Exhibit 4.2
SIOUXLAND ETHANOL, LLC
SUBSCRIPTION AGREEMENT
Limited Liability Company Membership Units
$10,000 PER UNIT
MINIMUM INVESTMENT OF 2 UNITS ($20,000)
1 UNIT INCREMENTS THEREAFTER ($10,000)
The undersigned subscriber, desiring to become a member of Siouxland Ethanol,
LLC ("Siouxland"), a Nebraska limited liability company, with its principal
place of business at 000 Xxxx Xxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, hereby
subscribes for the purchase of the membership interests of Siouxland, and agrees
to pay the related purchase price, identified below.
A. SUBSCRIBER INFORMATION. Please print your individual or entity name and
address. Joint subscribers should provide their respective names. Your name and
address will be recorded exactly as printed below.
1. Subscriber's Printed Name
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2. Title, if applicable:
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3. Subscriber's Address:
Street
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City, State, Zip Code
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4. Subscriber's Telephone Number:
Home
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Business
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5. Email Address:
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B. NUMBER OF UNITS PURCHASED. You must purchase at least 2 units. Your ownership
interest may not exceed 40% of all our outstanding membership units. We
presently have 195 units outstanding. Accordingly, assuming that we sell the
minimum number of 1,900 units in this offering, you may not purchase more than
838 units. The maximum number of units to be sold is 4,600.
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C. PURCHASE PRICE. Indicate the dollar amount of your investment (minimum
investment is $20,000).
1. Total Purchase Price = 2. 1st Installment + 3. 2nd Installment
($10,000 Per Unit multiplied by (10% of the Total Purchase (90% of the Total Purchase
the number in box B above.) Price) Price)
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D. GENERAL INSTRUCTIONS FOR SUBSCRIBERS:
You should read the Prospectus dated [DATE OF EFFECTIVENESS] (the "Prospectus")
in its entirety including exhibits for a complete explanation of an investment
in Siouxland Ethanol, LLC. To subscribe, you must:
INSTRUCTIONS IF YOU ARE SUBSCRIBING PRIOR TO THE COMPANY'S RELEASE OF FUNDS FROM
ESCROW: If you are subscribing prior to the Company's release of funds from
escrow, you must follow Steps 1 through 5 below:
1. Complete all information required in this Subscription Agreement, and
date and sign the Subscription Agreement on page 6 and the Member Signature Page
to our Operating Agreement attached to this Subscription Agreement as Exhibit A.
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2. Immediately provide your personal (or business) check for the first
installment of ten percent (10%) of your investment amount made payable to U.S.
Bank, escrow agent for Siouxland Ethanol LLC. You will determine this amount in
box C.2 on page 1 of this Subscription Agreement.
3. Execute the Promissory Note and Security Agreement on page 7 of this
Subscription Agreement evidencing your commitment to pay the remaining ninety
percent (90%) due for the Units that is attached to this Subscription Agreement
and grant Siouxland Ethanol, LLC a security interest in your Units.
4. Deliver each of the original executed documents referenced in Items 1
and 3 of these Instructions, together with your personal or business check
described in Item 2 of these Instructions to either of the following:
Siouxland Ethanol, LLC U.S. Bank National Association
000 X. Xxx Xxxxxx Attn: Xxxxxxx X. Xxxxxxx
Xxxxxxx XX 00000 000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
5. Upon written notice from Siouxland Ethanol, LLC stating that its sales
of Units have exceeded the Minimum Offering amount of $19,000,000, you must,
within twenty (20) days secure an additional personal (or business) check for
the second installment of ninety percent (90%) of your investment amount made
payable to U.S. Bank, NA escrow agent for Siouxland Ethanol, LLC in satisfaction
of the Promissory Note and Security Agreement. You will determine this amount in
box C.3 on page 1 of this Subscription Agreement. You must deliver this check to
the same address set forth above in Instruction 4 within twenty (20) days of the
date of Siouxland's written notice. If you fail to pay the second installment
pursuant to the Promissory Note and Security Agreement, Siouxland shall be
entitled to retain your first installment and to seek other damages, as provided
in the Promissory Note and Security Agreement.
