SHOW ME ETHANOL, LLC PURCHASE AGREEMENT
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Total
Value of Investment:
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THIS
PURCHASE AGREEMENT (this “Purchase
Agreement”)
is
made by and between Show Me Ethanol, LLC, a Missouri limited liability company,
(the “Company”),
and
the undersigned (“you”
or
the
“Notes
Investor”)
subscribing to purchase 9% Subordinated Secured Promissory Notes of the Company
(the “Notes”)
pursuant to the terms of this Purchase Agreement and the annexes attached
hereto.
By
completing, executing and delivering this Purchase Agreement, you hereby agree
as follows:
1. PURCHASE
OF NOTES.
Subject
to the terms, conditions and provisions of this Purchase Agreement, you hereby
agree to purchase the Notes in the total amount stated at the top of this
page.
The
Notes
Investor agrees to deliver to either the Escrow Agent or the Company at their
respective address:
00000
X.
Xxxxxxx 00
Xxxxxxxxxx,
Xxxxxxxx 00000
State
Bank of Slater
000
Xxxx
Xxxxx Xxxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx X. “Xxx” Xxxxxxx
the
following items:
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a
completed and executed copy of this Purchase
Agreement;
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payment,
in the form of a cashier’s check or by wire transfer to the Escrow Agent,
for the total investment made by you;
and
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such
other documents as the Company may reasonably request in the future
to
validate the representations and warranties made below are
true.
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You
agree that you shall not purchase the Notes unless you can make the
representations set forth in Section 7 below. You must initial each of the
representations in Section 7 below.
You
hereby specifically accept, adopt and agree to be bound by each and every
provision of the Loan and Security Agreement, the Intercreditor/Subordination
Agreement, the Note, the Leasehold Deed of Trust, Assignment of Rents and
Security Agreement and the Escrow Agreement, as each may be amended from time
to
time as if executing such documents by signature thereon. You also hereby
acknowledge that you have received copies of the following items from the
Company:
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the
Loan and Security Agreement, attached hereto as Annex
A;
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the
Intercreditor/Subordination Agreement, attached hereto as Annex
B;
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a
form of the final Note, attached hereto as Annex
C;
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the
Escrow Agreement, attached hereto as Annex
D;
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the
Leasehold Deed of Trust, Assignment of Rents and Security Agreement,
attached hereto as Annex
E;
and
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The
Company’s Annual Report filed on Form 10-K for the period ending December
31, 2007 and its Current Reports filed on Form 8-K since January
1, 2008,
attached hereto as Annex
F.
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2. MINIMUM
INVESTMENT AMOUNT.
Notes
Investor agrees and acknowledges that his or her minimum total purchase for
this
offering must be at least Twenty Thousand Dollars ($20,000) and increasing
in
excess of the minimum Twenty Thousand Dollars in increments of Five Thousand
Dollars ($5,000) (the “Investment
Amount”).
3. ACCEPTANCE
OF OFFER TO PURCHASE.
Notes
Investor acknowledges that the Company has the right to accept this offer to
purchase at any time on or before June 6, 2008. Notes Investor understands
that
the Company may accept this offer for all or any portion of the Investment
Amount (in accordance with Section 2 above) or may reject this offer, in full
or
in part, without notice and with or without cause. If Notes Investor’s offer to
purchase is accepted by the Company, the Company shall execute such signature
page, complete the date, which shall be the date the Notes Investor’s offer to
purchase is accepted by the Company, and return a fully executed and dated
copy
of this Purchase Agreement to the Notes Investor, along with the Note executed
by the Company.
4. PAYMENT
OF INVESTMENT AMOUNT.
Notes
Investor agrees that payment for the Investment Amount is due upon delivery
of
this Purchase Agreement to the Escrow Agent or the Company. After payment has
been made, such funds will be held pursuant to the terms of the Escrow Agreement
attached hereto as Annex D.
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5. ACCEPTANCE
OR REJECTION OF OFFER TO PURCHASE.
In the
event of the rejection of this offer to purchase, Note Investor’s payment will
promptly be returned to Note Investor, in accordance with the terms of the
Escrow Agreement, attached hereto as Annex D, and this Purchase Agreement shall
have no further force or effect.
