contain all statements that are required to be stated therein in
accordance with the 1933 Act and in all material respects conformed or will in all material
respects conform to the requirements of the 1933 Act, and none of the Registration
Statement, the Prospectus and any amendment or supplement thereto, included or will include
any untrue statement of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading.
As of the Applicable Time hereinafter defined, neither (x) the Issuer General Use Free
Writing Prospectus(es) hereinafter defined issued at or prior to the Applicable Time and the
Prospectus as of the Applicable Time nor (y) any individual Issuer Limited Use Free Writing
Prospectus hereinafter defined, all being considered together (collectively, the “Disclosure
Package”), included any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading.
As used in this Section 2(b) and elsewhere in this Agreement:
“Applicable Time” means the time the Registration Statement is declared effective by
the Commission or such other time as agreed by the Company and the Placement Agent.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433, relating to the Units that (i) is required to be filed with the Commission by
the Company, (ii) is a “road show for an offering that is a written communication” within
the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission or
(iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description
of the Units or of the Offerings that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not required to be filed, in
the form required to be retained in the Company’s records pursuant to Rule 433(g).
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“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a Bona Fide
Electronic Road Show hereinafter defined), as evidenced by its being specified in Exhibit B
hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
The Company has made available a “bona fide electronic road show,” as defined in Rule
433, in compliance with Rule 433(d)(8)(ii) (the “Bona Fide Electronic Road Show”) such that
no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the
offering of the Units.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the Offering or until any earlier date that the Company notified
or notifies the Placement Agent as described in Section 4(d), did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Prospectus, or any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
Notwithstanding the foregoing, the representations and warranties of the Company set
forth in this Section 2(b) shall not apply to information contained in or omitted from any
preliminary prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Placement Agent
specifically for use in the preparation thereof.
At the time of filing the Registration Statement, any 462(b) Registration Statement and
any post-effective amendments thereto and at the date of this Agreement, the Company was not
and is not an “ineligible issuer” as defined in Rule 405.
(c) The Company and its subsidiaries have been duly incorporated or formed and are
validly existing as corporations or limited liability companies in good standing under the
laws of their respective places of incorporation or formation, as the case may be, with
requisite power and authority to own their properties and conduct their business as
described in the Prospectus; the Company and each of its subsidiaries are duly qualified to
do business as foreign corporations or limited liability companies under the laws of, and
are in good standing as such in, each jurisdiction in which they own or lease substantial
properties, have an office, or in which substantial business is conducted and such
qualification is required except in any such case where the failure to so qualify or be in
good standing would not have a material adverse effect upon the Company and its subsidiaries
taken as a whole; and no proceeding of which the Company has knowledge has been instituted
in any such jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
(d) Except as disclosed in the Registration Statement, the Company owns directly or
indirectly 100 percent of the issued and outstanding capital stock or membership units, as
applicable, of each of its subsidiaries, free and clear of any claims, liens, encumbrances
or security interests and all of such capital stock and membership units have been duly
authorized and validly issued and are fully paid and nonassessable.
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(e) The issued and outstanding units of interest in the Company (“Membership Units”) as
set forth in the Prospectus have been duly authorized and validly issued, are fully paid and
nonassessable, and conform to the description thereof contained in the Prospectus.
(f) The Units have been duly authorized and when issued, delivered and paid for
pursuant to this Agreement will be validly issued, fully paid and nonassessable, and will
conform to the description thereof contained in the Prospectus.
(g) The making and performance by the Company of this Agreement have been duly
authorized by all necessary corporate action and will not violate any provision of the
Company’s charter or bylaws and will not result in the breach, or be in contravention, of
any provision of any agreement, franchise, license, indenture, mortgage, deed of trust, or
other instrument to which the Company or any subsidiary is a party or by which the Company,
any subsidiary or the property of any of them may be bound or affected, or any order, rule
or regulation applicable to the Company or any subsidiary of any court or regulatory body,
administrative agency or other governmental body having jurisdiction over the Company or any
subsidiary or any of their respective properties, or any order of any court or governmental
agency or authority entered in any proceeding to which the Company or any subsidiary was or
is now a party or by which it is bound. No consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other governmental body is required
for the execution and delivery of this Agreement or the consummation of the transactions
contemplated herein, except for compliance with the 1933 Act and blue sky laws applicable to
the offering of the Units by the Placement Agent and clearance of such offering with the
NASD. This Agreement has been duly executed and delivered by the Company.
(h) The accountants who have expressed their opinions with respect to certain of the
financial statements and schedules included in the Registration Statement are an independent
registered public accounting firm as required by the 1933 Act and such accountants are not
in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx Act”).
(i) The consolidated financial statements of the Company included in the Registration
Statement, the Disclosure Package and the Prospectus present fairly the consolidated
financial position of the Company as of the respective dates of such financial statements,
and the consolidated statements of operations and cash flows of the Company for the
respective periods covered thereby, all in conformity with generally accepted accounting
principles consistently applied throughout the periods involved, except as disclosed
therein.
The financial information set forth in the Prospectus under “Selected Financial Data”
presents fairly on the basis stated in the Prospectus, the information set forth therein.
The pro forma financial statements and other pro forma information included in the
Registration Statement, the Disclosure Package and the Prospectus present fairly the
information shown therein, have been prepared in accordance with generally accepted
accounting principles and the Commission’s rules and guidelines with respect to pro forma
financial statements and other pro forma information, have been properly compiled on the pro
forma basis described therein, and, in the opinion of the Company, the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are appropriate
under the circumstances.
All disclosures contained in the Registration Statement and the Prospectus regarding
“non-GAAP financial measures” (as such term is defined by the Commission’s rules and
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regulations) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the 1933 Act, to the extent applicable.
