exv10w38



 





Exhibit 10.38




PLACEMENT AGENT AGREEMENT




October 3, 2007




SMITH HAYES FINANCIAL SERVICES CORPORATION

LINCOLN, NEBRASKA 68508




Ladies/Gentlemen:



1. General. Amaizing Energy Holding company, LLC, an Iowa limited liability company (the
“Company”), proposes to offer for cash (the “Offering”) a minimum of $40,000,000 up to a maximum of
$120,000,000 of its limited liability company membership units (the “Units”). This Agreement shall
become effective at the time the Company’s S-1 registration statement on file with the Securities
and Exchange Commission is declared effective by the Securities and Exchange Commission (the
“Effective Date”).



Capitalized terms used herein without definition shall have their respective meanings set forth in
or pursuant to the Registration Statement (as defined herein), notwithstanding that such terms as
used herein are not capitalized in the Registration Statement.



2. Appointment as Agent. By this Placement Agent Agreement (the “Agreement”), the Company
hereby engages and appoints you as a non-exclusive retail Placement Agent (the “Placement Agent”)
for the Offering and authorizes you act as such in connection with the Offering.



(a) Subject to the terms and conditions stated herein, the Company hereby agrees that the Units to
be issued in the Offering will be sold by the Company through certain of its officers and
directors, through you to non institutional retail investors under the terms and conditions of this
Agreement and through William Blair & Company to institutional investors, pursuant to the Placement
Agency Agreement to be executed by and between the Company and William Blair & Company all as
described in the Prospectus and Registration Statement.



(b) The Company shall not sell or approve the solicitation of offers for the purchase of Units in
excess of the amount which shall be authorized by the Company or in excess of the aggregate
offering price of the Units registered pursuant to the Registration Statement.



3. Registration Statement, Prospectus and Offering Materials. The Company has prepared and
filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of
1933, as amended (the “Securities Act”), and applicable rules and regulations (the “Rules and
Regulations”) of the Commission under the Securities Act and the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), a registration statement on Form S-1 (File No. 333-142792),
including a prospectus, subject to completion, covering the registration of the offer and sale of
the Units in the Offering, (such Units may also be referred to herein as the “Securities”). The
term “Registration Statement” as used in this Agreement shall mean such registration statement,
including the financial statements, exhibits and schedules thereto, in the form in which such
registration statement originally becomes effective, including the information deemed to be a part
thereof at the date and time of such effectiveness pursuant to Rule 430A under the Securities Act,
and, in the event of any post-effective amendment thereto or the filing of any abbreviated
registration statement pursuant to Rule 462(b) of the Rules and Regulations relating thereto after
the original effective date of such registration statement, shall also mean (from and after the
effectiveness of such post-effective amendment or the filing of such abbreviated registration
statement) such registration statement as so amended, together with any such abbreviated
registration statement. The term “Prospectus” as used in this Agreement shall mean the final
prospectus included in the Registration Statement. Notwithstanding the foregoing, if any revised or
supplemented Prospectus shall be provided to you by the Company for use in connection with the
Offering that differs from the Prospectus referred to in the immediately preceding sentence
(whether or not such revised or supplemented Prospectus is required to be filed with the Commission
pursuant to the Rules and Regulations), the term “Prospectus” shall refer to each such revised or
supplemented Prospectus from and after the time it is first provided to you for such use. The term
“Preliminary Prospectus” means each prospectus, subject to completion, included in the Registration
Statement at or prior to effectiveness of the Registration Statement
used in connection with the Offering.



 









 







All references in this Agreement to the Registration Statement, a Preliminary Prospectus, the
Prospectus or any amendments or supplements to any of the foregoing, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System
(“EDGAR”) and shall also be deemed to refer to and include the documents incorporated or deemed to
be incorporated by reference therein pursuant to the Securities Act and the Rules and Regulations,
in each case not modified or superseded pursuant to Rule 412 under the Securities Act. All
references in this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include (a) the filing of any document under the Exchange
Act which is or is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be, and (b) in each case, the filing of any prospectus supplement
pursuant to Rule 424(b) under the Securities Act.



4. Use of the Prospectus and Registration Statement. The Company authorizes the Placement
Agent to use the Prospectus and Registration Statement in connection with the Offering for such
period of time as any such materials are required by law to be delivered in connection therewith.



5. Withdrawal. In the event that the Company: (i) uses or permits the use of, or files
with the Commission or any other governmental or regulatory entity or agency (an “Other Agency”),
including the Financial Industry Regulatory Authority. (the “FINRA”), or any amendment or
supplement to the Registration Statement or the Prospectus, and such document (a) has not been
submitted to you previously for your and your counsel’s comments or (b) has been so submitted, and
you or your counsel have made comments which have not been reflected in a manner reasonably
satisfactory to you or your counsel; (ii) breaches, in any material respect, any of its
representations, warranties, agreements or covenants herein; or (iii) amends or revises the
Offering in a manner not reasonably acceptable to you, then you shall be entitled to withdraw as
Placement Agent in connection with the Offering without any liability or penalty to you and without
loss of any right to indemnification or contribution provided in Section 11 or to the payment of
all fees and expenses payable under Sections 6 and 7 below which have accrued to the date of such
withdrawal.



6. Selling Commission. The selling commission for the Offering paid to You will be paid in
cash on the date when the Offering is consummated (the “Closing Date”). The selling commission will
be based on the certain gross proceeds raised in the Offering as follows: 2.0% of the gross
proceeds identified as a direct result of the sales efforts of Smith Hayes and finally accepted by
the Company. Notwithstanding the foregoing, Smith Hayes shall not receive a selling commission
based upon gross proceeds for which William Blair & Company receives a selling commission or from
any of the potential investors listed on Schedule A of this Agreement (the “Schedule A Investors”).
Accordingly, gross proceeds for the purpose of computing selling commissions to Smith Hayes will
exclude institutional equity raised by William Blair & Company pursuant to its agreement to render
certain investment banking services on behalf of the Company for the purpose of raising equity from
institutional investors contemplated in the Placement Agency Agreement to be executed by the
Company and William Blair & Company.