6. INFORMATION.
NOTES
INVESTOR AGREES AND ACKNOWLEDGES THAT HE OR SHE HAS RECEIVED, CAREFULLY REVIEWED
AND UNDERSTANDS THE INFORMATION AND DOCUMENTS WHICH ARE ATTACHED HERETO. THIS
INFORMATION IS RELEVANT TO THE NOTES INVESTOR’S DECISION TO ENTER INTO THIS
PURCHASE AGREEMENT AND ALL AGREEMENTS AND DOCUMENTS RELATING
THERETO.
7. REPRESENTATIONS,
WARRANTIES, ACKNOWLEDGEMENTS & AGREEMENTS.
Notes
Investor represents, warrants, acknowledges and agrees as follows (please
initial each space provided, as appropriate):
| _____ (a) |
I
am a resident of the state set forth by my signature below, and I
am not a
nonresidential alien of the United
States.
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| _____ (b) |
I
understand the Notes have not been registered under the Securities
Act of
1933, as amended (the “Act”),
or applicable state securities laws, and are being offered and issued
in
reliance upon exemptions provided in the Act and rules promulgated
thereunder, and applicable state securities laws and regulations.
I make
the representations, warranties, acknowledgments and agreements in
this
Purchase Agreement with the intent that the same may be relied upon
by the
Company in complying with such exemptions. I understand that the
Company
has no obligation or intention to register the Notes. There will
be no
public market for the Notes, and the provisions of Rule 144 adopted
by the
Securities and Exchange Commission under the Act with respect to
the
resale of restricted securities will be unavailable to me in respect
of
the Notes unless all of the conditions of that rule are met. I further
understand that no federal or state agency has recommended or endorsed
the
Notes or made any finding or determination as to the fairness, accuracy
or
completeness of the provisions hereof or the offering of the Notes.
I
understand that as a consequence of the limitations above, it may
not be
possible for me to liquidate my investment in the Notes in the event
of an
emergency, change of circumstances or other immediate need for
cash.
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| _____ (c) |
After
receipt of this executed Purchase Agreement by the Company, the Company
may require me to submit such additional documentation as the Company
deems necessary or appropriate to establish or otherwise evidence
or
substantiate compliance with this Purchase Agreement and/or applicable
federal or state securities laws or regulations. All information
set forth
in any such additional documentation will be true and accurate in
all
respects.
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| _____ (d) |
I
have received and carefully read and am familiar with the Loan and
Security Agreement, Intercreditor/Subordination Agreement, Form of
Notes,
Escrow Agreement, the Leasehold Deed of Trust, Assignment of Rents
and
Security Agreement, the Company’s public filings with the Securities and
Exchange Commission, and this Purchase Agreement. I confirm that
I agree
to the terms of each of the Loan and Security Agreement,
Intercreditor/Subordination Agreement, the Note, the Leasehold Deed
of
Trust, Assignment of Rents and Security Agreement and the Escrow
Agreement
(collectively the Loan Documents”), including appointment of the State
Bank of Xxxxxx as Agent under the Loan and Security Agreement, appointment
of the State Bank of Xxxxxx as Escrow Agent under the Escrow Agreement,
that pursuant to the Intercreditor/Subordination Agreement the senior
creditors of the Company will be paid prior to any claims a Notes
Investor
may have in case of Company bankruptcy. The terms and provisions
of the
Loan Documents are hereby incorporated herein by this reference.
In
particular, I acknowledge and agree that I have read and understand
the
provisions of Section 11 of the Loan and Security Agreement and that
I
agree to be bound by these provisions, including, but not limited
to, the
indemnification provisions set forth in Section 11.7 of the Loan
and
Security Agreement. In addition, I specifically acknowledge and agree
that
neither Agent (as defined in the Loan and Security Agreement) nor
Escrow
Agent (as defined in the Escrow Agreement) have made any representations
or warranties to me with respect to or regarding this Purchase Agreement,
the Loan and Security Agreement, Intercreditor/Subordination Agreement,
the Note, the Leasehold Deed of Trust, Assignment of Rents and Security
Agreement or the Escrow Agreement, the Collateral (as defined in
the Loan
and Security Agreement), any liens or security interests on or in
the
Collateral, any of the transactions contemplated under this Purchase
Agreement or these other Loan Documents, the prospects of repayment
of the
sums I am loaning to the Company, the return on my investment or
any other
matter relating to this Purchase Agreement and the transactions
contemplated under this Purchase Agreement and the other Loan Documents.