(j) Neither the Company nor any subsidiary is in violation of its organizational
documents or in default under any consent decree, or in default with respect to any material
provision of any lease, loan agreement, franchise, license, permit or other contract
obligation to which it is a party; and there does not exist any state of facts which
constitutes an event of default as defined in such documents or which, with notice or lapse
of time or both, would constitute such an event of default, in each case, except for
defaults which neither singly nor in the aggregate are material to the Company and its
subsidiaries taken as a whole.
(k) There are no material legal or governmental proceedings pending, or to the
Company’s knowledge, threatened to which the Company or any subsidiary is or may be a party
or of which material property owned or leased by the Company or any subsidiary is or may be
the subject, or related to environmental or discrimination matters which are not disclosed
in the Prospectus, or which question the validity of this Agreement or any action taken or
to be taken pursuant hereto or pursuant to the placement by the Placement Agent of the
Units.
(l) There are no holders of securities of the Company having rights to registration
thereof or preemptive rights to purchase Membership Units except as disclosed in the
Prospectus. All holders of registration rights have waived such rights with respect to the
Offering.
(m) The Company and each of its subsidiaries have good and marketable title to all the
properties and assets reflected as owned in the financial statements hereinabove described
(or elsewhere in the Prospectus), subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those, if any, reflected in such financial statements (or
elsewhere in the Prospectus) or which are not material to the Company and its subsidiaries
taken as a whole. The Company and each of its subsidiaries hold their respective leased
properties which are material to the Company and its subsidiaries taken as a whole under
valid and binding leases.
(n) The Company has not taken and will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Units.
(o) Subsequent to the respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus, and except as
contemplated by the Prospectus, the Company and its subsidiaries, taken as a whole, have not
incurred any material liabilities or obligations, direct or contingent, nor entered into any
material transactions not in the ordinary course of business and there has not been any
material adverse change in their condition (financial or otherwise) or results of operations
nor any material change in their capital stock, membership units, short-term debt or
long-term debt.
(p) There is no material document of a character required to be described in the
Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an
exhibit to the Registration Statement which is not described or filed as required.
(q) The Company together with its subsidiaries owns and possesses all right, title and
interest in and to, or has duly licensed from third parties, all patents, patent rights,
trade secrets, inventions, know-how, trademarks, trade names, copyrights, service marks and
other proprietary rights (“Trade Rights”) material to the business of the Company and each
of its subsidiaries
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taken as a whole. Neither the Company nor any of its subsidiaries has received any
notice of infringement, misappropriation or conflict from any third party as to such
material Trade Rights which has not been resolved or disposed of and neither the Company nor
any of its subsidiaries has infringed, misappropriated or otherwise conflicted with material
Trade Rights of any third parties, which infringement, misappropriation or conflict would
have a material adverse effect upon the condition (financial or otherwise) or results of
operations of the Company and its subsidiaries taken as a whole.
(r) The conduct of the business of the Company and each of its subsidiaries is in
compliance in all respects with applicable federal, state, local and foreign laws and
regulations, except where the failure to be in compliance would not have a material adverse
effect upon the condition (financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole.
(s) All offers and sales of the Company’s and its subsidiaries’ capital stock or
membership units, as applicable, prior to the date hereof were at all relevant times exempt
from the registration requirements of the 1933 Act and were duly registered with or the
subject of an available exemption from the registration requirements of the applicable
federal, state and local securities or blue sky laws.
(t) The Company has filed all necessary federal, state and local income and franchise
tax returns and has paid all taxes shown as due thereon, and there is no tax deficiency that
has been, or to the knowledge of the Company might be, asserted against the Company or any
of its properties or assets that would or could be expected to have a material adverse
affect upon the condition (financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole.
(u) The Company has established and maintains disclosure controls and procedures (as
defined in Rules 13a-15 and 15d-15 under the Exchange Act) and such controls and procedures
are effective in ensuring that material information relating to the Company, including its
subsidiaries, is made known to the principal executive officer and the principal financial
officer. The Company will or has utilized such controls and procedures in preparing and
evaluating the disclosures included in the Registration Statement, the Disclosure Package
and the Prospectus.
(v) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that: (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) amounts reflected on the Company’s consolidated balance sheet for
assets are compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(w) The Company is not, and does not intend to conduct its business in a manner in
which it would become, an “investment company” as defined in Section 3(a) of the Investment
Company Act of 1940, as amended (“Investment Company Act”).
(x) No transaction has occurred between or among the Company and any of its officers or
directors, members or any affiliate or affiliates of any such officer or director or
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member that is required to be described in and is not described in the Registration
Statement and the Prospectus.
(y) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are customary in the
businesses in which they are engaged or propose to engage after giving effect to the
transactions described in the Prospectus. All policies of insurance and fidelity or surety
bonds insuring the Company, its subsidiaries and their respective businesses, assets,
employees, officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; and the Company has no reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a cost that
is not materially greater than the current cost.
(z) The Company has taken all necessary actions to ensure that, upon the effectiveness
of the Registration Statement, it will be in compliance with all provisions of the
Xxxxxxxx-Xxxxx Act and all rules and regulations promulgated thereunder or implementing the
provisions thereof that are then in effect and which the Company is required to comply with
as of the effectiveness of the Registration Statement, and is actively taking steps to
ensure that it will be in compliance with other provisions of the Xxxxxxxx-Xxxxx Act not
currently in effect, upon the effectiveness of such provisions, or which will become
applicable to the Company at all times after the effectiveness of the Registration
Statement.