7. Expenses. The Company agrees that it will pay all costs and expenses incident to the
performance of the obligations hereunder whether or not any Units are offered or sold pursuant to
the Offering, including, without limitation (i) all costs and expenses incurred by dealers and
brokers (including yourself), commercial banks, trust companies and nominees for their customary
mailing and handling expenses incurred in forwarding the Prospectus to their customers, (ii) the
filing fees and expenses, if any, incurred with respect to any filing with the FINRA, (iii) all
costs and expenses incident to the preparation, issuance, execution and delivery of the Units, (iv)
all filing fees and costs and expenses incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and the Prospectus (including, without limitation, in
each case all exhibits, amendments and supplements thereto), and (v) all costs and expenses
incurred in connection with the printing (including word processing and duplication costs) and
delivery of the Prospectus and Registration Statement (including, without limitation, any
preliminary and supplemental blue sky memoranda) including, without limitation, mailing and
shipping, (vi) all advertising expenses related to the Offering, (vii) all fees and expenses
incurred in marketing the Offering, including but not limited to road show presentations, if any,
and (viii) the fees and disbursements of the Company’s legal counsel, its auditors, bank and escrow
agent. In addition, the Company agrees to reimburse the reasonable out-of-pocket expenses of the
Placement Agent in connection with the Offering, including, without limitation, the legal fees and
expenses of your legal counsel Cline Williams Wright Johnson & Oldfather, LLP and or any other
advisors you


 









 






may reasonably engage to advise you in connection with the Offering, whether or not the Offering is
consummated, except that such legal fees and expenses shall not exceed $35,000 in the aggregate.



8. Representations, Warranties and Agreements of the Company. The Company represents and
warrants to you, and agrees with you, that:



(a) The Registration Statement, including each Preliminary Prospectus and the Prospectus, has been
prepared by the Company in conformity with the requirements of the Securities Act and the Rules and
Regulations thereunder and has been filed with the Commission; such amendments to such Registration
Statement, and each Preliminary Prospectus and Prospectus and such abbreviated registration
statements pursuant to Rule 462(b) of the Rules and Regulations as may have been required prior to
the date hereof have been similarly prepared and filed with the Commission; and the Company will
file such additional amendments to such Registration Statement, Preliminary Prospectuses and
Prospectus and such abbreviated registration statements as may hereafter be required. Copies of
such Registration Statement, Preliminary Prospectuses and Prospectus, including all amendments
thereto, and of any abbreviated registration statement pursuant to Rule 462(b) of the Rules and
Regulations have been or, if filed after the Commencement Date, will be, delivered to you and your
counsel;



(b) The Registration Statement, including a Preliminary Prospectus, has been filed with the
Commission and will become effective within a reasonable period of time following execution of this
Agreement; and the Commission has not issued or to the Company’s knowledge threatened to issue any
order refusing or suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or Prospectus or instituted or to the Company’s
knowledge threatened to institute proceedings for that purpose. The Registration Statement, each
Preliminary Prospectus and the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act, the Exchange Act and the applicable
Rules and Regulations of the Commission thereunder;



(c) At the respective times the Registration Statement (or any post effective amendment thereto,
including a registration statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the Act) is or was declared
effective by the Commission, and at the Closing Date, (i) the Registration Statement (as so amended
and/or supplemented) conformed or will conform in all material respects to the requirements of the
Act and the Rules and Regulations, and (ii) the Registration Statement (as so amended and/or
supplemented) did not or will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; except that the foregoing shall not apply to statements in or omissions from any such
document in reliance upon, and in conformity with, written information furnished to the Company by
you, specifically for use in the preparation thereof;



(d) None of any Preliminary Prospectus or the Prospectus, or any amendments or supplements thereto,
at the time they were or are issued, contained or will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were or are made, not misleading;
except that the foregoing shall not apply to statements in or omissions from any such document in
reliance upon, and in conformity with, written information furnished to the Company by you,
specifically for use in the preparation thereof. Each Preliminary Prospectus, the Prospectus and
any amendment or supplement thereto conformed or will conform in all material respects to the
requirements of the Securities Act, the Exchange Act and the Rules and Regulations, and each
Preliminary Prospectus and the Prospectus delivered to you for use in connection with the Offering
was or will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T;



(e) As of the Applicable Time, neither (A) the Issuer-Represented General Free Writing
Prospectus(es), if any issued at or prior to the Applicable Time, the Statutory Prospectus, nor (B)
any individual Issuer-Represented Limited-Use Free Writing Prospectus included any untrue statement
of a material fact or omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from any Prospectus included in the
Registration Statement or any Issuer-Represented Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by you specifically for use therein.

As used in this paragraph and elsewhere in this Agreement:




 









 







“Applicable Time” means the date that the offering is commenced after the Registration Statement is
declared effective by the SEC.



“Statutory Prospectus” as of any time means the prospectus that is included in the Registration
Statement immediately prior to that time.



“Issuer-Represented Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 under the Securities Act, relating to the Securities that (A) is required to be filed
with the Commission by the

Company, or (B) is exempt from filing pursuant to Rule 433(d)(5)(i) under the Securities Act
because it contains a description of the Securities or of the offering that does not reflect the
final terms, in each case in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under
the Securities Act.



“Issuer-Represented General Free Writing Prospectus” means any Issuer-Represented Free Writing
Prospectus that is intended for general distribution to prospective investors.



“Issuer-Represented Limited-Use Free Writing Prospectus” means any Issuer-Represented Free Writing
Prospectus that is not an Issuer-Represented General Free Writing Prospectus;



(f) (i) Each Issuer-Represented Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Placement Agent as described in the next sentence,
did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement. If at any time following issuance of
an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer-Represented Free Writing Prospectus included or would include an untrue
statement of a material fact or omitted or would omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances, not misleading, the Company has
notified or will notify promptly the Placement Agent so that any use of such Issuer-Represented
Free-Writing Prospectus may cease until it is amended or supplemented. The foregoing two sentences
do not apply to statements in or omissions from any Issuer-Represented Free Writing Prospectus
based upon and in conformity with written information furnished to the Company by you specifically
for use therein; (ii) (1) At the time of filing the Registration Statement, (2) at the earliest
time thereafter that the Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Securities Act) of the Securities and (3) at the date hereof,
the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities
Act nor an “excluded issuer” as defined in Rule 164 under the Securities Act; and (iii) Each
Issuer-Represented Free Writing Prospectus satisfied all other conditions to use thereof as set
forth in Rules 164 and 433 under the Securities Act;



