Exhibit 4.2
EAST KANSAS AGRI-ENERGY, L.L.C.
SUBSCRIPTION AGREEMENT
Membership Units
BEFORE [DATE], 2002 AFTER [DATE], 2002 AND BEFORE AFTER [DATE], 2002
[DATE], 2002
OFFERING PRICE $1,000 $1,100 $1,200
PER ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
The undersigned subscriber, desiring to become a member of East Kansas
Agri-Energy, L.L.C. ("EKAE"), a Kansas limited liability company, with its
principal place of business at ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, hereby subscribes for the purchase of the membership interests of EKAE,
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 ________________________________________
2. Title, if applicable: ________________________________________
3. Subscriber's Address:
Street ________________________________________
City, State, Zip Code ________________________________________
B. NUMBER OF UNITS PURCHASED. You must purchase at least 10 units. Your
ownership interest may not exceed 30% of all of our outstanding membership
units. Accordingly, assuming that we sell the minimum number of 9,000 Units in
this Offering, you may not purchase more than 3,066 Units. We presently have
1220 Units outstanding.
__________________
C. PURCHASE PRICE. Indicate the dollar amount of your investment.
1. TOTAL PURCHASE PRICE = 2. TEN PERCENT (10%) 1ST + 3. NINETY PERCENT (90%) 2ND
(The Offering Price Per Unit from INSTALLMENT INSTALLMENT
the appropriate time period above (10% of the Total Purchase Price) (90% of the Total Purchase
multiplied by the number in box B Price)
above.)
_________________________________ = ________________________________ + ______________________________
D. GENERAL INSTRUCTIONS FOR SUBSCRIBERS:
You should read the Prospectus dated September 1, 2002 (the "Prospectus") in its
entirety including financial statements and exhibits for a complete explanation
of an investment in EKAE. To subscribe, you must:
1. Complete all information required in this
Subscription Agreement,
and date and sign this
Subscription Agreement at page 5.
2. Complete all information required by the Member Signature Page of
the Operating Agreement, and date and sign the Member Signature Page (the last
page attached to this
Subscription Agreement).
3. Immediately provide your personal (or business) check for the first
installment of ten percent (10%) of your investment amount made payable to
"▇▇▇▇▇▇▇ STATE SAVINGS BANK -- ESCROW AGENT FOR EKAE." You will determine this
amount in box C.2 on page 1 of this
Subscription Agreement.
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4. Execute the Promissory Note 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.
5. Deliver each of the original executed documents referenced in Items
1, 2, and 4 of these Instructions, together with your personal check described
in Item 3 of these Instructions to:
Garnett State Savings Bank
5th and Oak
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
6. Secure an additional personal (or business) check for the second
installment of ninety percent (90%) of your investment amount made payable to
"▇▇▇▇▇▇▇ STATE SAVINGS BANK -- ESCROW AGENT FOR EKAE" in satisfaction of the
Promissory Note. You will determine this amount in box C.3 on page 1 of this
Subscription Agreement. Deliver this check to the same address set forth above
in Instruction 5 within twenty (20) days of the date of EKAE's written notice
that its sales of Units have exceeded the Minimum Escrow Deposit of $9,000,000.
Your funds will be placed in EKAE's escrow account at Garnett State Savings
Bank, and the funds will be released to EKAE or returned to you in accordance
with the escrow arrangements described in the Prospectus. If EKAE rejects your
subscription, your
Subscription Agreement and investment will be returned to you
within 30 days of such rejection, plus nominal interest, minus escrow fees. EKAE
may not consider the acceptance or rejection of your subscription until a future
date near the end of this Offering.
YOU MAY DIRECT YOUR QUESTIONS TO ONE OF OUR DIRECTORS LISTED BELOW OR TO EKAE AT
(▇▇▇) ▇▇▇-▇▇▇▇.
ADDITIONAL ADDITIONAL
DIRECTOR TELEPHONE NUMBER TELEPHONE NUMBER DIRECTOR TELEPHONE NUMBER TELEPHONE NUMBER
-------------------- ---------------- ---------------- ----------------- ---------------- ----------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇. Meats (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
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 in Item 7)
/ / Corporation or Partnership (Corporate Resolutions or
Partnership Agreement must be enclosed)
/ / ▇▇▇
/ / ▇▇▇▇▇
/ / Pension or Profit Sharing Plan
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/ / Trust
Trustee's Name: ________________________________________
Trust Date: ____________________________________________
/ / Other: Provide detailed information in the space immediately
below.
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 back up withholding. KEOGHS should provide the
taxpayer identification number of the account and the social
security number of the accountholder. Trusts should provide their
taxpayer identification number. Custodians should provide the
minor's social security number. All individual subscribers and ▇▇▇
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. ________________________
Joint Subscriber's Social Security No. ____________________________
Taxpayer Identification No. ________________________
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: ___________________________________________
___________________________________________
4. STATE OF RESIDENCE.
State of Principal Residence: ___________________________
State where driver's license is issued ___________________________
State where income taxes are filed ___________________________
State(s) in which you have maintained your principal residence
during the past three years:
a. _________________ b. _________________ c. _________________
5. SUITABILITY STANDARDS. You cannot invest in EKAE unless you meet
one, or more, of the suitability tests 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 above will be applied on a joint
basis.