(aa) None of the Company and its subsidiaries is involved in any labor dispute nor, to
the knowledge of the Company, is any such dispute threatened. The Company is not aware of
any threatened or pending litigation between the Company and any of its executive officers
and has not received notice from any of its executive officers that such officer does not
intend to remain in the employment of the Company.
(bb) No authorization, approval, consent, order, registration, license or permit of any
Governmental Authority, other than under the 1933 Act, the related rules and regulations
adopted by the Commission thereunder and the rules and regulations of the state securities
laws of the states in which offers or sales of the Units will be made, is required for the
valid authorization, issuance, sale and delivery of the Units in accordance herewith or the
consummation by the Company of the transactions contemplated by this Agreement.
Section 3. Delivery and Payment. The Company and you each acknowledge that the sales
of Units shall be made pursuant to a subscription agreement in substantially the form set forth on
Exhibit C (the “Subscription Agreement”). The Company agrees that it shall not amend the
Subscription Agreement without your written consent (including via electronic methods such as
e-mail).
Section 4. Covenants of the Company. The Company covenants and agrees that:
(a) The Company will advise you promptly of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the institution of
any proceedings for that purpose, or of any notification of the suspension of qualification
of the Units for sale in any jurisdiction or the initiation or threatening of any
proceedings for that purpose or of any examination pursuant to Section 8(e) of the 1933 Act
concerning the Registration Statement and if the Company becomes the subject of a proceeding
under Section 8A of the 1933 Act in connection with the offering of the Units, and will also
advise you
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promptly of any request of the Commission for amendment or supplement of the
Registration Statement, of any preliminary prospectus or of the Prospectus or for additional
information.
(b) The Company will give you notice of its intention to file or prepare any amendment
to the Registration Statement (including any post-effective amendment) or any Rule 462(b)
Registration Statement or any amendment or supplement to the Prospectus (including any
revised prospectus which the Company proposes for use by the Placement Agent which differs
from the applicable prospectus on file at the Commission at the time the Registration
Statement became or becomes effective, whether or not such revised prospectus is required to
be filed pursuant to Rule 424(b)) and will furnish you with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file any such amendment or supplement or use any such prospectus to which
you or your counsel shall reasonably object.
(c) If at any time when a prospectus relating to the Units is required to be delivered
under the 1933 Act any event occurs as a result of which either of the Prospectus, including
any amendments or supplements, would include an untrue statement of a material fact, or omit
to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend either of the Prospectus, including any amendments or
supplements thereto and including any revised prospectus which the Company proposes for use
by the Placement Agent that differs from the applicable prospectus on file with the
Commission at the time of effectiveness of the Registration Statement, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the 1933
Act, the Company promptly will advise you thereof and will promptly prepare and file with
the Commission an amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance; and, in case the Placement Agent is required
to deliver a prospectus nine months or more after the effective date of the Registration
Statement, the Company, upon request, will prepare promptly such prospectus or prospectuses
as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the
1933 Act.
(d) If at any time following the issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary to make the statements therein, in light of
the circumstances prevailing at that subsequent time, not misleading, the Company will
promptly notify the Placement Agent and will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(e) Neither the Company nor any of its subsidiaries will, prior to the date of the
closing of the offering, as described in the Prospectus (the “Closing Date”), incur any
liability or obligation, direct or contingent, or enter into any material transaction, other
than in the ordinary course of business, except as contemplated by the Prospectus.
(f) Neither the Company nor any of its subsidiaries will acquire any membership
interests in the Company prior to the Closing Date nor will the Company declare or pay any
dividend or make any other distribution upon the Membership Units payable to members on a
date prior to the Closing Date, except in either case as contemplated by the Prospectus.
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(g) Not later than [ , 2008] the Company will make generally available to its
security holders an earnings statement (which need not be audited) covering a period of at
least 12 months beginning after the effective date of the Registration Statement, which will
satisfy the provisions of the last paragraph of Section 11(a) of the 1933 Act.
(h) During such period as a prospectus is required by law to be delivered in connection
with placement of the Units by the Placement Agent, the Company will furnish to you at its
expense, subject to the provisions of Section 4(d) hereof, copies of the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectus hereinafter defined, each
preliminary prospectus and all amendments and supplements to any such documents in each case
as soon as available and in such quantities as you may reasonably request, for the purposes
contemplated by the 1933 Act.
(i) The Company will cooperate with the Placement Agent in qualifying or registering
the Units for sale under the blue sky laws of such jurisdictions as you designate, and will
continue such qualifications in effect so long as reasonably required for the distribution
of the Units. The Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any such jurisdiction where it is not
currently qualified or where it would be subject to taxation as a foreign corporation.
(j) During the period of five years hereafter, the Company will furnish you with a copy
(i) as soon as practicable after the filing thereof, of each report filed by the Company
with the Commission; (ii) as soon as practicable after the release thereof, of each material
press release in respect of the Company; and (iii) as soon as available, of each report of
the Company mailed to its members.
(k) The Company will use the net proceeds received by it from the sale of the Units
being sold by it in the manner specified in the Prospectus.
(l) If, at the time of effectiveness of the Registration Statement, any information
shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare,
and file or transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement (including an amended Prospectus),
containing all information so omitted. If required, the Company will prepare and file, or
transmit for filing, a Rule 462(b) Registration Statement. If a Rule 462(b) Registration
Statement is filed, the Company shall make payment of, or arrange for payment of, the
additional registration fee owing to the Commission required by Rule 111.
(m) The Company will comply with all registration, filing and reporting requirements of
the Exchange Act and will file with the Commission in a timely manner all reports required
by Rule 463 and will furnish you copies of any such reports as soon as practicable after the
filing thereof; and the Company and its subsidiaries will comply in all material respects
with all applicable provisions of the Xxxxxxxx-Xxxxx Act.
