Exhibit 10.8





Exhibit 10.8




 





ASSET PURCHASE AGREEMENT




BY AND AMONG




REG NEWCO, INC.,




REG NEWTON, LLC,




CENTRAL IOWA ENERGY, LLC




AND




RENEWABLE ENERGY GROUP, INC.




DATED AS OF May 8, 2009




 






 


 









 







TABLE OF CONTENTS 




	 	 	 	 	 
	ARTICLE I DEFINITIONS AND TERMS
	 	 	2	 
	Section 1.1 Certain Definitions 
	 	 	2	 
	Section 1.2 Other Terms 
	 	 	13	 
	Section 1.3 Other Definitional Provisions 
	 	 	13	 
	Section 1.4 Interpretation 
	 	 	14	 
	 
	 	 	 	 
	ARTICLE II PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES
	 	 	14	 
	Section 2.1 Purchase and Sale of Assets 
	 	 	14	 
	Section 2.2 Excluded Assets 
	 	 	16	 
	Section 2.3 Assumption of Liabilities 
	 	 	16	 
	Section 2.4 Excluded Liabilities 
	 	 	17	 
	Section 2.5 Further Conveyances and Assumptions; Consent of Third Parties 
	 	 	18	 
	Section 2.6 Bulk-Sales Laws 
	 	 	18	 
	Section 2.7 Right to Control Payment 
	 	 	19	 
	Section 2.8 Proration of Certain Expenses 
	 	 	19	 
	Section 2.9 Accounts Receivable 
	 	 	19	 
	 
	 	 	 	 
	ARTICLE III CLOSING; CONSIDERATION
	 	 	19	 
	Section 3.1 Closing 
	 	 	19	 
	Section 3.2 Procedure at Closing 
	 	 	20	 
	Section 3.3 Consideration 
	 	 	20	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY
	 	 	21	 
	Section 4.1 Organization and Existence; No Subsidiaries 
	 	 	21	 
	Section 4.2 Authorization of Agreement 
	 	 	22	 
	Section 4.3 Conflicts; Consents of Third Parties 
	 	 	23	 
	Section 4.4 Financial Statements 
	 	 	23	 
	Section 4.5 No Undisclosed Liabilities 
	 	 	24	 
	Section 4.6 SEC Documents; Regulatory Reports; Sarbanes Oxley Act 
	 	 	25	 
	Section 4.7 Title to Purchased Assets; Sufficiency 
	 	 	27	 
	Section 4.8 Absence of Certain Developments 
	 	 	27	 
	Section 4.9 Taxes 
	 	 	29	 
	Section 4.10 Real Property 
	 	 	31	 
	Section 4.11 Tangible Personal Property 
	 	 	34	 
	Section 4.12 Intellectual Property 
	 	 	34	 
	Section 4.13 Material Contracts 
	 	 	36	 
	Section 4.14 Employee Benefits 
	 	 	38	 
	Section 4.15 Labor 
	 	 	41	 
	Section 4.16 Litigation 
	 	 	42	 
	Section 4.17 Compliance with Laws; Permits 
	 	 	42	 
	Section 4.18 Environmental Matters 
	 	 	43	 
	Section 4.19 Insurance 
	 	 	44	 
	Section 4.20 Inventories 
	 	 	45	 
	Section 4.21 Accounts and Notes Receivable and Payable 
	 	 	45	 
	Section 4.22 Related Party Transactions 
	 	 	45	 






 


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	Section 4.23 Product Warranty; Product Liability 
	 	 	46	 
	Section 4.24 Banks 
	 	 	46	 
	Section 4.25 Full Disclosure 
	 	 	46	 
	Section 4.26 Financial Advisors 
	 	 	46	 
	Section 4.27 Certain Payments 
	 	 	47	 
	Section 4.28 Information Supplied 
	 	 	47	 
	Section 4.29 The Company’s Financial Condition 
	 	 	47	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES OF NEWCO AND PURCHASER
	 	 	48	 
	Section 5.1 Organization and Good Standing 
	 	 	48	 
	Section 5.2 Capital Structure 
	 	 	49	 
	Section 5.3 Authorization of Agreement 
	 	 	49	 
	Section 5.4 Conflicts; Consents of Third Parties 
	 	 	50	 
	Section 5.5 Litigation 
	 	 	51	 
	Section 5.6 Financial Advisors 
	 	 	51	 
	Section 5.7 Voting Requirements 
	 	 	51	 
	Section 5.8 Information Supplied 
	 	 	51	 
	Section 5.9 Full Disclosure 
	 	 	52	 
	Section 5.10 Beneficiary of REG Representations 
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VI COVENANTS
	 	 	52	 
	Section 6.1 Access to Information 
	 	 	52	 
	Section 6.2 Conduct of the Business Pending the Closing 
	 	 	53	 
	Section 6.3 Consents 
	 	 	56	 
	Section 6.4 Regulatory Approvals 
	 	 	56	 
	Section 6.5 Further Assurances 
	 	 	57	 
	Section 6.6 No Solicitation by the Company, Etc.
	 	 	58	 
	Section 6.7 Non-Competition; Non-Solicitation; Confidentiality 
	 	 	60	 
	Section 6.8 Preservation of Records 
	 	 	61	 
	Section 6.9 Publicity 
	 	 	62	 
	Section 6.10 Environmental Matters 
	 	 	62	 
	Section 6.11 Cooperation with Indebtedness Renegotiation 
	 	 	62	 
	Section 6.12 Monthly Financial Statements 
	 	 	63	 
	Section 6.13 Notification of Certain Matters 
	 	 	63	 
	Section 6.14 Newco Board of Directors 
	 	 	63	 
	Section 6.15 Preparation of Form S-4 and the Joint Proxy Statement; Unitholder and Stockholder Meetings
	 	 	64	 
	Section 6.16 Transfer of Certificates of Title 
	 	 	65	 
	Section 6.17 Agreements of Rule 145 Affiliates 
	 	 	65	 
	Section 6.18 Legend 
	 	 	65	 
	Section 6.19 Release under MOSA 
	 	 	66	 
	Section 6.20 Updating of Schedules 
	 	 	66	 
	Section 6.21 REG Covenants 
	 	 	66	 
	Section 6.22 Payment of Ongoing Costs 
	 	 	67	 
	Section 6.23 Payment of Professional Service Providers and other Costs 
	 	 	67	 
	Section 6.24 Protective Tax Election 
	 	 	67	 






 


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	ARTICLE VII EMPLOYEES AND EMPLOYEE BENEFITS
	 	 	68	 
	Section 7.1 Employment 
	 	 	68	 
	Section 7.2 Standard Procedure 
	 	 	68	 
	Section 7.3 Employee Benefits 
	 	 	68	 
	 
	 	 	 	 
	ARTICLE VIII CONDITIONS TO CLOSING
	 	 	69	 
	Section 8.1 Conditions Precedent to Obligations of Newco and Purchaser 
	 	 	69	 
	Section 8.2 Conditions Precedent to Obligations of the Company 
	 	 	73	 
	 
	 	 	 	 
	ARTICLE IX TERMINATION
	 	 	76	 
	Section 9.1 Termination of Agreement 
	 	 	76	 
	Section 9.2 Procedure upon Termination 
	 	 	79	 
	Section 9.3 Effect of Termination 
	 	 	79	 
	Section 9.4 Termination Fee 
	 	 	79	 
	 
	 	 	 	 
	ARTICLE X TAXES
	 	 	80	 
	Section 10.1 Transfer Taxes 
	 	 	80	 
	Section 10.2 Prorations 
	 	 	80	 
	Section 10.3 Cooperation on Tax Matters 
	 	 	81	 
	 
	 	 	 	 
	ARTICLE XI RISK OF LOSS
	 	 	81	 
	 
	 	 	 	 
	ARTICLE XII MISCELLANEOUS
	 	 	81	 
	Section 12.1 No Survival of Representations and Warranties 
	 	 	81	 
	Section 12.2 Notices 
	 	 	82	 
	Section 12.3 Specific Performance 
	 	 	83	 
	Section 12.4 Amendments; Waiver 
	 	 	83	 
	Section 12.5 No Third Party Beneficiaries 
	 	 	84	 
	Section 12.6 Successors and Assigns 
	 	 	84	 
	Section 12.7 Entire Agreement 
	 	 	84	 
	Section 12.8 Public Disclosure 
	 	 	84	 
	Section 12.9 Expenses 
	 	 	84	 
	Section 12.10 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury
	 	 	84	 
	Section 12.11 Counterparts 
	 	 	85	 
	Section 12.12 Headings 
	 	 	85	 
	Section 12.13 Severability 
	 	 	85	 
	Section 12.14 Joint Authorship 
	 	 	85	 






 


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EXHIBITS AND SCHEDULES


EXHIBITS



	 	 	 
	Exhibit A
	 	Preferred Stock Certificate of Designation
	Exhibit B
	 	Certificate of Incorporation of Newco
	Exhibit C
	 	Bylaws of Newco
	Exhibit D
	 	Rule 145 Affiliate Agreement
	Exhibit E
	 	Registration Rights Agreement
	Exhibit F
	 	Bill of Sale
	Exhibit G
	 	Assignment and Assumption Agreement
	Exhibit H
	 	Form of Power of Attorney






SCHEDULES




	 	 	 
	Company Disclosure Schedule:
	 
	 	 
	Schedule 1.1
	 	Assets
	Schedule 1.1
	 	Permitted Exceptions
	Schedule 1.1
	 	Purchased Contracts
	Schedule 3.3(b)
	 	Company Unitholders
	Schedule 4.1(b)
	 	Subsidiaries
	Schedule 4.3(a)
	 	Conflicts
	Schedule 4.3(b)
	 	Consents of Third Parties
	Schedule 4.5
	 	Undisclosed Liabilities
	Schedule 4.6
	 	SEC Documents
	Schedule 4.8
	 	Company Developments
	Schedule 4.10(a)(i)(A)
	 	Company Real Property
	Schedule 4.10(a)(i)(B)
	 	Excluded Properties
	Schedule 4.10(a)(ii)
	 	Owned Property Exceptions
	Schedule 4.10(a)(iii)
	 	Leased Property Exceptions
	Schedule 4.10(b)
	 	Real Property Leases
	Schedule 4.10(f)
	 	Rights of First Refusal
	Schedule 4.11
	 	Personal Property Leases
	Schedule 4.12(a)
	 	Intellectual Property
	Schedule 4.12(b)
	 	Intellectual Property Exceptions
	Schedule 4.12(i)
	 	Software
	Schedule 4.13(a)
	 	Material Contracts
	Schedule 4.13(a)(xix)
	 	Amounts Owed Professional Service Providers
	Schedule 4.13(b)
	 	Material Contracts Exceptions
	Schedule 4.13(c)
	 	Material Contract Consents






 


-iv-









 





	 	 	 
	Schedule 4.14(a)
	 	Employee Benefit Plans
	Schedule 4.14(c)
	 	Qualified Plan Exceptions
	Schedule 4.14(k)
	 	Amendments to Employee Benefit Plans
	Schedule 4.14(p)
	 	Employee Benefits
	Schedule 4.15(a)
	 	Labor Contracts
	Schedule 4.15(b)
	 	Labor Relations
	Schedule 4.16
	 	Litigation
	Schedule 4.17(a)
	 	Compliance with Laws
	Schedule 4.17(b)
	 	Permits
	Schedule 4.18
	 	Environmental Matters
	Schedule 4.19
	 	Insurance
	Schedule 4.22
	 	Related Party Transactions
	Schedule 4.23
	 	Product Warranty; Product Liability
	Schedule 4.24
	 	Banks
	Schedule 4.26
	 	Company Financial Advisors
	Schedule 4.29
	 	Company Financial Condition
	Schedule 6.2.(a)(v)
	 	Capital Expenditure Plan
	Schedule 6.3
	 	Consents
	Schedule 6.11
	 	Indebtedness
	Schedule 6.16
	 	Assets Requiring Certificates of Title
	Schedule 8.1(r)
	 	Incentives Consents
	 
	 	 
	Newco Disclosure Schedule:
	 
	 	 
	Schedule 5.1(b)
	 	Subsidiaries
	Schedule 5.2(i)
	 	Newco Shareholders
	Schedule 5.2(ii)
	 	Newco Outstanding Shares
	Schedule 5.2(iii)
	 	Newco Pre-emptive Rights
	Schedule 5.4
	 	Conflicts
	Schedule 5.6
	 	Newco Financial Advisors







 


-v-









 







ASSET PURCHASE AGREEMENT 




THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of the 8th day of
May, 2009 (“Effective Date”), by and among REG Newco, Inc., a Delaware corporation
(“Newco”), REG Newton, LLC, an Iowa limited liability company and wholly owned subsidiary
of Newco (“Purchaser”), Central Iowa Energy, LLC, an Iowa limited liability company (the
“Company”) and Renewable Energy Group, Inc., a Delaware corporation (“REG”).



R E C I T A L S:




WHEREAS, the Company presently owns and operates a biodiesel production facility located at
Newton, Iowa (the “Facility”);



WHEREAS, the Company desires to sell, transfer and assign to Newco, and Newco desires to
acquire and assume from the Company, all of the Purchased Assets and Assumed Liabilities by and
through Purchaser, all as more specifically provided herein (the “Transaction”);



WHEREAS, simultaneously with the execution of this Agreement, the Common Plan Agreements have
been executed and true, correct and complete copies of the form of which have been delivered to the
Company on or before the Effective Date;



WHEREAS, the Board of Directors of the Company (a) has unanimously determined that the
Transaction is fair to and in the best interests of the Company and its unitholders, (b) has
unanimously approved this Agreement, the consummation of the transactions contemplated hereby and
the execution and delivery of this Agreement by the Company, and (c) has unanimously determined to
recommend adoption of this Agreement and approval of the Transaction on the terms and conditions
set forth in this Agreement by the unitholders of the Company;



WHEREAS, the respective Boards of Directors of each of Newco and REG and the Board of Managers
of Purchaser (a) have unanimously determined that the Transaction is fair to and in the best
interests of Newco and its stockholders, REG and its stockholders, and Purchaser and its sole
member, (b) have unanimously approved this Agreement, the consummation of the transactions
contemplated hereby and the execution and delivery of this Agreement by Newco, Purchaser and REG,
and (c) have unanimously determined to recommend adoption of this Agreement and approval of the
Transaction on the terms and conditions set forth in this Agreement by the stockholders of Newco
and REG and the member of Purchaser; and



WHEREAS, the Company, Newco, Purchaser and REG desire to make certain representations,
warranties, covenants and agreements in connection with the Transaction and also to prescribe
various conditions to the Transaction.


 


 









 





NOW, THEREFORE, in consideration of the foregoing premises and the respective representations,
warranties, covenants, and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



ARTICLE I

DEFINITIONS AND TERMS




Section 1.1 Certain Definitions. As used in this Agreement, the following terms have
the meanings set forth below:



“Affiliate” means, with respect to any Person, any Person directly or indirectly
controlling, controlled by, or under common control with, such other Person as of the date on
which, or at any time during the period for which, the determination of affiliation is being made.
For purposes of this definition, the term “control” (including the correlative meanings of the
terms “controlled by” and “under common control with”), as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management policies of such Person, whether through the ownership of voting securities or by
contract or otherwise.



“Agreement” means this Agreement, together with all of the Schedules and Exhibits
hereto, as the same may be amended or supplemented from time to time in accordance with the terms
hereof.



“Ancillary Agreements” means all other agreements, documents and instruments required
to be delivered by any party pursuant to this Agreement, and any other agreements, documents or
instruments entered into at or prior to Closing in connection with this Agreement or the
transactions contemplated hereby.




“Antitrust Division” has the meaning set forth in the Section 6.4(a).




“Antitrust Laws” has the meaning set forth in the Section 6.4(b).




“Assumed Liabilities” has the meaning set forth in the Section 2.3.




“Balance Sheet” has the meaning set forth in the Section 4.4(a).




“Balance Sheet Date” has the meaning set forth in the Section 4.4(a).



“Books and Records” means all books, ledgers, files, reports, plans, records, manuals
and other materials (in any form or medium) of, or maintained for, the Company and its
Subsidiaries.



“Business” means the development and ownership of biodiesel production facilities and
the production, storage, transport, marketing and sale of biodiesel and businesses thereto, and
engaging in activities ancillary or incidental thereto.


 


-2-









 





“Business Day” means any day other than a Saturday, a Sunday, federal holiday or a day
on which banks in the City of New York or the State of Delaware are authorized or obligated by Law
to close.




“Chosen Courts” has the meaning set forth in Section 12.9.




“Closing” has the meaning set forth in Section 3.1.




“Closing Date” has the meaning set forth in Section 3.1.




“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.



“Code” means the Internal Revenue Code of 1986 and the regulations promulgated
thereunder, as amended from time to time.



“Commercially Reasonable Efforts” means the efforts, time and costs a prudent Person
desirous of achieving a result would use, expend or incur in similar circumstances to achieve such
results as expeditiously as possible; provided that such Person is not required to expend funds or
assume liabilities beyond those that are (i) commercially reasonable in nature and amount in the
context of the Transaction or (ii) otherwise required to be expended or assumed pursuant to the
terms of this Agreement.



“Common Plan Agreements” means (i) that certain Merger Agreement and Plan of Merger
dated May 11, 2009 by and among Newco, REG Merger Sub, Inc. and REG (the “REG Merger Agreement”);
(ii) that certain Merger Agreement dated May 11, 2009 by and among Newco, REG Danville, LLC, REG
and Blackhawk Biofuels, LLC; and (iii) that certain Asset Purchase Agreement dated May 11, 2009 by
and among Newco, REG Wall Lake, LLC REG and Western Iowa Energy, LLC.




“Company” has the meaning set forth in the Preamble.



“Company Adverse Recommendation Change” has the meaning set forth in the Section
6.6(c).



“Company Adverse Recommendation Notice” has the meaning set forth in the Section
6.6(c).




“Company Board Recommendation” has the meaning set forth in the 6.15(b).




“Company Disclosure Schedule” has the meaning set forth in the preamble to Article IV.




“Company Documents” has the meaning set forth in the Section 4.2(a).




“Company Monthly Financial Statements” has the meaning set forth in Section 6.12.



“Company Permits” has the meaning set forth in the Section 4.17(b).


 


-3-









 






“Company Property” has the meaning set forth in Section 4.10(a).




“Company SEC Documents” has the meaning set forth in Section 4.6(a).




“Company Unitholder Approval” has the meaning set forth in Section 4.2(b).




“Company Unitholders” has the meaning set forth in Section 3.3(b).




“Company Unitholders Meeting” has the meaning set forth in Section 6.15(b).




“Confidentiality Agreement” has the meaning set forth in Section 6.1.



“Contract” means any written or oral contract, agreement, indenture, note, bond,
debenture, mortgage, loan, instrument, lease, license, commitment or other obligation.




“Copyrights” has the meaning set forth in the definition of Intellectual Property.



“Documents” means all files, documents, instruments, papers, books, reports, records,
tapes, microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title policies,
lists of past, present and/or prospective customers, supplier lists, regulatory filings, operating
data and plans, technical documentation (design specifications, functional requirements, operating
instructions, logic manuals, flow charts, etc), user documentation (installation guides, user
manuals, training materials, release notes, working papers, etc.), marketing documentation (sales
brochures, flyers, pamphlets, web pages, etc.), and other similar materials related to the Business
and the Purchased Assets, in each case whether or not in electronic form.




“Effective Date” has the meaning set forth in the Preamble.



“Employee” means all individuals (including common law employees, independent
contractors and individual consultants), as of the date hereof, who are employed or engaged by the
Company in connection with the Business, together with individuals who are hired in respect of the
Business after the date hereof.




“Employee Benefit Plans” has the meaning set forth in Section 4.14(a).



“Environmental Costs and Liabilities” means, with respect to any Person, all
Liabilities and Remedial Actions incurred as a result of any claim or demand by any other Person or
in response to any violation of Environmental Law or to the extent based upon, related to, or
arising under or pursuant to any Environmental Law, Environmental Permit, order or agreement with
any Governmental Authority or other Person, or which relates to any environmental, health or safety
condition, violation of Environmental Law or a Release or threatened Release of Hazardous
Materials, whether known or unknown, accrued or contingent, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute.


 


-4-









 





“Environmental Law” means any foreign, federal, state or local law (including common
law), statute, code, ordinance, rule, regulation or other legal requirement or obligation in any
way relating to pollution, odors, noise, or the protection of human health and safety, the
environment or natural resources, including the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. App. § 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. § 6901 et seq.), the Clean Water Act (33 U.S.C. § 1251
et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. § 2601 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.), and the Occupational
Safety and Health Act (29 U.S.C. § 651 et seq.), as each has been amended and the
regulations promulgated pursuant thereto.



“Environmental Permit” means any Permit required by Environmental Laws for the
operation of the Business.




“ERISA” means the Employment Retirement Income Security Act of 1974, as amended.




“ERISA Affiliate” has the meaning set forth in Section 4.14(a).




“ERISA Affiliate Plans” has the meaning set forth in Section 4.14(a).



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.




“Excluded Assets” has the meaning set forth in Section 2.2.



“Excluded Contracts” means the following Contracts and any amendments thereto: (i)
[insert excluded contracts].




“Excluded Liabilities” has the meaning set forth in Section 2.4.




“Excluded Properties” has the meaning set forth in Section 4.10(a).




“Facility” has the meaning set forth in the Recitals.



“Final Closing Balance Sheet” means the final Balance Sheet of the Company delivered
to Newco or Purchaser prior to the Closing Date.




“Financial Statements” has the meaning set forth in Section 4.4(a).




“Financing” has the meaning set forth in Section 8.1(o).




“FIRPTA Affidavit” has the meaning set forth in Section 8.1(m).




“Form S-4” has the meaning set forth in Section 4.29.


 


-5-









 





“Former Employee” means all individuals (including common law employees, independent
contractors and individual consultants) who were employed or engaged by the
Company in connection with the Business but who are no longer so employed or engaged on the
date hereof.




“FTC” has the meaning set forth in Section 6.4(a).



“Furniture and Equipment” means all furniture, furnishings, equipment, vehicles,
leasehold improvements not deemed real estate by applicable Laws, and other tangible personal
property, including all artwork, desks, chairs, tables, Hardware, copiers, telephone lines and
numbers, telecopy machines and other telecommunication equipment, cubicles and miscellaneous office
furnishings and supplies, including but not limited to those assets listed on Company
Disclosure Schedule 1.1.



“GAAP” means generally accepted accounting principles in the United States as of the
date hereof.



“Governmental Authority” means any government or governmental or regulatory body
thereof, or political subdivision thereof, whether foreign, federal, state, or local, or any
agency, instrumentality or authority thereof, or any court or arbitrator (public or private).



“Hardware” means any and all computer and computer-related hardware, including, but
not limited to, computers, file servers, facsimile servers, scanners, color printers, laser
printers and networks.



“Hazardous Material” means any substance, material or waste that is regulated,
classified, or otherwise characterized under or pursuant to any Environmental Law as “hazardous,”
“toxic,” “pollutant,” “contaminant,” “radioactive,” or words of similar meaning or effect,
including petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, mold or other
fungi and urea formaldehyde insulation.



“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the rules and regulations promulgated thereunder.



“Indebtedness” of any Person means, without duplication, (i) the principal, accreted
value, accrued and unpaid interest, prepayment and redemption premiums or penalties (if any),
unpaid fees or expenses and other monetary obligations in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or liable; (ii) all
obligations of such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable and other accrued current liabilities
arising in the Ordinary Course of Business); (iii) all obligations of such Person under leases
required to be capitalized in accordance with GAAP; (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit
transaction that has been drawn upon, including any fees related to such obligations whether or not
drawn upon; (v) all obligations of such Person under interest rate or currency swap transactions
(valued at the termination value thereof); (vi) the liquidation value, accrued and
unpaid dividends and prepayment or redemption premiums and penalties (if any), unpaid fees or
expense and other monetary obligations in respect of any and all redeemable preferred stock of such
Person; (vii) all checks issued by the Company prior to the Closing Date that remain outstanding as
of the Closing Date; (viii) all obligations of the type referred to in clauses (i) through (vii) of
any Persons for the payment of which such Person is responsible or liable, directly or indirectly,
as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (ix) all
obligations of the type referred to in clauses (i) through (viii) of other Persons secured by (or
for which the holder of such obligations has an existing right, contingent or otherwise, to be
secured by) any Lien on any property or asset of such Person (whether or not such obligation is
assumed by such Person).


 


-6-









 





“Intellectual Property” means all right, title and interest in or relating to
intellectual property, whether protected, created or arising under the laws of the United States or
any other jurisdiction, including: (i) all patents and applications therefor, including all
continuations, divisionals and continuations-in-part and patents issuing thereon, along with all
reissues, reexaminations, substitutions and extensions thereof (collectively, “Patents”);
(ii) all trademarks, service marks, trade names, trade dress, logos, corporate names and other
source or business identifiers, together with the goodwill associated with any of the foregoing,
along with all applications, registrations, renewals and extensions thereof (collectively,
“Marks”); (iii) all Internet domain names; (iv) all copyrights, works of authorship and
moral rights, and all registrations, applications, renewals, extensions and reversions of any of
the foregoing (collectively, “Copyrights”); (v) trade secrets (“Trade Secrets”);
and (vi) all other intellectual property rights arising from or relating to Technology that is
owned by the Company and related to the Business or (ii) used by the Company in connection with the
Business.



“Intellectual Property Licenses” means (i) any grant by the Company to another Person
of any right, permission, consent or non-assertion relating to or under any of the Purchased
Intellectual Property and (ii) any grant by another Person to the Company of any right, permission,
consent or non-assertion relating to or under any third Person’s Intellectual Property.