(g) Except as contemplated in the Registration Statement, and the Prospectus neither the Company
nor any of its Subsidiaries (as defined below) has incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions, or declared or paid
any dividends or made any distribution of any kind with respect to its share capital; and there has
not been any change in the share capital (other than a change in the number of issued and
outstanding Units due to the issuance of Units upon the exercise of options or warrants disclosed
as outstanding in the and the grant of options under existing option plans), or any material change
in the short term or long term debt, or any issuance of options, warrants, convertible securities
or other rights to purchase the share capital, of the Company or any of its subsidiaries, or any
material adverse change in the financial condition, business, prospects, property, operations or
results of operations of the Company and its subsidiaries, taken as a whole (“Material Adverse
Change”) or any development involving a prospective Material Adverse Change;



(h) All of the issued and outstanding shares of Units of the Company have been duly authorized and
validly issued and are fully paid and non-assessable, and have been issued in compliance with all
U.S. federal and state securities laws, and no such issuance constituted a violation by the Company
of any preemptive right, resale right, right of first refusal or similar right imposed by any
applicable law, rule or regulation, the articles of organization, by-laws or other organizational
documents of the Company or any of the Subsidiaries or any agreement, commitment or instrument to
which the Company or any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is or may be bound;




 









 







(i) The Company has been duly organized and is validly existing as a limited liability company
under the laws of the jurisdiction of its organization, with full power and authority to own, lease
and operate its properties and conduct its business as described in the Registration Statement, and
Prospectus; the Company is duly qualified to do business as a foreign entity and is in good
standing in each jurisdiction in which the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to be so qualified or be in good
standing would not, individually or in the aggregate, have a material adverse effect upon the
business, prospects, properties, operations, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole (“Material Adverse Effect”);



(j) The Company has no subsidiaries (as defined in the Securities Act) other than those described
in the Registration Statement and Prospectus (collectively, the “Subsidiaries”); the Company owns
all of the issued and outstanding share capital or other equity interests of each of the
Subsidiaries; other than the share capital or other equity interests of the Subsidiaries and except
as disclosed in the Registration Statement, and Prospectus, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt securities of any corporation
or have any equity interest in any firm, partnership, joint venture, association or other entity
(other than equity interests held by the Company with an aggregate book value of less than
US$500,000); complete and correct copies of the articles of organization or by-laws or other
organizational documents of the Company and the Subsidiaries and all amendments thereto have been
made available to you, no changes therein will be made subsequent to the date hereof and prior to
the Closing Date; each Subsidiary has been duly organized and is validly existing as an entity in
good standing under the laws of the jurisdiction of its organization, with full power and authority
to own, lease and operate its properties and to conduct its business as described in the
Registration Statement, and Prospectus; each Subsidiary is duly qualified to do business as a
foreign entity and is in good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except where the failure to
be so qualified and in good standing would not individually or in the aggregate, have a Material
Adverse Effect; all of the outstanding shares or other equity interests of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and non-assessable and are owned by
the Company subject to no security interest, other encumbrance or adverse claims, except as would
not, individually or in the aggregate, have a Material Adverse Effect, and no options, warrants or
other rights to purchase, agreements or other obligations to issue or other rights to convert any
obligation into shares or other equity interests in the Subsidiaries are outstanding;



(k) The Company has full legal right, power and authority to enter into and perform its obligations
under this Agreement, its organization documents and the Units;



(l) The Units to be issued pursuant to the Offering have been duly and validly authorized, and when
issued and delivered in accordance with the terms of the Offering, will be valid and binding
obligations of the Company enforceable in accordance with their terms, except as the enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting enforcement of creditors’ rights generally and (ii)
general principles of equity (regardless of whether enforceability is considered in a proceeding at
law or in equity). The Units will conform in all material respects to the description thereof
contained in the Registration Statement, and Prospectus;



(m) The authorized and outstanding capital of the Company is as set forth in the Prospectus (except
for subsequent issuances, if any, pursuant to employee benefit plans described in the Prospectus)
and conforms in all material respects to the description thereof contained in the Registration
Statement, and Prospectus, the certificates for the Units, if certificated, are in due and proper
form, and the holders of the Units will not be subject to personal liability for assessments for
the indebtedness or obligations of the Company or otherwise solely by reason of being such holders.
There are no authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable
or exercisable for, any capital stock of the Company or any of its Subsidiaries other than those
described in the Registration Statement, and Prospectus;



(n) This Agreement has been duly authorized, executed and delivered by the Company and is a legal,
valid and binding instrument of the Company, enforceable against it in accordance with its terms,
except as rights to indemnification hereunder may be limited by applicable law and subject to
applicable bankruptcy, insolvency,


 









 






fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally, and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity);



(o) Neither the Company nor any of the Subsidiaries is in breach or violation of or in default
under (nor has any event occurred which with notice, lapse of time or both would result in any
breach or violation of, constitute a default under or give the holder of any indebtedness (or a
person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment
of all or a part of such indebtedness under) (A) its respective articles of organization or by-laws
or other organizational documents, or (B) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is a party or by which any
of them or any of their properties may be bound or affected except, in the case of clause (B), to
the extent that any such breach, violation or default would not, individually or, in the aggregate,
have a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the
issuance and sale of the Units and the Shares upon conversion of the Units and the consummation of
the transactions contemplated hereby will not conflict with, result in any breach or violation of
or constitute a default under (nor constitute any event which with notice, lapse of time or both
would result in any breach or violation of or constitute a default under) (X) the articles of
organization or by-laws or other organizational documents of the Company or any of the
Subsidiaries, or (Y) any indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, or (Z) any U.S. federal, state, provincial,
territorial, local or foreign law, regulation or rule or any decree, judgment or order applicable
to the Company or any of the Subsidiaries except, in the case of clause (Y) and (Z), to the extent
that any such conflict, breach, violation or default would not, individually or in the aggregate,
have a Material Adverse Effect;