(n) The Company and its subsidiaries will maintain such controls and other procedures,
including without limitation those required by the Xxxxxxxx-Xxxxx Act and the applicable
regulations thereunder, that are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the Exchange Act are
recorded, processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including, without limitation, controls and procedures
designed to
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ensure that information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is accumulated and communicated to the Company’s
management, including its principal executive officer and its principal financial officer,
or persons performing similar functions, as appropriate to allow timely decisions regarding
required disclosure, to ensure that material information relating to Company, including its
subsidiaries, is made known to them by others within those entities.
(o) The Company and its subsidiaries will maintain a system of internal accounting
controls designed to provide reasonable assurance that: (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) amounts reflected on the Company’s consolidated balance sheet for
assets is compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(p) The Company represents and agrees that, unless it obtains the prior consent of the
Placement Agent, it has not made and will not make any offer relating to the Units that
would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would
otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be
filed with the Commission. Any such free writing prospectus consented to by the Placement
Agent or by the Company and the Placement Agent, as the case may be, is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and
agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing
with the Commission where required, legending and record-keeping.
Section 5. Payment of Expenses. Whether or not the transactions contemplated
hereunder are consummated or this Agreement becomes effective as to all of its provisions or is
terminated, the Company agrees to pay (i) all costs, fees and expenses incurred by the Company and
the Placement Agent in connection with the performance by either under this Agreement, including
without limiting the generality of the foregoing, all fees and expenses of legal counsel for the
Placement Agent and for the Company and of the Company’s independent accountants, all costs and
expenses incurred in connection with the preparation, printing, filing and distribution (including
electronic delivery) of the Registration Statement, each preliminary prospectus, any Permitted Free
Writing Prospectus and the Prospectus (including all exhibits and financial statements), and all
amendments and supplements provided for herein, this Agreement and a blue sky memorandum; (ii) all
fees and expenses incurred by the Company and the Placement Agent with respect to the sale and
delivery of the Units; and (iii) all costs, fees and expenses incurred by the Company and the
Placement Agent (including without limitation any damages or other amounts payable in connection
with legal or contractual liability) associated with the reforming of any contracts for sale of the
Units made by the Placement Agent caused by a breach of the representation contained in the second
paragraph of Section 2(b). The Company shall make any payment required under this Section 5
promptly upon submission of a statement or invoice therefor from the Placement Agent.
Section 6. Conditions of the Obligations of the Placement Agent. The obligations of
the Placement Agent to offer and deliver the Units on the Closing Date shall be subject to the
accuracy of the representations and warranties on the part of the Company herein set forth as of
the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the
Company made pursuant to the
10
provisions hereof, to the performance by the Company of its obligations hereunder, and to the
following additional conditions:
(a) The Registration Statement shall have become effective, and prior to the Closing
Date, no stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or shall be
pending or, to the knowledge of the Company or you, shall be contemplated by the Commission.
If the Company has elected to rely upon Rule 430A, the information concerning the offering
price of the Units and price-related information shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) in the manner and within the prescribed time
period (without reliance on Rule 424(b)(8)) and the Company will provide evidence
satisfactory to the Placement Agent of such timely filing (or a post-effective amendment
providing such information shall have been filed and declared effective in accordance with
the requirements of Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is
required, such Registration Statement shall have been transmitted to the Commission for
filing and become effective within the prescribed time period and, prior to the Closing
Date, the Company shall have provided evidence of such filing and effectiveness in
accordance with Rule 462(b).
(b) The Units shall have been qualified for sale under the blue sky laws of such states
as shall have been agreed to by the Placement Agent and the Company.
(c) The legality and sufficiency of the authorization, issuance and sale or transfer
and sale of the Units hereunder, the validity and form of the certificates representing the
Units, the execution and delivery of this Agreement and all corporate proceedings and other
legal matters incident thereto, and the form of the Registration Statement, the Disclosure
Package, and the Prospectus (except financial statements) shall have been approved by
counsel for the Placement Agent exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration Statement, the
Disclosure Package, the Prospectus or any amendment or supplement thereto contains an untrue
statement of fact, which, in the opinion of counsel for the Placement Agent, is material or
omits to state a fact which, in the opinion of such counsel, is material and is required to
be stated therein or necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there shall not have
occurred any change, or any development involving a prospective change, in or affecting
particularly the business or properties of the Company or its subsidiaries, whether or not
arising in the ordinary course of business, which, in the judgment of the Placement Agent,
makes it impractical or inadvisable to proceed with the Offering as contemplated hereby.
(f) There shall have been furnished to you, as Placement Agent, on the Closing Date,
except as otherwise expressly provided below:
(i) An opinion of Brown, Winick, Graves, Gross, Xxxxxxxxxxx and Xxxxxxxxxx,
P.L.C., counsel for the Company, addressed to the Placement Agent and dated the
Closing Date, as set forth on Exhibit D.
(ii) Such opinion or opinions of Xxxxxxx Xxxx & Friedrich LLP, counsel for the
Placement Agent, dated the Closing Date, with respect to the incorporation of the
Company, the validity of the Units, the Registration Statement, the Disclosure
Package and other related matters as you may reasonably require, and the Company
shall have
11
furnished to such counsel such documents and shall have exhibited to them such
papers and records as they request for the purpose of enabling them to pass upon
such matters.