Your funds will be placed in Siouxland's escrow account at U.S. Bank, NA.
The funds will be released to Siouxland or returned to you in accordance with
the escrow arrangements described in the Prospectus. Siouxland may, in its sole
discretion, reject or accept any part or all of your subscription. If Siouxland
rejects your subscription, your Subscription Agreement and investment will be
promptly returned to you, plus nominal interest, minus escrow fees. Siouxland
may not consider the acceptance or rejection of your subscription until a future
date near the end of this offering.
INSTRUCTIONS IF YOU ARE SUBSCRIBING AFTER THE COMPANY'S RELEASE OF FUNDS FROM
ESCROW: If you are subscribing after the Company's release of funds from escrow,
you must follow Steps 1 through 3 below:
1. Complete all information required in this Subscription Agreement, and
date and sign the Subscription Agreement on page 6 and the Member Signature Page
to our Operating Agreement attached to this Subscription Agreement as Exhibit A.
2. Immediately provide your personal (or business) check for the entire
amount of your investment (as determined in Box C.1 on page 1) made payable to
"SIOUXLAND ETHANOL, LLC."
3. Deliver the original executed documents referenced in Item 1 of these
Instructions, together with your personal or business check described in Item 2
of these Instructions to the following:
Siouxland Ethanol, LLC
000 Xxxx Xxx Xxxxxx
Xxxxxxx XX 00000
If you are subscribing after we have released funds from escrow and we
accept your investment, your funds will be immediately at-risk as described in
the Prospectus. Siouxland may, in its sole discretion, reject or accept any part
or all of your subscription. If Siouxland rejects your subscription, your
Subscription Agreement and investment will be returned to you promptly, plus
nominal interest, minus escrow fees. Siouxland may not consider the acceptance
or rejection of your subscription until a future date near the end of this
offering.
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YOU MAY DIRECT YOUR QUESTIONS TO ONE OF OUR DIRECTORS LISTED BELOW OR TO
SIOUXLAND AT 402-632-2676.
Director Cell Number Home Number
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Xxx Xxxxx 000-000-0000 000-000-0000
Xxx Xxxxxx 000-000-0000 000-000-0000
Xxxxxx Xxxxxxxxx 000-000-0000 000-000-0000
Xxxxxxx Xxxxxxxx 000-000-0000 000-000-0000
E. ADDITIONAL SUBSCRIBER INFORMATION. The subscriber, named above, certifies the
following under penalties of perjury:
1. FORM OF OWNERSHIP. Check the appropriate box (one only) to indicate
form of ownership. If the subscriber is a Custodian, Corporation,
Partnership or Trust, please provide the additional information
requested.
[ ] Individual
[ ] Joint Tenants with Right of Survivorship (Both signatures must
appear on Page 6.)
[ ] Corporation, Limited Liability Company or Partnership (Corporate
Resolutions, Operating Agreement or Partnership Agreement must be
enclosed.)
[ ] Trust
Trustee's Name:
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Trust Date:
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[ ] Other: Provide detailed information in the space immediately
below.
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2. SUBSCRIBER'S TAXPAYER INFORMATION. Check the appropriate box if you
are a non-resident alien, a U.S. Citizen residing outside the United
States or subject to backup withholding. Trusts should provide their
taxpayer identification number. Custodians should provide the minor's
Social Security Number. All individual subscribers should provide
their Social Security Number. Other entities should provide their
taxpayer identification number.
[ ] Check box if you are a non-resident alien
[ ] Check box if you are a U.S. citizen residing outside of the United
States
[ ] Check this box if you are subject to backup withholding
Subscriber's Social Security No.
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Joint Subscriber's Social Security No.
