IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING
SIGNIFICANT REPRESENTATIONS ARE CALLED FOR HEREIN
SUBSCRIPTION AGREEMENT
AND
LETTER OF INVESTMENT INTENT
Western Plains Energy, L.L.C.
X.X. Xxx 000
Xxxxx, XX 00000
Gentlemen:
The undersigned hereby tenders its subscription and applies for the purchase of
_____ Class D capital units (the "Units") of Western Plains Energy, L.L.C., a
Kansas limited liability company (the "Company"), for a purchase price of $5,000
per Unit for a total purchase price of $________. By execution below, the
undersigned acknowledges that the Company is relying upon the accuracy and
completeness of the representations contained herein in complying with its
obligations under applicable securities laws.
The undersigned acknowledges and represents as follows:
(a) That the undersigned has received, carefully reviewed, and is
familiar with the Company's Articles of Organization, proposed Operating
Agreement, the Company's business plan and the Feasibility Study conducted by
Val-Add Service Corporation (collectively, the "Information").
(b) That the undersigned, in connection with the signing of this
Subscription Agreement and Letter of Investment Intent, agrees to become a
member of the Company by signing the Counterpart Signature Page to the Company's
Operating Agreement and to be governed by the provisions of the Company's
Articles of Organization and Operating Agreement.
(c) The undersigned represents and warrants that he is a bona fide
resident of, and is domiciled in, the State of __________, and that the Units
are being purchased by him in his name solely for his own beneficial interest
and not as nominee for, or on behalf of, or for the beneficial interest of, or
with the intention to transfer to, any other person, trust or organization.
(d) That the undersigned has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to the Company, so that it is capable of reading and interpreting the
Information and evaluating the merits and risks of his investment in the
Company, and he has the capacity to protect his own business and financial
interests.
(e) That by reason of his business or financial experience, the
undersigned has the capacity to protect his interests in connection with his
purchase of the Units.
(f) That the undersigned has been given access to full and complete
information regarding the Company and has utilized such access to his
satisfaction for the purpose of obtaining information in addition to, or
verifying information included in, the Information, and that the undersigned has
either met with or been given reasonable opportunity to meet officers of the
Company for the purpose of asking questions of, and receiving answers from, such
officers concerning the terms and conditions of the offering of the Units and
the proposed business and operations of the Company and to obtain any additional
information, to the extent reasonably available.
(g) That the undersigned acknowledges that he has made his own
investigation of the Company, its business, personnel and prospects; has had an
opportunity to discuss the Company's business, management and financial affairs
with managers, officers, and management of the Company; and has had the
opportunity to review the Company's operations and facilities to its
satisfaction.
(h) That the undersigned has obtained, to the extent the undersigned
deems necessary, personal professional advice with respect to the risks inherent
in an investment in the Company, the suitability of the investment in light of
the undersigned's financial condition and investment needs, and legal, tax and
accounting matters.
(i) That the undersigned recognizes that an investment in the Company
involves a high degree of risk and speculation; that the purchase of the Units
is a long-term investment; that transferability and sale of the Units is
restricted and that in the event of disposition of the Units the undersigned
could sustain a partial or complete loss, either from an economic standpoint or
as a result of income tax obligations or both.
(j) That the undersigned believes that the investment in the Units is
suitable for him based upon his investment objectives and financial needs, and
the undersigned has adequate means for providing for his current financial needs
and contingencies and has no need for liquidity of investment with respect to
the Units.
(k) That the undersigned recognizes that an investment in the Units is
highly speculative, and involves a high degree of risk including, but not
limited to, the risk of economic losses from operations of the Company and the
total loss of its investment.
(l) That the undersigned recognizes that any financial projections,
forecasts, assumptions or estimates included in or referred to in the
Information or otherwise delivered or communicated to the undersigned are not
statements of fact and that no representation or warranties are made, by the
Company or any officer, director, shareholder, employee or agent thereof, with
respect to the accuracy of such projections, forecasts, assumptions or estimates
or with respect to the future operations or the amount of any future income or
loss of the Company.
(m) That:
(1) the operating results, predictions, estimates and
projections, if any, contained in the Company's business plan are for
illustrative purposes only and are based upon certain assumptions and
events over which the Company has only partial or no control;
(2) variations in such assumptions, including, but not limited
to, sales, costs, selling expenses, general and administrative
expenses, development expenses, consumer acceptance and competitive
developments could significantly affect such projections and forecasts;
(3) to the extent that assumed events do not materialize, the
outcome will vary substantially from that projected or forecasted; and
(4) there are a number of other factors and risks which could
cause actual results to be substantially less than projected.