(iii) A certificate of the chief executive officer and the principal financial
officer of the Company, dated the Closing Date, to the effect that:
(1) the representations and warranties of the Company set forth in
Section 2 of this Agreement are true and correct as of the date of this
Agreement and as of the Closing Date, and the Company has complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(2) the Commission has not issued an order preventing or suspending the
use of the Prospectus or any preliminary prospectus filed as a part of the
Registration Statement, or any amendment thereto; no stop order suspending
the effectiveness of the Registration Statement has been issued; and to the
best knowledge of the respective signers, no proceedings for that purpose
have been instituted or are pending or contemplated under the 1933 Act; and
(3) subsequent to the date of the most recent financial statements
included in the Registration Statement and Prospectus, and except as set
forth or contemplated in the Prospectus, (A) none of the Company and its
consolidated subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions
not in the ordinary course of business, and (B) there has not been any
change that has had or would have a material adverse effect upon the Company
and its subsidiaries taken as a whole or any material change in their
short-term debt or long-term debt.
The delivery of the certificate provided for in this subparagraph shall be and
constitute a representation and warranty of the Company as to the facts required in
the immediately foregoing clauses to be set forth in said certificate.
(iv) On the Closing Date, there shall be delivered to you a letter addressed to
you, as Placement Agent, from Xxxxxxxxxxxx & Associates, PLLP, an independent
registered public accounting firm, dated the Closing Date, to the effect set forth
in Exhibit E. There shall not have been any change or decrease specified in the
letters referred to in this subparagraph which makes it impractical or inadvisable
in the judgment of the Placement Agent to proceed with the offering or purchase of
the Units as contemplated hereby.
(v) A certificate of the chief executive officer and the principal financial
officer of the Company, dated the Closing Date, verifying the truth and accuracy of
such statistical or financial figures regarding the Company included in the
Prospectus which you may reasonably request and which have not been otherwise
verified by the letters referred to in clause (iv) above, such verification to
include the provision of documentary evidence supporting any such statistical or
financial figure.
(vi) Such further certificates and documents as you may reasonably request.
All such opinions, certificates, letters and documents shall be in compliance with the
provisions hereof only if they are satisfactory to you and to Xxxxxxx Xxxx & Friedrich LLP, counsel
for
12
the Placement Agent, which approval shall not be unreasonably withheld. The Company shall
furnish you with such manually signed or conformed copies of such opinions, certificates, letters
and documents as you request.
If any condition to the Placement Agent’s obligations hereunder to be satisfied prior to or at
the Closing Date is not so satisfied, this Agreement at your election will terminate upon
notification to the Company without liability on the part of you, as Placement Agent, or the
Company, except for the expenses to be paid or reimbursed by the Company pursuant to Sections 5 and
7 hereof and except to the extent provided in Section 9 hereof.
Section 7. Reimbursement of Placement Agent’s Expenses. If the sale of the Units is
not consummated on the Closing Date because any condition of the Placement Agent’s obligations
hereunder is not satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof, unless such failure
to satisfy such condition or to comply with any provision hereof is due to the default or omission
of the Placement Agent, the Company agrees to reimburse you upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by you in connection with the proposed offering and the sale of the Units. Any such
termination shall be without liability of any party to any other party except that the provisions
of this Section 7, Section 5 and Section 9 shall at all times be effective and shall apply.
Section 8. Effectiveness of Registration Statement. You and the Company will use
your and its best efforts to cause the Registration Statement to become effective, if it has not
yet become effective, and to prevent the issuance of any stop order suspending the effectiveness of
the Registration Statement and, if such stop order be issued, to obtain as soon as possible the
lifting thereof.
Section 9. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Placement Agent and each person, if
any, who controls the Placement Agent within the meaning of the 1933 Act or the Exchange Act
against any losses, claims, damages, obligations, penalties, judgments, awards, costs,
disbursements and liabilities, joint or several (each a “Liability”), to which the Placement Agent
or any such controlling person may become subject under the 1933 Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise (including in settlement
of any litigation if such settlement is effected with the written consent of the Company), insofar
as such Liability (or actions in respect thereof) arises out of or is based upon any untrue
statement or alleged untrue statement of any material fact contained in the Registration Statement,
including the information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A, any preliminary prospectus, the Prospectus, any Issuer Free
Writing Prospectus, or any amendment or supplement thereto, or arises out of or is based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse the Placement Agent and
any such controlling person for any legal or other expenses reasonably incurred by the Placement
Agent or any such controlling person in connection with investigating or defending any such
Liability. In addition to its other obligations under this Section 9(a), the Company agrees that,
as an interim measure during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any Liability, it will reimburse the Placement Agent and
any such controlling person on a monthly basis for all reasonable legal and other expenses incurred
in connection with investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Company’s obligation to reimburse you for such expenses and the possibility
that such payments might
13
later be held to have been improper by a court of competent jurisdiction. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
(b) Promptly after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the Company under this Section 9, notify the Company of the commencement thereof; but
the omission so to notify the Company will not relieve the Company from any liability which it may
have to any indemnified party except to the extent that the Company was prejudiced by such failure
to notify. In case any such action is brought against an indemnified party, and it notifies the
Company of the commencement thereof, the Company will be entitled to participate in, and, to the
extent that it may wish to, assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, if the defendants in any such action include both the
indemnified party and the Company and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties which are different
from or additional to those available to the Company, or the indemnified parties and the Company
may have conflicting interests which would make it inappropriate for the same counsel to represent
both of them, the indemnified party or parties shall have the right to select separate counsel to
assume such legal defense and otherwise to participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice to an indemnified party from the Company
of its election so to assume the defense of such action and approval by such indemnified party of
counsel, the Company will not be liable to such indemnified party under this Section 9 for any
legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) such indemnified party shall have employed such counsel in connection
with the assumption of legal defense in accordance with the proviso to the next preceding sentence
(it being understood, however, that the Company shall not be liable for the expenses of more than
one separate counsel, approved by the Placement Agent in the case of paragraph (a) representing all
indemnified parties not having different or additional defenses or potential conflicting interest
among themselves who are parties to such action), (ii) the Company shall not have employed counsel
satisfactory to such indemnified party to represent such indemnified party within a reasonable time
after notice of commencement of the action or (iii) the Company has authorized the employment of
counsel for such indemnified party at the expense of the Company. The Company shall not, without
the prior written consent of any indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless such settlement
unconditionally releases such indemnified party from all liability arising out of such proceeding.