“IRS” means the United States Internal Revenue Service and, to the extent relevant,
the United States Department of Treasury.




“Joint Proxy Statement” has the meaning set forth in Section 4.29.



“Knowledge” or any similar phrase means (i) with respect to the Company, the
collective actual knowledge of Don Huyser and James Johnston, and (ii) with respect to Newco,
Purchaser and REG, the collective actual knowledge of Jeffrey Stroburg, Daniel J. Oh, Nile
Ramsbottom and Derek Winkel.




“Labor Contracts” has the meaning set forth in Section 4.15(a).



“Law” means any federal, state or local law (including common law), statute, code,
ordinance, rule, regulation or other legal requirement or obligation.


 


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“Legal Proceeding” means any judicial, administrative or arbitral actions, suits,
mediations, investigations, inquiries, proceedings or claims (including counterclaims) by or before
a Governmental Authority.



“Liability” means any debt, loss, damage, adverse claim, fines, penalties, liability
or obligation (whether direct or indirect, known or unknown, asserted or unasserted, absolute or
contingent, accrued or unaccrued, matured or unmatured, determined or determinable, disputed or
undisputed, liquidated or unliquidated, or due or to become due, and whether in contract, tort,
strict liability or otherwise), and including all costs and expenses relating thereto (including
all fees, disbursements and expenses of legal counsel, experts, engineers and consultants and costs
of investigation).



“Lien” means any lien, encumbrance, pledge, mortgage, deed of trust, security
interest, claim, lease, charge, option, right of first refusal, easement, servitude, proxy, voting
trust or agreement, transfer restriction under any shareholder or similar agreement, encumbrance or
any other restriction or limitation whatsoever.




“Loss” or “Losses” has the meaning set forth in Section 10.2(a).




“Marks” has the meaning set forth in the definition of Intellectual Property.



“Material Adverse Effect” means an effect, condition or change that is materially
adverse to the business, assets, properties, financial condition, or results of operations of the
Company and its Subsidiaries, taken as a whole, or of Newco and its Subsidiaries, taken as a whole,
or of REG and its Subsidiaries, taken as a whole, or of any other party to the Common Plan
Agreements and its Subsidiaries, taken as a whole; provided, however, that effects, conditions and
changes relating to the following shall not constitute a Material Adverse Effect, and shall not be
considered in determining whether a Material Adverse Effect has occurred:



(a) changes in the economy or financial or commodities markets generally in the United
States;



(b) changes that are the result of factors generally affecting the industries in which the
Company and REG and their Subsidiaries operate; or



(c) changes proximately caused by the pendency or the announcement of this Agreement or the
transactions contemplated hereby.




“Material Contracts” has the meaning set forth in Section 4.13(a).




“MOSA” has the meaning set forth in Section 6.19.



“Network Plants” means the Company, Western Iowa Energy, LLC, an Iowa limited
liability company and Blackhawk Biofuels, LLC, a Delaware limited liability company.



“Newco” has the meaning set forth in the Preamble.


 


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“Newco BCA Registration Rights Agreement” is the Registration Rights Agreement to be
executed by Newco and Biofuels Company of America, LLC at or prior to Closing.



“Newco Common Stock” means shares of the common stock, par value $0.0001 per share, of
Newco.




“Newco Disclosure Schedule” has the meaning set forth in the preamble to Article V




“Newco’s Environmental Assessment” has the meaning set forth in Section 6.10.




“Newco Monthly Financial Statements” has the meaning set forth in Section 6.12.



“Newco Preferred Stock” means shares of the preferred stock designated Series A
Preferred Stock, par value $0.0001 per share, of Newco issued pursuant to the Certificate of
Designation attached hereto as Exhibit A.



“Newco Registration Rights Agreement” means the Registration Rights Agreement in the
form of Exhibit E hereto to be executed by Newco and the other parties thereto at or prior
to Closing.



“Newco Stockholder Agreement” means the Stockholder Agreement to be executed by Newco
and the other parties thereto at or prior to Closing.




“Nonassignable Assets” has the meaning set forth in Section 2.5(b).




“Ongoing Costs” has the meaning set forth in Section 6.16.



“Order” means any order, injunction, judgment, doctrine, decree, ruling, writ,
assessment or arbitration award of a Governmental Authority.



“Ordinary Course” or “Ordinary Course of Business” means the conduct of the
business of the Company and its Subsidiaries or Newco and its Subsidiaries (as the case may be) in
accordance with their normal day-to-day customs, practices and procedures as conducted from time to
time prior to the date of this Agreement and shall include the activities of the Company and its
Subsidiaries, Newco and its Subsidiaries and REG and its Subsidiaries undertaken in connection with
their respective obligations under this Agreement.



“Organizational Documents” means the articles or certificate of incorporation and
bylaws for a corporation, and the articles of organization or certificate of formation and
operating agreement for a limited liability company, and all other documents necessary to meet the
applicable Law for organization of the applicable entity type in its state of organization.




“Owned Property” has the meaning set forth in Section 4.10(a).




“Patents” has the meaning set forth in the definition of Intellectual Property.



“PBGC” has the meaning set forth in Section 4.14(e).


 


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“Permits” means any approvals, authorizations, consents, licenses, permits or
certificates of a Governmental Authority.



“Permitted Exceptions” means (i) those matters set forth on Company Disclosure
Schedule 1.1, (ii) statutory liens for Taxes, assessments or other governmental charges not yet
payable or delinquent or the amount or validity of which is being contested in good faith by
appropriate proceedings, provided an appropriate reserve has been established therefor in the
Financial Statements in accordance with GAAP; (iii) mechanics’, carriers’, workers’ and repairers’
Liens that do not, individually or in the aggregate, have a Material Adverse Effect with respect to
the Company and which if filed are being contested in a timely manner pursuant to applicable Law
and are properly reserved against in the Company’s books and records in accordance with GAAP;
(iv) zoning, entitlement and other land use and environmental regulations by any Governmental
Authority, provided that if such regulations have been violated, such violations, individually or
in the aggregate, do not have a Material Adverse Effect with respect to the Company; (v) easements,
covenants, restrictions and encumbrances which do not, individually or in the aggregate, have a
Material Adverse Effect with respect to the Company; and (vi) rights of tenants in possession under
existing written leases listed on Company Disclosure Schedule 1.1.



“Person” means any individual, corporation, limited liability company, partnership,
firm, joint venture, association, joint-stock company, trust, unincorporated organization,
Governmental Authority or other entity.




“Professional Service Providers” has the meaning set forth in Section 4.13(a)(xix).




“Purchase Price” has the meaning set forth in Section 3.3(a).




“Purchased Assets” has the meaning set forth in Section 2.1.



“Purchased Contracts” means all Contracts of the Company related to the Business
listed on Company Disclosure Schedule 1.1 other than the Excluded Contracts.




“Purchaser” has the meaning set forth in the Preamble.




“Purchaser Documents” has the meaning set forth in Section 5.3.




“Purchaser Plans” has the meaning set forth in Section 7.3.




“Qualified Plans” has the meaning set forth in Section 4.14(c).




“Real Property Leases” has the meaning set forth in Section 4.10(a).



“REG Merger Agreement” has the meaning set forth in the definition of Common Plan
Agreements.


 


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“REG Stockholders” means all of the holders of common stock and preferred stock of
Renewable Energy Group, Inc. eligible to vote on the REG Merger Agreement and the Related
Transactions.



“REG Stockholders Meeting” means the special meeting of REG Stockholders held pursuant
to the REG Merger Agreement for the purpose of approval of the REG Merger Agreement.




“Related Persons” has the meaning set forth in Section 4.22.



“Related Transactions” means those transactions contemplated by the Common Plan
Agreements.



“Release” means any release, spill, emission, leaking, pumping, pouring, injection,
deposit, dumping, emptying, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, or into or out of any property.



“Remedial Action” means all actions including any capital expenditures undertaken to
(i) clean up, remove, treat or in any other way address any Hazardous Material; (ii) prevent the
Release or threat of Release, or minimize the further Release of any Hazardous Material so it does
not endanger or threaten to endanger public health or welfare or the indoor or outdoor environment;
(iii) perform pre-remedial studies and investigations or post-remedial monitoring and care; or
(iv) correct a condition of noncompliance with Environmental Laws.




“Representatives” has the meaning set forth in Section 6.6(a).




“Restricted Business” has the meaning set forth in Section 6.7(a).




“Rule 145 Affiliates” has the meaning set forth in Section 6.18.



“Rule 145 Affiliate Agreements” means the Agreements in the form of Exhibit D
to be executed at or prior to Closing pursuant to Section 6.17.




“Sarbanes Oxley Act” has the meaning set forth in Section 4.6(d).




“SEC” means the United States Securities and Exchange Commission.



“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.




“Senior Lender” has the meaning set forth in Section 8.2(m).



“Software” means any and all (i) computer programs, including any and all software
implementations of algorithms, models and methodologies, whether in source code or object code;
(ii) databases and compilations, including any and all data and collections of data, whether
machine readable or otherwise; (iii) descriptions, flow-charts and other work product used to
design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats,
firmware, development tools, templates, menus, buttons and icons; and (iv) all documentation,
including user manuals and other training documentation, related to any of the foregoing.


 


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“Subsidiary” means, with respect to any Person, any other Person of which (i) a
majority of the outstanding share capital, voting securities or other equity interests are owned,
directly or indirectly, by such Person or (ii) such Person is entitled, directly or indirectly, to
appoint a majority of the board of directors or managers or comparable supervisory body of the
other Person.




“Superior Proposal” has the meaning set forth in Section 6.6(d).




“Takeover Proposal” has the meaning set forth in Section 6.6(d).



“Tax” or “Taxes” means (i) any and all federal, state, local or foreign taxes,
charges, fees, imposts, levies or other assessments, including, without limitation, all net income,
gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits,
inventory, capital stock, license, withholding, payroll, employment, social security, unemployment,
excise, severance, stamp, occupation, property and estimated taxes, customs duties, fees,
assessments and charges of any kind whatsoever; (ii) all interest, penalties, fines, additions to
tax or additional amounts of any kind imposed by any Taxing Authority in connection with any item
described in clause (i); and (iii) any liability in respect of any items described in clauses (i)
and/or (ii) payable by reason of Contract, assumption, transferee liability, operation of law,
Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous
or similar provision under law) or otherwise.



“Taxing Authority” means the IRS and any other Governmental Authority responsible for
the administration of any Tax.



“Tax Return” means any return, report or statement filed or required to be filed with
respect to any Tax (including any elections, declarations, schedules or attachments thereto, and
any amendment thereof), including any information return, claim for refund, amended return or
declaration of estimated Tax, and including, where permitted or required, combined, consolidated or
unitary returns for any group of entities that includes the Company or any of its Affiliates.



“Technology” means, collectively, all Software, information, designs, formulae,
algorithms, procedures, methods, techniques, ideas, know-how, research and development, technical
data, programs, subroutines, tools, materials, specifications, processes, inventions (whether
patentable or unpatentable and whether or not reduced to practice), apparatus, creations,
improvements, works of authorship and other similar materials, and all recordings, graphs,
drawings, reports, analyses, and other writings, and other tangible embodiments of the foregoing,
in any form whether or not specifically listed herein, and all related technology, that are used
in, incorporated in, embodied in, displayed by or related to, or are used in connection with the
foregoing that is (i) owned by the Company and related to the Business or (ii) used by the Company
in connection with the Business, including, without limitation, all Software and other Technology
developed by the Company and relating to employees and payroll.


 


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“Termination Date” has the meaning set forth in Section 9.1.




“Termination Fee” has the meaning set forth in Section 9.4.




“Trade Secrets” has the meaning set forth in the definition of Intellectual Property.




“Transaction” has the meaning set forth in Recitals.




“Transfer Taxes” has the meaning set forth in Section 10.1.




“Transferred Employees” has the meaning set forth in Section 7.1.



“WARN” means the Worker Adjustment and Retraining Notification Act of 1988, as
amended, and the rules and regulations promulgated thereunder.



Section 1.2 Other Terms. Other terms may be defined elsewhere in the text of this
Agreement and, unless otherwise indicated, shall have such meaning throughout this Agreement.



Section 1.3 Other Definitional Provisions. Unless the express context otherwise
requires:



(a) the words “hereof”, “herein”, “hereunder”, “hereby” and “herewith” and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement;



(b) the terms defined in the singular have a comparable meaning when used in the plural, and
vice versa;



(c) where a word or phrase is defined herein, each of its other grammatical forms will have a
corresponding meaning;




(d) any references herein to “Dollars” and “$” are to United States Dollars;



(e) any references herein to a specific Article, Section, paragraph, Schedule or Exhibit shall
refer, respectively, to Articles, Sections, paragraphs, Schedules or Exhibits of this Agreement;



(f) any references herein to an agreement, instrument or document means such agreement,
instrument or document as amended, supplemented and modified from time to time to the extent
permitted by the provisions thereof and not prohibited by this Agreement;



(g) any references herein to a statute means such statute as amended as of the Effective Date
and, for purposes of the Closing hereunder, shall include such statute as amended or successor
thereto effective as of the Closing Date;


 


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(h) wherever the word “include,” “includes,” or “including” is used in this Agreement, it
shall be deemed to be followed by the words “without limitation”; and




(i) references herein to any gender includes the other gender; and



(j) references to any party to this Agreement or any other agreement or document will include
each party’s predecessors, successors and permitted assigns.



Section 1.4 Interpretation. The headings and captions used in this Agreement and any
Schedule or Exhibit hereto, in the table of contents or any index hereto are for convenience of
reference only and do not a constitute a part of this Agreement and shall not be deemed to limit,
characterize or in any way effect any provision of this Agreement or any Schedule or Exhibit
hereto, and all provisions of this Agreement and the Schedules and Exhibits hereto shall be
enforced and construed as if no caption or heading had been used herein or therein. Any capitalized
terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have
the meaning set forth in the Agreement (or, in the absence of any ascribed meaning, the meaning
customarily ascribed to any such term in the Company’s industry or in general commercial usage).
The Schedules and Exhibits referred to herein shall be construed with and as an integral part of
this Agreement to the same extent as if they were set forth verbatim herein.



ARTICLE II

PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES




Section 2.1 Purchase and Sale of Assets. On the terms and subject to the conditions
set forth in this Agreement, at the Closing Purchaser shall purchase, acquire and accept from the
Company, and the Company shall sell, transfer, assign, convey and deliver to Purchaser all of the
Company’s right, title and interest in, to and under the Purchased Assets, free and clear of all
Liens except for Permitted Exceptions. “Purchased Assets” shall mean all of the business,
assets, properties, contractual rights, goodwill, going concern value, rights and claims of the
Company related to the Business on the Closing Date, wherever situated and of whatever kind and
nature, real or personal, tangible or intangible, whether or not reflected on the Books and Records
of the Company (other than Excluded Assets), including each of the following assets:




(a) all cash and accounts receivable of the Company;




(b) all inventory used or useful in the Business;



(c) all tangible personal property used or useful in the Business, including Furniture and
Equipment;



(d) all deposits (including customer deposits and security for rent, electricity, telephone,
hedging contracts or otherwise) and prepaid charges and expenses, including any prepaid rent, of
the Company;


 


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(e) all rights of the Company under all Company Property (whether owned or leased), together
with all improvements, fixtures and other appurtenances thereto and rights in respect thereof;




(f) the Intellectual Property and Technology of the Company;



(g) all rights of the Company under the Purchased Contracts, including all claims or causes of
action with respect to the Purchased Contracts;



(h) all Books and Records of the Company and all other Documents that are related to the
Business, including Documents relating to products, services, marketing, advertising, promotional
materials, Intellectual Property, Technology, personnel files for Employees, and all files,
customer files and documents (including credit card information), supplier lists, records,
literature and correspondence, whether or not physically located on any of the Company Property,
but excluding those documents referred to in Section 2.2(b) below;



(i) all assets of any trust attributable to Employees and Former Employees in connection with
any Employee Benefit Plan;



(j) all Permits, including Environmental Permits, used by the Company in the Business (which
includes all Permits necessary to conduct the Business as currently conducted) and all rights and
incidents of interest therein;



(k) all raw materials and supplies owned by the Company and used in connection with the
Business;



(l) all rights of the Company under non-disclosure or confidentiality, non-compete or
non-solicitation agreements with Former Employees, Employees and agents of the Company or with
third parties to the extent relating to the Business or the Purchased Assets (or any portion
thereof);



(m) all rights of the Company under or pursuant to all warranties, representations and
guaranties made by suppliers, manufacturers and contractors to the extent relating to products sold
or services provided to the Company or to the extent affecting any Purchased Asset;




(n) all work-in-process;




(o) all other assets reflected on the Company Balance Sheet;




(p) all claims, choses-in-action and rights in litigation and settlements in respect thereof;



(q) all third-party property and casualty insurance proceeds, and all rights to third-party
property and casualty insurance proceeds, in each case to the extent received or receivable in
respect of the Business;


 


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(r) all incentives from any Governmental Authority related to the Facility;



(s) all shares of capital stock or other equity securities held by the Company with respect to
any other Person; and



(t) all goodwill and other intangible assets associated with the Business, including the
goodwill associated with the Intellectual Property of the Company.



Section 2.2 Excluded Assets. Nothing herein contained shall be deemed to sell,
transfer, assign or convey the Excluded Assets to Newco or Purchaser, and the Company shall retain
right, title and interest to, in and under the Excluded Assets. “Excluded Assets” shall
mean each of the following assets:




(a) the Excluded Contracts;



(b) all Books and Records of the Company as pertain to ownership, organization or existence of
the Company and duplicate copies of such records as are necessary to enable the Company to file tax
returns and reports and to fulfill its reporting obligations under applicable securities laws; and




(c) all membership interests (units) or other equity securities of the Company.



Section 2.3 Assumption of Liabilities. On the terms and subject to the conditions set
forth in this Agreement, at the Closing Purchaser shall assume, effective as of the Closing, the
following liabilities of the Company, (collectively, the “Assumed Liabilities”):



(a) all Liabilities of the Company under the Purchased Contracts excluding the Excluded
Liabilities;



(b) all accounts payable incurred in the Ordinary Course of Business to the extent reflected
on the Final Closing Balance Sheet or incurred in the Ordinary Course of Business between the date
of the Final Closing Balance Sheet and Closing, excluding the Excluded Liabilities;



(c) all Liabilities arising out of, under or in connection with any Indebtedness of the
Company to the extent reflected on the Final Closing Balance Sheet or incurred in the Ordinary
Course of Business between the date of the Final Closing Balance Sheet and Closing, excluding the
Excluded Liabilities;



(d) all Liabilities, including reserves therefor, to the extent reflected in the Final Closing
Balance Sheet, excluding the Excluded Liabilities;



(e) all Liabilities in respect of any products sold by the Company on or before the Closing
Date pursuant to the MOSA; and


 


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(f) all Liabilities to third parties other than the Company or its members occurring as a
result of the breach by REG or any of its Affiliates of its or their obligations under the MOSA.



Section 2.4 Excluded Liabilities. Neither Newco nor Purchaser will assume or be
liable for any Excluded Liabilities. The Company shall timely perform, satisfy and discharge in
accordance with their respective terms all Excluded Liabilities. “Excluded Liabilities”
shall mean all Liabilities of the Company arising out of, relating to or otherwise in respect of
the Business on or before the Closing Date and all other Liabilities of the Company other than the
Assumed Liabilities. Excluded Liabilities shall include, but not be limited to, the following
Liabilities and in no event shall Newco or Purchaser assume any liability for the matters set out
in this Section 2.4 except those Liabilities, including reserves therefor, to the extent reflected
in the Final Closing Balance Sheet.



(a) except to the extent specifically provided in Article VII, all Liabilities arising
out of, relating to or with respect to (i) the employment or performance of services, or
termination of employment or services, by the Company of any of its Affiliates of any individual on
or before the Closing Date; (ii) workers’ compensation claims against the Company that relate to
the period on or before the Closing Date, irrespective of whether such claims are made prior to or
after the Closing, and (iii) any Employee Benefit Plan;



(b) all Liabilities arising out of, under or in connection with Excluded Contracts and, with
respect to Purchased Contracts, Liabilities in respect of a breach by or default of the Company
accruing under such Contracts with respect to any period prior to Closing;



(c) all Liabilities for (i) Taxes of the Company or any Subsidiary (or any predecessor
thereof), (ii) Taxes that relate to the Purchased Assets or the Assumed Liabilities for taxable
periods (or portions thereof) ending on or before the Closing Date, including, without limitation,
Taxes allocable to the Company pursuant to Section 10.2, and (iii) payments under any Tax
allocation, sharing or similar agreement (whether oral or written);



(d) all Liabilities in respect of any pending or threatened Legal Proceeding, or any claim
arising out of, relating to or otherwise in respect of (i) the operation of the Business to the
extent such Legal Proceeding or claim relates to such operation on or prior to the Closing Date,
except as provided in Section 2.3(f) hereof, or (ii) any Excluded Asset;



(e) all Environmental Costs and Liabilities of the Company or relating to the Purchased
Assets;



(f) all Liabilities or obligations of the Company relating to the business, operations, assets
or Liabilities of any Subsidiary or former Subsidiary of the Company based upon, relating to or
arising out of events, actions or failures to act prior to the Closing Date; and



(g) all Liabilities of the Company or its officers or directors to the holders of the
membership or other equity interests of the Company.


 


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Section 2.5 Further Conveyances and Assumptions; Consent of Third Parties.



(a) From time to time following the Closing, the Company and Purchaser shall, and shall cause
their respective Affiliates to, execute, acknowledge and deliver all such further conveyances,
notices, assumptions, releases and aquittances and such other instruments, and shall take such
further actions, as may be reasonably necessary or appropriate to assure fully to Purchaser and its
successors or assigns, all of the properties, rights, titles, interests, estates, remedies, powers
and privileges intended to be conveyed to Purchaser under this Agreement and the Company Documents
and to assure fully to the Company and its successors and assigns, the assumption of the
liabilities and obligations intended to be assumed by Purchaser under this Agreement and the
Purchaser Documents, and to otherwise make effective the transactions contemplated hereby and
thereby.



(b) Nothing in this Agreement nor the consummation of the transactions contemplated hereby
shall be construed as an attempt or agreement to assign any Purchased Asset, including any
Contract, Permit, certificate, approval, authorization or other right, which by its terms or by Law
is nonassignable without the consent of a third party or a Governmental Authority or is cancelable
by a third party in the event of an assignment (“Nonassignable Assets”) unless and until
such consent shall have been obtained. The Company shall use its commercially reasonable efforts
to obtain such consents promptly. To the extent permitted by applicable Law, in the event consents
to the assignment thereof cannot be obtained, such Nonassignable Assets shall be held, as of and
from the Closing Date, by the Company in trust for Purchaser and the covenants and obligations
thereunder shall be performed by Purchaser in the Company’s name and all benefits and obligations
existing thereunder shall be for Purchaser’s account. The Company shall take or cause to be taken
at the Company’s expense such actions in its name or otherwise as Purchaser may reasonably request
so as to provide Purchaser with the benefits of the Nonassignable Assets and to effect collection
of money or other consideration that becomes due and payable under the Nonassignable Assets, and
the Company shall promptly pay over to Purchaser all money or other consideration received by it in
respect of all Nonassignable Assets less the amount of any expenses incurred by the Company in
connection with the collection. As of and from the Closing Date, the Company authorizes Purchaser,
to the extent permitted by applicable Law and the terms of the Nonassignable Assets, at Purchaser’s
expense, to perform all the obligations and receive all the benefits of the Company under the
Nonassignable Assets and appoints Purchaser its attorney-in-fact to act in its name on its behalf
with respect thereto.



Section 2.6 Bulk-Sales Laws. Purchaser hereby waives compliance by the Company with
the requirements and provisions of any “bulk-transfer” Laws of any jurisdiction that may otherwise
be applicable with respect to the sale of any or all of the Purchased Assets to Purchaser;
provided, however, that, except with respect to the Assumed Liabilities, the Company agrees (a) to
pay and discharge when due or to contest or litigate all claims of creditors which are asserted
against Purchaser or the Purchased Assets by reason of such noncompliance, (b) to indemnify, defend
and hold harmless Purchaser from and against any and all such claims and (c) to take promptly all
necessary action to remove any Lien which is placed on the Purchased
Assets by reason of such noncompliance. Any “bulk-transfer” Law that addresses Taxes shall be
governed by Article X and not by this Section 2.6.


 


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Section 2.7 Right to Control Payment. Purchaser shall have the right, but not the
obligation, to make any payment due from the Company with respect to any Excluded Liabilities which
are not paid by the Company within five (5) Business Days following written request for payment
from Purchaser; provided, however, that if the Company advises Purchaser in writing during such
five (5) Business Day period that a good faith payment dispute exists or the Company has valid
defenses to non-payment with respect to such Excluded Liability, then Purchaser shall not have the
right to pay such Excluded Liability. The Company agrees to reimburse Purchaser promptly and in
any event within five (5) Business Days following written notice of such payment by Purchaser for
the amount of any payment made by Purchaser pursuant to this Section 2.7. Payment under this
Section 2.7 shall be made promptly and in full.



Section 2.8 Proration of Certain Expenses. Subject to Section 2.4(d) and Section 10.2
with respect to Taxes, all expenses and other payments in respect of the Owned Property and all
rents and other payments (including any prepaid amounts) due under the Real Property Leases and any
other leases constituting part of the Purchased Assets shall be prorated between the Company, on
the one hand, and Purchaser, on the other hand, as of the Closing Date. The Company shall be
responsible for all rents (including any percentage rent, additional rent and any accrued tax and
operating expense reimbursements and escalations), charges and other payments of any kind accruing
during any period under the Real Property Leases or any such other leases up to and including the
Closing Date. Purchaser shall be responsible for all such rents, charges and other payments
accruing during any period under the Real Property Leases or any such other leases after the
Closing Date. Purchaser shall pay the full amount of any invoices received by it and shall submit
a request for reimbursement to the Company for the Company’s share of such expenses and the Company
shall pay the full amount of any invoices received by it and Purchaser shall reimburse the Company
for Purchaser’s share of such expenses.