(n) That the undersigned realizes that (1) the purchase of the Units is
a long-term investment, (2) the purchasers of the Units must bear the economic
risk of investment in the Units for an indefinite period of time because the
Units have not been registered under the Securities Act of 1933, as amended (the
"Act"), and, therefore, cannot be sold unless they are subsequently registered
under the Act or an exemption from such registration is available, and (3) the
transferability of the Units is restricted and (A) requires conformity with the
restrictions contained in paragraph (o) below, and (B) will be further
restricted by a legend placed on the certificates representing the Units stating
that they have not been registered under the Act and referencing the
restrictions on transferability.
(o) The undersigned has been advised that the Units are not being
registered under the Act or relevant state securities laws but are being offered
and sold pursuant to exemptions from such laws and that the Company's reliance
upon such exemptions is predicated in part on the undersigned's representations
as contained herein. The undersigned represents and warrants that the Units are
being purchased for his own account and for investment and without the intention
of reselling or redistributing the same, that he has made no agreement with
others regarding any of the Units and that his financial condition is such that
it is not likely that it will be necessary to dispose of any of the Units in the
foreseeable future. The undersigned is aware that, in the view of the U.S.
Securities and Exchange Commission, a purchase of securities with an intent to
resell any of the same by reason of any foreseeable specific contingency or
anticipated change in market value, or any change in the condition of the
Company, or in connection with a contemplated liquidation or settlement of any
loan obtained for the acquisition of the Units and for which the Units were
pledged as security, would represent an intent inconsistent with the
representations set forth above. The undersigned further represents and agrees
that if, contrary to its foregoing intentions, he should later desire to dispose
of or transfer any of the Units in any manner, he shall not do so or attempt to
do so without complying with the restrictions on transferability of the Units
contained in the Company's Operating Agreement.
(p) That the undersigned recognizes that the proceeds raised from the
sale of the Units will be used to pay for various start-up costs or expenses
associated with the Company and the proposed ethanol plant.
(q) That the undersigned recognizes that there is no guarantee that the
Company will be successful in the construction, development and operation of the
proposed ethanol plant.
(r) The undersigned acknowledges that the Company may experience
significant losses during its existence, that there is no guarantee the Company
will be profitable or that the undersigned will receive any distributions in the
foreseeable future from the Company, if ever.
(s) The undersigned acknowledges that, once executed, its Subscription
Agreement and Letter of Investment Intent is an irrevocable, binding commitment
to purchase the Units.
The warranties, representations, and agreements of the undersigned are
continuing in nature and shall survive the acceptance of this Subscription
Agreement Letter of Investment Intent and the issuance of the Units.
SPECIAL INSTRUCTIONS FOR PARTNERSHIP, TRUST, CORPORATION, AND LIMITED LIABILITY
COMPANY INVESTORS
Each investor which is a partnership must deliver a complete copy of
its partnership agreement. Each investor which is a trust must deliver (i) a
complete copy of its trust agreement. Each investor which is a corporation must
deliver (i) a copy of the Articles of Incorporation of the investor, (ii) a copy
of its Bylaws, and (iii) a Board Resolution or Certificate setting forth the
authority of the corporation to invest and setting forth the authority of the
corporate officer signing on behalf of the corporation. Each investor which is a
limited liability company must deliver (i) a copy of the Articles of
Organization of the investor, (ii) a copy of its Operating Agreement, Member
Control Agreement or similar document and (iii) a Manager's Resolution or
Certificate setting forth the authority of the limited liability company to
invest, and setting forth the authority of the manager signing on behalf of the
limited liability company.
This Subscription Agreement and Letter of Investment Intent shall be
binding upon the undersigned and the Company's respective heirs, legal
representatives, successors and permitted assigns.
Dated: __________, 2001
(Signature for Corporate, Partnership, (Signature for Individual Investors)
Trust or other Entity Investor)
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(Print Name of Entity) (Signature)
By: Print Name:
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(Signature)
Print Name:
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(Signature of Joint Investor)
Title: Print Name of Joint Investor (if any):
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DATED:__________________, 2001
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Signature Signature
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Name Typed or Printed Name Typed or Printed
ACCEPTANCE
The Company hereby accepts the foregoing Subscription Agreement and
Letter of Investment Intent as of the date above indicated.
WESTERN PLAINS ENERGY, L.L.C.
Date: By
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Its
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