(c) If the indemnification provided for in this Section 9 is unavailable to an indemnified
party under paragraph (a) hereof in respect of any losses, claims, damages or liabilities referred
to therein, then the Company, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by
the Company and the Placement Agent from the Offering or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative fault of the
Company and the Placement Agent in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The respective relative benefits received by the Company and the Placement Agent
shall be deemed to be in the same proportion, in the case of the Company, as the total price paid
to the Company for the Units sold to Investors as part of the Offering (net of any fees paid to the
Placement Agent, but before deduction of expenses) bears to, and in the case of the Placement
Agent, as the fees received by it from the Company hereunder bears to, the total of such amounts
paid to the Company pursuant to the Offering and fees received by the Placement Agent hereunder, in
each case as contemplated by the Prospectus. The relative fault of the Company and the
14
Placement Agent shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material fact relates to
information supplied by the Company or by the Placement Agent and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by any indemnified party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending any action or
claim.
The Company and the Placement Agent agree that it would not be just and equitable if contribution
pursuant to this Section 9(c) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(d) The provisions of this Section 9 shall survive any termination of this Agreement.
Section 10. Effective Date. This Agreement shall be effective immediately.
Section 11. Termination. This Agreement may be terminated by the Company by
notice to you or by you by notice to the Company, and any such termination shall be without
liability on the part of the Company to you (except for the expenses to be paid or
reimbursed pursuant to Section 5 hereof and except to the extent provided in Section 9
hereof) or of you to the Company.
Section 12. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company, of its
officers and of the Placement Agent set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of the Placement Agent
or the Company or any of its or their partners, principals, members, officers or directors or any
controlling person, and will survive delivery of and payment for the Units sold hereunder.
Section 13. Notices. All communications hereunder will be in writing and, if sent to
the Placement Agent will be mailed, delivered or telegraphed and confirmed to you c/o Xxxxxxx Xxxxx
& Company, L.L.C., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, with copies to Xxxxxxx X. Xxxxx,
c/o Xxxxxxx Xxxx & Xxxxxxxxx LLP, Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000;
if sent to the Company will be mailed, delivered or telegraphed and confirmed to the Company at its
corporate headquarters with a copy to Brown, Winick, Graves, Gross, Xxxxxxxxxxx and Xxxxxxxxxx,
P.L.C.
Section 14. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the offering and sale of the Units pursuant to this Agreement, including the
determination of the offering price of the Units, and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and the Placement Agent,
on the other hand, (b) in connection with the Offering and the process leading to such transaction
the Placement Agent is and has been acting solely as a principal and is not the agent or fiduciary
of the Company or its members, creditors, employees or any other party, (c) the Placement Agent has
not assumed nor will it assume an advisory or fiduciary responsibility in favor of the Company with
respect to the Offering or the process leading thereto (irrespective of whether the Placement Agent
has advised or is currently advising the Company on other matters) and the Placement Agent has no
obligation to the Company with respect to the Offering except the obligations expressly set forth
in this Agreement, (d) the Placement Agent and its affiliates may be engaged in a broad range of
transactions that involve interests that differ from those
15
of the Company and (e) the Placement Agent has not provided any legal, accounting, regulatory
or tax advice with respect to the Offering and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
Section 15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors, personal representatives and assigns, and
to the benefit of the Other Indemnified Parties referred to in Section 9, and no other person will
have any right or obligation hereunder. The term “successors” shall not include any purchaser of
the Units as such from the Company merely by reason of such purchase.
Section 16. Partial Unenforceability. If any section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, such determination shall not
affect the validity or enforceability of any other section, paragraph or provision hereof.
Section 17. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
Section 18. Integration. Each exhibit to this Agreement is hereby incorporated into
and made part of this Agreement by reference. This Agreement and the exhibits hereto represent the
entire agreement of the parties with respect to the subject matter hereof and supersede and replace
any prior understandings and agreements with respect to the subject matter hereof (including,
without limitation, the engagement letter dated September 24, 2007 between you and the Company) and
no provision or document of any kind shall be included in or form a part of such agreement unless
signed and delivered to the other party by the party to be charged.
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among the
Company and you, as the Placement Agent, all in accordance with its terms.
| Very truly yours, | ||||||
| AMAIZING ENERGY HOLDING COMPANY, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
16
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
confirmed and accepted as of
the date first above written.
| Xxxxxxx Xxxxx & Company, L.L.C. | ||||
By:
|
Xxxxxxx Xxxxx & Company, L.L.C. | |||
By: |
||||
17
Exhibit A
Scope of Services; Fees
On the basis of the representations, warranties and agreements of the Company herein
contained, and subject to all the terms and conditions of this Agreement between the Company and
the Placement Agent, the Placement Agent shall be the Company’s exclusive placement agent, on a
reasonable best efforts basis, in connection with the issuance and sale by the Company of the Units
to the Investors; provided, however, that for the purposes hereof, “Investors” shall not include
any purchaser of the Units that bases its decision to invest in the Company solely or primarily on
information received at a retail equity drive meeting conducted by the Company and Xxxxx Xxxxx
Financial Services Corporation.