(p) No approval, authorization, consent or order of or filing with any U.S. federal, state,
provincial, territorial, local or foreign governmental or regulatory commission, board, body,
authority or agency or any sub-division thereof is required in connection with the issuance and
sale of the Units or the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, other than (i) as may be required under state securities or blue sky
laws in connection with the Offering, (ii) under the rules and regulations of the FINRA or (iii)
which has otherwise been, or will be, granted or obtained prior to the Closing Date;



(q) Each of the Company and the Subsidiaries has all licenses, authorizations, consents and
approvals and has made all filings required under any U.S. federal, state, provincial, territorial,
local or foreign law, regulation or rule, and has obtained all authorizations, consents and
approvals, from other persons, in order to conduct its respective business, except where the
failure to have such licenses, authorizations, consents and approvals, to make such filings or to
obtain such authorizations, consents and approvals would not, individually or in the aggregate,
have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is in violation of,
or in default under, or has received notice of any proceedings relating to revocation or
modification of any such license, authorization, consent or approval or any U.S. federal, state,
provincial, territorial, local or foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries, except where such violation, default,
revocation or modification would not, individually or in the aggregate, have a Material Adverse
Effect;



(r) All legal or governmental proceedings, statutes, rules, regulations, affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character
required to be described in the Registration Statement, and Prospectus or required to be filed as
an exhibit thereto, have been so described or filed as required;



(s) Except as disclosed in the Registration Statement, and Prospectus, there are no actions, suits,
claims, investigations of which the Company has knowledge, or proceedings pending or, to the
Company’s knowledge, threatened or contemplated to which the Company or any of the Subsidiaries or
any of their respective directors or officers is or would be a party or of which any of their
respective properties is or would be subject at law or in equity, before or by any U.S. federal,
state, provincial, territorial, local or foreign governmental or regulatory commission, board,
body, authority or agency or any subdivision thereof, except any such action, suit, claim,


 









 






investigation or proceeding which would not result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect;



(t) The financial statements contained in the Registration Statement, or Prospectus, together with
the related notes and schedules (if any), present fairly in all material respects the consolidated
financial position of the Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and the Subsidiaries for the
periods specified (in the case of the unaudited interim financial statements, subject to normal
year-end adjustments) and have been prepared in compliance with the requirements of the Securities
Act and, in the case of the audited financial statements included in such documents, in conformity
with U.S. generally accepted accounting principles applied on a consistent basis during the periods
involved; all disclosures regarding Non-GAAP Financial Measures (as such term is defined by the
rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10
of Regulation S-K; the other financial and statistical data set forth in the Registration
Statement, and Prospectus are accurately presented in all material respects and prepared on a basis
consistent with the financial statements and books and records of the Company; there are no
financial statements (historical or pro forma) that are required to be included in any documents
incorporated by reference in the Registration Statement, or Prospectus that are not included as
required; and the Company and the Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not disclosed in the
Registration Statement, and Prospectus or in the documents incorporated by reference therein;



(u) The Company is not and, after giving effect to the offering and sale of the Units, will not be
an “investment company” or an entity “controlled” by an “investment company,” as such terms are
defined in the U.S. Investment Company Act of 1940, as amended (the “Investment Company Act”);



(v) Except as disclosed in the Registration Statement, and the Prospectus, the Company and each of
the Subsidiaries has good and marketable title to all property (real and personal) described in the
Registration Statement, and Prospectus as being owned by each of them, free and clear of all liens,
claims, security interests or other encumbrances, subject only to such exceptions as are not
material and do not interfere with the use made and proposed to be made of such property by the
Company; all the property described in the Registration Statement, and Prospectus as being held
under lease by the Company or a Subsidiary is held thereby under valid, subsisting and enforceable
leases, subject only to such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company;



(w) To the Company’s knowledge, except as would not individually or in the aggregate, have a
Material Adverse Effect and other than as disclosed in the Registration Statement, and Prospectus,
(i) the Company, by ownership, license or covenant not to sue, has the right to use all patents,
patent applications, trademarks, trademark applications, service marks, trade names and copyrights
(together, the “Intellectual Property Rights”) which are necessary for use in connection with its
business as presently conducted and as proposed to be conducted; (ii) there is no existing
infringement by another party of any of the Intellectual Property Rights which are necessary for
use in connection with the Company’s business as presently conducted; (iii) there is no pending or
threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to,
or the validity or enforceability of, the Intellectual Property Rights of the Company, and the
Company is unaware of any facts which would form a reasonable basis for any such claim; (iv) there
is no pending or threatened action, suit, proceeding or claim by others that the business of the
Company as described in the Registration Statement, and Prospectus infringes or otherwise violates,
or that the commercialization of any of the products under development by the Company would
infringe or otherwise violate, any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any facts which would form a reasonable basis for
any such claim; and (v) all of the Intellectual Property Rights under the control of the Company
were filed and are being or were prosecuted in accordance with the applicable rules and regulations
relating thereto;



(x) Neither the Company nor any of the Subsidiaries is engaged in any unfair labor practice; except
for matters which would not, individually or in the aggregate, have a Material Adverse Effect, (i)
there is (A) no unfair labor practice complaint pending or, to the Company’s knowledge after due
inquiry, threatened against the Company or any of the Subsidiaries before the National Labor
Relations Board, and no grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or threatened (B) no strike, labor dispute, slowdown or stoppage
pending or, to the Company’s knowledge after due inquiry, threatened against the Company


 









 






or any of the Subsidiaries and (C) no union representation dispute currently existing concerning
the employees of the Company or any of the Subsidiaries, and (ii) to the Company’s knowledge after
due inquiry, (A) no union organizing activities are currently taking place concerning the employees
of the Company or any of the Subsidiaries and (B) there has been no violation of any U.S. federal,
state, provincial, territorial, local or foreign law relating to discrimination in the hiring,
promotion or pay of employees, any applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 (“ERISA”) or the rules and regulations promulgated
thereunder concerning the employees of the Company or any of the Subsidiaries;