/ / I (We) have annual income from whatever source of at least
$30,000 and a net worth of at least $30,000, exclusive of
home, furnishings and automobiles; or
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/ / I (We) have a net worth of at least $75,000, 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 EKAE that
he, she or it:
a. has received a copy of and is familiar with and understands
EKAE's Prospectus, and all modifications or supplements
thereto;
b. has relied solely upon the Prospectus in evaluating the
purchase of the Units;
c. has been informed that the Units of EKAE are offered and sold
in reliance upon a federal securities registration, Kansas and
Missouri 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;
d. 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 Kansas
and Missouri, and that EKAE is relying in part upon the
representations of the undersigned Subscriber contained herein;
e. has been informed that the securities subscribed for have not
been approved or disapproved by the Securities and Exchange
Commission or the Kansas or Missouri Securities Departments or
any other regulatory authority, nor has any regulatory
authority passed upon the accuracy or adequacy of the
Prospectus;
f. 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;
g. understands that there is no present market for EKAE'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;
h. has received a copy of the EKAE Operating Agreement, and
understands that upon closing the escrow by EKAE, the
subscriber and the membership units will be bound by the
provisions of the Operating Agreement which contains, among
other things, provisions that restrict the transfer of
membership units;
i. understands that the Units are subject to substantial
restrictions on transfer under federal and state securities
laws along with restrictions in the EKAE 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 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 6 above and is
capable of bearing the economic risk of this investment,
including the possible total loss of the investment;
k. understands that EKAE 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 EKAE 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
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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. and that, to enforce the above legend, EKAE 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; and
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 3 is
checked).
SIGNATURE OF SUBSCRIBER/ JOINT SUBSCRIBER:
DATE: _______________________________
INDIVIDUALS: ENTITIES:
---------------------------------------- -----------------------------------
Name of Individual Subscriber Name of Entity (Please Print)
(Please Print)
---------------------------------------- -----------------------------------
Signature of Individual Print Name and Title of Officer
---------------------------------------- -----------------------------------
Name of Joint Individual Subscriber Signature of Officer
(Please Print)
---------------------------------------------
Signature of Joint Individual Subscriber
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ACCEPTANCE OF SUBSCRIPTION BY EAST KANSAS AGRI-ENERGY, L.L.C.:
East Kansas Agri-Energy, L.L.C. hereby accepts the subscription for the above
Units.
Dated this ___________ day of __________________________, 200___.
EAST KANSAS AGRI-ENERGY, L.L.C.
By:
-----------------------------------
Its:
---------------------------------
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PROMISSORY NOTE
Date of Subscription Agreement: ___________________________________, 200__.
IF BEFORE [DATE], 2002 IF AFTER [DATE], 2002 AND IF AFTER [DATE], 2002
BEFORE [DATE], 2002
OFFERING PRICE $1,000 $1,100 $1,200
PER UNIT
Number of Units subscribed for at / / $1,000 per Unit, / / $1,100
Per Unit, / / $1,200 Per Unit
------------- (check box preceding price corresponding to purchase date)
Total Purchase Price (price per Unit multiplied by number of
------------- Units subscribed)
( ) Less Initial Payment (10% of Principal Amount)
-------------
Principal Balance
-------------
FOR VALUE RECEIVED, the undersigned hereby promises to pay to the order of East
Kansas Agri-Energy, L.L.C., a Kansas limited liability company ("EKAE"), at its
principal office located at ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
or at such other place as required by EKAE, the Principal Balance set forth
above, either in installments or in one lump sum to be paid without interest
within 20 days following the call of the EKAE 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 Promissory
Note shall be immediately due and payable in full with interest at the rate of
12% per annum from the due date.
The undersigned agrees to pay to EKAE on demand, all costs and expenses incurred
to collect any indebtedness evidenced by this Promissory Note, including,
without limitation, reasonable attorneys' fees. This Promissory Note 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 Kansas.
The provisions of this Promissory Note shall inure to the benefit of EKAE and
its successors and assigns.
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.
Dated: , 200 .
OBLIGOR: JOINT OBLIGOR:
-------------------------------------- -----------------------------------
Printed or Typed Name of Joint Obligor Printed or Typed Name of Obligor
By: By:
--------------------------------- -------------------------------
(Signature) (Signature)
-------------------------------------
Officer Title if Obligor is an Entity
-------------------------------------
-------------------------------------
Address of Obligor
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MEMBER SIGNATURE PAGE
ADDENDA
TO THE
EAST KANSAS AGRI-ENERGY, L.L.C.
AMENDED AND RESTATED OPERATING AGREEMENT
The undersigned does hereby represent and warrant that the undersigned, as
a condition to becoming a Member in East Kansas Agri-Energy, L.L.C. (the
"Company"), has received a copy of the Amended and Restated Operating Agreement,
dated March 13, 2002, 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 Agreement
from and after the date of execution hereof.
INDIVIDUALS: ENTITIES:
------------------------------------------ ----------------------------------
Name of Individual Subscriber Name of Entity (Please Print)
(Please Print)
------------------------------------------ ----------------------------------
Signature of Individual Print Name and Title of Officer
------------------------------------------ ----------------------------------
Name of Joint Individual Subscriber Signature of Officer
(Please Print)
-----------------------------------------
Signature of Joint Individual Subscriber
Agreed and accepted on behalf of the Company and its Members:
EAST KANSAS AGRI-ENERGY, L.L.C.
By:
----------------------------------
Its:
---------------------------------