As compensation for services rendered, on the Closing Date (as defined below), the Company
shall pay to the Placement Agent by wire transfer of immediately available funds to an account or
accounts designated by the Placement Agent, an amount equal to (a) six percent (6%) of the gross
proceeds received by the Company from the sale of the Units (the “Proceeds”) up to Twenty Million
Dollars ($20,000,000); plus (b) if the Proceeds should exceed Twenty Million Dollars ($20,000,000),
(i) if the Proceeds are greater than or equal to Twenty Million One Hundred Thousand Dollars
($20,100,000), One Million Two Hundred Thousand Dollars ($1,200,000) plus five percent (5%) of the
amount by which the Proceeds exceed Twenty Million One Hundred Thousand Dollars ($20,100,000), plus
(ii) if the Proceeds are greater than or equal to Thirty Million One Hundred Thousand Dollars
($30,100,000), One Million Seven Hundred Thousand Dollars ($1,700,000) plus four percent (4%) of
the amount by which the Proceeds exceed Thirty Million One Hundred Thousand Dollars ($30,100,000),
plus (iii) if the Proceeds are greater than or equal to Forty Million Dollars ($40,000,000), Two
Million One Hundred Thousand Dollars ($2,100,000) plus three and one half percent (3.5%) of the
amount by which the Proceeds exceed Forty Million Dollars ($40,000,000).
Exhibit A-1
Exhibit B
Issuer General Use Free Writing Prospectus
Free Writing Prospectus filed September 20, 2007 relating to the Company’s investor
presentation.
Exhibit B-1
Exhibit C
Subscription Agreement
Exhibit C-1
Exhibit D
Legal Opinion of Brown, Winick, Graves, Gross, Xxxxxxxxxxx and Xxxxxxxxxx, P.L.C.
(1) the Company has been duly organized and is validly existing as a limited liability company
in good standing under the laws of the State of Iowa with corporate power and authority to own its
properties and conduct its business as described in the Prospectus; and the Company has been duly
qualified to do business as a foreign corporation under the law of, and is in good standing as such
in, every jurisdiction where the ownership or leasing of property, or the conduct of its business
requires such qualification except where the failure so to qualify would not have a material
adverse effect upon the condition (financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole;
(2) an opinion to the same general effect as clause (1) above in respect of each direct and
indirect subsidiary of the Company;
(3) all of the issued and outstanding capital stock of or other unit of capital interest in
each subsidiary of the Company has been duly authorized, validly issued and is fully paid and
nonassessable, and, except as disclosed in the Registration Statement, the Company owns directly or
indirectly 100 percent of the outstanding capital stock of or other unit of capital interest in
each subsidiary, and to the best knowledge of such counsel, such stock or other capital interest is
owned free and clear of any claims, liens, encumbrances or security interests;
(4) the outstanding Membership Units of the Company, the amount of which is set forth in the
Registration Statement and the Prospectus (except for subsequent issuances, if any, pursuant to
options or other rights referred to in the Prospectus), conforms as to legal matters in all
material respects to the description thereof in the Registration Statement and the Prospectus;
(5) the issued and outstanding Membership Units of the Company have been duly authorized and
validly issued and are fully paid and nonassessable;
(6) the certificates for the Units to be placed hereunder are in due and proper form, and when
duly countersigned by the Company’s transfer agent and delivered to you or upon your order, against
payment of the agreed consideration therefor in accordance with the provisions of this Agreement,
the Units represented thereby will be duly authorized and validly issued, fully paid and
nonassessable;
(7) the Registration Statement has become effective under the 1933 Act; any required filings
of the Prospectus pursuant to Rule 424(b) have been made in the manner and within the time period
required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer
Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period
required by Rule 433(d); to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the 1933 Act, and the Registration
Statement (including the information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b)), each of the Prospectus, and each amendment or supplement
thereto (except for the financial statements and other statistical or financial data included
therein as to which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the 1933 Act; the statements in the Registration Statement and
the Prospectus summarizing statutes, rules and regulations are accurate and fairly and correctly
present the information required to be presented by the 1933 Act or the rules and regulations
thereunder, in all material respects and such counsel does not know of any statutes, rules and
regulations required to be described or referred to in the Registration Statement or the
Exhibit D-1
Prospectus that are not described or referred to therein as required; and such counsel does
not know of any legal or governmental proceedings pending or threatened required to be described in
the Prospectus which are not described as required, nor of any contracts or documents of a
character required to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which are not described or filed, as required;
(8) the statements under the captions “Description of Business – Effect of the Reorganization
and Merger,” “Description of Business – Regulatory Permits,” “Management’s Discussion and Analysis
and Plan of Operation – Liquidity and Capital Resources,” “Compensation of Executive Officers and
Directors,” “Certain Relationships and Related Transactions,” “Description of Membership Units” and
“Units Eligible for Future Sale” in the Prospectus, insofar as such statements constitute a summary
of documents referred to therein or matters of law, are accurate summaries and fairly and correctly
present, in all material respects, the information called for with respect to such documents and
matters;
(9) this Agreement and the performance of the Company’s obligations hereunder have been duly
authorized by all necessary limited liability company action and this Agreement has been duly
executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement
of the Company, except as enforceability of the same may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights
and by the exercise of judicial discretion in accordance with general principles applicable to
equitable and similar remedies and except as to those provisions relating to indemnities for
liabilities arising under the 1933 Act as to which no opinion need be expressed; and no approval,
authorization or consent of any public board, agency, or instrumentality of the United States or of
any state or other jurisdiction is necessary in connection with the issue or sale of the Units
pursuant to this Agreement (other than under the 1933 Act, applicable blue sky laws and the rules
of the NASD) or the consummation by the Company of any other transactions contemplated hereby;
(10) the execution and performance of this Agreement will not contravene any of the provisions
of or result in a default under, any agreement, franchise, license, indenture, mortgage, deed of
trust or other instrument known to such counsel, of the Company or any of its subsidiaries or by
which the property of any of them is bound and which contravention or default would be material to
the Company and its subsidiaries taken as a whole; or violate any of the provisions of the
organizational documents of the Company or any of its subsidiaries or, so far as is known to such
counsel, violate any statute, order, rule or regulation of any regulatory or governmental body
having jurisdiction over the Company or any of its subsidiaries;
(11) to such counsel’s knowledge, all offers and sales of the Company’s membership interests
since December 27, 2006, were at all relevant times exempt from the registration requirements of
the 1933 Act and were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky laws; and
(12) the Company is not an “investment company” or a person “controlled by” an “investment
company” within the meaning of the Investment Company Act.