(y) The Company and the Subsidiaries and their properties, assets and operations are in compliance
with, and hold all permits, authorizations and approvals required under Environmental Laws (as
defined below), except to the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the aggregate, have a Material Adverse
Effect; there are no past or present events, conditions, activities or practices that would
reasonably be expected to give rise to any costs or liabilities to the Company or the Subsidiaries
under, or to prevent compliance by the Company or the Subsidiaries with, applicable Environmental
Laws, except as would not, individually or in the aggregate, have a Material Adverse Effect; to the
Company’s knowledge, there are no reasonably anticipated future plans of the Company or the
Subsidiaries that would reasonably be expected to give rise to any capital expenditures under
applicable Environmental Laws, except as would not, individually or in the aggregate, have a
Material Adverse Effect; neither the Company nor any of the Subsidiaries (i) to the Company’s
knowledge, is the subject of any investigation, (ii) has received any written notice or claim,
(iii) is a party to or, to the Company’s knowledge, affected by any pending or threatened action,
suit or proceeding, (iv) is bound by any judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any Environmental Law or any actual or
alleged release or threatened release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “Environmental Law” means any law, statute, ordinance, rule,
regulation, order, decree, judgment or injunction, or common law, relating to pollution or the
protection, cleanup or restoration of the environment or natural resources, or public health (to
the extent relating to the environment or exposure to Hazardous Materials) including those relating
to the distribution, processing, generation, treatment storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and “Hazardous Materials” means
any material (including, without limitation, pollutants, contaminants, hazardous or toxic
substances or wastes) that is regulated by or can give rise to liability under any Environmental
Law);



(z) All tax returns required to be filed by the Company and each of the Subsidiaries have been
filed, and all taxes and other assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties applicable thereto due or
claimed to be due from such entities have been paid, other than those being contested in good faith
and for which adequate reserves have been provided as required by U.S. generally accepted
accounting principles;



(aa) The Company and each of the Subsidiaries maintains insurance covering its properties,
operations, personnel and businesses as the Company deems adequate; such insurance insures against
such losses and risks to an extent which is adequate in accordance with customary industry practice
to protect the Company and the Subsidiaries and their businesses; all such insurance is fully in
force on the date hereof and will be fully in force at the Closing Date. The Company has no reason
to believe that it or any Subsidiary will not be able (i) to renew its existing insurance coverage
as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as
may be necessary or appropriate to conduct its business as now conducted at a cost that would not
result in a Material Adverse Change. Neither the Company nor any Subsidiary has been denied any
insurance coverage which it has sought or for which it has applied;



(bb) Neither the Company nor any of the Subsidiaries has sustained since the date of the last
audited financial statements included in the Registration Statement, and Prospectus any loss or
interference with its respective business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental action, order or
decree, except as would not, individually or in the aggregate, have a Material Adverse Effect;



(cc) Except as disclosed in the Registration Statement, and Prospectus, the Company has not sent or
received any communication regarding termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to, the Registration Statement,
and Prospectus, and no such termination or non-


 









 






renewal has been threatened by the Company or, to the Company’s knowledge, any other party to any
such contract or agreement;



(dd) The Company and each of the Subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;



(ee) The Company has established and maintains disclosure controls and procedures (as such term is
defined in Rule 13a-14 and 15d-14 under the Exchange Act); such disclosure controls and procedures
are designed to ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief
Financial Officer by others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the Company’s auditors’ and the
Audit Committee of the Board of Directors have been advised of: (i) any significant deficiencies in
the design or operation of internal controls which could adversely affect the Company’s ability to
record, process, summarize, and report financial data; and (ii) any fraud, whether or not material,
that involves management or other employees who have a role in the Company’s internal controls; any
material weaknesses in internal controls have been identified for the Company’s auditors; and since
the date of the most recent evaluation of such disclosure controls and procedures, there, have been
no significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies and
material weaknesses; the principal executive officers (or their equivalents) and principal
financial officers (or their equivalents) of the Company have made all certifications required by
the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and any related rules and regulations
promulgated by the Commission, and the statements contained in any such certification are complete
and correct; the Company is otherwise in compliance in all material respects with all applicable
effective provisions of the Sarbanes-Oxley Act;



(ff) [reserved];



(gg) Any statistical and market related data included in the Registration Statement, and Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from such sources to the extent
required;



(hh) Neither the Company nor any of the Subsidiaries nor, to the Company’s knowledge after due
inquiry, any employee or agent of the Company or the Subsidiaries has made any payment of funds of
the Company or the Subsidiaries or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character required to be disclosed
in any document incorporated by reference in the Registration Statement, or Prospectus;



(ii) Neither the Company nor any of the Subsidiaries nor any of their respective directors,
officers, affiliates or controlling persons has taken, and will not take, directly or indirectly,
any action resulting in a violation of Rule 102 of Regulation M promulgated under the Exchange Act
or designed, or which has constituted or might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Units;



(jj) Except as disclosed in the Registration Statement, or Prospectus, no Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or
assets to the Company or any other Subsidiary of the Company;



(kk)[reserved]



(11) The Company has not distributed and will not distribute prior to the later of (i) the Closing
Date, any prospectus


 









 






or other offering material other than any Preliminary Prospectus, the Prospectus, or other
materials permitted by the Securities Act to be distributed by the Company;



(mm) There are no documentary stamp or other issuance or transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political subdivision thereof, required
to be paid in connection with the execution and delivery of this Agreement, or the issuance and
sale by the Company of the Units. The Company has not paid or agreed to pay any person any
compensation for soliciting another to purchase any Units except William Blair & Company;



(nn) Except as disclosed in the Prospectus, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the Securities Act; and



(oo) The conditions for use of Form S-1, set forth in the General Instructions thereto, have been
satisfied.