Section 2.9 Accounts Receivable. The Company shall provide commercially reasonable
assistance to Purchaser in the collection of accounts receivable. If the Company shall receive
payment in respect of accounts receivable that are included in the Purchased Assets, then the
Company shall promptly forward such payment to Purchaser.



ARTICLE III

CLOSING; CONSIDERATION




Section 3.1 Closing. The consummation of the purchase and sale of the Purchased
Assets and the assumption of the Assumed Liabilities provided for in Article II hereof (the
“Closing”) shall take place at the offices of Nyemaster, Goode, West, Hansell & O’Brien,
P.C. located at 700 Walnut Street, Suite 1600, Des Moines, Iowa 50309 (or at such other place as
the parties may designate in writing) at 10:00 a.m. (central standard time) on a date to be
specified by the parties (the “Closing Date”), which date shall be no later than the second
(2nd) Business Day after satisfaction or waiver of the conditions set forth in Article VIII
(other than conditions that by their nature are to be satisfied at Closing, but subject to the
satisfaction or waiver of those
conditions at such time), unless another time, date or place is agreed to in writing by the
parties hereto.


 


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Section 3.2 Procedure at Closing.




(a) At the Closing, the parties agree that the following shall occur:



(i) each of the conditions precedent (as applicable) in Section 8.1 shall have been satisfied,
or such condition(s) shall have been expressly waived in writing by Purchaser;



(ii) each of the conditions precedent (as applicable) in Section 8.2 shall have been
satisfied, or such condition(s) shall have been expressly waived in writing by the Company;



(iii) an appropriate notation shall be made on the books and records of Newco as to the Newco
Common Stock and the Newco Preferred Stock issued to the Company Unitholders at the Closing
pursuant to the terms hereof and Newco shall issue and deliver the Newco Common Stock and the Newco
Preferred Stock to the Company for distribution to the Company Unitholders as set forth herein; and



(iv) all of the documents and instruments delivered at the Closing shall be in form and
substance, and shall be executed and delivered in a manner, reasonably satisfactory to the parties’
respective counsel.




Section 3.3 Consideration.



(a) Consideration. In consideration of the purchase and sale of the Purchased Assets
and the assumption of the Assumed Liabilities provided for in Article II hereof, Newco shall issue
and deliver to the Company, free and clear of any Liens except as provided in the Certificate of
Incorporation, this Agreement and under applicable state and federal securities laws, in the manner
and subject to the conditions set forth below, the following (in the aggregate, the “Purchase
Price”):



(i) Four Million Two Forty Eight Thousand Eight Hundred Forty (4,248,840) shares of Newco
Common Stock, as adjusted for (A) any post-Effective Date dividend, stock split, recapitalization
or reorganization of Newco and (B) fractional shares as set forth in subsection (iii) below, by
delivery of Newco Common Stock certificates to the Company for delivery to the Company Unitholders
as set forth herein; and



(ii) One Hundred Fifty Eight Thousand Forty One (158,041) shares of Newco Preferred Stock, as
adjusted for (A) any post-Effective Date dividend, stock split, recapitalization or reorganization
of Newco and (B) fractional shares as set forth in subsection (iii) below, by delivery of Newco
Preferred Stock certificates to the Company for delivery to the Company Unitholders as set forth
herein.


 


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(iii) Fractional Shares. Any fractional share of Newco Common Stock or of Newco
Preferred Stock issuable to a Company Unitholder as a consequence of the determination of the
Purchase Price for such holder in accordance with Sections 3.1(a)(i)-(ii) shall be rounded up to
the next full share of Newco Common Stock or Newco Parent Stock, as the case may be, and the total
number of shares of Newco Common Stock and Newco Preferred Stock issued as a consequence of such
rounding up shall be considered part of the Purchase Price for purposes of this Section 3.1(a) and
the transactions contemplated by this Agreement.



(b) As soon as reasonably practicable after the Closing Date, Newco shall deliver to the
Company certificates representing the Newco Common Stock and Newco Preferred Stock constituting the
Purchase Price registered in the names of the holders of record of the outstanding membership units
of the Company set forth on Company Disclosure Schedule 3.3(b) (the “Company
Unitholders”), pro rata in accordance with their ownership interests and adjusted as set forth
in this Section 3.3, and the Company shall promptly distribute such certificates to the Company
Unitholders; provided, however, that solely for purposes of distribution of Newco Common Stock and
Newco Preferred Stock constituting the Purchase Price, Company Unitholders shall not include REG or
Affiliates of REG. Effective as of the Closing, all outstanding membership units of the Company
held by REG or Affiliates of REG are cancelled.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY




The Company hereby represents and warrants to Newco and Purchaser that, except as set forth in
the disclosure schedule (with specific reference to the Section or subsection of this Agreement to
which the information stated in such disclosure schedule relates) delivered by the Company to Newco
and Purchaser simultaneously with the execution of this Agreement (the “Company Disclosure
Schedule”); provided, however, all representations and warranties by the Company are subject to
the qualification that it shall not be a breach of any such representation or warranty to the
extent Newco, Purchaser or REG has Knowledge of such breach on the Effective Date:




Section 4.1 Organization and Existence; No Subsidiaries.



(a) The Company is a limited liability company duly organized and validly existing under the
laws of the State of Iowa and has all requisite limited liability company power and authority to
own, lease and operate its properties and to carry on its business as now conducted and as
currently proposed to be conducted. The Company is duly qualified or authorized to do business
under the laws of each jurisdiction in which it owns or leases real property and each other
jurisdiction in which the conduct of its business or the ownership of its properties requires such
qualification or authorization, except where the failure to be so qualified or authorized could not
have or reasonably be expected to have a Material Adverse Effect with respect to the Company. The
Company has delivered to Newco true, complete and correct copies of its operating agreement as in
effect on the date hereof.


 


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(b) Except as set forth on Company Disclosure Schedule 4.1(b), the Company does not,
directly or indirectly, own any stock or other equity interest in any other Person. No former
Subsidiary of the Company had any operations, business, Liabilities or other activities that would
create a Liability on the part of the Company.




Section 4.2 Authorization of Agreement.



(a) The Company has full limited liability company power and authority to execute and deliver
this Agreement and each other agreement, document, or instrument or certificate contemplated by
this Agreement or to be executed by the Company in connection with the consummation of the
transactions contemplated by this Agreement (the “Company Documents”), and, subject to
obtaining the Company Unitholder Approval, to perform its obligations hereunder and thereunder and
to consummate the transactions contemplated hereby and thereby. The execution, delivery and
performance by the Company of this Agreement and each of the Company Documents and the consummation
of the transactions contemplated hereby and thereby have been duly authorized and approved by the
Company’s Board of Directors, and except for obtaining the Company Unitholder Approval, no other
action on the part of the Company as an Iowa limited liability company is necessary to authorize
the execution, delivery and performance of this Agreement and the transactions contemplated hereby.
This Agreement has been, and each of the Company Documents will be, at or prior to the Closing,
duly executed and delivered by the Company and (assuming the due authorization, execution and
delivery by Newco, Purchaser and REG and receipt of the Company Unitholder Approval) this Agreement
constitutes, and each of the Company Documents when so executed and delivered will constitute,
legal, valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms, subject to applicable bankruptcy, insolvency, 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).



(b) The affirmative vote (in person or by proxy) of the holders of a majority of the
outstanding membership units of the Company in favor of the adoption of this Agreement is the only
vote or approval of the holders of any class or series of equity of the Company which is necessary
to adopt this Agreement and approve the transactions contemplated hereby; provided, however, the
distribution of the Newco Common Stock and Newco Preferred Stock to the Company Unitholders in
connection with the dissolution of the Company, which is a component of the transactions
contemplated hereby, will require the affirmative vote of the Company Unitholders holding
seventy-five percent (75%) of the outstanding membership units of the Company in favor of the
adoption of this Agreement and the dissolution of the Company (the “Company Unitholder Approval”).
None of the Organizational Documents of the Company, other Documents between the Company and the
Company Unitholders, or applicable Law grant, provide for, or establish dissenter’s appraisal
rights with respect to the Transaction.


 


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Section 4.3 Conflicts; Consents of Third Parties.



(a) Except as set forth on Company Disclosure Schedule 4.3(a), and assuming the
Company Unitholder Approval is obtained and the filings and actions referred to in
Sections 4.3(b)(ii)(A) & (B) are made to the extent necessary and the related regulatory
requirements are satisfied, none of the execution and delivery by the Company of this Agreement or
by the Company of the Company Documents, the consummation of the transactions contemplated hereby
or thereby, or compliance by the Company with any of the provisions hereof or thereof will conflict
with, or result in any violation or breach of, or conflict with or cause a default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or the loss of a material benefit under, or give rise to any
obligation of the Company to make any payment under, or to the increased, additional, accelerated
or guaranteed rights or entitlements of any Person under, or result in the creation of any Liens
upon any of the properties or assets of the Company under, any provision of (i) the operating
agreement of the Company; (ii) any Purchased Contract or Permit to which the Company is a party or
by which any of the properties or assets of the Company are bound, except as could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to
the Company; (iii) any Order applicable to the Company or by which any of the properties or assets
of the Company are bound; or (iv) any applicable Law, except as could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect with respect to the Company.



(b) No consent, waiver, approval, Permit or authorization of or filing with, or notification
to, any Person or Governmental Authority is required on the part of the Company in connection with
(i) the execution and delivery of this Agreement or the Company Documents, the compliance by the
Company with any of the provisions hereof and thereof, the consummation of the transactions
contemplated hereby and thereby or the taking by the Company of any other action contemplated
hereby or thereby, or (ii) the continuing validity and effectiveness immediately following the
Closing of any Contract or Permit of the Company, except (A) for the filing with the SEC of the
Form S-4, the Joint Proxy Statement and other filings required under, and compliance with other
applicable requirements of, the Securities Act and the Exchange Act, (B) for filings required under
and compliance with the applicable requirements of the HSR Act, (C) as set forth on Company
Disclosure Schedule 4.3(b) and (D) as could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect with respect to the Company.




Section 4.4 Financial Statements.



(a) The Company has delivered to Purchaser copies of (i) the audited balance sheets of the
Company as at September 30, 2008, September 30, 2007 and September 30, 2006 and the related audited
statements of income and of cash flows of the Company for the years then ended and (ii) the
unaudited balance sheet of the Company as at March 31, 2009 and the related statement of income and
cash flows of the Company for the six (6) month period then ended (such audited and unaudited
statements, including the related notes and schedules thereto, are referred to herein as the
“Financial Statements”). Each of the Financial Statements is complete
and correct in all material respects, has been prepared in accordance with GAAP consistently
applied (except with respect to the unaudited financial statements for normal recurring year-end
adjustments that, individually or in the aggregate, would not be material) without modification of
the accounting principles used in the preparation thereof throughout the periods presented and
presents fairly in all material respects the consolidated financial position, results of operations
and cash flows of the Company as at the dates and for the periods indicated. For the purposes
hereof, the unaudited balance sheet of the Company as at March 31, 2009 is referred to as the
“Balance Sheet” and March 31, 2009 is referred to as the “Balance Sheet Date.”




 


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(b) The Company makes and keeps books, records and accounts that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of its assets. The Company
maintains systems of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit the preparation of financial statements in
conformity with GAAP 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 the actual levels at reasonable intervals and
appropriate action is taken with respect to any differences.



(c) The Company’s principal executive officer and its principal financial officer have
disclosed, based on their most recent evaluation, to the Company’s auditors and the audit committee
of the Board of Directors of the Company (i) all 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 have identified for the Company’s auditors any
material weaknesses in internal controls and (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s internal controls.



(d) The Company has established and maintains disclosure controls and procedures designed to
ensure that material information relating to the Company is made known to the Company’s principal
executive officer and its principal financial officer by others within the Company; and, to the
Knowledge of the Company, such disclosure controls and procedures are effective in timely alerting
the Company’s principal executive officer and its principal financial officer to material
information.



(e) The Company’s records, systems, controls, data and information are recorded, stored,
maintained and operated under the exclusive ownership and direct control of it and the Company’s
accountants. The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances regarding the reliability of financial reporting and the preparation of
financial statements in accordance with GAAP.



Section 4.5 No Undisclosed Liabilities. Except as set forth on Company Disclosure
Schedule 4.5, the Company has no Indebtedness or Liabilities (whether or not required under
GAAP to be reflected on a balance sheet or the notes thereto) other than those (i) specifically
reflected in, fully reserved against or otherwise described in the Balance Sheet or the notes
thereto, (ii) incurred in the Ordinary Course of Business since the Balance Sheet Date, or
(iii) that are immaterial, individually or in the aggregate, to the Company.


 


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Section 4.6 SEC Documents; Regulatory Reports; Sarbanes Oxley Act.



(a) SEC Documents. The Company and its Subsidiaries have filed or furnished all
required reports, schedules, registration statements and other documents and exhibits thereto with
or to the SEC since December 31, 2005 and through the Business Day prior to the date of this
Agreement (the “Company SEC Documents”) except as set forth on Company Disclosure
Schedule 4.6. As of their respective dates of filing with or publicly furnishing to the SEC
(or, if amended or supplemented by a filing prior to the date hereof, as of the date of such latest
filing), the Company SEC Documents complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Company SEC Documents, and none of the Company SEC Documents when
filed with or publicly furnished to the SEC (or, if amended or supplemented by a filing prior to
the date hereof, as of the date of such latest filing) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading. The
financial statements of the Company and its Subsidiaries, included in the Company SEC Documents
complied, as of their respective dates of filing with the SEC (or, if amended or supplemented by a
filing prior to the date hereof, as of the date of such latest filing), in all material respects
with all applicable accounting requirements and with the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with GAAP (except as may be indicated in the
notes thereto or , in the case of unaudited statements, as permitted by the requirements of Form
10-Q promulgated by the SEC and the requirements of Regulation S-X promulgated by the SEC) and
fairly present in all material respects the consolidated financial position of the Company and its
consolidated Subsidiaries (in the case of Company SEC Documents filed by the Company) or the
entities purported to be presented therein (in the case of Company SEC Documents filed by
Subsidiaries or separate accounts) and the consolidated results of operations, changes in
shareholder’s equity and cash flows of such companies or entities as of the dates and for the
periods shown (subject, in the case of any unaudited interim financial statements, to normal and
recurring year-end adjustments as permitted by Form 10-Q and Regulation S-X or that, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse Effect with
respect to the Company).



(b) Regulatory Reports. Other than the Company SEC Documents above, the Company and
each of its Subsidiaries have timely filed (after taking into account all grace periods or
extensions) all reports, registrations and statements, together with any amendments required to be
made with respect thereto, that they were required to file since December 31, 2005 with any
Governmental Authority, and have paid all fees and assessments due and payable in connection
therewith, except where the failure to file such report, registration or statement or to pay such
fees and assessments would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect with respect to the Company.


 


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(c) Except for (i) those liabilities that are fully reflected or reserved for in the
consolidated financial statements of the Company included in its Annual Report on Form 10-K for the
year ended September 30, 2008, as filed with the SEC prior to the date of this Agreement, (ii)
liabilities reflected on the Balance Sheet, (iii) liabilities incurred since the Balance Sheet Date
in the Ordinary Course of Business consistent with past practice, (iv) liabilities incurred
pursuant to this Agreement and the transactions contemplated hereby and (v) liabilities which would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect
with respect to the Company, the Company and its Subsidiaries do not have, and since the Balance
Sheet Date, the Company and its Subsidiaries have not incurred, any liabilities or obligations of
any nature whatsoever (whether accrued, absolute, contingent or otherwise and whether or not
required to be reflected in the Financial Statements in accordance with GAAP).



(d) The Company and its Subsidiaries are in compliance with the applicable provisions of the
Sarbanes-Oxley Act of 2002 and the related rules and regulations promulgated thereunder or under
the Exchange Act (the “Sarbanes Oxley Act”), except where the failure to so comply,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect with respect to the Company. Except as permitted by the Exchange Act, including Section
13(k)(2) and (3), since the enactment of the Sarbanes-Oxley Act, neither the Company, its
Subsidiaries nor any of its Affiliates has made, arranged or modified (in any material way)
personal loans to any executive officer or director of the Company or of any of its Subsidiaries.



(e) The principal executive officer and principal financial officer of the Company (or each
former principal executive officer and principal financial officer of the Company, as applicable)
have made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act or Sections
302 and 906 of the Sarbanes-Oxley Act and the rules and regulations of the SEC promulgated
thereunder with respect to the Company SEC Documents. The Company has made available to Purchaser
a summary of any disclosure made by the management of the Company to the Company’s independent
auditors and the audit committee of the Board of Directors of the Company since December 31, 2005
referred to in such certificates.



(f) The management of the Company has (i) designed and implemented disclosure controls and
procedures (as defined in Rule 13a-15(e) of the Exchange Act), or caused such disclosure controls
and procedures to be designed and implemented under their supervision, to ensure that material
information relating to the Company, including its Subsidiaries, is made known to management of the
Company by others within those entities and (ii) has disclosed, based on its most recent evaluation
of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act), to
the Company’s outside auditors and the audit committee of the Board of Directors of the Company (A)
any significant deficiencies and material weaknesses in the design or operation of internal control
over financial reporting which could reasonably be expected to adversely effect the Company’s
ability to record, process, summarize and report financial information and (B) any fraud, whether
or not material, that involves management or other employees who have a significant role in the
Company’s internal control over financial reporting. Since December 31, 2005, any material change
in internal control over financial report required to be disclosed in any Company SEC Documents has
been so disclosed.


 


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(g) Since December 31, 2005 (i) neither the Company nor any of its Subsidiaries nor, to the
Knowledge of the Company, any representative of the Company or any of its Subsidiaries has received
or otherwise obtained Knowledge of any material complaint, allegations, assertion or claim, whether
written or oral, regarding the accounting or auditing practices, procedures, methodologies or
methods of the Company or any of its Subsidiaries or their respective internal accounting controls
relating to periods after December 31, 2005, including any material complaint, allegation,
assertion or claim that the Company or any of its Subsidiaries has engaged in questionable
accounting or auditing practices (except for any of the foregoing received after the date of this
Agreement which have no reasonable basis), and (ii) to the Knowledge of the Company, no attorney
representing the Company or any of its Subsidiaries, whether or not employed by the Company or its
Subsidiaries, has reported evidence of a material violation of securities law, breach of fiduciary
duty or similar violation, relating to periods after December 31, 2005, by the Company or the
officers, directors, employees or agents of the Company to the Board of Directors of the Company or
any committee thereof or to any director or executive officer of the Company.



Section 4.7 Title to Purchased Assets; Sufficiency. The Company owns and has good
title to each of the Purchased Assets (except as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect with respect to the Company) free and
clear of all Liens other than Permitted Exceptions. The Purchased Assets constitute all of the
assets and properties used in or held for use in the Business and are sufficient for Purchaser to
conduct the Business from and after the Closing Date without interruption and in the Ordinary
Course of Business, as it has been conducted by the Company.



Section 4.8 Absence of Certain Developments. Except as expressly contemplated by this
Agreement or as set forth on Company Disclosure Schedule 4.8, since the Balance Sheet Date,
(a) the Company has conducted the Business only in the Ordinary Course of Business and (b) there
has not been any event, change, occurrence or circumstance that, individually or in the aggregate,
with any other events, changes, occurrences or circumstances, has had or could reasonably be
expected to have a Material Adverse Effect with respect to the Company. Without limiting the
generality of the foregoing, since the Balance Sheet Date or as set forth on Company Disclosure
Schedule 4.8:



(a) there has not been any damage, destruction or loss, whether or not covered by insurance,
with respect to the Purchased Assets having a replacement cost of more than $10,000 for any single
loss or $50,000 for all such losses except shrinkage of biodiesel inventory in the Ordinary Course
of Business;



(b) other than in the Ordinary Course of Business, the Company has not awarded or paid any
bonuses to Former Employees or Employees of the Company, except to the extent accrued on the
Balance Sheet, or entered into any employment, deferred compensation, long-term incentive,
severance, stay bonus, bonus, or similar agreement (nor amended any such agreement) or agreed to
increase the compensation payable or to become payable by it to any of the Company’s directors,
officers, employees, agents or representatives or agreed to increase the coverage or benefits
available under any severance pay, termination pay, vacation pay, company
awards, salary continuation for disability, sick leave, deferred compensation, bonus or other
incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement
made to, for or with such directors, officers, employees, agents or representatives;


 


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(c) there has not been any change by the Company in accounting or Tax reporting principles,
methods or policies;



(d) the Company has not failed to promptly pay and discharge current Liabilities except for
Liabilities not material in amount;



(e) the Company has not made any capital investment in, any loan to, or any acquisition of the
securities or assets of, any other Person, other than advances to Employees in the Ordinary Course
of Business;



(f) the Company has not mortgaged, pledged or subjected to any Lien any of its assets, or
acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any
assets of the Company, except for assets acquired or sold, assigned, transferred, conveyed,
subjected to any Lien or otherwise disposed of in the Ordinary Course of Business;



(g) the Company has not discharged or satisfied any Lien, or paid any Liability, except in the
Ordinary Course of Business;



(h) the Company has not canceled or compromised any debt or claim or amended, modified,
canceled, terminated, relinquished, waived or released any Contract or right except in the Ordinary
Course of Business and which, in the aggregate, would not be material to the Company;



(i) the Company has not issued, created, incurred, assumed or guaranteed any Indebtedness,
except in the Ordinary Course of Business;



(j) the Company has not made or committed to make any capital expenditures (a) in excess of
planned capital expenditures budgeted for the current fiscal year and as reasonably deemed to be
necessary by the Company for next fiscal year consistent with prior practice or (b) which require
any payment that may or will extend beyond the Closing Date;



(k) the Company has not instituted or settled any material Legal Proceeding resulting in or
which may result in a loss of revenue in excess of $10,000 individually or in amounts exceeding
$50,000 in the aggregate;



(l) the Company has not granted any license or sublicense of any rights under or with respect
to any Intellectual Property or Technology of the Company;



(m) the Company has not made any loan to, or entered into any other transaction with, any of
its unitholders, Affiliates, officers, directors, partners or employees, except for any advances
made to Employees in the Ordinary Course of Business; and



(n) the Company has not agreed, committed, arranged or entered into any understanding to do
anything set forth in this Section 4.8.


 


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Section 4.9 Taxes.



(a) (i) All income, franchise and all other material Tax Returns required to be filed by or on
behalf of the Company, any Subsidiary or any affiliated, consolidated, combined or unitary group of
which the Company or any Subsidiary is or was a member have been duly and timely filed with the
appropriate Taxing Authority in all jurisdictions in which such Tax Returns are required to be
filed (after giving effect to any valid extensions of time in which to make such filings), and all
such Tax Returns are true, complete and correct in all material respects; and (ii) all income,
franchise and other material Taxes payable by or on behalf of the Company, any Subsidiary or any
affiliated, consolidated, combined or unitary group of which the Company or any Subsidiary is or
was a member have been fully and timely paid. With respect to any period for which Taxes are not
yet due or owing, the Company has made due and sufficient accruals for such Taxes in the Financial
Statements and its books and records. All required estimated Tax payments sufficient to avoid any
material underpayment penalties or interest have been made by or on behalf of the Company.



(b) The Company has delivered to Purchaser or REG complete copies of (i) all income, franchise
and all other material Tax Returns of or including the Company and any Subsidiary relating to the
taxable periods ending on or after December 31, 2004 and (ii) any audit report issued after
December 31, 2004 relating to any Taxes due from or with respect to the Company or any Subsidiary.



(c) No claim has been made by a Taxing Authority in a jurisdiction where the Company or any
Subsidiary does not file Tax Returns such that it is or may be subject to taxation by that
jurisdiction.



(d) All deficiencies asserted or assessments made as a result of any examinations by any
Taxing Authority of the Tax Returns of, or including, the Company or any Subsidiary have been fully
paid, and there are no audits or investigations of the Company or any Subsidiary by any Taxing
Authority in progress, nor has the Company or any Subsidiary received any written notice from any
Taxing Authority that it intends to conduct such an audit or investigation. No issue has been
raised by a Taxing Authority in any prior examination of the Company or any Subsidiary that, by
application of the same or similar principles, could reasonably be expected to result in a material
proposed deficiency for any subsequent taxable period.



(e) The Company has complied in all material respects with all applicable Laws relating to the
payment and withholding of Taxes and has duly and timely withheld and paid over to the appropriate
Taxing Authority all amounts required to be so withheld and paid under all applicable Laws.


 


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(f) Neither the Company nor any Subsidiary nor any other Person on its behalf has (i) executed
or entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision
of Law with respect to the Company or any Subsidiary that would be binding
on Newco or Purchaser after the Closing Date, (ii) requested any extension of time within
which to file any income, franchise or other material Tax Return, which Tax Return has since not
been filed, (iii) granted any extension for the assessment or collection of any income, franchise
or other material Taxes, which Taxes have not since been paid, or (iv) granted to any Person any
power of attorney that is currently in force with respect to any Tax matter that would be binding
on Newco or Purchaser after the Closing Date.



(g) Neither the Company nor any Subsidiary is a party to any tax sharing, allocation,
indemnity or similar agreement or arrangement (whether or not written) pursuant to which it will
have any obligation to make any payments after the Closing.