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Taxpayer Identification No.
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3. MEMBER REPORT ADDRESS. If you would like duplicate copies of member
reports sent to an address that is different than the address
identified in section A, please complete this section.
Address:
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4. STATE OF RESIDENCE.
State of Principal Residence:
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State where driver's license is issued:
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State where resident income taxes are filed:
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State(s) in which you have maintained your principal residence
during the past three years:
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a b. c.
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5. SUITABILITY STANDARDS. You cannot invest in Siouxland unless you meet
one, or more, of the following suitability tests (a, b, or c) set
forth below. Please review the suitability tests and check the box(es)
next to the following suitability test that you meet. For husbands and
wives purchasing jointly, the tests below will be applied on a joint
basis.
a. I (We) are "Agricultural Producers" as defined below. For
purposes of this Subscription Agreement, an "Agricultural
Producer" is defined as a person who satisfies ONE of the
following:
[ ] You regularly participate in the operation or management of a
farming operation and file Schedule F as part of your annual
income tax return.
[ ] You have at least 150 acres of agricultural land under
production.
[ ] You are a shareholder, member, manager or director of a
family farm corporation, family farm limited liability
company or family farm partnership.
b. [ ] I (We) have annual income from whatever source of at least
$45,000 and a net worth of at least $45,000, exclusive of
home, furnishings and automobiles; or
c. [ ] I (We) have a net worth of at least $100,000, exclusive of
home, furnishings and automobiles.
6. SUBSCRIBER'S REPRESENTATIONS AND WARRANTIES. You must read and certify
your representations and warranties and sign and date this
Subscription Agreement.
By signing below the subscriber represents and warrants to Siouxland
that he, she or it:
a. has received a copy of Siouxland's Prospectus dated [DATE OF
EFFECTIVENESS] and the exhibits thereto;
b. has been informed that the Units of Siouxland are offered and
sold in reliance upon a federal securities registration;
Nebraska, South Dakota, and Iowa securities registrations; and
exemptions from securities registrations in various other states,
and understands that the Units to be issued pursuant to this
subscription agreement can only be sold to a person meeting
requirements of suitability;
c. has been informed that the securities purchased pursuant to this
Subscription Agreement have not been registered under the
securities laws of any state other than the States of Nebraska,
South Dakota and Iowa, and that Siouxland is relying in part upon
the representations of the undersigned Subscriber contained
herein;
d. has been informed that the securities subscribed for have not
been approved or disapproved by the Nebraska, South Dakota or
Iowa Securities Departments or any other regulatory authority,
nor has any regulatory authority passed upon the accuracy or
adequacy of the Prospectus;
e. intends to acquire the Units for his/her/its own account without
a view to public distribution or resale and that he/she/it has no
contract, undertaking, agreement or arrangement to sell or
otherwise transfer or dispose of any Units or any portion thereof
to any other person;
f. understands that there is no present market for Siouxland's
membership units, that the membership units will not trade on an
exchange or automatic quotation system, that no such market is
expected to develop in the future and that there are significant
restrictions on the transferability of the membership units;
g. has been encouraged to rely upon the advice of his legal counsel
and accountants or other financial advisers with respect to the
tax and other considerations relating to the purchase of units;
h. has received a copy of the Siouxland Amended and Restated
Operating Agreement, dated February 24, 2005, and understands
that upon closing the escrow by Siouxland, the subscriber and the
membership units will be bound by the provisions of the Amended
and Restated Operating Agreement which contains, among other
things, provisions that restrict the transfer of membership