9. Further Agreements of the Company. The Company agrees with you that:



(a) The Company will use its reasonable best efforts to cause any Registration Statement as may be
required to be filed under Rule 462(b) of the Rules and Regulations subsequent to the date the
Registration Statement is declared effective to be filed as promptly as possible; the Company will
notify you, promptly after it shall receive notice thereof, of the time when the Registration
Statement, any subsequent amendment to the Registration Statement or any abbreviated registration
statement has become effective or any Preliminary Prospectus or any supplement to the Prospectus
has been filed; if for any reason the filing of the final form of Prospectus is required under Rule
424(b) of the Rules and Regulations, the Company will provide evidence satisfactory to you that the
Prospectus contains such information and has been filed with the Commission within the time period
prescribed; the Company will notify you promptly of any request by the Commission for the amending
or supplementing of the Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information relating to the Offering; promptly upon your request, the Company will
prepare and file with the Commission any amendments or supplements to the Registration Statement,
any Preliminary Prospectus or Prospectus which, in the opinion of your counsel, is necessary in
connection with the Offering; the Company will promptly prepare and file with the Commission, and
promptly notify you of the filing of, any amendments or supplements to the Registration Statement,
any Preliminary Prospectus or the Prospectus which may be necessary to correct any statements or
omissions, if, at any time when any Preliminary Prospectus or a Prospectus relating to the Offering
is required to be delivered under the Securities Act and the Exchange Act, any event shall have
occurred as a result of which the Prospectus or any other prospectus relating to the Offering as
then in effect would include any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading; and the Company will file no amendment or supplement to the Registration
Statement, any Preliminary Prospectus or the Prospectus which shall not previously have been
submitted to you a reasonable time prior to the proposed filing thereof and will give reasonable
consideration to your or your counsel’s comments, if any, thereon, subject, however, to compliance
with the Securities Act and the Rules and Regulations, the Exchange Act and the Rules and
Regulations of the Commission thereunder and the provisions of this Agreement.



(b) The Company will advise you, promptly after it shall receive notice or obtain knowledge, of the
issuance of any order by the Commission refusing or suspending the effectiveness of the
Registration Statement or of the initiation or threat of any proceeding for that purpose; and it
will promptly use its reasonable best efforts to prevent the issuance of any refusal or stop order
or to obtain its withdrawal at the earliest possible moment if such refusal or stop order should be
issued.



(c) The Company will use its reasonable best efforts to qualify the Units issuable pursuant to the
Offering under the securities laws of such jurisdictions as it may designate and to continue such
qualifications in effect for so long as may be required for purposes of the Offering, except that
the Company shall not be required in connection therewith or as a condition thereof to qualify as a
foreign corporation or to execute a general consent to service of process in any jurisdiction in
which it is not otherwise required to be so qualified or to so execute a general consent to service
of process. In each jurisdiction in which the Units shall have been qualified as above provided,
the Company will make and file such statements and reports in each year as are or may be required
by the laws of such jurisdiction.




 









 







(d) [reserved]



(e) Without limiting Sections 5, 7 and 13 of this Agreement, if the transactions contemplated
hereby are not consummated by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed hereunder or to fulfill any condition
of your obligations hereunder, the Company will reimburse you for all reasonable out-of-pocket
expenses incurred by you in connection with the Offering (including the reasonable fees and
disbursements of your counsel) incurred by you in connection with the Offering.



(f) During a period of 90 days after the date of the Prospectus, the Company will not, without the
prior written consent of the Placement Agent, (i) directly or indirectly, issue, sell, contract to
sell or otherwise dispose of any Units, any options or warrants to purchase any Shares or any
securities convertible into, exercisable for or exchangeable for Shares or (ii) enter into any
transaction (including a derivative transaction) having an economic effect similar to that of an
issuance of any Company securities which are substantially similar to the Units, or which are
convertible into or exchangeable for, or represent the right to receive, Units or securities that
are substantially similar to the Units. The foregoing sentence shall not apply to (A) the Units
sold pursuant to this Agreement, (B) Units sold by either the Company, its officers, directors, or
William Blair & Company, (C) the issuance of Units upon the exercise of options or warrants
outstanding as of the date hereof, (D) the grant of options to purchase Units granted pursuant to
existing equity plans or employee stock purchase plans of the Company as described in the
Prospectus, and (E) the issuance of Shares or any securities convertible into, exercisable for or
exchangeable for Units in connection with (or the financing of) any acquisition, licensing,
collaboration, product acquisition or similar strategic arrangement, provided that the party
receiving such shares executes and delivers to you an agreement stating that it is receiving and
holding the Shares subject to the provisions of a lock-up agreement, and there shall be no further
transfer of Shares except in accordance with such lock-up agreement.



(g) An escrow will be established with a bank acceptable to you to receive and hold all amounts
received from subscriptions for Units in the Offering and the escrow agreement will name you as a
party, shall provide for the investment of the subscription amounts during the Offering until
Closing, shall provide for the release of funds at Closing subject to your consent and approval and
shall provide for such other matters as may be appropriate in the circumstances according to the
rules and interpretations promulgated by the FINRA applicable to you as placement agent.



10. Conditions of Placement Agent’s Obligations. Your obligations as provided herein shall
be subject at all times on and prior to the Closing Date to the accuracy of the representations and
warranties of the Company herein, to the accuracy of the statements of officers of the Company made
pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder
and to the following additional conditions:



(a) The Registration Statement shall have been filed and no stop order refusing the effectiveness
thereof shall have been issued and the Registration Statement shall become effective as promptly as
possible but in no event later than the Closing Date and no stop order suspending the effectiveness
thereof shall have been issued and, to the knowledge of the Company or you, no proceedings for
either purpose shall have been initiated or threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or otherwise) shall have been complied with to the
reasonable satisfaction of your counsel.



(b) After execution and delivery of this Agreement and prior to the Closing Date there shall not
have occurred from the respective dates as of which information is given in the Prospectus
(exclusive of any supplement thereto) (i) any material adverse change in the financial condition,
business, prospects, property, operations or results of operations of the Company whether or not
arising in the ordinary course of business, or (ii) any material adverse change in the financial
markets in the United States or in the international financial markets, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic conditions, which,
in each case the effect of which is such as to make it, in the judgment of the Placement Agent,
impracticable or inadvisable to market the Units or to enforce contracts for the exchange and/or
sale of the Units, or (iii) the declaration of a banking moratorium by either Federal or New York
authorities.




 









 







(c) All corporate proceedings and other legal matters in connection with this Agreement, the
Registration Statement, any Preliminary Prospectus the Prospectus, and the registration,
authorization, issue, and delivery of the Units issuable in accordance with the Offering, shall
have been executed in a manner reasonably satisfactory to your counsel, and such counsel shall have
been furnished with such papers and information as they may reasonably have requested to enable
them to pass upon the matters referred to in this Section.



(d) You shall have received on the Closing Date an opinion of Brown, Winick, Graves, Gross,
Baskerville & Schoenebaum, P.L.C. in form and substance satisfactory to you, with respect to such
matters as you may reasonably request, and the Company shall have furnished to such counsel such
documents as they may have requested for the purpose of enabling them to pass upon such matters.