(h) No Contract is a contract, agreement, plan or arrangement covering any person that,
individually or collectively, could give rise to the payment of any amount that would not be
deductible by Newco or Purchaser, the Company or any of their respective Affiliates by reason of
Section 280G of the Code or be subject to Section 4999 of the Code.




(i) There are no Liens for Taxes upon the Purchased Assets, except for Permitted Exceptions.



(j) Since its inception, the Company has (i) been properly treated as a partnership for
Federal, state and local income Tax purposes, and has not made an election, by IRS Form 8832 or
otherwise, to be treated as a corporation and (ii) has not been a “publicly traded partnership”
within the meaning of Section 7704 of the Code.




(k) The Company is not a “foreign person” within the meaning of Section 1445 of the Code.



(l) Neither the Company nor any Subsidiary is subject to any private letter ruling of the IRS
or any comparable ruling of any Taxing Authority that would be binding on Newco or Purchaser after
the Closing Date.



(m) None of the Purchased Assets is (i) property required to be treated as being owned by
another Person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of
1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986,
(ii) “tax-exempt use property” within the meaning of Section 168(h)(1) of the Code,
(iii) “tax-exempt bond financed property” within the meaning of Section 168(g) of the Code,
(iv) “limited use property” within the meaning of Rev. Proc. 2001-28, (v) subject to
Section 168(g)(1)(A) of the Code, or (vi) subject to any provision of state, local or foreign Law
comparable to any of the provisions listed above.



(n) Neither the Company nor any Subsidiary has ever been a member of any consolidated,
combined, affiliated or unitary group of corporations for any Tax purposes other than a group in
which the Company is the common buyer.


 


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(o) Neither the Company nor any Subsidiary has constituted either a “distributing corporation”
or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the
Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the
Code (A) in the two years prior to the date of this Agreement or (B) in a distribution that could
otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of
Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.



(p) The Company and each Subsidiary has disclosed on its federal income Tax Returns all
positions taken therein that could give rise to substantial understatement of federal income tax
within the meaning of Section 6662 of the Code.



(q) Neither the Company nor any Subsidiary has or has ever had a permanent establishment in
any jurisdiction other than the United States, or has engaged in a trade or business in any
jurisdiction other than the United States that subjected it to tax in such country.



(r) The Company has not participated in any “reportable transaction” as defined in Treasury
regulation Section 1.6011-4(b).



Notwithstanding the foregoing, for purposes of this Section 4.9, any reference to the Company
or any Subsidiary shall be deemed to include any Person that merged with or was liquidated into the
Company or any Subsidiary.




Section 4.10 Real Property.



(a) Company Disclosure Schedule 4.10(a)(i)(A) sets forth a complete list of (i) all
real property and interests in real property, including easements appurtenant thereto, owned in fee
by the Company (individually, an “Owned Property” and collectively, the “Owned
Properties”), and (ii) all real property and interests in real property leased, licensed or
subleased by the Company as lessee or lessor, licensee or licensor, including a description of each
such Real Property Lease (including the name of the third party lessor or lessee, the date of the
lease or sublease and all amendments thereto and the manner in which such interest is held) and the
property encumbered thereby (individually, a “Real Property Lease” and collectively, the
“Real Property Leases” and, together with the Owned Properties, being referred to herein
individually as a “Company Property” and collectively as the “Company Properties”).
The properties listed on Company Disclosure Schedule 4.10(a)(i)(B) are referred to herein
as the “Excluded Properties.” The Company has good and marketable fee title to all Owned
Property (other than the owned Excluded Properties), free and clear of all Liens of any nature
whatsoever, except (A) those Liens set forth on Company Disclosure Schedule 4.10(a)(i)(A)
and (B) Permitted Exceptions. The Company Properties and the Excluded Properties constitute all
interests in real property currently used, occupied or currently held for use in connection with
the Business of the Company and which are necessary for the continued operation of the Business of
the Company as the Business is currently conducted. All of the Company Properties and buildings,
fixtures and improvements thereon owned or leased by the Company taken as a whole are in reasonably
good operating condition (ordinary wear and tear excepted), and all mechanical and other systems
located thereon, taken as a whole, are in reasonably good operating condition, in each case in all
material respects, except for repairs, maintenance and replacements necessary in the Ordinary
Course of Business. Except as set forth on Company Disclosure Schedule 4.10(a)(ii)
and except as could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect with respect to the Company, none of the improvements located on the
Company Properties constitute a legal non-conforming use or otherwise require any special
dispensation, variance or special permit under any Laws. The Company has delivered to Purchaser
true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned
Properties and (ii) the Real Property Leases, together with all amendments, modifications or
supplements, if any, thereto. The Company Properties are not subject to any leases, rights of
first refusal, options to purchase or rights of occupancy, except the Real Property Leases and
those set forth on Company Disclosure Schedule 4.10(a)(iii).


 


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(b) Except as set forth on Company Disclosure Schedule 4.10(b), (i) the Company has a
valid, binding and enforceable leasehold interest or license under each of the Real Property Leases
(other than the leased Excluded Properties) under which it is a lessee or licensee, free and clear
of all Liens other than Permitted Exceptions, (ii) each of the Real Property Leases is in full
force and effect, (iii) the Company is not in default under any Real Property Lease, and no event
has occurred and no circumstance exists which, if not remedied, and whether with or without notice
or the passage of time or both, would result in such a default, and (iv) the Company has not
received or given any notice of any default or event that with notice or lapse of time, or both,
would constitute a default by the Company under any of the Real Property Leases and, to the
Knowledge of the Company, no other party is in default thereof, and no party to any Real Property
Lease has exercised any termination rights with respect thereto.



(c) The Company has all material certificates of occupancy and Permits of any Governmental
Authority necessary or useful for the current use and operation of each Company Property, and the
Company has fully complied with all material conditions of the Permits applicable to them. No
material default or violation, or event that with the lapse of time or giving of notice or both
would become a material default or violation, has occurred in the due observance of any Permit.
The Company has not received any notice that any certificate of occupancy or Permit will not be
renewed at the end of its current term, and the Company is not aware of any facts that would cause
a denial of any renewal application.



(d) There does not exist any actual or, to the Knowledge of the Company, threatened or
contemplated condemnation or eminent domain proceedings that affect any Company Property or any
part thereof, and the Company has not received any notice, oral or written, of the intention of any
Governmental Authority or other Person to take or use all or any part thereof.



(e) The Company has not received any notice from any insurance company that has issued a
policy with respect to any Company Property requiring performance of any structural or other
repairs or alterations to such Company Property.



(f) Except as to the Excluded Assets or as set forth on Company Disclosure Schedule
4.10(f), the Company does not own, hold, and is not obligated under and is not a party to, any
option, right of first refusal or other contractual right to purchase, acquire, sell, assign or
dispose of any real estate or any portion thereof or interest therein. None of the Company
Properties is
subject to any option, right of first refusal or other contractual right to purchase, acquire,
sell or dispose of same.


 


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(g) With respect to each parcel of the Company Property and the buildings, structures,
improvements and fixtures thereon:



(i) Except for assessments occurring on a regular basis in accordance with applicable Legal
Requirements, there is no pending or, to the Knowledge of the Company, contemplated reassessment of
any parcel included in the Company Property that is reasonably expected to increase the real estate
tax assessment for such properties.



(ii) There is no pending, or to the Knowledge of the Company, contemplated proceeding to
rezone any parcel of the Company Property. The uses for which each parcel of the Company Property
is zoned do not restrict, or in any manner impair, the current use of the Company Property.
Neither the Company nor its Subsidiaries have received notice of any violation of any applicable
zoning law, regulation or other Legal Requirement, related to or affecting the Company Property.



(iii) All buildings, structures and other improvements on the Company Property, including but
not limited to driveways, out-buildings, landscaped areas and sewer systems, and all means of
access to the Company Property, are located completely within the boundary lines of the Company
Property and do not encroach upon or under the property of any other Person or entity. No
buildings, structures or improvements constructed on the property of any other Person encroach upon
or under the Company Property.



(iv) The use of the Company Properties, or any portion thereof, in the Business does not
violate or conflict with (A) any covenants, conditions or restrictions applicable thereto or (B)
the terms and provisions of any contractual obligations relating thereto.



(v) The Company or its Subsidiaries have good and valid rights of ingress and egress to and
from all of the Company Property (including between separate parcels included within the Company
Property) from and to any rail lines, rail spurs, pipelines and the public street systems for all
usual street, road, shipping, transport, storage, docking and utility purposes and other purposes
necessary or incidental to the operation of the Business.



(vi) All utilities required for or useful in the operation of the Business either enter the
Company Property through adjoining streets and roads, or if they pass through adjoining private
land, they do so in accordance with valid easements. All necessary utilities (including without
limitation, water, sewer, electricity and telephone facilities) are available to the Company
Property and there exists, to the Knowledge of the Company, no proposed limitation in or reduction
of the quality or quantity of utility services to be furnished to the Company Property. Adequate
sewage and water systems and connections are available to the Company Property as currently
operated.


 


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Section 4.11 Tangible Personal Property.



(a) The Company has good and marketable title to all of the items of tangible personal
property used in the Business by the Company (except as sold or disposed of subsequent to the date
hereof in the Ordinary Course of Business and not in violation of this Agreement), free and clear
of any and all Liens, other than Permitted Exceptions. All such items of tangible personal
property taken as a whole are in reasonably good operating condition (ordinary wear and tear
excepted) and are suitable for the purposes used, in each case in all materials respects, except
for repairs, maintenance and replacements necessary in the Ordinary Course of Business.



(b) Company Disclosure Schedule 4.11 sets forth all leases of personal property
(“Personal Property Leases”) involving annual payments in excess of $10,000 relating to
personal property used by the Company in the Business or to which the Company is a party or by
which the properties or assets of the Company is bound. All of the items of personal property
under the Personal Property Leases taken as a whole are in reasonably good operating condition and
repair (ordinary wear and tear excepted) and are suitable for the purposes used, and such property
is in all material respects in the condition required of such property by the terms of the lease
applicable thereto during the term of the lease, in each case, except for repairs, maintenance and
replacements necessary in the Ordinary Course of Business. The Company has delivered to Purchaser
true, correct and complete copies of the Personal Property Leases, together with all amendments,
modifications or supplements thereto.



(c) Except as could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect with respect to the Company, (i) the Company has a valid, binding and
enforceable leasehold interest under each of the Personal Property Leases under which it is a
lessee and (ii) each of the Personal Property Leases is in full force and effect and the Company
has not received or given any notice of any default or event that with notice or lapse of time, or
both, would constitute a default by the Company under any of the Personal Property Leases. To the
Knowledge of the Company, no other party is in default under any of the Personal Property Leases,
and no party to any of the Personal Property Leases has exercised any termination rights with
respect thereto.




Section 4.12 Intellectual Property.



(a) Company Disclosure Schedule 4.12(a) sets forth an accurate and complete list of
all Patents, registered Marks, pending applications for registration of Marks, unregistered Marks,
registered Copyrights, pending applications for registration of Copyrights and Internet domain
names owned or registered to the Company and included in the Intellectual Property. Company
Disclosure Schedule 4.12(a) lists (i) the record owner of each such item of Intellectual
Property, (ii) the jurisdictions in which each such item of Intellectual Property has been issued
or registered or in which any such application for issuance or registration has been filed and
(iii) the registration or application date, as applicable.


 


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(b) Except as disclosed in Company Disclosure Schedule 4.12(b), the Company is the
sole and exclusive owner of all right, title and interest in and to, or has the valid and
continuing
right to use, all of the Intellectual Property listed in Company Disclosure
Schedule 4.12(a). To the Knowledge of the Company, the Company is the sole and exclusive owner
of, or has valid and continuing rights to use, sell, license and otherwise commercially exploit, as
the case may be, all other Intellectual Property and all Technology as the same are used, sold,
licensed and otherwise commercially exploited in the Business as presently conducted, free and
clear of all Liens or obligations to others (except for those specified Intellectual Property
Licenses included in Company Disclosure Schedule 4.11(a) and except for Permitted
Exceptions).



(c) The Intellectual Property, the Technology, the manufacturing, licensing, marketing,
importation, offer for sale, sale or use of any products and services in connection with the
Business as presently conducted, and the present business practices, methods and operations of the
Company do not infringe, constitute an unauthorized use or misappropriation of, dilute or violate
any intellectual property, proprietary or other right of any Person. The Intellectual Property,
the Technology and the Intellectual Property Licenses include all of the Intellectual Property and
Technology necessary and sufficient to enable the Company to conduct the Business in the manner in
which such Business is currently being conducted.



(d) To the Knowledge of the Company, no Person is infringing, violating, misusing, diluting or
misappropriating any Intellectual Property or Technology of the Company. No such claims have been
made against any Person by the Company.



(e) The Company has taken adequate security measures to protect the confidentiality and value
of all the material Trade Secrets included in the Intellectual Property and any other non-public,
proprietary information included in the Technology, which measures are reasonable in the industry
in which the Business operates.



(f) As of the date hereof, the Company is not the subject of any pending or, to the Knowledge
of the Company, threatened Legal Proceedings which involve a claim of infringement, unauthorized
use, misappropriation, dilution or violation by any Person against the Company or challenging the
ownership, use, validity or enforceability of any Intellectual Property or Technology. The Company
has not received written (including by electronic mail) notice of any such threatened claim and, to
the Knowledge of the Company, there are no facts or circumstances that would form the basis for any
such claim or challenge. To the Knowledge of the Company, the Intellectual Property and
Technology, and all of the Company’s rights in and to the Intellectual Property and Technology, are
valid and enforceable.



(g) The consummation of the transactions contemplated hereby will not result in the loss or
impairment of Newco or Purchaser’s right to own or use any of the Intellectual Property or
Technology.



(h) Neither this Agreement nor any transaction contemplated by this Agreement will result in
the grant of any license with respect to any Intellectual Property or Technology of the Company to
any third Person pursuant to any Contract to which the Company is a party or by which any assets or
properties of the Company is bound.


 


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(i) Company Disclosure Schedule 4.12(i) sets forth a complete and accurate list of
(i) all Software included in the Technology developed by or for the Company, (ii) all Software
exclusively owned by the Company that is not included in the Technology but is incorporated,
embedded or bundled with any Software listed in subclause (i) above and (iii) all Software not
exclusively owned by the Company and incorporated, embedded or bundled with any Software listed in
subclause (i) above (excluding such Software licensed to the Company under a shrink-wrap or
click-through agreement on reasonable terms through commercial distributors or in consumer retail
stores for a license fee of no more than $1,000). The Company has not incorporated any “open
source,” “freeware,” “shareware” or other Software having similar licensing or distribution models
in any Software developed, licensed, distributed or otherwise exploited by or for the Company and
included in the Technology.



(j) The Company has not licensed or provided to any third Person, or otherwise permitted any
third Person to access or use, any source code or related materials for any Software developed by
or for the Company and included in the Technology of the Company. The Company is not currently a
party to any source code escrow agreement or any other agreement (or a party to any agreement
obligating the Company to enter into a source code escrow agreement or other agreement) requiring
the deposit of source code or related materials for any such Software.




Section 4.13 Material Contracts.



(a) Company Disclosure Schedule 4.13(a) sets forth, by reference to the applicable
subsection of this Section 4.13(a), all of the following Contracts to which the Company is a party
or by which it or its assets or properties are bound (collectively, the “Material
Contracts”):



(i) Contracts with any current or former officer, director, member or Affiliate of the
Company;




(ii) Contracts with any labor union or association representing any Employee of the Company;



(iii) Contracts for the sale of any of the assets of the Company other than in the Ordinary
Course of Business or for the grant to any Person of any preferential rights to purchase any of its
assets;



(iv) Contracts for joint ventures, strategic alliances, partnerships, or sharing of profits or
proprietary information;



(v) Contracts containing covenants of the Company not to compete in any line of business or
with any Person in any geographical area or not to solicit or hire any Person with respect to
employment or covenants of any other Person not to compete with the Company in any line of business
or in any geographical area or not to solicit or hire any Person with respect to employment;


 


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(vi) Contracts relating to the acquisition (by merger, purchase of stock or assets or
otherwise) by the Company of any operating business or material assets or the capital stock of any
other Person;



(vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or
imposing a Lien on any of the assets of the Company, including indentures, guarantees, loan or
credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection
with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional
sale or title retention agreements;




(viii) each purchase Contract giving rise to Liabilities of the Company in excess of $25,000;



(ix) each Contract providing for payments by or to the Company in excess of $25,000 in any
fiscal year or $50,000 in the aggregate during the term thereof;



(x) all Contracts obligating the Company to provide or obtain products or services for a
period of one year or more or requiring the Company to purchase or sell a stated portion of its
requirements or outputs;



(xi) Contracts under which the Company has made advances or loans to any other Person, except
advances to Employees of the Company in the Ordinary Course of Business;



(xii) Contracts providing for severance, retention, change in control or other similar
payments;



(xiii) Contracts for the employment of any individual on a full-time, part-time or consulting
or other basis providing annual compensation in excess of $50,000;



(xiv) management Contracts and Contracts with independent contractors or consultants (or
similar arrangements) in excess of $50,000 that are not cancelable without penalty or further
payment and without more than thirty (30) days’ notice;



(xv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the
Company;



(xvi) Contracts (or group of related contracts) which involve the expenditure of more than
$25,000 annually or $100,000 in the aggregate or require performance by any party more than one
year from the date hereof unless in the Ordinary Course of Business;



(xvii) all Intellectual Property Licenses, royalty Contracts and other Contracts relating to
any Intellectual Property (except licenses pertaining to “off-the-shelf” commercially available
Software used pursuant to shrink-wrap or click-through license grants on reasonable terms for a
license fee of no more than $1,000);



(xviii) incentives, grants or other agreements from or with any Governmental Authority;


 


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(xix) Contracts for services from lawyers, accountants, financial advisors and consultants
(“Professional Service Providers”); and




(xx) Contracts that are otherwise material to the Company.



(b) Each of the Material Contracts is in full force and effect and is the legal, valid and
binding obligation of the Company, and of the other parties thereto, enforceable against each of
them in accordance with its terms and, upon consummation of the transactions contemplated by this
Agreement, shall, except as otherwise stated in Company Disclosure Schedule 4.13(b),
continue in full force and effect without penalty or other adverse consequence. The Company is not
in material default under any Material Contract, nor, to the Knowledge of the Company, is any other
party to any Material Contract in breach of or default thereunder, and, to the Knowledge of the
Company, no event has occurred that with the lapse of time or the giving of notice or both would
constitute a material breach or default by the Company or any other party thereunder.
Notwithstanding the generality of the foregoing, the Company is not in material default under the
MOSA nor, to the Knowledge of the Company, is any other party to the MOSA in breach of or default
thereunder, and, to the Knowledge of the Company, no event has occurred that with the lapse of time
or the giving of notice or both would constitute a material breach or default by the Company or any
other party thereunder. No party to any of the Material Contracts has exercised any termination
rights with respect thereto, and no such party has given notice of any significant dispute with
respect to any Material Contract. The Company has, and will transfer to Purchaser at the Closing,
good and valid title to the Material Contracts, free and clear of all Liens other than Permitted
Exceptions. The Company has delivered to Purchaser true, correct and complete copies of all of the
Material Contracts, together with all amendments, modifications or supplements thereto. The
Company is not and at Closing shall not be, obligated to make any payments to Professional Service
Providers related to the Transaction, the wind down and liquidation of the Business or otherwise
other than as set forth on Company Disclosure Schedule 4.14(a)(xix) or as approved by
Newco.



(c) Company Disclosure Schedule 4.13(c) sets forth a complete and accurate list of all
consents, waivers, approvals or authorizations of any Person required to transfer the Material
Contracts.




Section 4.14 Employee Benefits.



(a) Company Disclosure Schedule 4.14(a) sets forth a complete and correct list of:
(i) all “employee benefit plans”, as defined in Section 3(3) of ERISA, and all other employee
benefit arrangements or payroll practices, including bonus plans, consulting or other compensation
agreements, incentive, equity or equity-based compensation, or deferred compensation arrangements,
stock purchase, severance pay, sick leave, vacation pay, salary continuation, disability,
hospitalization, medical insurance, life insurance, scholarship programs maintained by the Company
or to which the Company contributed or is obligated to contribute thereunder for current or former
employees of the Company or that cover Employees of the Company (the “Employee Benefit
Plans”), and (ii) all “employee pension plans”, as defined in Section 3(2) of ERISA, subject to
Title IV of ERISA or Section 412 of the Code, maintained by
the Company and any trade or business (whether or not incorporated) which are or have ever
been under common control, or which are or have ever been treated as a single employer, with the
Company under Sections 414(b), (c), (m) or (o) of the Code (“ERISA Affiliate”) or to which
the Company and any ERISA Affiliate contributed or has ever been obligated to contribute thereunder
(the “ERISA Affiliate Plans”). Neither the Company nor any ERISA Affiliate is a party to
or bound by any multiemployer plan as defined in Section 3(37) of ERISA, or has been subject to
Sections 4063 or 4064 of ERISA.


 


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(b) True, correct and complete copies of the following documents, with respect to each of the
Employee Benefit Plans and ERISA Affiliate Plans (as applicable), have been delivered to Purchaser:
(A) any plans and related trust documents, and all amendments thereto, (B) the most recent
Forms 5500 for the past three (3) years and schedules thereto, (C) the most recent financial
statements and actuarial valuations for the past three (3) years, (D) the most recent IRS
determination letter, (E) the most recent summary plan descriptions (including letters or other
documents updating such descriptions) and (F) written descriptions of all non-written agreements
relating to the Employee Benefit Plans and ERISA Affiliate Plans.



(c) Each of the Employee Benefit Plans and ERISA Affiliate Plans intended to qualify under
Section 401 of the Code (“Qualified Plans”) so qualify and the trusts maintained thereto
are exempt from federal income taxation under Section 501 of the Code, and, except as disclosed on
Company Disclosure Schedule 4.14(c), nothing has occurred with respect to the operation of
any such plan which could cause the loss of such qualification or exemption or the imposition of
any liability, penalty or tax under ERISA or the Code.



(d) Except as reserved against or accrued on the Balance Sheet, all contributions and premiums
required by Law or by the terms of any Employee Benefit Plan or ERISA Affiliate Plan or any
agreement relating thereto have been timely made (without regard to any waivers granted with
respect thereto) to any funds or trusts established thereunder or in connection therewith, and no
accumulated funding deficiencies exist in any of such plans subject to Section 412 of the Code,
which are single employer plans, and all contributions for any period ending on or before the
Closing Date which are not yet due will have been paid on or before the Closing Date.



(e) The benefit liabilities, as defined in Section 4001(a)(16) of ERISA, of each of the
Employee Benefit Plans and ERISA Affiliate Plans subject to Title IV of ERISA using the actuarial
assumptions that would be used by the Pension Benefit Guaranty Corporation (the “PBGC”) in
the event it terminated each such plan, do not exceed the combination of the fair market value of
the assets of each such plan plus the liabilities accrued on the Balance Sheet. The liabilities of
each Employee Benefit Plan that has been terminated or otherwise wound up have been fully
discharged in full compliance with applicable Law.



(f) There has been no “reportable event” as that term is defined in Section 4043 of ERISA and
the regulations thereunder with respect to any of the Employee Benefit Plans or ERISA Affiliate
Plans subject to Title IV of ERISA which would require the giving of notice, or any event requiring
notice to be provided under Section 4041(c)(3)(C) or 4063(a) of ERISA.


 


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(g) Neither the Company nor any ERISA Affiliate or any organization to which the Company or
any ERISA Affiliate is a successor or parent corporation, within the meaning of Section 4069(b) of
ERISA, has engaged in any transaction, within the meaning of Section 4069 of ERISA.



(h) None of the Employee Benefit Plans which are “welfare benefit plans” within the
meaning of Section 3(1) of ERISA provide for continuing benefits or coverage for any participant or
any beneficiary of a participant post-termination of employment except as may be required under
COBRA and at the expense of the participant or the participant’s beneficiary (subject to COBRA
subsidy requirements).



(i) There has been no violation of ERISA or the Code with respect to the filing of applicable
returns, reports, documents and notices regarding any of the Employee Benefit Plans or ERISA
Affiliate Plans with the Secretary of Labor or the Secretary of the Treasury or the furnishing of
such notices or documents to the participants or beneficiaries of the Employee Benefit Plans or
ERISA Affiliate Plans.



(j) There are no pending Legal Proceedings which have been asserted or instituted against any
of the Employee Benefit Plans or ERISA Affiliate Plans, the assets of any such plans or the
Company, or the plan administrator or any fiduciary of the Employee Benefit Plans or ERISA
Affiliate Plans with respect to the operation of such plans (other than routine, uncontested
benefit claims), and, to the Knowledge of the Company, there are no facts or circumstances which
could form the basis for any such Legal Proceeding.



(k) Each of the Employee Benefit Plans and ERISA Affiliate Plans has been maintained, in all
material respects, in accordance with its terms and all provisions of applicable Law. All
amendments and actions required to bring each of the Employee Benefit Plans and ERISA Affiliate
Plans into conformity in all material respects with all of the applicable provisions of ERISA and
other applicable Laws have been made or taken except to the extent that such amendments or actions
are not required by law to be made or taken until a date after the Closing Date and are disclosed
on Company Disclosure Schedule 4.14(k).



(l) The Company and any ERISA Affiliate which maintains a “group health plan” within the
meaning of Section 5000(b)(1) of the Code, have complied with the notice and continuation
requirements of Section 4980B of the Code or Part 6 of Title I of ERISA and the applicable
regulations thereunder.