In addition, such counsel shall state that nothing has come to the attention of such counsel
which causes such counsel to believe that either the Registration Statement (including the
information deemed to be part of the Registration Statement at the time of effectiveness pursuant
to Rule 430A(b)) or the Prospectus, or the Registration Statement or the Prospectus as amended or
supplemented (except for the financial statements and other statistical or financial data included
therein as to which such counsel need express no opinion), as of their respective effective or
issue dates, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
Exhibit D-2
statements therein not misleading or that the Prospectus as amended or supplemented, if
applicable, as of the Closing Date, contained any untrue statement of a material fact or omitted to
state any material fact necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, or that the Disclosure Package (except for the financial
statements and other statistical or financial data included therein as to which such counsel need
express no opinion), as of the Applicable Time, contained any untrue statement of a material fact
or omitted to state any material fact necessary to make the statements therein not misleading in
the light of the circumstances under which they were made.
In rendering such opinion, such counsel may state that they are relying upon the certificate
of the Company, as the transfer agent for the Units, as to the number of units of interest in the
Company at any time or times outstanding, and that insofar as their opinion relates to the accuracy
and completeness of the Registration Statement, the Disclosure Package, and the Prospectus, it is
based upon a general review with the Company’s representatives and independent accountants of the
information contained therein, without independent verification by such counsel of the accuracy or
completeness of such information. Such counsel may also rely upon the opinions of other competent
counsel and, as to factual matters, on certificates of officers of the Company and of state
officials, in which case their opinion is to state that they are so doing and copies of said
opinions or certificates are to be attached to the opinion unless said opinions or certificates
(or, in the case of certificates, the information therein) have been furnished to the Placement
Agent in other form.
Exhibit D-3
Exhibit E
Comfort Letter of Xxxxxxxxxxxx & Associates, PLLP
(1) They are an independent registered public accounting firm with respect to the Company and
its subsidiaries within the meaning of the 1933 Act.
(2) In their opinion the consolidated financial statements of the Company and its subsidiaries
included in the Registration Statement, the Disclosure Package, the Prospectus and the consolidated
financial statements of the Company from which the information presented under the captions
“Summary Financial and Other Data” and “Selected Financial Data” has been derived which are stated
therein to have been examined by them comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by
the Commission.
(3) On the basis of specified procedures (but not an examination in accordance with generally
accepted auditing standards), including inquiries of certain officers of the Company and its
subsidiaries responsible for financial and accounting matters as to transactions and events
subsequent to December 31, 2006, a reading of minutes of meetings of the members and directors of
the Company and its subsidiaries since December 31, 2006, a reading of the latest available interim
unaudited consolidated financial statements of the Company and its subsidiaries (with an indication
of the date thereof) and other procedures as specified in such letter, nothing came to their
attention which caused them to believe that (i) the unaudited consolidated financial statements of
the Company and its subsidiaries included in the Registration Statement, the Disclosure Package and
the Prospectus do not comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the related rules and regulations adopted by the Commission or
that such unaudited financial statements are not fairly presented in accordance with generally
accepted accounting principles applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement, the Disclosure Package and the
Prospectus; (ii) the pro forma information of the Company and its subsidiaries included in the
Registration Statement, the Disclosure Package and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act and the related rules
and regulations adopted by the Commission or that such pro forma information are not fairly
presented in accordance with generally accepted accounting principles or that the assumptions used
in the preparation thereof are not reasonable and the adjustments used therein are not appropriate
under the circumstances; and (iii) at a specified date not more than five days prior to the date
thereof in the case of the first letter and not more than two business days prior to the date
thereof in the case of the second and third letters, there was any change in the membership
interests or long-term debt or short-term debt (other than normal payments) of the Company and its
subsidiaries on a consolidated basis or any decrease in consolidated net current assets or
consolidated members’ equity as compared with amounts shown on the latest unaudited balance sheet
of the Company included in the Registration Statement, the Disclosure Package and the Prospectus or
for the period from the date of such balance sheet to a date not more than five days prior to the
date thereof in the case of the first letter and not more than two business days prior to the date
thereof in the case of the second and third letters, there were any decreases, as compared with the
corresponding period of the prior year, in consolidated net sales, consolidated income before
income taxes or in the total or per-unit amounts of consolidated net income except, in all
instances, for changes or decreases which the Prospectus disclose have occurred or may occur or
which are set forth in such letter.
(4) They have carried out specified procedures, which have been agreed to by the Placement
Agent, with respect to certain information in the Prospectus specified by the Placement Agent,
Exhibit E-1
and on the basis of such procedures, they have found such information to be in agreement with
the general accounting records of the Company and its subsidiaries.
Exhibit E-2
