EXHIBIT 4.2
EAST KANSAS AGRI-ENERGY, L.L.C.
SUBSCRIPTION AGREEMENT
Membership Units
$1,000 PER ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ($10,000)
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 25% 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 4,805 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 Installment + 3. Ninety Percent (90%) 2nd Installment
-------------------- --------------------------------- ------------------------------------
($1,000 Per Unit multiplied by (10% of the Total Purchase Price) (90% of the Total Purchase Price)
the number in box B above.)
______________________________ = ____________________________________ + _______________________________________
D. GENERAL INSTRUCTIONS FOR SUBSCRIBERS:
You should read the Prospectus dated [Date of Effectiveness] (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 66.
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).
Then, If EKAE has already released funds from escrow, skip steps 3-6 and proceed
to step 7. Otherwise, take the following steps 3 through 6:
3. Immediately provide your personal (or business) check for the first
installment of ten percent (10%) of your investment amount made payable to
"GARNETT 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 and Security Agreement on page 8 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 your agreement to grant EKAE a security interest in your membership units.
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:
▇▇▇▇▇▇▇ 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
"GARNETT 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.
If you fail to pay the second installment pursuant to the Promissory Note, EKAE
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 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.
IF AND ONLY IF you are notified that EKAE has released funds from escrow due to
acquisition of sufficient equity proceeds, take the following steps 7 and 8:
7. Provide your personal (or business) check for one hundred percent
(100%) of your investment amount made payable to "EAST KANSAS AGRI-ENERGY, LLC."
You will determine this amount in box C.1 on page 1 of this
Subscription
Agreement.
8. Deliver each of the original executed documents referenced in Items 1
and 2 of these Instructions, together with your personal check described in Item
7 of these Instructions to:
East Kansas Agri-Energy, LLC
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Your funds will be placed in EKAE's general account and either Units will be
issued to you if EKAE accepts your subscription or the funds returned to you if
EKAE rejects your subscription. If EKAE rejects your subscription, your
Subscription Agreement and investment will be returned to you within 30 days of
such rejection. 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
(▇▇▇) ▇▇▇-▇▇▇▇.
Director Telephone Number Director Telephone Number
-------- ---------------- -------- ----------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇. Meats (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
E. ADDITIONAL SUBSCRIBER INFORMATION. The subscriber, named above, certifies
the following under penalties of perjury:
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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
/ / 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:
____________________ b. ___________________ c. ___________________
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a. _________________ ______________________ ______________________
5. SUITABILITY STANDARDS. To be able to invest in EKAE, you must (i) meet
at least one of the five suitability tests set forth under the heading
"Farming/Income/Net Worth Suitability" below, and you must (ii) also
have qualifying net worth as defined under the heading "Net Worth
Qualification" below. Please review the suitability tests below and
check the box(es) next to those suitability tests that you meet. For
husbands and wives purchasing jointly, the tests below will be applied
on a joint basis.
FARMING/INCOME/NET WORTH SUITABILITY
/ / I (We) am (are) a natural person(s) or a fiduciary for a
natural person(s) who regularly participate(s) in physical
labor, operations, or management in a farming operation and
file(s) a schedule F as part of my (our) annual form 1040 or
1041 filing with the Internal Revenue Service;
/ / I (We) am (are) a duly authorized officer of a family farm
corporation, member or manager of a family farm limited
liability company, general manager of a family farm limited
partnership, or trustee of a family trust actively engaged
in farming;
/ / I (We) am (are) a natural person(s) (or a general
partnership in which all partners are natural persons)
owning agricultural land and receiving as rent, a share of
the crops or the animals raised on the land;
/ / I (We) have annual income from whatever source of at least
$45,000; or
/ / I (We) have a net worth of at least $150,000, exclusive of
home, furnishings and automobiles.
You must also be able to attest to the first of the two
statements below regarding net worth qualification, by checking
the appropriate box below, to be eligible to invest in this
offering. No investor(s) may invest more than 10% of his or her
net worth (exclusive of home, furnishings and automobiles) in
EKAE.
NET WORTH QUALIFICATION
/ / My (Our) net worth exclusive of home, furnishings and
automobiles EXCEEDS 10 times the amount of my (our)
investment in EKAE.
/ / My (Our) net worth exclusive of home, furnishings and
automobiles DOES NOT EXCEED 10 times the amount of my (our)
investment in EKAE.
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 EKAE's Prospectus;
b. 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
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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 Kansas
and Missouri, and that EKAE 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 Kansas or Missouri
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 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;
g. 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;
h. understands that the Units are subject to substantial
restrictions on transfer under 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;
i. 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;
j. 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 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.
k. understands 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;
l. 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;
m. may not transfer or assign this subscription agreement, or any
of the subscriber's interest herein;
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n. has written his, her, or its correct taxpayer identification
number under Item 3 on this subscription agreement;
o. 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);
p. understands that execution of the attached Promissory Note and
Security Agreement will allow EKAE 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
q. Acknowledges that EKAE may retain possession of certificates
representing subscriber's Units to perfect its security
interest in those Units.
SIGNATURE OF SUBSCRIBER/ JOINT SUBSCRIBER:
DATE: _______________________________
INDIVIDUALS: ENTITIES:
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Name of Individual Subscriber (Please Print) Name of Entity (Please Print)
---------------------------------------------- --------------------------------
Signature of Individual Print Name and Title of Officer
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Name of Joint Individual Subscriber (Please Signature of Officer
Print)
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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 AND SECURITY AGREEMENT
Date of Subscription Agreement: ___________________________________, 200__.
$1,000 PER ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ($10,000)
____________________ Number of Units subscribed
____________________ Total Purchase Price ($1,000 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 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 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 EKAE.
The undersigned agrees to pay to EKAE 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 Kansas.
The provisions of this Promissory Note and Security Agreement shall inure to the
benefit of EKAE 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 EKAE, and its successors and assigns ("Secured
Party"), a purchase money security interest in all of the undersigned's
Membership Units of EKAE now owned or hereafter acquired. This security interest
is granted as 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:
----------------------------------------- ------------------------------------
Printed or Typed Name of Joint Obligor Printed or Typed Name of Obligor
By: By:
------------------------------------- --------------------------------
(Signature) (Signature)
-----------------------------------------
Officer Title if Obligor is an Entity
-----------------------------------------
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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:
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Name of Individual Subscriber (Please Print) Name of Entity (Please Print)
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Signature of Individual Print Name and Title of Officer
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Name of Joint Individual Subscriber (Please Signature of Officer
Print)
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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:
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