(m) Neither the Company nor any ERISA Affiliate or any organization to which any is a
successor or parent corporation, has divested any business or entity maintaining or sponsoring a
defined benefit pension plan having unfunded benefit liabilities (within the meaning of
Section 4001(a)(18) of ERISA) or transferred any such plan to any person other than the Company or
any ERISA Affiliate during the five-year period ending on the Closing Date.



(n) Neither the Company, any ERISA Affiliate nor any “party in interest” or “disqualified
person” with respect to the Employee Benefit Plans or ERISA Affiliate Plans has
engaged in a non-exempt “prohibited transaction” within the meaning of Section 4975 of the
Code or Section 406 of ERISA.


 


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(o) Neither the Company nor any ERISA Affiliate has terminated any Employee Benefit Plan or
ERISA Affiliate Plan subject to Title IV of ERISA, or incurred any outstanding liability under
Section 4062 of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under
Section 4042 of ERISA.



(p) Except as set forth on Company Disclosure Schedule 4.14(p), neither the execution
and delivery of this Agreement nor the consummation of the transactions contemplated hereby will
(i) result in any payment becoming due to any Employee of the Company; (ii) increase the amount of
compensation or benefits otherwise payable under any Employee Benefit Plan or ERISA Affiliate Plan;
or (iii) result in the acceleration of the time of payment or vesting of any such benefits.



(q) The Company is not a party to any contract, plan or commitment, whether legally binding or
not, to create any additional Employee Benefit Plan or ERISA Affiliate Plan, or to modify any
existing Employee Benefit Plan or Pension Plan.



(r) No stock or other security issued by the Company forms or has formed a part of the assets
of any Employee Benefit Plan or ERISA Affiliate Plan.



(s) Any individual who performs services for the Company (other than through a contract with
an organization other than such individual) and who is not treated as an employee for federal
income tax purposes by the Company is not an employee.




Section 4.15 Labor.



(a) Except as set forth on Company Disclosure Schedule 4.15(a) (the “Labor
Contracts”), the Company is not a party to any labor or collective bargaining agreement and
there are no labor or collective bargaining agreements which pertain to Employees of the Company.
The Company has delivered or otherwise made available to Purchaser true, correct and complete
copies of the labor or collective bargaining agreements listed on Company Disclosure
Schedule 5.14(a), together with all amendments, modifications or supplements thereto.



(b) Except as set forth on Company Disclosure Schedule 4.15(b), no Employees are
represented by any labor organization. No labor organization or group of Employees of the Company
has made a pending demand for recognition, and there are no representation proceedings or petitions
seeking a representation proceeding presently pending or, to the Knowledge of the Company,
threatened to be brought or filed, with the National Labor Relations Board or other labor relations
tribunal. There is no organizing activity involving the Company pending or, to the Knowledge of
the Company, threatened by any labor organization or group of Employees.


 


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(c) There are no (i) strikes, work stoppages, slowdowns, lockouts or arbitrations or
(ii) material grievances or other labor disputes pending or, to the Knowledge of the Company,
threatened against or involving the Company involving any Employee. There are no unfair labor
practice charges, grievances or complaints pending or, to the Knowledge of the Company, threatened
by or on behalf of any Employee or Former Employee.



(d) There are no complaints, charges or claims against the Company pending or, to Knowledge of
the Company, threatened that could be brought or filed with any Governmental Authority or based on,
arising out of, in connection with or otherwise relating to, the employment or termination of
employment or failure to employ any individual by the Company. The Company is in compliance with
all Laws relating to the employment of labor, including all such Laws relating to wages, hours,
WARN and any similar state or local “mass layoff” or “plant closing” Law, collective bargaining,
discrimination, civil rights, safety and health, workers’ compensation and the collection and
payment of withholding and/or social security taxes and any similar tax except as could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with
respect to the Company. There has been no “mass layoff” or “plant closing” (as defined by WARN)
with respect to the Company within the six months prior to Closing.



Section 4.16 Litigation. Except as set forth in Company Disclosure
Schedule 4.16, there is no Legal Proceeding pending or, to the Knowledge of the
Company, threatened against the Company (or to the Knowledge of the Company, pending or threatened
against any of the officers, directors or key Employees of the Company with respect to their
business activities on behalf of the Company), or to which the Company is otherwise a party, before
any Governmental Authority; nor to the Knowledge of the Company is there any reasonable basis for
any such Legal Proceeding. Except as set forth on Company Disclosure Schedule 4.16, the
Company is not subject to any Order, settlement agreement or stipulation and the Company is not in
breach or violation of any Order, settlement agreement or stipulation. Except as set forth on
Company Disclosure Schedule 4.16, the Company is not engaged in any legal action to recover
monies due it or for damages sustained by it. There are no Legal Proceedings pending or, to the
Knowledge of the Company, threatened against the Company or to which the Company is otherwise a
party relating to this Agreement or any Company Document or the transactions contemplated hereby or
thereby.




Section 4.17 Compliance with Laws; Permits.



(a) Except as set forth on Company Disclosure Schedule 4.17(a), the Company is in
compliance in all material respects with all Laws applicable to its operations or assets or the
Business. Except as set forth on Company Disclosure Schedule 4.17(a), the Company has not
received any written or other notice of or been charged with the violation of any Laws. To the
Knowledge of the Company, the Company is not under investigation with respect to the violation of
any Laws and there are no facts or circumstances which could form the basis for any such violation.


 


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(b) Company Disclosure Schedule 4.17(b) contains a list of all material Permits which
are required for the operation of the Business as presently conducted and as presently intended to
be conducted (the “Company Permits”) as kept by the Company’s general manager and produced
to the Company. The Company currently has all material Permits that are required for the operation
of the Business as presently conducted. The Company is not in default or violation, and no event
has occurred which, with notice or the lapse of time or both, would constitute a default or
violation, in any material respect of any term, condition or provision of any Company Permit and,
to the Knowledge of the Company, there are no facts or circumstances which could form the basis for
any such default or violation. There are no Legal Proceedings pending or, to the Knowledge of the
Company, threatened, relating to the suspension, revocation or modification of any of the Company
Permits.



Section 4.18 Environmental Matters. Except as set forth on Company Disclosure
Schedule 4.18 hereto and except as could not reasonably be expected to have a Material Adverse
Effect with respect to the Company:



(a) the operations of the Company, with respect to the Business, are and have been in
compliance in all material respects with all applicable Environmental Laws, which compliance
includes obtaining, maintaining in good standing and complying with all Environmental Permits
necessary to operate the Business except for non-compliance that would not reasonably be expected
to result in the Business incurring material Environmental Costs and Liabilities and no action or
proceeding is pending or, to the Knowledge of the Company, threatened to revoke, modify or
terminate any such Environmental Permit, which is necessary and material to the operation of the
Business, and, to the Knowledge of the Company, no facts, circumstances or conditions currently
exist that could adversely affect such continued material compliance with Environmental Laws and
Environmental Permits or require currently unbudgeted capital expenditures to achieve or maintain
such continued material compliance with Environmental Laws and Environmental Permits;



(b) with respect to the Business, the Company is not the subject of any outstanding written
Order or Contract with any Governmental Authority or Person respecting (i) Environmental Laws,
(ii) Remedial Action or (iii) any Release or threatened Release of a Hazardous Material;



(c) no claim is pending or to the Knowledge of the Company, threatened against the Company,
alleging, with respect to the Business, that the Company may be in violation of any Environmental
Law or any Environmental Permit or may have any Liability under any Environmental Law including,
but not limited to, claims relating to noise or odors, other than such claims that are routine in
nature and would not, individually or in the aggregate, result in the Business incurring material
Environmental Costs and Liabilities;



(d) to the Knowledge of the Company, no facts, circumstances or conditions exist with respect
to the Business or any property currently or formerly owned, operated or leased by the Company or
any property to which the Company arranged for the disposal or treatment of
Hazardous Materials that could reasonably be expected to result in the Business incurring
unbudgeted material Environmental Costs or Liabilities;


 


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(e) to the Knowledge of the Company, there are no investigations of the Business, or currently
or previously owned, operated or leased property of the Company pending or threatened which could
reasonably be expected to lead to the imposition of any material Environmental Costs or Liabilities
or Liens under Environmental Law;



(f) the transactions contemplated hereunder do not require the consent of or filings with any
Governmental Authority with jurisdiction over the Company and environmental matters;



(g) there is not located at any of the Owned Property or Real Property Leases, or at any
property previously owned, operated or leased by the Company during the Company’s ownership,
operation or lease, any (i) underground storage tanks, (ii) landfill, (iii) surface impoundment,
(iv) asbestos-containing material or (v) equipment containing polychlorinated biphenyls;



(h) the Company with respect to the Business has no residual liability with respect to
abandoned or former properties, including any obligation to remove or demolish on-site structures
or close wastewater lagoons or ponds, and, to the Knowledge of the Company, no Owned Property or
Real Property Leases have any structures or features, including abandoned buildings or wastewater
lagoons or ponds (other than those being used in compliance with Environmental Laws) requiring
removal, demolition, or closure; and



(i) the Company has made available to Purchaser all material environmentally related audits,
studies, reports, analyses and results of investigations that have been performed with respect to
any currently or previously owned, leased or operated properties of the Company or material
documentation relating to pending or threatened claims or investigations pursuant to Environmental
Laws, to the extent such materials are in the possession, custody or control of the Company.



Section 4.19 Insurance. The Company has insurance policies in full force and effect
(a) for such amounts as are sufficient for all requirements of Law and all agreements to which the
Company is a party or by which it is bound and (b) which are in such amounts, with such deductibles
and against such risks and losses, as are customary in the biodiesel production industry for the
business, assets and properties of the Company. Set forth in Company Disclosure
Schedule 4.19 is a list of all insurance policies and all fidelity bonds held by or applicable
to the Company setting forth, in respect of each such policy, the policy name, policy number,
carrier, term, type and amount of coverage, annual premium, and deductibles, whether the policies
may be terminated upon consummation of the transactions contemplated hereby and if and to what
extent events being notified to the insurer after the Closing Date are generally excluded from the
scope of the respective policy. Except as set forth on Company Disclosure Schedule 4.19,
no event relating to the Company has occurred which could reasonably be expected to result in a
retroactive upward adjustment in premiums under any such insurance policies or which could
reasonably be expected to result in a prospective upward adjustment in
such premiums. Excluding insurance policies that have expired and been replaced in the
Ordinary Course of Business, no insurance policy has been cancelled within the last two years and,
to the Knowledge of the Company, no threat has been made to cancel any insurance policy of the
Company during such period. Except as noted on Company Disclosure Schedule 4.19, all such
insurance will remain in full force and effect and all such insurance is assignable or transferable
to Purchaser. No event has occurred, including the failure by the Company to give any notice or
information, or the Company giving any inaccurate or erroneous notice or information, which limits
or impairs the rights of the Company under any such insurance policies.


 


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Section 4.20 Inventories. The inventories of the Company reflected on the Balance
Sheet or acquired since the Balance Sheet Date are in all material respects in good and marketable
condition, and are saleable in the Ordinary Course of Business. The inventories of the Company set
forth in the Balance Sheet were valued at the lower of cost or market and were properly stated
therein in accordance with GAAP consistently applied. Adequate reserves have been reflected in the
Balance Sheet for excess, damaged, or other inventory not readily marketable in the Ordinary Course
of Business, which reserves were calculated in a manner consistent with past practice and in
accordance with GAAP consistently applied.




Section 4.21 Accounts and Notes Receivable and Payable.



(a) All accounts and notes receivable of the Company have arisen from bona fide transactions
in the Ordinary Course of Business and are payable on ordinary trade terms. All accounts and notes
receivable of the Company reflected on the Balance Sheet are in all material respects good and
collectible at the aggregate recorded amounts thereof, net of any applicable reserve for returns or
doubtful accounts reflected thereon, which reserves are adequate and were calculated in a manner
consistent with past practice and in accordance with GAAP. All accounts and notes receivable
arising after the Balance Sheet Date are in all material respects good and collectible at the
aggregate recorded amounts thereof, net of any applicable reserve for returns or doubtful accounts,
which reserves are adequate and were calculated in a manner consistent with past practice and in
accordance with GAAP. None of the accounts or the notes receivable of the Company (i) are subject
to any setoffs or counterclaims in any material respect or (ii) represent obligations for goods
sold on consignment or on sale-or-return basis or subject to any other repurchase or return
arrangement.



(b) All accounts payable of the Company reflected in the Balance Sheet or arising after the
date thereof are the result of bona fide transactions in the Ordinary Course of Business.



Section 4.22 Related Party Transactions. Except as set forth on Company
Disclosure Schedule 4.22, no Employee, officer, unitholder or member of the Board of Managers
of the Company, any member of his or her immediate family or any of their respective Affiliates
(“Related Persons”) (i) owes any amount to the Company nor does the Company owe any amount
to, or has the Company committed to make any loan or extend or guarantee credit to or for the
benefit of, any Related Person, (ii) is involved in any business arrangement or other relationship
with the Company (whether written or oral), (iii) owns any property or right,
tangible or intangible, that is used by the Company, (iv) to the Knowledge of the Company, has
any claim or cause of action against the Company or (v) to the Knowledge of the Company, owns any
direct or indirect interest of any kind in, or controls or is a director, officer, employee or
partner of, or consultant to, or lender to or borrower from, or has the right to participate in the
profits of, any Person which is a competitor, supplier, customer, landlord, tenant, creditor or
debtor of the Company.


 


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Section 4.23 Product Warranty; Product Liability.



(a) Except as set forth on Company Disclosure Schedule 4.23, the products produced,
sold or delivered by the Company in conducting the Business have been in all material respects in
conformity with all product specifications and all applicable Laws. To the Company’s Knowledge,
the Company has no material Liability for damages in connection therewith or any other customer or
product obligations not reserved against on the Balance Sheet.



(b) The Company has no material Liability arising out of any injury to individuals or property
as a result of the ownership, possession, or use of any product produced, delivered or sold, or
services rendered, by or on behalf of the Company. The Company has not committed any act or failed
to commit any act which would result in, and there has been no occurrence which would give rise to
or form the basis of, any material product liability or material liability for breach of warranty
(whether covered by insurance or not) on the part of the Company with respect to products produced
or delivered, sold or installed or services rendered by or on behalf of the Company.



Section 4.24 Banks. Company Disclosure Schedule 4.24 contains a complete and
correct list of (a) the names and locations of all banks in which the Company has accounts or safe
deposit boxes, (b) the account numbers of all such accounts and (c) the names of all persons
authorized to draw thereon or to have access thereto. Except as set forth on Company
Disclosure Schedule 4.24, no person holds a power of attorney to act on behalf of the Company.



Section 4.25 Full Disclosure. No representation or warranty of the Company contained
in this Agreement or any of the Company Documents and no written statement made by or on behalf of
the Company to Newco, Purchaser, or REG pursuant to this Agreement or any of the Company Documents
contains an untrue statement of a material fact or omits to state a material fact necessary to make
the statements contained herein or therein not misleading. There is no fact or circumstance that
the Company has not disclosed to Newco or Purchaser in writing which could reasonably be expected
to lead Newco or Purchaser to conclude that a Material Adverse Effect with respect to the Company
had occurred or was imminent.



Section 4.26 Financial Advisors. Except as set forth on Company Disclosure
Schedule 4.26, no Person has acted, directly or indirectly, as a broker, finder or financial
advisor for the Company in connection with the transactions contemplated by this Agreement and no
Person is or will be entitled to any fee or commission or like payment in respect thereof. Any
fees and expenses payable to Persons listed on Company Disclosure Schedule 4.26 shall be
paid by the Company.


 


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Section 4.27 Certain Payments. Neither the Company nor, to the Knowledge of the
Company, any director, officer, employee, or other Person associated with or acting on behalf of
the Company, has directly or indirectly (a) made any contribution, gift, bribe, rebate, payoff,
influence payment, kickback, or other payment to any Person, private or public, regardless of form,
whether in money, property, or services (i) to obtain favorable treatment in securing business for
the Company, (ii) to pay for favorable treatment for business secured by the Company, (iii) to
obtain special concessions or for special concessions already obtained, for or in respect of the
Company, or (iv) in violation of any Law, or (b) established or maintained any fund or asset with
respect to the Company that has not be recorded in the books and records of the Company.



Section 4.28 Information Supplied. Subject to the accuracy of the representations and
warranties of Newco and Purchaser set forth in Section 5.9, none of the information related to the
Company supplied (or to be supplied) in writing by or on behalf of the Company specifically for
inclusion in (a) the registration statement on Form S-4 to be filed with the SEC by Newco in
connection with the issuance of shares of Newco Common Stock and Newco Preferred Stock hereunder
(as amended or supplemented from time to time, the “Form S-4”) will, at the time the Form
S-4, or any amendments or supplements thereto, are filed with the SEC or at the time it becomes
effective under the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the statements
made therein, in light of the circumstances under which they are made, not misleading, and (b) the
joint proxy statement relating to the Company Unitholders Meeting (as amended or supplemented from
time to time, the “Joint Proxy Statement”) will, on the date it is first mailed to
unitholders of the Company, and at the time of the Company Unitholders Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they
are made, not misleading. The Company shall cooperate with Newco in order that the Joint Proxy
Statement will comply as to form in all material respects with the applicable requirements of the
Exchange Act. Notwithstanding the foregoing, the Company makes no representation or warranty with
respect to information supplied by or on behalf of Newco, Purchaser and/or REG for inclusion or
incorporation by reference in any of the foregoing documents.



Section 4.29 The Company’s Financial Condition. Except as set forth on Company
Disclosure Schedule 4.29, no insolvency proceedings of any character, including, without
limitation, bankruptcy, receivership, reorganization, composition or arrangement with creditors,
voluntary or involuntary, in respect of the Company or any of its assets or properties are pending,
or to the Knowledge of the Company, threatened, and the Company has not made any assignment for the
benefit of creditors, nor taken any action with a view to the institution of any such insolvency
proceedings.


 


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ARTICLE V

REPRESENTATIONS AND WARRANTIES OF NEWCO AND PURCHASER




Each of Newco, Purchaser, and REG hereby represents and warrants to the Company that, except
as set forth in the disclosure schedule (with specific reference to the Section or subsection of
this Agreement to which the information stated in such disclosure schedule relates) delivered by
Newco, REG and Purchaser to the Company simultaneously with the execution of this Agreement (the
“Newco Disclosure Schedule”):



Section 5.1 Organization and Good Standing. Newco is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own, lease and operate its properties and to carry on its business
as now conducted and as currently proposed to be conducted. Purchaser is a limited liability
company duly organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite limited liability company power and authority to own, lease and
operate its properties and to carry on its business as now conducted and as currently proposed to
be conducted. Each of Newco and Purchaser is duly qualified or authorized to do business and is in
good standing under the laws of each jurisdiction in which it owns or leases real property and each
other jurisdiction in which the conduct of its business or the ownership of its properties requires
such qualification or authorization, except where the failure to be so qualified or authorized
could not have, or reasonably be expected to have, a Material Adverse Effect with respect to Newco
or Purchaser. Attached hereto as exhibits are true, correct and complete copies of (i) the
Certificate of Incorporation of Newco (Exhibit B), (ii) the Preferred Stock Certificate of
Designation of Newco (Exhibit A), and (iii) Bylaws of Newco (Exhibit C), each as in effect on the
Effective Date. Purchaser has delivered to the Company true, complete and correct copies of its
operating agreement as in effect on the date hereof. Between the date hereof and the Closing,
without the prior consent of the Company (i) Newco shall not amend its Certificate of
Incorporation, Preferred Stock Certificate of Designation or Bylaws, and (ii) Purchaser shall not
amend the operating agreement of Purchaser.



(b) Newco is the owner of all of the issued and outstanding membership/equity interests of
Purchaser. Other than the foregoing and except as set forth on Newco Disclosure
Schedule 5.1(b), neither Newco nor Purchaser, directly or indirectly, own any stock or other
equity interest in any other Person. No former Subsidiary of Newco or Purchaser had any
operations, business, Liabilities or other activities that would create a Liability on the part of
the Newco or Purchaser.




 


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Section 5.2 Capital Structure. The authorized capital stock of Newco consists of
140,000,000 shares of Newco Common Stock and 60,000,000 shares of Newco Preferred Stock, 14,000,000
shares of which have been designated Series A Preferred Stock. At the close of business on the
Effective Date and immediately prior to Closing, (i) 100 shares of Newco Common Stock were issued
and outstanding, and (ii) no shares of Newco Preferred Stock were issued or outstanding. Newco
Disclosure Schedule 5.2(i) sets forth the name of each shareholder of Newco and the number of
shares of Newco Common Stock and the number of shares of Newco Preferred Stock held by each
shareholder as of the Effective Date and as anticipated as of
the Closing Date assuming the Closing of each of the Common Plan Agreements and further
referencing that, immediately prior to the Closing of the REG Merger Agreement, the USBG Shares (as
defined in the REG Merger Agreement) shall be exchanged for 700,000 shares of REG Series BB
Preferred Stock in consideration of the modification as a result of the transactions contemplated
by the REG Merger Agreement of the terms of the REG Series AA Preferred Stock and REG Series BB
Preferred Stock held by the USBG Group (as defined in the REG Merger Agreement) and the waiver of
the accrued dividend thereon. All shares of Newco Common Stock deliverable pursuant to this
Agreement have been duly authorized and, when issued as contemplated by this Agreement, will be
validly issued, fully paid, nonassessable and free and clear of any lien, pledge, charge, security
interest, restriction, adverse claim, proxy or option (except as provided in the Certificate of
Incorporation of Newco and this Agreement and under applicable federal and state securities laws)
and free of preemptive rights, and all shares of Newco Preferred Stock deliverable pursuant to this
Agreement have been duly authorized and, when issued as contemplated by this Agreement, will be
validly issued, fully paid, nonassessable and free and clear of any lien, pledge, charge, security
interest, restriction, adverse claim, proxy or option (except as provided in the Certificate of
Incorporation of Newco and this Agreement and under applicable federal and state securities laws)
and free of preemptive rights. Except as set forth on Newco Disclosure Schedule 5.2(ii),
as of the date of this Agreement and as of the Closing Date there are not any shares of capital
stock, voting securities or equity interests of Newco or Purchaser issued and outstanding or any
subscriptions, options, warrants, calls, convertible or exchangeable securities, rights,
commitments or agreements of any character providing for the issuance of any shares of capital
stock, voting securities or equity interests of Newco or Purchaser, including any representing the
right to purchase or otherwise receive any Newco Common Stock or Newco Preferred Stock. Except as
provided on Newco Disclosure Schedule 5.2(iii), as of the date of this Agreement and as of
the Closing Date, (i) there are no pre-emptive rights or other similar agreements or understandings
for the purchase or acquisition of any securities of Newco or Purchaser, (ii) there are no
registration rights agreements or similar understanding regarding the registration of any
securities of Newco or Purchaser, and (iii) the Newco Common Stock, the Newco Preferred Stock, and
the membership/ownership interests of Purchaser are not subject to any voting trusts, voting
agreements or other similar agreements or understandings.



Section 5.3 Authorization of Agreement. Each of Newco, REG and Purchaser has full
corporate or limited liability company power and authority, as the case may be, to execute and
deliver this Agreement and each other agreement, document, instrument or certificate contemplated
by this Agreement or to be executed by Newco, REG or Purchaser in connection with the consummation
of the transactions contemplated hereby and thereby (the “Purchaser Documents”), and to
perform its obligations hereunder and thereunder and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance by Newco, REG and Purchaser of this
Agreement and each Purchaser Document and the consummation of the transactions contemplated hereby
and thereby have been duly authorized and approved by the Board of Directors of each of Newco, REG
and Purchaser, and no other corporate action on behalf of Newco, REG or Purchaser is necessary to
authorize the execution, delivery and performance of this Agreement and the transactions
contemplated hereby. This Agreement has been, and each Purchaser Document will be at or prior
to the Closing, duly
executed and delivered by Newco, REG and Purchaser, as applicable, and (assuming the due
authorization, execution and delivery by the other parties hereto and thereto) this Agreement
constitutes, and each Purchaser Document when so executed and delivered will constitute, the legal,
valid and binding obligations of Newco, REG and Purchaser, as applicable, enforceable against them
in accordance with their terms, subject to applicable bankruptcy, insolvency, 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).


 


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Section 5.4 Conflicts; Consents of Third Parties.



(a) Except as set forth on Newco Disclosure Schedule 5.4, and assuming the filings
referred to in Sections 5.4(b)(i) & (ii) are made, none of the execution and delivery by Newco, REG
or Purchaser of this Agreement and of the Purchaser Documents, the consummation of the transactions
contemplated hereby or thereby, or the compliance by Newco, REG and Purchaser with any of the
provisions hereof or thereof will conflict with, or result in violation of or default (with or
without notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or the loss of a material benefit under, or give
rise to any obligation of Newco, REG or Purchaser to make any payment under, or to the increased,
additional, accelerated or guaranteed rights or entitlements of any Person under, or result in
creation of any Liens upon any of the properties or assets of Newco or Purchaser under any
provision of (i) the Organizational Documents of Newco, REG or Purchaser; (ii) any Contract or
Permit to which Newco, REG or Purchaser is a party or by which any of the properties or assets of
Newco, REG or Purchaser are bound; (iii) any Order of any Governmental Authority applicable to
Newco, REG or Purchaser or by which any of the properties or assets of Newco, REG or Purchaser are
bound; or (iv) any applicable Law.



