AMENDED AND RESTATED WARRANT TO PURCHASE CLASS A UNITS
NEITHER
THIS WARRANT, NOR THE UNITS HOLDER MAY PURCHASE HEREUNDER, HAVE BEEN OR WILL BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. NO SALE, TRANSFER OR DISPOSITION OF THIS WARRANT OR THE UNITS
MAY BE EFFECTED WITHOUT (i) EFFECTIVE REGISTRATION STATEMENTS RELATED THERETO,
(ii) AN OPINION OF COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATIONS ARE NOT REQUIRED, (iii) RECEIPT OF NO-ACTION
LETTERS FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE
COMPLYING WITH THE PROVISIONS OF SECTION 7 OF THIS WARRANT.
AMENDED AND RESTATED WARRANT TO
PURCHASE CLASS A UNITS
| Company: | Zea Capital Fund LLC |
| Holder: | Iowa Corn Opportunities, LLC |
| Number of Class A Units: | Up to 119,565 (Subject to Section 5) |
| Class: | Class A Units |
| Exercise Price: | $11.50 per Class A Unit (Subject to Section 5) |
| Issue Date: | December 14, 2009 |
THIS CERTIFIES THAT, for value
received, Iowa Corn Opportunities, LLC, an Iowa limited liability company (the
“Holder”), is
entitled to subscribe for and purchase One Hundred Nineteen Thousand Five
Hundred Sixty-Five (119,565) (the “Maximum Number”)
Class A Units of Zea Capital Fund LLC, a Delaware limited liability company (the
“Company”),
subject to the limitations and adjustments set forth in Section 3 and Section 5
hereof.
1. Warrant
Price. This Warrant is convertible at a rate of $11.50 per
Class A Unit (the “Warrant Price”) and
shall be paid solely through a cash contribution by Holder.
2. Term of
Warrant: Holder may exercise this Warrant anytime prior to the
effectuation of the Closing Date (as that term is defined in the Company’s
Limited Liability Company Agreement (the “Operating
Agreement”)). This Warrant expires (the “Expiration Date”) and
shall be null and void on the earlier to occur of the following: (a) the
occurrence of any consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the assets of the
Company to another corporation pursuant to which holders of the Company’s units
are to receive securities or property of another corporation, (b) December 14,
2010 (one year following the Issue Date first written above), or (c) the
abandonment of the public offering associated with the Closing
Date.
3. Terms of
Transaction: This Warrant entitles the Holder to purchase up
to the Maximum Number of Class A Units at the Warrant Price. The
granting of this Warrant shall impose no obligation upon Holder to exercise the
Warrant. This Warrant is issued to Holder as a result of the
Company’s desire to issue multiple classes of units and in exchange for
converting that certain warrant for Common Units of the Company originally
issued by the Company to Holder on August 26, 2009 (the “Original Warrant”) to
this Warrant for Class A Units. Issuance of this Warrant to Holder
deems the Original Warrant null and void and no longer valid for exercise by
Holder.
4. Method of
Exercise. The purchase right represented by this Warrant may
be exercised, in whole or in part, in an amount up to the Maximum Number of
Class A Units. Such purchase right may be exercised by the Holder at
any time prior to the Expiration Date, subject to adjustment as provided in
Section 5. The Holder shall exercise its purchase right by providing
written notice to the Company of its election to purchase Class A Units pursuant
to the terms of this Warrant and payment in cash for the
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number of
Class A Units to be purchased. Within ten (10) days of receipt of
such written notice, the Company shall provide evidence reasonably satisfactory
to the Holder that such purchase has occurred and shall deliver evidence
representing the issuance of the applicable Class A Units to the
Holder.
5. Adjustment of Warrant Price
and Number of Class A Units. The number and price of Class A
Units purchasable upon the exercise of this Warrant and the Warrant Price shall
be subject to adjustment from time to time upon the occurrence of certain
events, as follows:
(a) Subdivision or Combination
of Class A Units. If the Company at any time while this
Warrant remains outstanding and unexpired shall subdivide or combine its
outstanding Class A Units, the Warrant Price shall be proportionately decreased
in the case of a subdivision or increased in the case of a combination,
effective at the close of business on the date the subdivision or combination
becomes effective.