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| _____ (e) |
I
have had access, during the course of this transaction and prior
to the
sale of the Notes, to all information that I believe to be necessary
to
enable me to evaluate the merits and risks of a prospective investment
in
the Notes and of entering into this Purchase Agreement. I have had
the
opportunity to ask questions of and receive answers from the officers
of
the Company, or a person or persons acting on their behalf, concerning
the
terms and conditions of the offering and the opportunity to obtain
any
additional information which the Company possesses or can acquire
without
unreasonable effort or expense that is necessary to verify the accuracy
of
the information to which I have had access. All questions raised
by me
have been answered to my full
satisfaction.
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| _____ (f) |
I
(i) am acquiring the Notes subscribed for herein for my own account
for
investment only and not with a view to the distribution or transfer
thereof, and as the sole record and beneficial holder thereof; (ii)
am
acquiring the Notes without any intention of reselling or distributing
the
Notes except in accordance with the provisions of the Act and rules
and
regulations promulgated thereunder and applicable state securities
laws,
rules and regulations; and (iii) agree that I will not sell, pledge,
hypothecate, donate or otherwise transfer the Notes, whether or not
for
consideration, except in accordance with such laws, rules and regulations,
and in all events except upon the submission to the Company of such
other
evidence as may be satisfactory to counsel to the Company, to the
effect
that any such transfer shall not be in violation of the Act, applicable
state securities laws or any rules or regulations promulgated
thereunder.
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| _____ (g) |
I
have such knowledge and experience in financial and business matters
that
I and/or my advisors are capable of evaluating the merits and risks
of the
prospective investment in the Notes and of the entering into of this
Purchase Agreement. I am able to bear the economic risk of the investment
in the Notes and of entering into this Purchase Agreement, and I
have
adequate financial or other means for providing for my current needs
and
contingencies and have no need for liquidity in this
investment.
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| _____ (h) |
My
overall commitment to investments which are not readily marketable
is not
disproportionate to my net worth, and my investment in the Notes
will not
cause such overall commitment to become
excessive.
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| _____ (i) |
I
understand that an investment in the Company involves significant
risks,
including but not limited to, the lack of transferability of the
Notes,
the Company’s lack of operating history, competition and government
regulation in the alternative energy industry, general economic
conditions, and the Company’s lack of business diversity. I have evaluated
and understand the risks associated with an investment in the Company
and
knowingly accept the same.
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| _____ (j) |
I
understand and acknowledge that the Notes will contain a legend similar
to
the following:
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THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER DISPOSITION OF
THIS
NOTE MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS NOTE
HAS
BECOME EFFECTIVE UNDER SAID ACT, AND SUCH REGISTRATION OR QUALIFICATION AS
MAY
BE NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE, OR
THE
COMPANY HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PAYMENTS
OF PRINCIPAL AND INTEREST IN RESPECT OF THIS NOTE ARE SUBORDINATED, TO THE
EXTENT SPECIFIED IN THE INTERCREDITOR/SUBORDINATION AGREEMENT, DATED AS OF
May___, 2008, BY AND AMONG SHOW ME ETHANOL, LLC, THE MAKER, FCS FINANCIAL,
PCA,
AND EACH OF THE OTHER PERSONS SUBJECT TO SUCH AGREEMENT, TO PAYMENTS OF CERTAIN
SENIOR INDEBTEDNESS OF MAKER.
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| _____ (k) |
I
understand and acknowledge that with respect to the Notes, including
any
portion of the Notes presented for transfer, the Company shall place
the
preceding legend in subparagraph (j) on any new Note which may be
issued
in connection with such transfer, and shall also make notations on
the
records of the Company regarding restrictions on the transferability
of
said new Note represented thereby.
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| _____ (l) |
I
further warrant that the information set forth in this Purchase Agreement
is true and correct and I acknowledge that the Company, the Agent
and the
Escrow Agent are each relying on the accuracy of the information
contained
herein.
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| _____ (m) |
I
am an “accredited investor,” as such term is defined under federal
securities laws, and therefore I meet the standards established in
one of
the following categories:
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a)
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a
director or executive officer of Show Me Ethanol, LLC;
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c)
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individual
income in excess of $200,000 in 2006 and 2007 or joint income with
your
spouse in excess of $300,000 in 2006 and 2007 and you have a reasonable
expectation of reaching at least the same income level in
2008.
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8. CORRECT
AND CURRENT INFORMATION.