(e) You shall have received from the Company’s accountants, a letter dated as of such date, in form
and substance satisfactory to you containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements
and certain financial information contained in the Prospectus.



(f) You shall have received by or on the Closing Date, a bring-down comfort letter, dated as of the
Closing Date (or one business day prior thereto), from your accountants addressed to you, which
shall reaffirm the statements made in the letter referenced in (i) above.



(g) You shall have received a certificate of the Company, dated as of the Closing Date, signed by
the Chief Executive Officer and Chief Financial Officer of the Company, certifying that, and you
shall be satisfied that:



(i) the representations and warranties of the Company in this Agreement are true and correct in all
material respects, as if made on and as of the Closing Date or such other date as of which any
representation speaks, as the case may be, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing
Date, as the case may be;



(ii) no stop order refusing or suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are pending or threatened under
the Securities Act;



(iii) when the Registration Statement became effective and at the Applicable Time, and at all times
subsequent thereto up to the date of such certificate, the Registration Statement, the Prospectus,
and any amendments or supplements thereto, contained all material information required to be
included therein by the Securities Act and the Rules and Regulations thereunder or the Exchange Act
and the applicable Rules and Regulations of the Commission thereunder, as the case may be, and in
all material respects conformed to the requirements of the Securities Act and the Rules and
Regulations thereunder or the Exchange Act and the applicable Rules and Regulations of the
Commission thereunder, as the case may be; the Registration Statement, and any amendment or
supplement thereto, did not and does not include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading; the and the Prospectus, and any amendment or supplement thereto, did not and do not
include any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading;
and since the effective date of the Registration Statement, there has occurred no event required to
be set forth in an amended or supplemented Prospectus which has not been so set forth; and



(iv) subsequent to the respective dates as of which information is given in the Registration
Statement and Prospectus and up to the date of such certificate, and except as disclosed therein,
there has not been (a) any material adverse change in the financial condition, business, prospects,
property, operations or results of operations of the Company and its subsidiaries considered as one
enterprise, (b) any transaction that is material to the Company and its subsidiaries considered as
one enterprise, except transactions entered into in the ordinary course of business, (c) any
obligation, direct or contingent, that is material to the Company and its subsidiaries considered
as one enterprise, incurred by the Company or its subsidiaries, except obligations incurred in the
ordinary course of business, (d) any change in the capital or outstanding indebtedness of the
Company that is material to the Company and its subsidiaries considered as one enterprise, (e) any
dividend or distribution of any kind declared, paid or made on the


 









 






capital of the Company, or (f) any loss or damage (whether or not insured) to the property of the
Company or any of its subsidiaries which has been sustained or will have been sustained and which
has a Material Adverse Effect.



(h) The Company shall have furnished to you such further certificates and documents as you shall
reasonably request (including certificates of officers of the Company) as to the accuracy of the
representations and warranties of the Company herein, as to the performance by the Company of its
obligations hereunder and as to the other conditions concurrent and precedent to your obligations
hereunder.



(i) The FINRA shall have confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the terms and arrangements in connection with the offering of the
Units.



All such opinions, certificates, letters and documents will be in compliance with the provisions
hereof only if they are reasonably satisfactory to your counsel. The Company will furnish you with
such number of conformed copies of such opinions, certificates, letters and documents as you shall
reasonably request.



11. Indemnification and Contribution.



(a) The Company agrees to indemnify and hold you harmless against any losses, claims, damages or
liabilities, joint or several, to which you may become subject under the Securities Act, the
Exchange Act or otherwise, specifically including, but not limited to, losses, claims, damages or
liabilities (or actions in respect thereof) arising out of or based upon (i) any breach of any
representation, warranty, agreement or covenant of the Company herein contained; (ii) any untrue
statement or alleged untrue statement of any material fact contained in the Registration Statement,
or any amendments or supplements thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, or (iii) any untrue statement or alleged untrue statement of any material fact
contained in any Prospectus or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to reimburse you for any legal
or other expenses reasonably incurred by you in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or action arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus, or any amendment or supplement thereto, in
reliance upon, and in conformity with, written information relating to you furnished to the Company
by you, specifically for use in the Registration Statement, the Prospectus, the or any amendment or
supplement thereto or in the preparation thereof.



The indemnity agreement in this Section 11(a) shall extend upon the same terms and conditions to,
and shall inure to the benefit of, you and your affiliates and the partners, directors, officers,
employees and agents of you and your affiliates, and each person or entity, if any, who controls or
is under common control with, you within the meaning of the Securities Act or the Exchange Act.
This indemnity agreement shall be in addition to any liabilities, which the Company may otherwise
have.



(b) You agree to indemnify and hold harmless the Company against any losses, claims, damages or
liabilities, joint or several, to which the Company may become subject under the Securities Act,
the Exchange Act or otherwise, specifically including, but not limited to, losses, claims, damages
or liabilities (or actions in respect thereof) arising out of or based upon (i) any breach of any
representation, warranty, agreement or covenant of yours herein contained, (ii) any untrue
statement or alleged untrue statement of any material fact contained in the Registration Statement,
or any amendments or supplements thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, or (iii) any untrue statement or alleged untrue statement of any material fact
contained the Prospectus or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in the case of subparagraphs (ii) and
(iii) of this Section 11(b) to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon, and in
conformity with, written information furnished to the Company by you specifically for use in the
Registration Statement, the Prospectus, the or any amendment or supplement thereto or in the
preparation thereof, and you agree to reimburse the Company for


 









 






any legal or other expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action. The indemnity agreement in this
Section 11(b) shall extend upon the same terms and conditions to, and shall inure to the benefit
of, each officer of the Company who signed the Registration Statement and each director of the
Company, and each person, if any, who controls the Company within the meaning of the Securities Act
or the Exchange Act. This indemnity agreement shall be in addition to any liabilities, which you
may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 11 of
notice of the commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 11, notify the indemnifying
party in writing of the commencement thereof, but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified party for contribution
or otherwise than under the indemnity agreement contained in this Section 11 or to the extent it is
not prejudiced as a proximate result of such failure. In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent
that it shall elect, jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or th
at there may be legal defenses
available to it and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to assume the
defense of such action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 11 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in accordance with the proviso to the
next preceding sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (together with local counsel), approved
by the indemnifying party (the Company in the case of Section 11(a) and Smith Hayes Financial
Services Corporation in the case of Section 11(b)), representing the indemnified parties who are
parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after notice
of commencement of such action, or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party, in each of which cases
the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.