(b) Unit Dividends and Other
Distributions. In case the Company shall make or issue, or
shall fix a record date for the determination of eligible holders entitled to
receive, a dividend or other distribution with respect to the Class A Units or
other units of the Company (or any units or other securities at the time
issuable upon exercise of the Warrant) payable in (i) securities of the Company
or (ii) assets (excluding cash dividends), then, in each such case, the Holder
on exercise hereof at any time after the consummation, effective date or record
date of such dividend or other distribution, shall receive, in addition to the
Class A Units (or such other units or securities) issuable on such exercise
prior to such date, and without the payment of additional consideration
therefore, the securities or such other assets of the Company to which such
Holder would have been entitled upon such date if such Holder had exercised this
Warrant on the date hereof and had thereafter, during the period from the date
hereof to and including the date of such exercise, retained such shares and/or
all other additional units available by it as aforesaid during such period
giving effect to all adjustments called for by this Section 5.
6. Representations and
Warranties of
the CompanyRepresentations and Warranties . The Company
represents and warrants to Holder as follows:
(a) Organization and
StandingOrganization and Standing . The Company is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, and has all requisite power and authority to
own or hold under lease its properties and assets and to carry on its business
as now conducted, and to execute, deliver and perform its obligations
hereunder.
(b) Capitalization; Ownership of
Equity. Other than the Warrant issued to Holder and rights to
acquire Class A Units which are disclosed, there are no outstanding equity
securities of the Company that are convertible into or exchangeable for equity
interests of the Company.
(c) AuthorizationAuthority
and Binding Effect . The Company has secured all approvals required
in connection with issuance of this Warrant, including approval by its Board of
Directors.
(d) ConsentsValidity of
the Transactions; Consents . The execution and delivery of this
Warrant by the Company will not violate or result in a default under, or require
the consent or approval of or prior notice to any party to, or require a payment
to any party to, any contract to or by which the Company is a party or otherwise
bound or affected.
7. Representations and
Warranties of the HolderRepresentations and Warranties . The
Holder represents and warrants to the Company as follows:
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(a) That
the Class A Units 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 Class A Units on its
behalf or to assist the Holder in compliance with any exemption from such
registration under the Securities Act or any similar state or foreign
law;
(c) That
the Holder has been furnished with such financial and other information as the
Holder considers necessary in connection with this Warrant;
(d) That
in connection with this Warrant, the Company has made available to the Holder
the opportunity to obtain additional information to verify the accuracy of the
information contained in this Warrant and evaluate the merits and risks of an
investment in the Class A Units;
(e) That
the Company or its advisors or attorneys have answered all inquiries made by the
Holder concerning the Company, its business and financial condition or any other
matter relating to the Company and its offer and sale of the Class A
Units;
(f) That
the Holder acknowledges that the Company has provided it with a copy of the
Operating Agreement which the Holder has read, reviewed and understands the
limitations set forth in the Operating Agreement; and
(g) That
the Holder understands and is familiar with the nature of, and the risks
associated with an investment in the Class A 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 any investment in the Class A
Units.
(h) That
the Holder understands and acknowledges that upon issuance of this Warrant, the
Original Warrant is null and void and may no longer be exercised by
Holder.