(b) No consent, waiver, approval, Order, Permit or authorization of, or declaration or filing
with, or notification to, any Person or Governmental Authority is required on the part of Newco,
REG or Purchaser in connection with (i) the execution and delivery of this Agreement or the
Purchaser Documents, the compliance by Newco, REG or Purchaser with any of the provisions hereof or
thereof, (ii) the consummation of the transactions contemplated hereby and thereby or the taking by
Newco, REG or Purchaser of any other action contemplated hereby or thereby, or (iii) the continuing
validity and effectiveness immediately following the Closing of any Contract or Permit of Newco,
REG or Purchaser, except for (a) the filing with the SEC of the Form S-4 and other filings required
under, and compliance with other applicable requirements, of the Securities Act and the Exchange
Act and applicable state securities laws and regulations, (b) filings which may be required under
and compliance with the applicable requirements of the HSR Act and (c) such other consents,
waivers, approvals, Orders, Permits, authorizations, declarations, filings or notifications that,
if not obtained, made or given, would not, individually or in the aggregate, have a Material
Adverse Effect with respect to Newco, REG or Purchaser.


 


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Section 5.5 Litigation. There are no Legal Proceedings pending or, to the Knowledge
of Newco, REG and Purchaser, threatened against Newco, REG or Purchaser (or to the
Knowledge of Newco, REG or Purchaser, pending or threatened against any of the officers,
directors or key employees of Newco, REG or Purchaser with respect to their business activities on
behalf of Newco, REG or Purchaser), or to which Newco, REG or Purchaser are otherwise a party,
before any Governmental Authority; nor to the Knowledge of Newco, REG or Purchaser is there any
reasonable basis for any such Legal Proceeding. Neither Newco, REG nor Purchaser is subject to any
Order, settlement agreement or stipulation and neither are any of the foregoing in breach or
violation of any Order, settlement agreement or stipulation. There are no Legal Proceedings
pending or, to the Knowledge of Newco, REG or Purchaser, threatened against Newco, REG or Purchaser
or to which any of the foregoing is otherwise a party relating to this Agreement or any Purchaser
Document, or that are reasonably likely to prohibit or restrain the ability of Newco, REG or
Purchaser to enter into this Agreement or consummate the transactions contemplated hereby.



Section 5.6 Financial Advisors. Except as set forth on Newco Disclosure Schedule
5.6 (whose fees and expenses shall be paid by Newco), no Person has acted, directly or
indirectly, as a broker, finder or financial advisor for Newco, REG or Purchaser in connection with
the transactions contemplated by this Agreement and no Person is entitled to any fee or commission
or like payment in respect thereof.



Section 5.7 Voting Requirements. No vote of stockholders of Newco or the holders of
the membership/ownership interests of Purchaser is necessary to approve the transactions
contemplated hereby.



Section 5.8 Information Supplied. Subject to the accuracy of the representations and
warranties of the Company set forth in Section 4.25, none of the information supplied (or to be
supplied) in writing by or on behalf of Newco, REG or Purchaser specifically for inclusion or
incorporation by reference in (a) the Form S-4 will, at the time the Form S-4 or any amendments or
supplements thereto are filed with the SEC or at the time it becomes effective under the Securities
Act, contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements made therein, in the light of the
circumstances under which they are made, not misleading, and (b) the Joint Proxy Statement will, on
the date it is first mailed to unitholders of the Company, and at the time of the Company
Unitholders Meeting, contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading. The Form S-4 and the Joint
Proxy Statement will comply as to form in all material respects with the applicable requirements of
the Securities Act and the Exchange Act. Notwithstanding the foregoing, neither Newco, REG nor
Purchaser makes any representation or warranty with respect to any information supplied by or on
behalf of the Company for inclusion in any of the foregoing documents.


 


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Section 5.9 Full Disclosure. No representation or warranty of Newco, REG or Purchaser
contained in this Agreement or any of the Purchaser Documents and no written statement made by or
on behalf of Newco, REG or Purchaser to the Company pursuant to this Agreement or any of the
Purchaser Documents contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained herein or therein
not misleading. There is no fact or circumstance which Newco, REG or Purchaser has not disclosed
to the Company in writing which could reasonably be expected to lead the Company to conclude that a
Material Adverse Effect with respect to Newco, REG or Purchaser had occurred or was imminent.



Section 5.10 Beneficiary of REG Representations. The Company shall be a beneficiary
of the representations and warranties of REG including the related deliveries described therein,
set forth in Sections 4.1 through 4.29 of the REG Merger Agreement subject to Section 12.1 hereof.
The Company Disclosure Schedules, as defined in the REG Merger Agreement, provided in connection
with such representations and warranties shall be delivered by REG to the Company and shall be
applicable to such representations and warranties upon the execution of this Agreement. No
amendment, waiver or consent relating to such representations and warranties shall be effective for
any purpose under this Agreement unless such amendment, waiver or consent is in writing and signed
by the Company.



ARTICLE VI

COVENANTS




Section 6.1 Access to Information. The Company shall afford to Newco, Purchaser and
REG and its and their accountants, counsel, financial advisors, environmental consultants and other
representatives, and to prospective lenders, placement agents and other financing sources and each
of their respective representatives, reasonable access, during normal business hours upon
reasonable notice throughout the period prior to the Closing, to their respective properties and
facilities (including all real property and the buildings, structures, fixtures, appurtenances and
improvements erected, attached or located thereon), Books and Records, financial information
(including working papers and data in the possession of the Company or its independent public
accountants, internal audit reports, and “management letters” from such accountants with respect to
the Company’s systems of internal control), Contracts, commitments and records and, during such
period, shall furnish promptly such information concerning its businesses, properties and personnel
of the Company as Newco, Purchaser or REG shall reasonably request in connection with the
transactions contemplated herein, including preparation of the Form S-4; provided, however, such
investigation shall not unreasonably disrupt the Company’s operations. Similarly, Newco, Purchaser
and REG shall afford to the Company and its and their accountants, counsel, financial advisors,
environmental consultants and other representatives reasonable access, during normal business hours
upon reasonable notice throughout the period prior to Closing, to their respective properties and
facilities, Books and Records, financial information, Contracts, commitments and records and,
during such period, shall furnish promptly such information concerning its businesses, properties
and personnel of Newco, Purchaser and REG as the Company shall reasonably request in connection
with the transactions contemplated herein; provided, however, such investigation shall not
unreasonably disrupt the operations of Newco, Purchaser or REG. Prior to the Closing, each party
hereto shall generally keep the other parties informed as to all material matters involving the
operations and businesses of each other. The Company shall authorize and direct the appropriate
directors, managers, officers and employees of the Company to



 


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discuss matters involving the operations and business of the Company with representatives of Newco, Purchaser
and REG and their prospective lenders or placement agents and other financial sources. Newco,
Purchaser and REG shall authorize and direct the appropriate directors, managers, officers and
employees of Newco, Purchaser and REG to discuss matters involving the operations and business of
Newco, Purchaser and REG with representatives of the Company and its prospective lenders or
placement agents and other financial sources. All nonpublic information provided to, or obtained
by, any party hereto in connection with the transactions contemplated hereby shall be “Confidential
Information” for purposes of the Confidentiality Agreement dated June 
 _____ 
, 2008 by and among
REG and the Company and the Addendum to Confidentiality Agreement dated December 8, 2008 by
and among REG and the Company (collectively the “Confidentiality Agreement”), which
Confidentiality Agreement shall survive the Closing pursuant to the terms thereof; provided that
Newco and the Company may disclose such information as may be necessary in connection with seeking
necessary consents and approvals as contemplated hereby and in connection with the Financing.
Notwithstanding the foregoing, the Company shall not be required to disclose any information if
such disclosure would contravene any applicable Law or any Contract which may restrict the
Company’s disclosure. Newco, Purchaser and REG shall arrange with the parties to the Common Plan
Agreements (other than REG) to provide the Company access to information regarding such parties on
terms substantially similar to those relating to the Company’s access to information regarding
Newco, Purchaser and REG provided by this Section 6.1.




Section 6.2 Conduct of the Business Pending the Closing.



(a) Except as otherwise expressly provided by this Agreement or with the prior written consent
of Newco, between the date hereof and the Closing, the Company shall:




(i) conduct the Business only in the Ordinary Course of Business;



(ii) use its commercially reasonable efforts to (A) preserve the present business operations,
organization (including officers and Employees) and goodwill of the Company and (B) preserve the
present relationships with Persons having business dealings with the Company (including customers
and suppliers);



(iii) maintain (A) all of the assets and properties of, or used by, the Company consistent
with past practice, and (B) insurance upon all of the assets and properties of the Company in such
amounts and of such kinds comparable to that in effect on the date of this Agreement;



(iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of
Business, (B) continue to collect accounts receivable and pay accounts payable and other
Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal
procedures and without discounting or accelerating payment of such accounts or Liabilities
utilizing all available cash and any available line of credit, and (C) comply with all contractual
and other obligations of the Company;


 


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(v) comply with the capital expenditure plan of the Company for 2009 set forth on Company
Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at
the times set forth in such plan;




(vi) comply in all material respects with all applicable Laws;




(vii) take steps to renew all Permits in a timely manner prior to their lapse; and



(viii) pay all maintenance and similar fees and take all other appropriate actions as
necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the
Company.



(b) Without limiting the generality of the foregoing, except as otherwise expressly provided
by this Agreement or with the prior written consent of Newco, the Company shall not:



(i) (A) increase the salary or other compensation of any director or Employee of the Company
except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus,
benefit or other direct or indirect compensation to any Employee or director, (C) increase the
coverage or benefits available under any (or create any new) severance pay, termination pay,
vacation pay, company awards, salary continuation for disability, sick leave, deferred
compensation, bonus or other incentive compensation, insurance, pension or other employee benefit
plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or
representatives of the Company or otherwise modify or amend or terminate any such plan or
arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special
pay, consulting, non-competition or similar agreement or arrangement with any directors or officers
of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make
any dividend or distribution of cash or other property with respect to the units or other equity
interests of the Company;



(ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible
with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the
Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance
Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet
Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in
the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or
satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of
any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to,
or investments in, any other Person;



(iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit,
allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets;



(iv) acquire any material properties or assets or sell, assign, license, transfer, convey,
lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the
Ordinary Course of Business) of the Company;


 


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(v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or
consolidation with any Person, and not engage in any new business or invest in, make a loan,
advance or capital contribution to, or otherwise acquire the securities of any Person;



(vi) cancel or compromise any debt or claim, or waive or release any material right of the
Company except in the Ordinary Course of Business;



(vii) enter into, modify or terminate any labor or collective bargaining agreement or, through
negotiation or otherwise, make any commitment or incur any Liability to any labor organization with
respect to any Employee;



(viii) introduce any material change with respect to the operation of the Business, including
any material change in the types, nature, composition or quality of products or services, or, other
than in the Ordinary Course of Business, make any change in product specifications or prices or
terms of distributions of such products;



(ix) enter into any transaction or enter into, modify or renew any Contract which by reason of
its size or otherwise is not in the Ordinary Course of Business;



(x) enter into any Contract, understanding or commitment that restrains, restricts, limits or
impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or
conduct any business or line of business in any geographic area or solicit the employment of any
persons;



(xi) terminate, amend, restate, supplement or waive any rights under any (A) Material
Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than
in the Ordinary Course of Business or (B) Permit;



(xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims
for, or that would result in a loss of revenue of, an amount that could, individually or in the
aggregate, reasonably be expected to be greater than $50,000;



(xiii) change or modify its credit, collection or payment policies, procedures or practices,
including acceleration of collections or receivables (whether or not past due) or fail to pay or
delay payment of payables or other liabilities;



(xiv) take any action which would adversely affect the ability of the parties to consummate
the transactions contemplated by this Agreement;




(xv) amend the operating agreement of the Company;



(xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet
except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the
maximum amounts and other terms as in effect on the date of this Agreement; or


 


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(xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the
representations and warranties of the Company in this Agreement or any of the Company Documents
untrue or incorrect in any material respect or could result in any of the conditions to the Closing
not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with
respect to the Company.



Section 6.3 Consents. Newco, Purchaser, REG and the Company shall each use its
commercially reasonable efforts to obtain at the earliest practicable date all consents, waivers,
approvals and notices that are required to consummate, or in connection with, the transactions
contemplated by this Agreement as set forth on Company Disclosure Schedule 6.3, including
the consents, waivers, approvals and notices referred to in Section 4.3(b) and Section 5.4(b)
hereof (except for such matters covered by Section 6.4, which are covered in that Section). All
such consents, waivers, approvals and notices shall be in writing and in form and substance
reasonably satisfactory to each party hereto, and executed counterparts of such consents, waivers
and approvals shall be delivered to each party hereto promptly after receipt thereof, and copies of
such notices shall be delivered to each party hereto promptly after the making thereof.




Section 6.4 Regulatory Approvals.



(a) Each of Newco, Purchaser, REG and the Company shall use their respective commercially
reasonable efforts to (i) make or cause to be made all filings required of each of them or any of
their respective Subsidiaries or Affiliates under the HSR Act or other Antitrust Laws with respect
to the transactions contemplated hereby and by the Common Plan Agreements, as appropriate, as
promptly as practicable, including seeking early termination, and, in any event, within ten (10)
Business Days after the date of this Agreement in the case of all filings required under the HSR
Act and within four (4) weeks in the case of all other filings required by other Antitrust Laws,
(ii) comply at the earliest practicable date with any request under the HSR Act or other Antitrust
Laws for additional information, documents, or other materials received by either of them or any of
their respective Subsidiaries or Affiliates from the U.S. Federal Trade Commission (“FTC”),
the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) or any
other Governmental Authority in respect of such filings or such transactions, and (iii) cooperate
with each other in connection with any such filing (including, to the extent permitted by
applicable law, providing copies of all such documents to the non-filing parties prior to filing
and considering all reasonable additions, deletions or changes suggested in connection therewith)
and in connection with resolving any investigation or other inquiry of any of the FTC, the
Antitrust Division or other Governmental Authority under any Antitrust Laws with respect to any
such filing or any such transaction. Newco shall be responsible for all filing fees and expenses
associated with the required filings under the HSR Act and all responses to any request by the FTC,
the Antitrust Division or any other Governmental Authority. Each such party shall use commercially
reasonable efforts to furnish to each other all information required for any application or other
filing to be made pursuant to any applicable law in connection with the transactions contemplated
by this Agreement. Each such party shall promptly inform the other parties hereto of any oral
communication with, and provide copies of written communications with, any Governmental Authority
regarding any such filings or any such transaction and permit the other party to review in advance
any proposed
communication by such party to any Governmental Authority. No party hereto shall
independently participate in any formal meeting with any Governmental Authority in respect of any
such filings, investigation, or other inquiry without giving the other parties hereto prior notice
of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to
attend and/or participate. Subject to applicable Law, the parties hereto shall consult and
cooperate with one another in connection with the matters described in this Section 6.4, including
in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions
and proposals made or submitted by or on behalf of any party hereto relating to proceedings under
the HSR Act or other Antitrust Laws.


 


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(b) Each of Newco, Purchaser, REG and the Company shall use commercially reasonable efforts to
resolve such objections, if any, as may be asserted by any Governmental Authority with respect to
the transactions contemplated by this Agreement under the HSR Act, the Sherman Act, as amended, the
Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other Laws that are
designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization
or restraint of trade (collectively, the “Antitrust Laws”). In connection therewith, if
any Legal Proceeding is instituted (or threatened to be instituted) challenging any transaction
contemplated by this Agreement as in violation of any Antitrust Law, Newco, Purchaser, REG and the
Company shall use commercially reasonable efforts to contest and resist any such Legal Proceeding,
and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order
whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or
restricts consummation of the transactions contemplated by this Agreement, including by pursuing
all available avenues of administrative and judicial appeal, unless, by mutual agreement, Newco and
the Company decide that litigation is not in their respective best interests. Each of Newco,
Purchaser, REG and the Company shall use commercially reasonable efforts to take such action as may
be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws
with respect to such transactions as promptly as possible after the execution of this Agreement.
Notwithstanding anything to the contrary provided herein, neither Newco, Purchaser or the Company
nor any of their respective Affiliates shall be required, in connection with the matters covered by
this Section 6.4, (i) to pay any amounts (other than the payment of filing fees and expenses and
fees of counsel), (ii) to commence litigation (as opposed to defend litigation), (iii) to hold
separate (including by trust or otherwise) or divest any of its or its Affiliates’ businesses,
product lines or assets, or any of the Purchased Assets, (iv) to agree to any limitation on the
operation or conduct of the Business, or (v) to waive any of the conditions to this Agreement set
forth in Section 8.1.



Section 6.5 Further Assurances. Subject to, and not in limitation of, Section 6.4,
each of the Company, Newco, REG and Purchaser shall use its commercially reasonable efforts to
take, or cause to be taken, all actions necessary or appropriate to fulfill its obligations under
this Agreement, including, without limitation, execution and delivery of the bill of sale and other
documents and instruments of transfer, deeds, consents, waivers and approvals, assignment and
assumption agreements, power of attorney, MOSA termination, releases, the Registration Rights
Agreement and the Rule 145 Agreements to which the Company, Newco, REG and/or Purchaser is a party.


 


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Section 6.6 No Solicitation by the Company; Etc.



(a) The Company shall, and shall cause its directors, officers, employees, investment bankers,
financial advisors, attorneys, accountants, agents and other representatives (collectively,
“Representatives”) to, immediately cease and cause to be terminated any discussions or
negotiations with any Person conducted heretofore with respect to a Takeover Proposal, and shall
use commercially reasonable efforts to obtain the return from all such Persons or cause the
destruction of all copies of confidential information previously provided to such parties by the
Company or its Representatives. The Company shall not, and shall cause its Representatives not to,
directly or indirectly (i) solicit, initiate, cause, facilitate or encourage (including by way of
furnishing information) any inquiries or proposals that constitute, or may reasonably be expected
to lead to, any Takeover Proposal, (ii) participate in any discussions or negotiations with any
third party regarding any Takeover Proposal or (iii) enter into any agreement related to any
Takeover Proposal; provided, however, that if after the date hereof the Board of Directors of the
Company receives an unsolicited, bona fide written Takeover Proposal made after the date hereof in
circumstances not involving a breach of this Agreement, and the Board of Directors of the Company
reasonably determines in good faith that such Takeover Proposal constitutes or is reasonably likely
to lead to a Superior Proposal, and with respect to which such Board determines in good faith,
after considering applicable provisions of state law and after consulting with and receiving the
advice of outside counsel, that the taking of such action is necessary in order for such Board to
comply with its fiduciary duties to the Company’s unitholders under Iowa law, then the Company may,
at any time prior to obtaining the Company Unitholder Approval (but in no event after obtaining the
Company Unitholder Approval) and after providing Newco not less than two (2) Business Days written
notice of its intention to take such actions (A) furnish information with respect to the Company to
the Person making such Takeover Proposal, but only after such Person enters into a customary
confidentiality agreement with the Company (which confidentiality agreement must be no less
favorable to the Company (i.e., no less restrictive with respect to the conduct of such Person)
than the Confidentiality Agreement), provided that (1) such confidentiality agreement may not
include any provision calling for an exclusive right to negotiate with the Company and (2) the
Company advises Newco of all such non-public information delivered to such Person concurrently with
its delivery to such Person and concurrently with its delivery to such Person the Company delivers
to Newco all such information not previously provided to Newco, and (B) participate in discussions
and negotiations with such Person regarding such Takeover Proposal. Without limiting the
foregoing, it is understood that any violation of the foregoing restrictions by the Company’s
Representatives shall be deemed to be a breach of this Section 6.6 by the Company. The Company
shall provide Newco with a correct and complete copy of any confidentiality agreement entered into
pursuant to this paragraph within 48 hours after the execution thereof.


 


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(b) In addition to the other obligations of the Company set forth in this Section 6.6, the
Company shall promptly advise Newco orally, and within 48 hours advise Newco in writing after
receipt, if any proposal, offer, inquiry or other contact is received by, any information is
requested from, or any discussions or negotiations are sought to be initiated or continued with,
the Company in respect of any Takeover Proposal, and shall, in any such notice to Newco, indicate
the identity of the Person making such proposal, offer, inquiry or other contact and the
terms and conditions of any proposals or offers or the nature of any inquiries or contacts
(and shall include with such notice copies of any written materials received from or on behalf of
such Person relating to such proposal, offer, inquiry or request), and thereafter shall promptly
keep Newco fully informed of all material developments affecting the status and terms of any such
proposals, offers, inquiries or requests (and the Company shall provide Newco with copies of any
additional written materials received that relate to such proposals, offers, inquiries or requests)
and of the status of any such discussions or negotiations.



(c) Except as expressly permitted by this Section 6.6(c), neither the Board of Directors of
the Company nor any committee thereof shall (i)(A) withdraw or modify, or propose publicly to
withdraw or modify, in a manner adverse to Newco or Purchaser, the Company Board Recommendation or
the approval or declaration of advisability by such Board of Directors of this Agreement and the
transactions contemplated hereby or (B) approve or recommend, or propose publicly to approve or
recommend, any Takeover Proposal (any action described in this clause (i) being referred to as a
“Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose publicly
to approve or recommend, or cause or authorize the Company to enter into, any letter of intent,
agreement in principle, memorandum of understanding, merger, acquisition, purchase or joint venture
agreement or other agreement related to any Takeover Proposal (other than a confidentiality
agreement in accordance with Section 6.6(a)). Notwithstanding the foregoing, the Board of
Directors of the Company may withdraw or modify the Company Board Recommendation if they determine
such withdrawal or modification is necessary in the exercise of their fiduciary duties, or
recommend a Takeover Proposal, if such Board determines in good faith that such Takeover Proposal
is a Superior Proposal; provided, however, that no Company Adverse Recommendation Change may be
made in response to a Superior Proposal until after the fifth (5th) Business Day following Newco’s
receipt of written notice (unless at the time such notice is otherwise required to be given there
are less than five (5) Business Days prior to the Company Unitholders Meeting, in which case the
Company shall provide as much notice as is reasonably practicable) from the Company (a “Company
Adverse Recommendation Notice”) advising Newco that the Board of Directors of the Company
intends to make such Company Adverse Recommendation Change and specifying the terms and conditions
of such Superior Proposal (it being understood and agreed that any amendment to the financial terms
or other material terms of such Superior Proposal shall require a new Company Adverse
Recommendation Notice and a new five (5) Business Day period (unless at the time such notice is
otherwise required to be given there are less than five (5) Business Days prior to the Company
Unitholders Meeting, in which case the Company shall provide as much notice as is reasonably
practicable)). In determining whether to make a Company Adverse Recommendation Change in response
to a Superior Proposal, the Board of Directors of the Company shall take into account (i) any
changes to the terms of this Agreement proposed by Newco in writing (in response to a Company
Adverse Recommendation Notice or otherwise) and (ii) the amount of the Termination Fee and Expenses
payable to Newco hereunder in determining whether such third party Takeover Proposal still
constitutes a Superior Proposal.


 


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(d) For purposes of this Agreement:



“Takeover Proposal” means any inquiry, proposal or offer from any Person or “group” (as
defined in Section 13(d) of the Exchange Act), other than Newco and its Subsidiaries or REG and its
Subsidiaries, relating to any (i) direct or indirect acquisition (whether in a single transaction
or a series of related transactions) of assets of the Company equal to 15% or more of the Company’s
assets or to which fifteen percent (15%) or more of the Company’s revenues or earnings are
attributable, (ii) direct or indirect acquisition (whether in a single transaction or a series of
related transactions) of fifteen percent (15%) or more of any class of equity securities of the
Company, (iii) tender offer or exchange offer that if consummated would result in any Person or
“group” (as defined in Section 13(d) of the Exchange Act) beneficially owning fifteen percent (15%)
or more of any class of equity securities of the Company or (iv) merger, consolidation, share
exchange, business combination, recapitalization, liquidation, dissolution or similar transaction
involving the Company; in each case, other than the transactions contemplated by this Agreement.



“Superior Proposal” means a bona fide written offer, obtained after the date hereof and not
in breach of this Agreement, to acquire, directly or indirectly, for consideration consisting of
cash and/or securities, all of the equity securities of the Company or all or substantially all of
the assets of the Company, or to merger or consolidate with the Company, made by a third party,
which is otherwise on terms and conditions which the Board of Directors of the Company determines
in its good faith and reasonable judgment (after consultation with outside counsel and a financial
advisor) to be more favorable to the Company’s unitholders than the transactions contemplated by
this Agreement, taking into account at the time of determination any changes to the terms of this
Agreement that as of that time had been proposed by Newco in writing and the ability of the Person
making such proposal to consummate the transactions contemplated by such proposal (based upon,
among other things, the availability of financing and the expectation of obtaining required
approvals).




Section 6.7 Non-Competition; Non-Solicitation; Confidentiality.



(a) For a period from the Closing Date until the fifth (5th) anniversary of the Closing Date,
neither the Company nor any of its Subsidiaries shall, directly or indirectly, own, manage,
operate, control or participate in the ownership, management, operation or control of any business,
whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business or
that otherwise competes with the Business (a “Restricted Business”). The parties hereto
specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be
inadequate and that Newco, in addition to any other relief available to it, shall be entitled to
temporary and permanent injunctive relief without the necessity of proving actual damage or posting
any bond whatsoever.



(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date,
neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any
Employees of the Company to leave such employment or hire, employ or otherwise engage any such
individual; or (ii) cause, induce or encourage any material actual or prospective client, customer,
supplier or licensor of the Business (including any existing or former customer of the Company and
any Person that becomes a client or customer of the
Business after the Closing) or any other Person who has a material business relationship with
the Business, to terminate or modify any such actual or prospective relationship.


 


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(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are
of a special, unique and extraordinary character and a violation of any of the terms of this
Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to
estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law
for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an
injunction, restraining order or other equitable relief from any court of competent jurisdiction in
the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7
are cumulative and in addition to any other rights and remedies which Newco may have hereunder or
at law or in equity.



