ZEA CAPITAL FUND LLC SUBSCRIPTION AGREEMENT
This
Subscription Agreement (the “Agreement”) is made
this 24th day of July, 2009 by and between Zea Capital Fund LLC, a Delaware
limited liability company (the “Company”), and Iowa
Corn Opportunities, LLC (“Subscriber”).
WITNESSETH:
WHEREAS, the Company may make
an election under the Investment Company Act of 1940, as amended (the “1940 Act”), to be
treated as a business development company under the 1940 Act; and
WHEREAS, Subscriber desires to
subscribe for and purchase, and the Company wishes to sell to Subscriber, 54,348
Common Units (the “Common Units”) having
the terms set forth in the Company’s Limited Liability Agreement dated July 24,
2009 (the “Operating
Agreement”) for the aggregate consideration of $625,002 at a purchase
price of $11.50 per Common Unit pursuant to the terms and conditions described
in this Agreement.
NOW
THEREFORE, IT IS AGREED:
1. Subscriber
hereby subscribes for and agrees to purchase from the Company, 54,348 Common Units for a
purchase price of $11.50 per Common Unit, for
consideration in the aggregate amount of $625,002, of which the parties
acknowledge $625,002 has previously been paid by Subscriber through payment of
organizational costs of the Company.
2. The
Company agrees to issue and sell the Common Units to Subscriber promptly upon
execution of this Agreement.
3. To
induce the Company to accept its subscription and issue the Common Units
subscribed for Subscriber represents that it is informed as
follows:
(a) That the
Common Units have not been and will not be registered under the Securities Act
of 1933, as amended (the “Securities
Act”);
(b) That
the Common Units will be sold by the Company in reliance upon an exemption from
the registration requirements of the Securities Act pursuant to Section 4(2) of
the Securities Act;
(c) That
the Company’s reliance upon the exemption from the registration requirements of
the Securities Act is predicated in part on the representation and agreements
contained in this Agreement;
(d) That when
issued, the Common Units will be “restricted securities” as defined in paragraph
(a)(3) of Rule 144 of the General Rules and Regulations under the Securities Act
(“Rule 144”)
and cannot be sold or transferred by Subscriber unless the Common Units are
subsequently registered under the Securities Act or unless an exemption from
such registration is available; and
(e)
That there do not appear to be any exemptions from the registration provisions
of the Securities Act available to Subscriber for resale of the Common
Units. In the future, certain exemptions may possibly become
available, including an exemption for limited sales as provided in Rule
144.
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Subscriber
understands that a primary purpose of the information acknowledged in
subparagraphs (a) through (e) above is to put it on notice as to restrictions on
the transferability of the Securities.
4. To
further induce the Company to accept its subscription and issue the Common
Units, the Subscriber represents and warrants the following:
(a) That
the Common Units are being and will be acquired for investment for its own
account and not on behalf of any other person or persons and not with a view to,
or for sale in connection with, any public distribution thereof;
(b) That
the Company is under no obligation to the register the Common Units on its
behalf or to assist the Subscriber in compliance with any exemption from such
registration under the Securities Act or any similar state or foreign
law;
(c) That
the Subscriber has been furnished with such financial and other information as
the Subscriber considers necessary in connection with subscription under this
Agreement;
(d) That
in connection with this Agreement, the Company has made available to the
Subscriber the opportunity to obtain additional information to verify the
accuracy of the information contained in this Agreement and evaluate the merits
and risks of an investment in the Common Units;
(e) That
the Company or its advisors or attorneys have answered all inquiries made by the
Subscriber concerning the Company, its business and financial condition or any
other matter relating to the Company and its offer and sale of the Common
Units;
(f) That
the Subscriber acknowledges that the Company has provided it with a copy of the
Operating Agreement which the Subscriber has read, reviewed and understands the
limitations set forth in the Operating Agreement;
(g) That
the Subscriber understands the risks associated with the Common Units and the
potential for loss of investment if the Company fails to close its initial
public offering;
(h) That
the Subscriber understands and is familiar with the nature of, and the risks
associated with an investment in the Common Units, including the tax aspects of
the investment and is capable of bearing the economic risk of the investment and
can afford the loss of the total amount of such investment in the
Common Units; and
(i) That
the Subscriber can afford a complete loss of the investment in the Common Units
and can afford to hold the Common Units for an indefinite period of
time.
5. Subscriber
further agrees to waive any and all claims against the Board that may have
occurred or may occur during the organization of the Company, since the Board’s
inception and during and until the Closing.
6. This
Agreement and all of its provisions shall be binding upon the legal
representatives, heirs, successors and assigns of the parties
hereto. This Agreement may be signed in one or more counterparts,
each of which shall be deemed to be an original.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the day and date first above written.
By: /s/ Xxxx
Elworth_______________
Name:
/s/ Xxxx
Elworth__________
Title:
Chairman of the
Board
IOWA
CORN OPPORTUNITIES, LLC
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X.
Xxxxx
Title:
Chief Operating
Officer
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