units;
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i. understands that the Units are subject to substantial
restrictions on transfer under state securities laws along with
restrictions in the Siouxland Amended and Restated Operating
Agreement and agrees that if the membership units or any part
thereof are sold or distributed in the future, the subscriber
shall sell or distribute them pursuant to the terms of the
Amended and Restated Operating Agreement, and the requirements of
the Securities Act of 1933, as amended, and applicable state
securities laws;
j. meets the suitability test marked in Item 5 above and is capable
of bearing the economic risk of this investment, including the
possible total loss of the investment;
k. understands that Siouxland will place a restrictive legend on any
certificate representing any unit containing substantially the
following language as the same may be amended by the Directors of
Siouxland in their sole discretion:
THE TRANSFERABILITY OF THE UNITS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED. SUCH UNITS MAY NOT BE SOLD,
ASSIGNED, OR TRANSFERRED, NOR WILL ANY ASSIGNEE, VENDEE,
TRANSFEREE, OR ENDORSEE THEREOF BE RECOGNIZED AS HAVING
ACQUIRED ANY SUCH UNITS FOR ANY PURPOSES, UNLESS AND TO THE
EXTENT SUCH SALE, TRANSFER, HYPOTHECATION, OR ASSIGNMENT IS
PERMITTED BY, AND IS COMPLETED IN STRICT ACCORDANCE WITH,
APPLICABLE STATE AND FEDERAL LAW AND THE TERMS AND CONDITIONS
SET FORTH IN THE AMENDED AND RESTATED OPERATING AGREEMENT AS
AGREED TO BY EACH MEMBER.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, OFFERED FOR SALE, OR TRANSFERRED IN THE ABSENCE OF
EITHER AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND UNDER APPLICABLE STATE SECURITIES LAWS,
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND UNDER APPLICABLE STATE SECURITIES
LAWS.
l. understands that, to enforce the above legend, Siouxland may
place a stop transfer order with its registrar and stock transfer
agent (if any) covering all certificates representing any of the
membership units;
m. has knowledge and experience in business and financial matters as
to be able to evaluate the merits and risks of an investment in
the Units, believes that the investment in Units is suitable for
the subscriber and can bear the economic risk of the purchase of
Units including the total loss of the undersigned's investment;
n. may not transfer or assign this subscription agreement, or any of
the subscriber's interest herein;
o. has written his, her, or its correct taxpayer identification
number under Item 3 on this subscription agreement;
p. is not subject to back up withholding either because he, she or
it has not been notified by the Internal Revenue Service ("IRS")
that he, she or it is subject to backup withholding as a result
of a failure to report all interest or dividends, or the IRS has
notified him, her or it that he is no longer subject to backup
withholding (Note this clause (p) should be crossed out if the
backup withholding box in Item 2 is checked);
q. understands that execution of the attached Promissory Note and
Security Agreement will allow Siouxland or its assigns to pursue
the obligor for payment of the amount due thereon by any legal
means, including, but not limited to, acquisition of a judgment
against the obligor in the event that the subscriber defaults on
that Promissory Note and Security Agreement; and
r. Acknowledges that Siouxland may retain possession of certificates
representing subscriber's Units to perfect its security interest
in those Units.
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SIGNATURE OF SUBSCRIBER/ JOINT SUBSCRIBER:
DATE: __________________
INDIVIDUALS: ENTITIES:
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Name of Individual Subscriber Name of Entity (Please Print)
(Please Print)
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Signature of Individual Print Name and Title of Officer
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Name of Joint Individual Subscriber Signature of Officer
(Please Print)
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Signature of Joint Individual
Subscriber
ACCEPTANCE OF SUBSCRIPTION BY SIOUXLAND ETHANOL, LLC:
Siouxland Ethanol, LLC hereby accepts the subscription for the above Units.
Dated this ___________ day of _______________________, 200___.
SIOUXLAND ETHANOL, LLC
By:
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Its:
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PROMISSORY NOTE AND SECURITY AGREEMENT
Date of Subscription Agreement: ______________________________, 200__.