(d) The parties hereto agree that, if any court of competent jurisdiction in a final
nonappealable judgment determines that a specified time period, a specified geographical area, a
specified business limitation or any other relevant feature of this Section 6.7 is unreasonable,
arbitrary or against public policy, then a lesser time period, geographical area, business
limitation or other relevant feature which is determined by such court to be reasonable, not
arbitrary and not against public policy may be enforced against the applicable party.



(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the
Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably
satisfactory to Newco.



Section 6.8 Preservation of Records. Newco agrees that it shall preserve and keep the
records held by it or its Affiliates relating to the Business for a period equal to the same period
as it determines to be prudent for its own records of a similar type, but in no event less than the
applicable statutes of limitation for federal and state income tax purposes with respect to tax
records used or useful for tax and accounting purposes, and shall make such records and personnel
available to the Company or its members as may be reasonably required by the Company or its members
in connection with, among other things, preparation and filing of tax returns and related matters,
any insurance claims by, legal proceedings against or governmental investigations of the Company or
any of its Affiliates or members or in order to enable the Company to comply with its obligations
under this Agreement and each other agreement, document or instrument contemplated hereby or
thereby. In the event Newco wishes to destroy (or permit to be destroyed) such records after that
time, Newco shall first give ninety (90) days prior written notice to the Company and the Company
shall have the right at its option and expense, upon prior written notice given to Newco within
that ninety-day period, to take possession of the records within one hundred eighty (180) days
after the date of such notice.


 


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Section 6.9 Publicity. None of the Company, REG, Newco or Purchaser shall issue any
press release or public announcement concerning this Agreement or the transactions contemplated
hereby without obtaining the prior written approval of the other parties hereto, which approval
will not be unreasonably withheld or delayed, unless, in the sole judgment of REG, Newco, Purchaser
or the Company, as applicable, disclosure is otherwise required by
applicable Law or by the applicable rules of any stock exchange on which Newco or the Company
lists securities; provided that, to the extent required by applicable Law, the party intending to
make such release shall use its commercially reasonable efforts consistent with such applicable Law
to consult with the other party with respect to the timing and content thereof.




Section 6.10 Environmental Matters.



(a) The Company shall permit, at Newco’s expense, Newco and Newco’s environmental consultant
to conduct such investigations (including investigations known as “Phase I” environmental Site
Assessments and, only if mutually agreed to by the Company and Newco, “Phase II environmental Site
Assessments) of the environmental conditions of any real property owned, operated or leased by or
for the Company and the operations thereat (subject to any limitations contained in valid,
previously executed leases) as Newco, in its reasonable discretion, shall deem necessary or prudent
(“Newco’s Environmental Assessment”). Newco’s Environmental Assessment shall be conducted,
at Newco’s expense, by a qualified environmental consulting firm, possessing reasonable levels of
insurance, in compliance with applicable Laws and in a manner that minimizes the disruption of the
operations of the Company. Newco shall provide copies of reports and results of all investigations
conducted by or on behalf of Newco promptly after receipt thereof. Newco shall be responsible for
the repair of any damage (except as a result of any pre-existing contamination) caused by such
investigations and shall restore the affected property or reimburse the Company for such damage and
the repair and restoration thereof as reasonably determined by the Company. Newco shall indemnify
the Company for any loss (except as a result of any pre-existing contamination), including claims
of lessors and other parties, resulting from such investigations.



(b) The Company shall promptly file or cooperate with Newco in filing all materials required
by Environmental Laws as a result of or in furtherance of the transactions contemplated hereunder,
including, but not limited to any notifications or approvals required under environmental property
transfer laws, and all requests required or necessary for the transfer or re-issuance of
Environmental Permits required to conduct the Business after the Closing Date. Newco shall
cooperate in all reasonable respects with the Company with respect to such filings and
Environmental permit activities.



Section 6.11 Cooperation with Indebtedness Renegotiation. The terms and conditions of
the Indebtedness of the Company set forth on Company Disclosure Schedule 6.11 shall be
renegotiated on terms and conditions deemed acceptable to REG in its sole discretion, and all such
Indebtedness shall be assumed by Purchaser and not by Newco. The Company shall provide such
assistance and cooperation as REG, Newco and their Affiliates may reasonably request in connection
with the renegotiation of the Indebtedness of the Company, including (a) making senior management
of the Company reasonably available for customary syndication presentations and meetings and
presentations with rating agencies and lenders or other proposed financing sources and
(b) cooperating with prospective lenders or other proposed financing sources in performing their
due diligence.


 


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Section 6.12 Monthly Financial Statements. As soon as reasonably practicable, but in
no event later than forty-five (45) days after the end of each calendar month during the period
from the date hereof to the Closing, the Company shall provide Newco with (a) unaudited monthly
financial statements, including the balance sheet and related statement of income and cash flows,
of the Company (such statements to be prepared by the Company in accordance with GAAP consistent
with past practice in each case without footnotes) and (b) operating or management reports (such
reports to be in the form prepared by the Company in the Ordinary Course of Business) for such
preceding month (such financial statements, the “Company Monthly Financial Statements”).
At or as close to reasonably practicable prior to Closing, Company shall provide Parent with the
Final Closing Balance Sheet. As soon as reasonably practicable, but in no event later than
forty-five (45) days after the end of each calendar month (or as soon as practicable if and when
such financial statements are received by Newco or REG from the parties to the Common Plan
Agreements other than REG) during the period from the date hereof to the Closing, Newco or REG
shall provide the Company with unaudited monthly financial statements, including the balance sheet
and related statement of income and cash flows, of Newco, Purchaser and REG and the other
respective parties to the Common Plan Agreements (such statements to be prepared in accordance with
GAAP consistent with past practice in each case without footnotes) (such financial statements, the
“Newco Monthly Financial Statements”); provided, however, the monthly financials for Newco,
Purchaser and REG for February and March, 2009 shall not be required to be delivered until May 26,
2009.



Section 6.13 Notification of Certain Matters. The Company shall give notice to Newco
and Newco and REG shall give notice to the Company, as promptly as reasonably practicable upon
becoming aware of (a) any fact, change, condition, circumstance, event, occurrence or
non-occurrence that has caused or is reasonably likely to cause any representation or warranty in
this Agreement made by it or under any of the Common Plan Agreements by any of the other parties
thereto to be untrue or inaccurate in any respect at any time after the date hereof and prior to
the Closing, (b) any material failure on its part to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder or any of the other parties under any
of the other Common Plan Agreements or (c) the institution of or the threat of institution of any
Legal Proceeding against the Company, Newco, Purchaser or REG or any of the other parties under any
of the other Common Plan Agreements related to this Agreement or the transactions contemplated
hereby; provided, that the delivery of any notice pursuant to this Section 6.13 shall not limit or
otherwise affect the remedies available hereunder to the party receiving such notice, or the
representations or warranties of, or the conditions to the obligations of, the parties hereto.



Section 6.14 Newco Board of Directors. On the Closing Date, Newco shall take such
actions as are reasonably necessary to elect the nominee of the Company designated by the Company
prior to Closing, to Newco’s Board of Directors, to serve until the expiration of the restrictions
set forth in Article X of the Certificate of Incorporation and until his successor is elected and
qualified, or if earlier, until his earlier death, resignation or removal.


 


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Section 6.15 Preparation of the Form S-4 and the Joint Proxy Statement; Unitholder and
Stockholder Meetings.



(a) As soon as practicable following the date of this Agreement, the Company, Newco, REG and
the other parties to the Common Plan Agreements shall prepare, with the cooperation of the Company,
REG and the other parties to the Common Plan Agreements, and file with the SEC the Joint Proxy
Statement and Newco shall prepare and Newco shall file with the SEC the Form S-4, in which the
Joint Proxy Statement will be included as a prospectus. Each of the Company, REG and Newco shall,
and shall cause their accountants and lawyers to use its commercially reasonable efforts to have
the Form S-4 declared effective under the Securities Act as promptly as practicable after such
filing and keep the Form S-4 effective for so long as necessary to consummate the transactions
contemplated by this Agreement, including causing their accountants to deliver necessary or
required instruments such as opinions, consents, certificates and comfort letters, each in
customary form and covering such matters of the type customarily covered by such documents. The
Company shall use its commercially reasonable efforts to cause the Joint Proxy Statement to be
mailed to the unitholders of the Company and REG shall use its reasonable best efforts to cause the
Joint Proxy Statement to be mailed or otherwise delivered in accordance with Law to the
stockholders of REG, in each case as promptly as practicable after the Form S-4 is declared
effective under the Securities Act. Newco shall also, at Newco’s expense, take any action (other
than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a
general consent to service of process) required to be taken under any applicable state securities
Laws in connection with the issuance of shares of Newco Common Stock and Newco Preferred Stock, and
the Company shall furnish all information concerning the Company and the unitholders of the Company
as may be reasonably requested by Newco in connection with any such action. No filing of, or
amendment or supplement to, the Form S-4 will be made by Newco, and no filing of, or amendment or
supplement to, the Joint Proxy Statement will be made by the Company, REG or Newco, in each case
without providing the other parties a reasonable opportunity to review and comment thereon. If at
any time prior to the time the Form S-4 is declared effective under the Securities Act any
information relating to the Company, REG or Newco, or any of their respective Affiliates, directors
or officers, should be discovered by the Company, REG or Newco which should be set forth in an
amendment or supplement to either the Form S-4 or the Joint Proxy Statement, so that either such
document would not include any misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading, the party which discovers such information shall promptly notify the other parties
hereto and an appropriate amendment or supplement describing such information shall be promptly
filed with the SEC and, to the extent required by Law, disseminated to the unitholders of the
Company and the stockholders of REG. The parties shall notify each other promptly of the receipt
of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of
the SEC for amendments or supplements to the Joint Proxy Statement or the Form S-4 or for
additional information and shall supply each other with copies of (i) all correspondence between it
or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other
hand, with respect to the Joint Proxy Statement, the Form S-4 or the transactions contemplated by
this Agreement and (ii) all orders of the SEC relating to the Form S-4. Preparation of the Form
S-4 and the Joint Proxy
Statement under this Agreement shall be effectuated in conjunction with the required S-4 and
Joint Proxy Statement required under the Related Transactions.


 


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(b) The Company shall, as soon as practicable following the date of this Agreement subject to
compliance with SEC requirements and compliance with the requirements of the Company’s operating
agreement and applicable Law, establish a record date for, duly call, give notice of, convene and
hold a special meeting of its unitholders (the “Company Unitholders Meeting”) for the
purpose of obtaining the Company Unitholder Approval. Subject to Section 6.6(c) hereof, the
Company shall, through its Board of Directors, recommend to its unitholders adoption of this
Agreement (the “Company Board Recommendation”). The Joint Proxy Statement shall include a
copy of the Company Board Recommendation. Without limiting the generality of the foregoing, the
Company’s obligations pursuant to the first sentence of this Section 6.15(b) shall not be affected
by (i) the commencement, public proposal, public disclosure or communication to the Company of any
Takeover Proposal or (ii) the withdrawal or modification by the Board of Directors of the Company
or any committee thereof of the Company Board Recommendation or such Board of Directors’ or such
committee’s approval of this Agreement; provided, further, however, that if the Board of Directors
of the Company withdraws or modifies such recommendation due to any reason other than a reason or
reasons arising from a Material Adverse Effect with respect to Newco, Purchaser or REG, the Company
shall pay Newco a Termination Fee to the extent provided for in Section 9.4.



Section 6.16 Transfer of Certificates of Title. At Closing, the Company shall deliver
to Purchaser certificates of title to the assets listed on Company Disclosure Schedule 6.16
to be transferred to Purchaser.



Section 6.17 Agreements of Rule 145 Affiliates. At least five (5) Business Days prior
to the Closing Date, the Company shall cause to be prepared and delivered to Newco a list
identifying all persons who it believes may be deemed to be “affiliates” of the Company, as that
term is used in paragraphs (c) and (d) of Rule 145 under the Securities Act (the “Rule 145
Affiliates”). The Company shall use its commercially reasonable efforts to cause each person
who is identified as its Rule 145 Affiliate in such list to deliver to Newco, at or prior to the
Closing Date, a written agreement, in substantially the form attached hereto as Exhibit D.
Newco shall be entitled to place restrictive legends on any shares of Newco Common Stock or Newco
Preferred Stock issued (i) to such Rule 145 Affiliates and (ii) to any other Persons who it
reasonably believes may be deemed to be “affiliates” of the Company, as that term is used in
paragraphs (c) and (d) of Rule 145 under the Securities Act, pursuant to the Transaction.




Section 6.18 Legend.



The Company understands and agrees that each of the certificates evidencing Newco Common Stock
and Newco Preferred Stock to be acquired hereunder may bear the following legends:




“THE SALE OR TRANSFER OF SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
RESTRICTIONS IN ARTICLE X OF THE CERTIFICATE OF INCORPORATION OF REG NEWCO, INC.
(THE
“CORPORATION”), AND ANY AMENDMENTS THERETO, COPIES OF WHICH ARE AVAILABLE WITHOUT
CHARGE UPON REQUEST TO THE CORPORATION. THE CORPORATION WILL FURNISH TO THE HOLDER
OF THIS CERTIFICATE WITHOUT CHARGE UPON REQUEST A FULL STATEMENT OF THE
DESIGNATIONS, PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF THE SHARES OF EACH
CLASS OF SHARES AUTHORIZED TO BE ISSUED BY THE CORPORATION.”


 


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Section 6.19 Release under MOSA. Effective at Closing, REG and the Company each
hereby releases and discharges the other and their respective officers, directors, agents,
stockholders, subsidiaries and Affiliates, including, but not limited to REG Services Group, LLC
and REG Marketing and Logistics Group, LLC, from any claim, liability, loss, damage and expense
arising under or by reason of the Management and Operational Services Agreement dated August 22,
2006 by and between the Company and REG, and the First Amendment to Management and Operational
Services Agreement dated September 26, 2006 by and between the Company and REG (together, the
“MOSA”) through the Closing Date, whether known or unknown, foreseen or unforeseen, or
which may hereafter appear or develop, including, but not limited to, any claim, liability, loss,
damage or expense for breach or indemnification.



Section 6.20 Updating of Schedules. From time to time prior to the Closing Date,
Newco, Purchaser, REG and the Company shall promptly amend or supplement the Disclosure Schedules
to reflect any events or circumstances that occur or arise between the date hereof and the Closing
Date and that, if existing or occurring on the date of this Agreement, would have been required to
be disclosed on such Schedule in order to make the representations and warranties of the respective
party true and correct; provided, however, that no such amendment or supplement made by a party
shall have any effect for the purpose of determining the satisfaction of the conditions to the
obligations of the other party hereunder or excuse the breach of a covenant by a party hereunder.



Section 6.21 REG Covenants. In addition to the covenants made by REG in this Article
VI, the Company shall be a beneficiary of the covenants and agreements of REG set forth in Sections
6.2 through 6.6, 6.11, 6.12 and 6.14(b) of the REG Merger Agreement. The Company Disclosure
Schedules, as defined in the REG Merger Agreement, provided in connection with such covenants and
agreements, shall be delivered by REG to the Company and shall be applicable to such covenants and
agreements upon the execution of this Agreement. No amendment, waiver or consent relating to such
covenants and agreements shall be effective for any purpose under this Agreement unless such
amendment, waiver or consent is in writing and signed by the Company.


 


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Section 6.22 Payment of Ongoing Costs. The Company hereby agrees to use commercially
reasonable efforts to distribute to its unitholders the Newco Common Stock and Newco Preferred
Stock received pursuant to this Agreement and to liquidate, wind down and dissolve the Company or
otherwise terminate its limited liability company existence as soon as possible at or following the
Closing, but in no event later than thirty (30) days following Closing.
Until the Company is dissolved or otherwise terminated, Newco shall pay the following ongoing
costs related to the Company (the “Ongoing Costs”):




(a) the premiums for director and officer insurance;




(b) expenses for regular board meetings;



(c) ongoing professional fees, including legal, accounting and audit fees as provided on
Company Disclosure Schedule 4.14(a)(xix);


(d) costs associated with filing required reports and filings under the Exchange
Act, including filing and printer fees;




(e) the premiums for other required insurance; and


(f) costs associated with continuing the Company’s existence and the Company’s
dissolution, termination or wind-down.



Newco and the Company shall mutually agree upon all Ongoing Costs prior to the Company incurring
such costs, and the Company agrees to use commercially reasonable efforts to minimize Ongoing
Costs.



Section 6.23 Payment of Professional Service Providers and other Costs. The Company
agrees to pay, prior to or at the time of Closing, all fees and costs of any Professional Service
Provider of the Company to the extent of the Company’s available cash. At Closing, Newco shall pay
all fees and costs of any Professional Service Provider of the Company that have not been
previously paid by the Company as provided on Company Disclosure Schedule 4.14(a)(xix).
Notwithstanding the foregoing, in the event the transaction contemplated by this Agreement does not
close, payment of the fees and costs of the Professional Service Providers of the Company will
remain the sole obligation of the Company.



Section 6.24 Protective Tax Election. The Company and Newco shall make a protective
election under Section 362(e)(2)(C) of the Code as provided in Proposed Treasury Regulation §
1.362-4(c)(1) and Notice 2005-70, 2005-2 CB 694 such that if the basis of the Company assets is
greater than their fair market value at the time of the Transaction, the basis of said assets shall
not be reduced and instead the basis of Newco stock issued in the Transaction is reduced. The
Company and Newco agree to cooperate to perfect said protective election if it is determined that
the basis of the Company assets is in excess of their fair market value. The Company and Newco
shall attach such statements as they mutually agree to their income tax returns as are necessary to
make said protective election, to perfect such protective election if necessary, or to make an
election under Section 362(e)(2)(C) of the Code if by the time said returns are filed such an
election is necessary because the Company and Newco have determined at the time of the Transaction
that the fair market value of the Company assets was less than their basis. Notwithstanding the
foregoing, the Company and Newco agree that a protective election will not be made if the Company
and Newco determine that Section 362(e)(2) of the Code does
not apply to the Transaction pursuant to Proposed Treasury Regulation § 1.362-4(b)(6) or for
any other reason.


 


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ARTICLE VII

EMPLOYEES AND EMPLOYEE BENEFITS




Section 7.1 Employment. Prior to the Closing, Purchaser shall deliver, in writing, an
offer of employment on an “at will” basis to the Employees of the Company who are not covered by
any of the Labor Contracts disclosed in Company Disclosure Schedule 4.15(a). Each such
offer of employment shall be at the same salary or hourly wage rate and position in effect
immediately prior to the Closing Date. The Employees who accept Purchaser’s “at will” employment
offer by the Closing Date are hereinafter referred to as the “Transferred Employees.”
Subject to applicable Laws, after the Closing Date, Purchaser shall have the right to dismiss any
or all Transferred Employees at any time, with or without cause, and to change the terms and
conditions of their employment (including compensation and employee benefits provided to them).



Section 7.2 Standard Procedure. Pursuant to Section 4 of Revenue Procedure 2004-53
I.R.B. 2004-34, (a) Purchaser and the Company shall report on a predecessor/successor basis as set
forth therein, (b) the Company will not be relieved from filing a Form W-2 with respect to any
Transferred Employees, and (c) Purchaser will undertake to file (or cause to be filed) a Form W-2
for each such Transferred Employee only with respect to the portion of the year during which such
Employees are employed by Purchaser that includes the Closing Date, excluding the portion of such
year that such Employee was employed by the Company.



Section 7.3 Employee Benefits. Following the Closing, Purchaser shall provide the
Transferred Employees with benefits under Purchaser’s then existing employee benefit plans that are
comparable, in the aggregate, to the benefits, policies and procedures provided by REG immediately
prior to the Closing or employee benefit plans of REG that are assumed by Newco pursuant to the
Merger Agreement (collectively, the “Purchaser Plans”). Purchaser shall cause Transferred
Employees to be credited with service with the Company for vesting and eligibility under the
Purchaser Plans and solely under the Company’s defined benefit plan for benefit accruals with
respect to accrued benefit obligations. Notwithstanding anything to the contrary in this
Agreement, nothing in this Agreement shall be construed as requiring any compensation or employee
benefit plans, programs or arrangements to continue to be maintained by Purchaser with respect to
the Transferred Employees for any specified period after the Closing Date.


 


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ARTICLE VIII

CONDITIONS TO CLOSING




Section 8.1 Conditions Precedent to Obligations of Newco and Purchaser. The
obligations of Newco and Purchaser to consummate the transactions contemplated by this Agreement is
subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions
(any or all of which may be waived by Newco and Purchaser in whole or in part to the extent
permitted by applicable Law):



(a) the representations and warranties of the Company set forth in this Agreement qualified as
to materiality shall be true and correct, and those not so qualified shall be true and
correct in all material respects, as of the date of this Agreement and as of the Closing as though
made at and as of the Closing, except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and warranties qualified as to
materiality shall be true and correct, and those not so qualified shall be true and correct in all
material respects, on and as of such earlier date); provided, however, in the event of any breach
of a representation or warranty of the Company set forth in this Agreement, the condition set forth
in this Section 8.1(a) shall be deemed satisfied unless the effect of all such breaches of
representations and warranties taken together could reasonably be expected to have a Material
Adverse Effect on the Company;



(b) the Company shall have performed and complied in all material respects with all
obligations and agreements required in this Agreement to be performed or complied with by it on or
prior to the Closing Date;



(c) there shall not have been or occurred any event, change, occurrence or circumstance that,
individually or in the aggregate, with any other events, changes, occurrences or circumstances, has
had or which could reasonably be expected to have a Material Adverse Effect on the Company;



(d) Newco shall have received a certificate signed by the senior non-management officer of the
Company, in form and substance reasonably satisfactory to Newco, dated the Closing Date, to the
effect that each of the conditions specified above in Sections 8.1(a)-(c) have been satisfied in
all respects;



(e) with respect to each Owned Property, Newco shall have received a binding commitment from a
title company of Newco’s choice, the costs of which will be borne one-half by Newco and one-half by
the Company (except as provided in Section 2.3 with respect to Assumed Liabilities of Purchaser),
to issue a policy of title insurance on such Owned Property, which shall show title thereto to be
in the condition represented by the Company herein, shall contain exceptions only for Permitted
Exceptions (all Liens, other than Permitted Exceptions, including all Liens set forth on
Company Disclosure Schedule 4.10(a)(i)(A), being satisfied by the Company prior to Closing,
and satisfactory evidence thereof provided to Newco and its title company on or before Closing),
and shall show no rights of occupancy or use by third parties other than tenants under Real
Property Leases, no encroachments, and no gaps in the chain of title, the cost of the cure of which
shall be borne by the Company;



(f) Newco shall have received, from Newco’s surveyor, an ALTA/ACSM Class A Land Title Survey
with respect to each Owned Property, which reflects the location of all improvements and easements
and that all improvements are located with the boundaries of the Owned Property and that no
encroachments exist, the cost of which surveys shall be borne equally by the Company and Newco
(except as provided in Section 2.3 with respect to Assumed Liabilities of Purchaser);


 


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(g) the Company shall have delivered to Newco’s title company any certifications, gap and lien
indemnities and title and survey affidavits, commonly delivered in transactions involving the sale
of real property in which title insurance is purchased, as may be requested by the title company in
connection with the issuance of title insurance for Newco or its lenders, together with copies of
formation documents, incumbency certificates, certificates of good standing and consents or
resolutions as are reasonably requested by said title company;



(h) there shall not be in effect any Order by a Governmental Authority of competent
jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions
contemplated hereby;



(i) (i) if applicable, the waiting period under the HSR Act shall have expired and the Company
shall have obtained any consent, approval, order or authorization of, or registration, declaration
or filing with, any Governmental Authority set forth on Company Disclosure Schedule 4.3(b)
required to be obtained or made in connection with the execution and delivery of this Agreement or
the performance of the transactions contemplated hereby and (ii) Newco, Purchaser, REG and the
Company shall have obtained all consents waivers and approvals under all Antitrust Laws and those
consents, waivers and approvals referred to in Section 4.3(b) hereof in a form satisfactory to
Newco;



(j) the Form S-4 shall have become effective under the Securities Act and no stop order
suspending the effectiveness of the Form S-4 shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the SEC and all registrations or qualifications
required under state securities laws for issuance of Newco Shares shall have been received;



(k) the Company Unitholder Approval shall have been obtained in accordance with applicable Law
and the Organizational Documents of the Company and the Company Stockholder Approval (as defined in
the REG Merger Agreement) of REG shall have been obtained in accordance with applicable law and the
Organizational Documents of REG;



(l) the Company shall have provided Newco with an affidavit of non-foreign status of the
Company that complies with Section 1445 of the Code (a “FIRPTA Affidavit”);



(m) Newco and Purchaser shall have obtained working capital financing for the operation of the
Facility and Newco shall have obtained a senior credit facility or other working capital lending
arrangement, in each case in such amounts and on the terms and conditions reasonably satisfactory
to Newco (together such Facility financing and senior credit facility or working capital lending
arrangement, the “Financing”);



(n) the Indebtedness of the Company being assumed by Purchaser shall have been renegotiated on
terms and conditions deemed acceptable by Newco in its sole discretion and the Senior Lender shall
have consented to the Transaction and the transactions contemplated hereby;


 


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(o) the Company shall have delivered, or caused to be delivered, to Purchaser a duly executed
bill of sale in the form of Exhibit F hereto and other documents and instruments of
transfer reasonably requested by Purchaser or Purchaser’s title company;



(p) the Company shall have delivered, or cause to be delivered, to Purchaser duly executed
general warranty deeds in forms appropriate for each state in which Owned Real Property is located
(other than for the Excluded Properties) and, if requested by Purchaser, separate assignments for
the Real Property Leases; provided, however, that the Company may deliver special warranty deeds in
lieu of general warranty deeds for certain Owned Real Property if title insurance has been obtained
for such Owned Real Property;