8. Compliance with Securities
Act. The Holder, by acceptance hereof, agrees that this
Warrant, and the Class A Units to be issued upon exercise hereof are being
acquired for investment and that such Holder will not offer, sell, transfer or
otherwise dispose of this Warrant, or any Class A Units to be issued upon
exercise hereof except under circumstances which will not result in a violation
of the Securities Act of 1933, as amended (the “Act”) or applicable
state law. If at the time of any proposed sale or transfer of this
Warrant or of any Class A Units issuable upon exercise hereof, such securities
have not been registered under the Act and are not eligible for sale without
registration under Rule 144 of the Act, the Company may require as a condition
of allowing such sale or transfer, that the Holder of such securities furnish to
the Company such information as is reasonably necessary to establish that such
sale or transfer may be made without registration under the Act. All
Class A Units issued upon exercise of this Warrant (unless registered under the
Act) may be stamped or imprinted with a legend in substantially the following
form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE, TRANSFER OR
DISPOSITION MAY BE EFFECTED WITHOUT (I) EFFECTIVE REGISTRATION STATEMENTS
RELATED THERETO, (II) AN OPINION OF COUNSEL FOR THE HOLDER, REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATIONS ARE NOT REQUIRED, (III)
RECEIPT OF NO-ACTION LETTERS FROM THE APPROPRIATE GOVERNMENTAL
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AUTHORITIES,
OR (IV) OTHERWISE COMPLYING WITH THE PROVISIONS OF THE WARRANT UNDER WHICH THESE
SECURITIES WERE ISSUED.”
9. Modification and
Waiver. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by both
the Holder and the Company.
10. Lost Warrants or Class A
Units Certificate. The Company covenants to the Holder that,
upon receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant or any unit certificate and, in
the case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such mutilation
upon surrender and cancellation of such Warrant or unit certificate, the Company
will make and deliver a new Warrant or unit certificate, of like tenor, in lieu
of the lost, stolen, destroyed or mutilated Warrant or unit
certificate.
11. Governing
Law. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware (without regard to its conflicts of law
provisions).
12. Saturdays, Sundays and
Holidays. If the Expiration Date falls on a Saturday, Sunday
or legal holiday, the Expiration Date shall automatically be extended until 5:00
p.m. the next business day.
13. Notices of Record
Date. In case:
(a) the
Company shall take a record of the holders of the Class A Units for the purpose
of entitling them to receive any dividend or other distribution, or any right to
subscribe for or purchase any units of any class or any other securities or to
receive any other right;
(b) of
any consolidation or merger of the Company with or into another corporation, any
capital reorganization of the Company, any reclassification of the securities of
the Company, or any conveyance of all or substantially all of the assets of the
Company to another corporation in which holders of the Company’s units are to
receive securities or property of another corporation;
(c) of
any voluntary dissolution, liquidation or winding-up of the Company;
or
(d) of
any redemption or conversion of all outstanding Class A Units,
then, and
in each such case, the Company will mail or cause to be mailed to the Holder a
notice specifying, as the case may be, (i) the date on which a record is to be
taken for the purpose of such dividend, distribution or right, or (ii) the date
on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation, winding-up, redemption or conversion is to
take place, and the time, if any is to be fixed, as of which the holders of
record of the Class A Units shall be entitled to exchange their Class A Units
(or such other units or securities), for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up. Such notice shall
be delivered at least seven (7) days prior to the date therein
specified.
(The remainder of this page left
blank intentionally.)
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Acknowledged
and Agreed:
| HOLDER | COMPANY | ||
|
IOWA
CORN OPPORTUNITIES, LLC,
an Iowa limited liability company
|
|
a Delaware limited liability company
|
|
| By: /s/ ▇▇▇▇▇ ▇. Jones____________ | By: /s/ ▇▇▇▇▇ ▇. Thorp____________ | ||
| Name: ▇▇▇▇▇ ▇. Jones____________ | Name: ▇▇▇▇▇ ▇. Thorp____________ | ||
| Title: Chief Operating Officer_____ | Title: President___________________ | ||
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EXHIBIT
A
TO
WARRANT
(Subscription Form To Be
Executed Upon Exercise of Warrant)
The undersigned, holder or assignee of
such holder of the Warrant, hereby subscribes for ________ Class A Units which
the undersigned is entitled to purchase under the terms of the Warrant and
directs that the units issuable upon exercise of said Warrant be issued and
delivered to the following named person(s), payment of the exercise price to
made on delivery as follows:
Dated:
________________________
_________________________________
Name Printed
__________________________________
Signature
__________________________________
Title
__________________________________
__________________________________
(Address)
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