PRE-INCORPORATION AGREEMENT AND
SUBSCRIPTION
This constitutes Amendment No. 1 to that
certain Pre-Incorporation Agreement and Subscription (the
“Agreement”), dated as of August 16, 2006, by and
between Dean Sukowatey (“Sukowatey”), and Sun Bear,
LLC, a Texas limited liability company (“Sun
Bear”).
For good and adequate consideration, the
receipt and adequacy of which is hereby acknowledged, the parties
hereby agree, as follows:
A. Paragraph 2.1 of the Agreement is hereby
deleted in its entirety and replaced with the following:
“2.1 The
parties hereto agree to take all commercially reasonable steps
necessary, and consistent with the terms of this Agreement, to
cause the formation of All Energy, in conformity with the table set
forth below.
Initial Ownership of all shares of All
Energy:
- 187,500 shares owned by Sukowatey
- 125,000 shares owned by Sun Bear
- A total of 187,500 shares to be reserved for
issuance to advisors, seed capital, etc.
- 187,500 shares to be reserved for issuance
to Broghammer, should he become a part of All Energy
- 187,500 shares to be reserved for issuance
to Zabler, should he become a part of All Energy
- 187,500 shares to be reserved for issuance
to B. Swain, should he become a part of All Energy
- 187,500 shares to be reserved for issuance
to R. Swain, should he become a part of All Energy”
B. Paragraph 2.3.3 of the Agreement is hereby
deleted in its entirety and replaced with the following:
“2.3.3 Promptly upon the
incorporation of All Energy, Fifty Thousand Dollars ($50,000)
obtained from the initial seed capital investor will be deposited
into a bank account of All Energy. For consideration of the payment
of such $50,000 to All Energy, the initial seed capital investor
will receive 12,500 shares of the stock of All Energy.”
C. Article IV of the Agreement is hereby
deleted in its entirety and replaced with the following:
“IV. SUBSCRIPTION FOR ALL ENERGY
COMMON STOCK
The parties hereto hereby agree for the
initial shares of common stock to be issued by All Energy, as
follows:
In all other aspects, the Agreement is
ratified and affirmed.
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PRE-INCORPORATION AGREEMENT AND
SUBSCRIPTION
This Pre-Incorporation Agreement and
Subscription is made and entered into as of the 20th day of July,
2006, by and among Dean Sukowatey and Sun Bear, LLC (each is a
“Party” and, collectively, they are the
“Parties”).
WHEREAS, the parties desire to form a new
Delaware corporation for the purpose of providing a management team
attractive to Wall Street, with a view towards conducting an IPO or
through other forms of institutional financing in order to acquire
one or more businesses in the ethanol and alternative energy
industries; and
WHEREAS, the parties desire to determine and
establish the rights, duties, powers, disabilities, benefits and
liabilities between them and with respect to the new
corporation;
WITNESSETH, for and in consideration of the
mutual promises of the parties, each being consideration for the
promises of the other, for Ten Dollars cash in hand, and for other
good an valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by each Party, the Parties agree as
follows:
The terms listed below shall, for the purposes
of this Agreement, have the meanings ascribed to them, as
follows:
1.1 “Agreement” means this
Pre-Incorporation Agreement and Subscription.
1.2 “All Energy” means All Energy
Company, a corporation to be formed under the laws of the State of
Delaware.
1.3 “Broghammer” means James
R. Broghammer, an individual resident of the State of Iowa.
1.4 “B. Swain” means R.L.
Bibb Swain, an individual resident of the State of Virginia.
1.5 “R. Swain” means Rob
Swain, an individual resident of the State of Virginia.
1.6 “Sukowatey” means Dean
Sukowatey, an individual resident of the State of Minnesota.
1.7 “Sun Bear” means Sun
Bear LLC, a Texas limited liability company.
1.8 “Zabler” means Scott D.
Zabler, an individual resident of the State of South Dakota.
II. AGREEMENT TO FORM CORPORATION
2.1 The parties hereto agree to take all
commercially reasonable steps necessary, and consistent with the
terms of this Agreement, to cause the formation of All Energy, in
conformity with the table set forth below.
Initial Ownership of all shares of All
Energy:
- 1,500 shares owned by Sukowatey
- 1,000 shares owned by Sun Bear
- A total of 1,500 shares to be reserved for
issuance to advisors, seed capital, etc.
- 1,500 shares to be reserved for issuance to
Broghammer, should he become a part of All Energy
- 1,500 shares to be reserved for issuance to
Zabler, should he become a part of All Energy
- 1,500 shares to be reserved for issuance to
B. Swain, should he become a part of All Energy
- 1,500 shares to be reserved for issuance to
R. Swain, should he become a part of All Energy
2.2 The Parties understand and agree
that the foregoing table sets forth the initial ownership of All
Energy Company, only upon the terms and conditions set forth
herein.
2.3 The following is the timetable (the
“Timetable”) which the organization and funding of All
Energy will follow, and each numbered item in the timetable is an
“Event”:
2.3.1 Execution of this Agreement,
the date of which is conclusively evidenced by the date at the
beginning of this Agreement.
2.3.2 Within two business days
after incorporation of All Energy, execution of a written consent
in lieu of director’s organization meeting, which consent
will (i) adopt the Bylaws (defined below), (ii) adopt a budget (the
"Initial Budget") for All Energy through the time of the Funding
Event (defined below), (iii) elect officers of All Energy and (iv)
authorize the issuance of the stock of All Energy (the Parties
shall be the initial shareholders (the "Shareholders") of All
Energy).
2.3.3 Promptly upon the
incorporation of All Energy, Fifty Thousand Dollars ($50,000)
obtained from the initial seed capital investor will be deposited
into a bank account of All Energy. For consideration of the payment
of such $50,000 to All Energy, the initial seed capital investor
will receive 100 shares of the stock of All Energy.
2.3.4 The Funding Event (defined
below) shall occur within thirty calendar days after the date of
formation of All Energy.
2.3.5 The Super-Funding Event
(defined below) shall occur within one year after the date of
formation of All Energy.
2.4 The Parties agree that time is of
the essence for the events and the timing described in the
Timetable.
2.5 In the event any Event does not
occur as and when required by the Timetable:
2.5.1 this Agreement shall be
terminated;
2.5.2 if formed, All Energy shall
be wound up and its existence terminated; and
2.5.3 in the event that the
Funding Event has occurred, but the Super-Funding Event does not
timely occur, any money of All Energy remaining shall be paid first
to approved expenses of All Energy, then to the investor or
investors participating in the Funding Event, and any money re