Notes
Investor represents and warrants that all of the information provided to Company
in connection with this Purchase Agreement is true, correct and complete as
of
the date hereof, and Notes Investor further represents, warrants and agrees
that
if there should be any change in any of such information prior to the Company’s
acceptance of Notes Investor’s offer to purchase, Notes Investor shall
immediately furnish such revised and corrected information to the Company.
Notes
Investor represents and warrants that (i) he or she is over 18 years of age
and
is legally competent to execute this Purchase Agreement; (ii) he or she has
full
power and authority to execute this Purchase Agreement and to make the
representations, warranties, acknowledgments, agreements and covenants contained
herein; (iii) he or she is authorized to purchase the Notes and to enter into
this Purchase Agreement; and (iv) the purchase of the Notes by Notes Investor
and the execution and delivery of this Purchase Agreement by Notes Investor
have
been authorized by Notes Investor (if required) and are not prohibited in any
way.
9. INDEMNIFICATION
BY NOTES INVESTOR.
Notes
Investor recognizes that the offer, sale and issuance of the Notes to Notes
Investor and the entering into of this Purchase Agreement with Notes Investor
were and will be based upon the representations, warranties, acknowledgments
and
agreements of Notes Investor contained herein, and Notes Investor hereby agrees
to defend and indemnify the Company, the Agent, the Escrow Agent and anyone
acting for or on the Company’s behalf with respect to the execution, delivery
and performance of this Purchase Agreement and/or the offer, sale and/or
issuance of the Notes, and to hold the Company, the Agent, the Escrow Agent
and
each other person or entity harmless from and against all losses, liabilities,
damages, costs or expenses (including reasonable attorneys’ fees) arising by
reason of or in connection with any misrepresentation or any breach of any
of
such representations, warranties, acknowledgments or agreements by Notes
Investor, or arising as a result of the sale or distribution of the Notes by
Notes Investor in violation of this Purchase Agreement, the Act, or any
applicable state securities laws or Notes Investor’s failure to fulfill any of
Notes Investor’s other covenants or agreements set forth in the agreements
attached hereto.
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10. OFFER
TO PURCHASE IRREVOCABLE.
Notes
Investor agrees that he or she shall not and cannot cancel, terminate or revoke
this Purchase Agreement and that this Purchase Agreement shall survive the
death, disability or incompetence of the Notes Investor.
11. MISCELLANEOUS.
This
Purchase Agreement shall be construed in accordance with and governed by the
laws of the State of Missouri, without giving effect to the choice of law
provisions thereof. This Purchase Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matters hereof and may
be
amended only by a writing executed by all parties. Words and phrases herein
shall be construed as in the singular or plural number and as masculine,
feminine or neuter gender, according to the context. The remedies provided
herein to the Company and its agents are cumulative and are not exclusive of
any
rights or remedies that may be available to any of them at law, in equity or
otherwise. In the event any provision of this Purchase Agreement is held
invalid, illegal or unenforceable, in whole or in part, the remaining provisions
of this Purchase Agreement shall not be affected thereby and shall continue
to
be valid and enforceable. In the event any provision of this Purchase Agreement
is held to be invalid, illegal or unenforceable as written, but valid, legal
and
enforceable if modified, then such provision shall be deemed to be amended
to
such extent as shall be necessary for such provision to be valid, legal and
enforceable and it shall be enforced to that extent. This Purchase Agreement
and
the representations, warranties, acknowledgments and agreements contained herein
shall be binding upon the heirs, legal representatives, successors and permitted
assigns of the Notes Investor.
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PURCHASE
AGREEMENT SIGNATURE PAGE
The
undersigned has executed this Purchase Agreement, on this ____ day of
__________, 2008.
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Total
Value of Investment:
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Name
of Notes Investor:
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Address:
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State
of Residence:
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Telephone
Number:
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Social
Security Number(s):
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NOTES
INVESTOR:
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Name:
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Signature:
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Title
(if applicable):
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Signature
of Joint Tent or Tenant in Common (if so purchasing):
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Signature:
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Printed
Name:
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Relationship:
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ACCEPTANCE
Show
Me
Ethanol, LLC hereby accepts this Purchase Agreement for all of the Notes offered
to be purchased.
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Date
of Acceptance:
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By:
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Name:
Xxxx Xxxxxx
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_______________________,
2008
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Title:
General Manager
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