$10,000 PER UNIT
MINIMUM INVESTMENT OF 2 UNITS ($20,000), 1 UNIT INCREMENTS
THEREAFTER ($10,000)
Number of Units subscribed
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Total Purchase Price ($10,000 per Unit multiplied by number of
--------------- Units subscribed)
( ) Less Initial Payment (10% of Principal Amount)
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Principal Balance
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FOR VALUE RECEIVED, the undersigned hereby promises to pay to the order of
Siouxland Ethanol, LLC, a Nebraska limited liability company ("Siouxland"), at
its principal office located 000 Xxxx Xxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at
such other place as required by Siouxland, the Principal Balance set forth above
in one lump sum to be paid without interest within 20 days following the call of
the Siouxland Board of Directors, as described in the Subscription Agreement. In
the event the undersigned fails to timely make any payment owed, the entire
balance of any amounts due under this full recourse Promissory Note and Security
Agreement shall be immediately due and payable in full with interest at the rate
of 12% per annum from the due date and any amounts previously paid in relation
to the obligation evidenced by this Promissory Note and Security Agreement may
be forfeited at the discretion of Siouxland.
The undersigned agrees to pay to Siouxland on demand, all costs and expenses
incurred to collect any indebtedness evidenced by this Promissory Note and
Security Agreement, including, without limitation, reasonable attorneys' fees.
This Promissory Note and Security Agreement may not be modified orally and shall
in all respects be governed by, construed, and enforced in accordance with the
laws of the State of Nebraska.
The provisions of this Promissory Note and Security Agreement shall inure to the
benefit of Siouxland and its successors and assigns, which expressly reserves
the right to pursue the undersigned for payment of the amount due thereon by any
legal means in the event that the undersigned defaults on obligations provided
in this Promissory Note and Security Agreement.
The undersigned waives presentment, demand for payment, notice of dishonor,
notice of protest, and all other notices or demands in connection with the
delivery, acceptance, performance or default of this Promissory Note and
Security Agreement.
The undersigned grants to Siouxland, and its successors and assigns ("Secured
Party"), a purchase money security interest in all of the undersigned's
Membership Units of Siouxland now owned or hereafter acquired. This security
interest is granted as non-exclusive collateral to secure payment and
performance on the obligation owed Secured Party from the undersigned evidenced
by this Promissory Note and Security Agreement. The undersigned further
authorizes Secured Party to retain possession of certificates representing such
Membership Units and to take any other actions necessary to perfect the security
interest granted herein.
Dated: ______________, 200__.
OBLIGOR/DEBTOR: JOINT OBLIGOR/DEBTOR:
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Printed or Typed Name of Joint Obligor Printed or Typed Name of Obligor
By: By:
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(Signature) (Signature)
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Officer Title if Obligor is an Entity
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Address of Obligor
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EXHIBIT "A"
MEMBER SIGNATURE PAGE
ADDENDA
TO THE
AMENDED AND RESTATED
OPERATING AGREEMENT OF
SIOUXLAND ETHANOL, LLC
The undersigned does hereby represent and warrant that the undersigned, as
a condition to becoming a Member in Siouxland Ethanol, LLC, has received a copy
of the Amended and Restated Operating Agreement, dated February 24, 2005, and,
if applicable, all amendments and modifications thereto, and does hereby agree
that the undersigned, along with the other parties to the Amended and Restated
Operating Agreement, shall be subject to and comply with all terms and
conditions of said Amended and Restated Operating Agreement in all respects as
if the undersigned had executed said Amended and Restated Operating Agreement on
the original date thereof and that the undersigned is and shall be bound by all
of the provisions of said Amended and Restated Operating Agreement from and
after the date of execution hereof.
INDIVIDUALS: ENTITIES:
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Name of Individual Member Name of Entity (Please Print)
(Please Print)
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Signature of Individual Print Name and Title of Officer
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Name of Joint Individual Member Signature of Officer
(Please Print)
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Signature of Joint Individual Member
Agreed and accepted on behalf of the
Company and its Members:
SIOUXLAND ETHANOL, LLC
By:
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Its:
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