(d) The indemnifying party under this Section 11 shall not be liable for any settlement of any
proceeding effected without its written consent, unless the indemnifying party shall have approved
the terms of settlement, provided that such consent shall not be unreasonably withheld.



12. Representations, Warranties, Covenants and Agreements to Survive Delivery. All
representations, warranties, covenants and agreements of the Company and you herein or in
certificates delivered pursuant hereto, and the indemnity agreement contained in Section 11 hereof
shall remain operative and in full force and effect regardless of any investigation made by or on
behalf of you or any person controlling you within the meaning of the Securities Act or the
Exchange Act, or by or on behalf of the Company or any of its officers, directors or controlling
persons within the meaning of the Securities Act or the Exchange Act, and shall survive the
completion of the Offering or termination of this Agreement.



13. Termination.



(a) This Agreement shall terminate upon the earliest to occur of (i) any of the conditions
specified in Section 10 has not been fulfilled as of any date such condition is required to be
fulfilled pursuant to Section 10 (and the Placement Agent shall have notified the Company thereof),
(ii) the date on which the Company terminates or withdraws the Offering for any reason, or (iii)
any modification to the business terms of the Offering in the Company’s sole and absolute
discretion that results in the Placement Agent withdrawing pursuant to Section 5 hereof, (the
earliest to occur of clauses (i), (ii), (iii) or 0 being referred to as the “Termination Date”).




 









 







(b) Notwithstanding termination of this Agreement pursuant to subsection (a) above, the obligations
of the parties pursuant to Sections 6, 7, 9(1) and 11 shall survive any termination of this
Agreement.



If you elect to terminate this Agreement as provided in this Section 13, you shall promptly notify
the Company by telephone, telecopy or telegram, in each case confirmed by letter.



14. Notices. All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to you shall be mailed, delivered, or faxed
(and confirmed by letter) to each of you at SMITH HAYES Financial Services Corporation , Centre
Terrace, 1225 L Street, suite 200, Lincoln, Nebraska 68508 fax number (402) 476-6909, Attention: Al
Moore and Cindee Devall and a further copy (which shall not constitute notice) to John C. Miles,
Esq., Cline Williams Wright Johnson & Oldfather, LLP, Suite 1900, 233 S. 13th, Lincoln, Nebraska
68508 fax number (402) 474- 5393; and if sent to the Company, such notice shall be mailed,
delivered, faxed (and confirmed by letter) to it at Amaizing Energy Holding Company, LLC, 2404 West
Highway 30, Denison, Iowa 51442, fax number 712-2633561, Attention: Alan Jentz, with a copy (which
shall not constitute notice) to Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, P.L.C.,
Attention: Bill Hanigan, 666 Grand Avenue, Suite 2000, Des Moines, Iowa 50309, fax number
515-283-0231.



15. Absence of Fiduciary Relationship. The Company acknowledges and agrees that: (a) the
Placement Agent has been retained solely to act as a placement agent in connection with the
Offering and that no fiduciary, advisory or agency relationship between the Company and the
Placement Agent has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether the Placement Agent has advised or is advising the Company on
other matters; (b) the price and other terms of the Units set forth in the indenture related to the
Units were established by the Company following discussions and arms-length negotiations with the
Placement Agent and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (c) it
has been advised that the Placement Agent and its affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company and that the
Placement Agent has no obligation to disclose such interest and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship; (d) it has been advised that the
Placement Agent is acting, in respect of the transactions contemplated by this Agreement, solely
for the benefit of the Placement Agent, and not on behalf of the Company; (e) it waives to the
fullest extent permitted by law, any claims it may have against the Placement Agent for breach of
fiduciary duty or alleged breach of fiduciary duty in respect of any of the transactions
contemplated by this Agreement and agrees that the Placement Agent shall have no liability (whether
direct or indirect) to the Company in respect of such a fiduciary duty claim on behalf of or in
right of the Company, including shareholders, employees or creditors of the Company.



16. Parties. This Agreement shall inure to the benefit of and be binding upon the
Placement Agent and the Company and their respective executors, administrators, successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give
any person or entity, other than the parties hereto and their respective executors, administrators,
successors and assigns, and the controlling persons within the meaning of the Securities Act or the
Exchange Act, officers and directors referred to in Section 11 hereof, any legal or equitable
right, remedy or claim in respect of this Agreement or any provisions herein contained. This
Agreement, and all conditions and provisions hereof, is intended and is for the sole and exclusive
benefit of the parties hereto and their respective executors, administrators, successors and
assigns and said controlling persons and said officers and directors, and for the benefit of no
other person or entity.



17. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Iowa.



18. Counterparts. This Agreement may be signed in several counterparts, each of which will
constitute an original.




Please indicate your willingness to act as Placement Agent on the terms set forth herein and your
acceptance of the


 









 






foregoing provisions by signing in the space provided below for that purpose and returning to us a
copy of this letter, whereupon this letter and your acceptance shall constitute a binding agreement
between us.




Very truly yours,




	 	 	 	 
	AMAIZING ENERGY HOLDING COMPANY, LLC

 	 
	By       		/s/ Sam J. Cogdill 10/3/07
  
			 Name:  Sam Cogdill 	 
			 Title:  Chairman of the Board 	 
	 



Accepted as of the date first above written:




	 	 	 	 
	SMITH HAYES FINANCIAL SERVICES CORPORATION

 	 
	By     	 	 
	 		Name:  /s/ Thomas C. Smith 	 
	 		Title:  Chairman & CEO 	 
	 




 









 





Schedule A




Schedule A Investors include the following: I.




1. Amaizing Energy Cooperative




2. Capitaline Renewable Energy, LP




3. Energy Partners, LLC




4. ICM, Inc.




5. NEK-SEN Energy, LLC




6. Atlantic Energy, LLC




7. Fagen, Inc. or any of its affiliates