(q) the Company shall have obtained the issuance, reissuance or transfer of all Permits
(including Environmental Permits) set forth on Company Disclosure Schedule 4.17(b) which
are potentially obtainable prior to the transfer of the Purchased Assets for Purchaser to conduct
the operations of Business as of the Closing Date, and the Company shall have satisfied all
property transfer requirements arising under Law, including Environmental Laws;



(r) the Company shall have obtained the appropriate consents required under incentives from
Governmental Authorities related to the Facility which are set forth on Company Disclosure
Schedule 8.1(r) and REG shall have obtained the appropriate consents under incentives from
Governmental Authorities related to its facilities;



(s) the Company shall have delivered, or caused to be delivered, to Purchaser a duly executed
assignment and assumption agreement in the form of Exhibit G hereto and duly executed
assignments of the registrations and applications included in the Intellectual Property, in a form
reasonably acceptable to Purchaser and suitable for recording in the U.S. Patent and Trademark
Office, U.S. Copyright Office or equivalent foreign agency, as applicable, and general assignments
of all other Intellectual Property;



(t) the Company shall have delivered, or caused to be delivered, to Purchaser, a duly executed
power of attorney in the form of Exhibit H hereto;



(u) the Company shall have delivered, or caused to be delivered, to Newco an opinion of Brown,
Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., counsel to the Company, in form and
content reasonably satisfactory to Newco;



(v) the Company shall have delivered to REG a termination providing that the MOSA is
terminated as of the Closing Date and that neither of the parties thereto shall have any right,
claim or liability after the Closing Date under or by reason of the MOSA;



(w) the Company shall have delivered, or caused to be delivered, to Newco an opinion of Brown,
Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., counsel to the Company, that the
Company has (i) been properly treated as a partnership for Federal, State and local tax purposes,
and has not made an election to be treated as a corporation and (ii) has not been a “publicly
traded partnership” within the meaning of Section 7704 of the Code in form and content reasonably
satisfactory to Newco;


 


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(x) the Company shall have delivered all instruments and documents necessary to release any
and all Liens, other than Permitted Exceptions, on the Purchased Assets, including appropriate UCC
financing statement amendments (termination statements);



(y) REG shall have received terminations of the existing REG stockholder and registration
rights agreements set forth in Section 7.1(l) of the REG Merger Agreement;



(z) REG shall have received written consent from the holders of REG preferred stock waiving
all Accrued Dividends (as defined in the respective certificates of designation for such REG
preferred stock) as of the Closing Date pursuant to the respective certificates of designation for
each series of REG preferred stock;



(aa) the Company shall have delivered, or caused to be delivered, to Newco copies of all
consents, waivers and approvals referred to in Section 8.1(i)(ii);



(bb) Newco shall have received full executed originals of the Newco Registration Rights
Agreement, Newco BCA Registration Rights Agreement, Newco Stockholder Agreement and the Rule 145
Affiliate Agreements required by 6.17 hereof and such other documents as Newco may reasonably
request;



(cc) Newco shall have approved in writing any material increase in the Company’s Liabilities
from those reflected on the Balance Sheet to those reflected in the Final Closing Balance Sheet
other than Liabilities incurred under loan or credit agreements or arrangements in effect on the
date of this Agreement and otherwise in the Ordinary Course of Business;



(dd) not more than one percent (1%) of the outstanding shares of REG immediately prior to the
Effective Time as defined in the REG Merger Agreement shall have exercised appraisal rights unless
such exercise has been properly denied, withdrawn or lost under Delaware law; and



(ee) on or before May 31, 2009, Newco and Senior Lender shall have reached an agreement to
renegotiate the Indebtedness; provided, however, that in the event Newco and Senior Lender shall
have failed to agree to renegotiate and Senior Lender shall have failed to deliver its consent to
the Transaction by May 31, 2009, Newco shall have seven (7) days to exercise its right to terminate
for failure to meet the condition set forth in this Section 8.1(ee); and further provided that
Newco’s failure to exercise its rights to terminate within the applicable time frame in this
Section 8.1(ee) shall be deemed a waiver of the condition in this Section 8.1(ee).


 


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Section 8.2 Conditions Precedent to Obligations of the Company. The obligations of
the Company to consummate the transactions contemplated by this Agreement are subject to the
fulfillment, prior to or on the Closing Date, of each of the following conditions (any or all of
which may be waived by the Company in whole or in part to the extent permitted by applicable Law):



(a) the representations and warranties of Newco, REG and Purchaser set forth in this Agreement
qualified as to materiality shall be true and correct, and those not so qualified shall be true and
correct in all material respects, as of the date of this Agreement and as of the Closing as though
made at and as of the Closing, except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and warranties qualified as to
materiality shall be true and correct, and those not so qualified shall be true and correct in all
material respects, on and as of such earlier date); provided, however, in the event of any breach
of a representation or warranty of Newco, REG or Purchaser set forth in this Agreement, the
condition set forth in this Section 8.2(a) shall be deemed satisfied unless the effect of all such
breaches of representations and warranties taken together could reasonably be expected to have a
Material Adverse Effect on Newco, REG or Purchaser;



(b) the representations and warranties of the parties to the other Common Plan Agreements
(other than REG) qualified as to materiality shall be true and correct, and those not so qualified
shall be true and correct in all material respects, as of the Effective Date and as of the Closing
as though made at and as of the Closing, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and warranties qualified as
to materiality shall be true and correct, and those not so qualified shall be true and correct in
all material respects, on and as of such earlier date); provided, however, in the event of any
breach of a representation or warranty of any party to the Common Plan Agreements (other than REG)
as set forth in the Common Plan Agreements, the conditions set forth in this Section 8.2(b) shall
be deemed satisfied unless the effect of all such breaches of representations and warranties taken
together could reasonably be expected to have a Material Adverse Effect on the party making such
representation or warranty;



(c) Newco, Purchaser and REG shall have performed and complied in all material respects with
all obligations and agreements required by this Agreement and in the Merger Agreement to be
performed or complied with by Newco, Purchaser and REG on or prior to the Closing Date, and the
parties to the Common Plan Agreements (other than REG) shall have performed and complied in all
material respects with all obligations and agreements required by the Common Plan Agreements to be
performed or complied with by such parties on or prior to the Closing Date; provided, however, in
the event of any failure to perform or comply by any party to the Common Plan Agreements (other
than REG) as set forth in the Common Plan Agreements, the conditions set forth in this Section
8.2(c) shall be deemed satisfied unless the effect of all such failures to perform or comply taken
together could reasonably be expected to have a Material Adverse Effect on the Company;



(d) there shall not have occurred any event, change, occurrence or circumstance that,
individually or in the aggregate with any other events, changes, occurrences or circumstances, has
had or which could reasonably be expected to have a Material Adverse Effect on Newco, Purchaser or
REG; provided, however, the failure to close of any of the other Common Plan Agreements other than
the REG Merger Agreement shall not be deemed a Material Adverse Effect on Newco, Purchaser or REG;


 


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(e) the Company shall have received certificates signed by the Chief Executive Officer of each
of Newco, REG and Purchaser, in form and substance reasonably satisfactory to the Company, dated
the Closing Date, to the effect that each of the conditions specified above in Sections 8.2(a) and
(d) and the conditions specified in Sections 8.2(b)-(c) specifically applicable to Newco, REG or
Purchaser have been satisfied in all respects;



(f) there shall not be in effect any Order by a Governmental Authority of competent
jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions
contemplated hereby;



(g) if applicable, the waiting period under the HSR Act shall have expired and Newco shall
have obtained any consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Authority set forth on Newco Disclosure Schedule 5.4 required
to be obtained or made by it in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, and Newco, Purchaser, REG and the Company
shall have obtained all consents, waivers and approvals under all Antitrust Laws and those
consents, waivers and approvals referred to in Section 5.4(b) hereof in a form satisfactory to the
Company;



(h) the Form S-4 shall have become effective under the Securities Act and no stop order
suspending the effectiveness of the Form S-4 shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the SEC and all registrations or qualifications
required under state securities laws for issuance of Newco Shares shall have been received and
Newco shall have the authority and unrestricted right to issue, and shall have issued, the Newco
Common Stock and the Newco Preferred Stock to the Company as contemplated by this Agreement;



(i) the Company Unitholder Approval shall have been obtained in accordance with applicable Law
and Organizational Documents of the Company;



(j) the closing of the REG Merger Agreement shall have been effectuated contemporaneously with
the Closing of this Agreement;



(k) Newco, Purchaser and REG shall have delivered, or caused to be delivered, to the Company
an opinion of Nyemaster, Goode, West, Hansell & O’Brien, P.C., counsel to Newco, Purchaser and REG,
in form and content reasonably satisfactory to the Company;



(l) Newco, Purchaser and REG shall have delivered, or caused to be delivered, to the Company
an opinion of Nyemaster, Goode, West, Hansel & O’Brien, P.C., counsel to Newco, Purchaser and REG,
that neither the Company nor the Company Unitholders receiving Parent Shares hereunder will
recognize gain or loss for federal income tax purposes as a result of the Transaction in form and
content reasonably satisfactory to the Company;


 


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(m) the Company shall have received the written consent and agreement of the Company’s senior
lender, AgStar (“Senior Lender”) to the assignment and assumption by Purchaser of the Indebtedness
owed to Senior Lender and shall have received the appropriate
consents required from any other party holding Indebtedness of the Company for the assignment
and assumption of the Indebtedness to Purchaser;



(n) the Purchaser shall have delivered, or caused to be delivered, to the Company a duly
executed assignment and assumption agreement in the form of Exhibit G hereto related to the
assumption by Purchaser of the Assumed Liabilities of the Company;



(o) REG shall have delivered to the Company a termination providing that the MOSA is
terminated as of the Closing Date and that neither of the parties thereto shall have any right,
claim or liability after the Closing Date under or by reason of the MOSA;



(p) Newco and Purchaser shall have obtained the Financing in such amounts and on terms and
conditions reasonably satisfactory to the Company;



(q) Newco shall have delivered, or caused to be delivered, to the Company copies of all
consents, waivers and approvals referred to in Section 8.2(g);




(r) Newco shall have executed and delivered to the Company the Registration Rights Agreement;



(s) the number of shares of Newco Common Stock and the number of shares of Newco Preferred
Stock held by each shareholder of Newco immediately following the closing of each of the Common
Plan Agreements shall be as set forth on Newco Disclosure Schedule 5.2(i), and the
subscriptions, options, warrants, calls, convertible or exchangeable securities, rights,
commitments or agreements of any character providing for the issuance of any shares of capital
stock, voting securities, or equity interest immediately following the closing of each of the
Common Plan Agreements shall be as set forth on Newco Disclosure Schedule 5.2(ii), in each
case to the extent such closings of the Common Plan Agreements occur;



(t) REG shall have obtained the issuance or reissuance of all Permits (including Environmental
Permits) set forth on REG’s Company Disclosure Schedule 4.17(b) which are potentially
obtainable prior to the Closing for REG to continue to conduct its business and operations as of
the Closing Date;



(u) REG shall have obtained the appropriate consents required under incentives from
Governmental Authorities which are set forth on REG’s Company Disclosure Schedule 7.1(p),
as referenced in Section 7.1(p) of the REG Merger Agreement and provided by REG to the Company
prior to the Closing;



(v) the Company shall have approved in writing any material increase in REG’s and Newco’s
Liabilities from those reflected on REG’s Balance Sheet, as delivered in response to Section 4.5 of
the REG Merger Agreement and Section 5.10 of this Agreement, to those reflected in REG’s Final
Closing Balance Sheet, as defined in the REG Merger Agreement and provided by REG to the Company
prior to the Closing, and other than Liabilities incurred under loan or credit agreements or
arrangements in effect on the date of this Agreement and otherwise in the Ordinary Course of
Business;


 


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(w) REG shall have delivered audited financial statements for the fiscal year ended December
31, 2008 to the Company on or before May 31, 2009; provided, however, in the event such audited
financial statements, including, without limitation, the balance sheet, income statement, statement
of cash flows and notes thereto, reflect any material adverse change, in the sole judgment of the
Company, from the draft financial statements provided to the Company on or prior to the date of
this Agreement, or in the event REG fails to deliver such audited financial statements on or before
May 31, 2009, the Company shall have seven (7) days from delivery of such audited financial
statements, or failure to deliver such statements, to exercise its right to terminate for failure
to meet the condition set forth in this Section 8.2(w); and further provided that the Company’s
failure to exercise its rights to terminate within the applicable time frame in this Section 8.2(w)
shall be deemed a waiver of this condition;



(x) the Company shall have received from Senior Lender a written consent to the Transaction
and waiver of any breaches arising from the Company’s execution of this Agreement on or before May
31, 2009; provided, however, in the event such consent and waiver is not received by the Company on
or before May 31, 2009, the Company shall have seven (7) days to exercise its right to terminate
for failure to meet the condition set forth in this Section 8.2(x); and further provided that the
Company’s failure to exercise its rights to terminate within the applicable time frame in this
Section 8.2(x) shall be deemed a waiver of the condition in this Section 8.2(x); and



(y) Blackhawk Biofuels, LLC (“BH”) shall have adequately responded to the Company’s
questions on or before May 31, 2009 as reasonably determined by the Company; provided, however, in
the event BH fails to respond on or before May 31, 2009 or in the event the Company has reasonably
determined the responses are not adequate, the Company shall have seven (7) days from such failure
of delivery or the delivery of the inadequate response, to exercise its right to terminate for
failure to meet the condition set forth in this Section 8.2(y); and further provided that the
Company’s failure to exercise its rights to terminate within the applicable time frame in this
Section 8.2(y) shall be deemed a waiver of the condition in this Section 8.2(y).



ARTICLE IX

TERMINATION




Section 9.1 Termination of Agreement. This Agreement may be terminated prior to the
Closing as follows:



(a) At the election of Newco, REG or the Company on or after December 31, 2009 (such date, as
it may be extended under this Section 9.1(a), the “Termination Date”) if the Closing shall
not have occurred by the close of business on such date; provided, that the terminating party is
not in material default of any of its obligations hereunder; and provided further, that (A) either
Newco, REG or the Company shall have the option to extend, from time to time, the Termination Date
for additional periods of time, not to exceed sixty (60) days in the aggregate (or such longer
period as Newco, REG and the Company may mutually agree) if all other conditions to the Closing are
satisfied or capable of then being satisfied and the sole reason that the



 


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Closing has not been consummated is that the condition set forth in Section 6.4 has
not been satisfied due to the failure to obtain the necessary consents and approvals under
applicable Laws or an Order of a Governmental Authority of competent jurisdiction shall be in
effect and Newco, Purchaser, REG and/or the Company are still attempting to obtain such necessary
consents and approvals under applicable Laws, or are contesting (x) the refusal of the relevant
Governmental Authority to give such consents or approvals, or (y) the entry of any such Order, in
court or through other applicable proceedings; and (B) the right to terminate this Agreement
pursuant to this Section 9.1(a) shall not be available to any party whose breach of any provision
of this Agreement has been the cause of, or resulted, directly or indirectly, in, the failure of
the Closing to be consummated by the Termination Date;




(b) by mutual written consent of Newco, Purchaser, REG and the Company;



(c) by written notice (i) from Newco, Purchaser and REG to the Company that there has been an
event, change, occurrence or circumstance that, individually or in the aggregate, with any other
events, changes, occurrences or circumstances, has had or could reasonably be expected to have a
Material Adverse Effect on the Company or (ii) from the Company to Newco, Purchaser and REG that
there has been an event, change, occurrence or circumstance that, individually or in the aggregate,
with any other events, changes, occurrences or circumstances, has had or could reasonably be
expected to have a Material Adverse Effect on Newco, Purchaser or REG; provided, however, the
failure to close of any of the other Common Plan Agreements other than the REG Merger Agreement
shall not be deemed a Material Adverse Effect on Newco, Purchaser or REG;



(d) by Newco, Purchaser, REG or the Company if there shall be in effect a final nonappealable
Order of a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated hereby; provided, however, that the
right to terminate this Agreement under this Section 9.1(d) shall not be available to a party if
such Order was primarily due to the failure of such party to perform any of its obligations under
this Agreement;



(e) by Newco, Purchaser or REG, if the Company shall have breached or failed to perform any of
its representations, warranties, covenants or agreements set forth in this Agreement, or if any
representation or warranty of the Company shall have become untrue, in either case such that the
conditions set forth in Section 8.1(a) or 8.1(b) would not be satisfied and such breach is
incapable of being cured or, if capable of being cured, shall not have been cured within fifteen
(15) days following receipt by the Company of notice of such breach from Newco, Purchaser or REG;



(f) by the Company, if REG, Newco or Purchaser shall have breached or failed to perform any of
its representations, warranties, covenants or agreements set forth in this Agreement, or if any
representation or warranty of REG, Newco or Purchaser shall have become untrue, or if any of the
other parties to the Common Plan Agreement (other than REG) shall have breached its
representations, warranties, covenants or agreements or if any representation or warranty any of
the other parties to the Common Plan Agreements (other than REG) shall have
become untrue, in any case such that the conditions set forth in Sections 8.2(a), 8.2(b) or
8.2(c) would not be satisfied and such breach is incapable of being cured or, if capable of being
cured, shall not have been cured within fifteen (15) days following receipt by Newco, Purchaser or
REG of notice of such breach from the Company;


 


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(g) by Newco, Purchaser or REG, if (i) a Company Adverse Recommendation Change shall have
occurred or (ii) the Board of Directors of the Company or any committee thereof (x) shall not have
rejected any Takeover Proposal within fifteen (15) Business Days of the making thereof (including,
for these purposes, by taking no position with respect to the acceptance by the Company’s
unitholders of a tender offer or exchange offer, which shall constitute a failure to reject such
Takeover Proposal) or (y) shall have failed to publicly reconfirm the Company Board Recommendation
within fifteen (15) Business Days after receipt of a written request from Newco or REG that it do
so if such request is made following the making by any Person of a Takeover Proposal; or if (iii) a
voluntary or involuntary bankruptcy petition shall have been filed by or against the Company and is
not discharged within sixty (60) days of the filing thereof;



(h) by the Company if (i) the Board of Directors of REG withdraws its favorable recommendation
as to the Transaction, this Agreement, the REG Merger or the REG Merger Agreement or (ii) a
voluntary or involuntary bankruptcy petition shall have been filed by or against REG, Newco or
Purchaser and is not discharged within sixty (60) days of the filing thereof;



(i) by Newco, Purchaser, REG or the Company if the Company Unitholder Approval shall not have
been obtained at the Company Unitholders Meeting duly convened therefor or at any adjournment or
postponement thereof; provided, however, that the right of the Company to terminate this Agreement
under this Section 9.1(i) shall not be available to it if it has failed to comply in all material
respects with its obligations under Section 6.6 or 6.15(b);



(j) by Newco, Purchaser, REG or the Company if the approval of the REG Stockholders of the REG
Merger Agreement shall not have been obtained at the REG Stockholders Meeting or at any adjournment
or postponement thereof; provided, however, that the right of either Newco, Purchaser or REG to
terminate this Agreement under this Section 9.1(j) shall not be available to it if it has failed to
comply in all material respects with its obligations under Section 6.15(b) of the REG Merger
Agreement; or



(k) by Newco, Purchaser or REG on or before June 15, 2009, if Newco’s Environmental Assessment
(as defined in Section 6.10(a)) at the Company’s properties shall have revealed any circumstances
that could reasonably be expected to result in (A) the criminal prosecution of the Company or any
director, officer or employee of the Company under Environmental Laws, (B) any suspension or
closure of operations at the Company’s properties or facilities or the revocation or termination of
any Environmental Permits which has a Material Adverse Effect on the Company or (C) any
Environmental Costs and Liabilities that, individually or in the aggregate, will or could
reasonably be expected to result in expenditures to cure in excess of the amounts reserved therefor
on the Balance Sheet by at least $50,000.


 


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Section 9.2 Procedure upon Termination. In the event of termination and abandonment
by Newco, Purchaser, REG or the Company, or all, pursuant to Section 9.1 hereof, written notice
thereof shall forthwith be given to the other party or parties, and this Agreement shall terminate,
and the purchase of the Purchased Assets hereunder shall be abandoned, without further action by
Newco, Purchaser, REG or the Company.



Section 9.3 Effect of Termination. In the event that this Agreement is validly
terminated as provided herein, then each of the parties shall be relieved of their duties and
obligations arising under this Agreement after the date of such termination and such termination
shall be without liability to Newco, Purchaser, REG or the Company; provided, however, that:



(a) the obligations of the parties set forth in Section 9.4 and Article XII hereof
shall survive any such termination and shall be enforceable hereunder; and



(b) nothing in this Section 9.3 shall relieve Newco, Purchaser, REG or the Company of any
Liability for a willful breach of this Agreement prior to the effective date of such termination.




Section 9.4 Termination Fee.



(a) In the event that this Agreement is terminated by Newco, Purchaser or REG pursuant to
Section 9.1(g), then the Company shall pay to REG a termination fee of $1,000,000 in cash. In the
event that this Agreement is terminated by Newco, Purchaser, REG or the Company pursuant to
Section 9.1(i) and (i) the Company agrees to a sale to a third party within twelve (12) months of
the Company Unitholder Meeting with such alternative sale proposal generally known to the Company
Unitholders prior to the Company Unitholder Meeting, then the Company shall pay to REG a
termination fee of $1,000,000 in cash; or (ii) the Company agrees to a sale to a third party within
twelve (12) months of the Company Unitholder Meeting, but such alternative sale proposal is not
generally known to the Company unitholders prior to the Company Unitholder Meeting, then the
Company shall pay to REG a termination fee of $500,000 in cash. In the event that this Agreement
is terminated by the Company pursuant to Section 9.1(h), then REG shall pay to the Company a
termination fee of $1,000,000 in cash. In the event that this Agreement is terminated by Newco,
Purchaser, REG or the Company pursuant to Section 9.1(j) and (i) REG agrees to a sale to a third
party within twelve (12) months of the REG Stockholder Meeting with such alternative sale proposal
generally known to the REG stockholders prior to the REG Stockholder Meeting, then REG shall pay to
the Company a termination fee of $1,000,000 in cash or (ii) REG agrees to a sale to a third party
within twelve (12) months of the REG Stockholder Meeting, but such alternative sale proposal is not
generally known to the REG stockholders prior to the REG Stockholder Meeting, then REG shall pay to
the Company a termination fee of $500,000 in cash. Each of the foregoing fees shall herein be
referred to as a “Termination Fee.”



(b) Any payment required to be made pursuant to Section 9.4(a) shall be made promptly
following termination of this Agreement (and in any event not later than ten (10) Business Days
after delivery of notice of demand for payment). Any such payment shall be
made by wire transfer of immediately available funds to an account to be designated by the
receiving party.


 


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(c) In the event that a party shall fail to pay the Termination Fee required pursuant to
Section 9.4 when due, such Termination Fee shall accrue interest for the period commencing on the
date such Termination Fee became due, at a rate equal to the rate of interest publicly announced by
Citibank, in the City of New York, from time to time during such period, as such bank’s Prime
Lending Rate, plus 2%. In addition, if a party fails to pay such Termination Fee, that party shall
also pay all of costs and expenses (including attorneys’ fees and related charges) in connection
with efforts to collect such Termination Fee. Each of the parties acknowledges that the
Termination Fee and the other provisions of this Article IX are an integral part of this
Agreement and that, without these agreements, the parties would not enter into this Agreement.



(d) Each of Newco, Purchaser, REG and the Company acknowledges and agrees that in the event of
a breach of this Agreement, the payment of the Termination Fee shall not constitute the exclusive
remedy available, and that the parties shall be entitled to the remedies set forth in Section 12.3,
including injunction and specific performance, and all additional and other remedies available at
law or in equity to which such party may be entitled.



ARTICLE X

TAXES




Section 10.1 Transfer Taxes. Except as provided in Section 2.3 with respect to
Assumed Liabilities by Purchaser, the Company and Newco shall each (i) be responsible for half of
any and all sales, use, stamp, documentary, filing, recording, transfer, real estate transfer,
stock transfer, gross receipts, registration, duty, securities transactions or similar fees or
taxes or governmental charges (together with any interest or penalty, addition to tax or additional
amount imposed) as levied by any Taxing Authority in connection with the transactions contemplated
by this Agreement (collectively, “Transfer Taxes”), regardless of the Person liable for
such Transfer Taxes under applicable Law and (ii) timely file or caused to be filed all necessary
documents (including all Tax Returns) with respect to Transfer Taxes.



Section 10.2 Prorations. Except as provided in Section 2.3 with respect to Assumed
Liabilities by Purchaser, (a) the Company shall bear all property and ad valorem tax liability with
respect to the Purchased Assets if the lien or assessment date arises prior to the Closing Date
irrespective of the reporting and payment dates of such taxes; (b) all other real property taxes,
personal property taxes, or ad valorem obligations and similar recurring taxes and fees on the
Purchased Assets for taxable periods beginning before, and ending after, the Closing Date, shall be
prorated between Purchaser and the Company as of the Closing Date; (c) the Company shall be
responsible for all such taxes and fees on the Purchased Assets accruing during any period up to
and including the Closing Date; and (d) Purchaser shall be responsible for all such taxes and fees
on the Purchased Assets accruing during any period after the Closing Date. With respect to Taxes
described in this Section 10.2, the Company shall prepare and timely file all Tax Returns due
before the Closing Date with respect to such Taxes and Purchaser shall prepare and timely file all
Tax Returns due after the Closing Date with respect to such Taxes. If one party
remits to the appropriate Taxing Authority payment for Taxes, which are subject to proration
under this Section 10.2 and such payment includes the other party’s share of such Taxes, such other
party shall promptly reimburse the remitting party for its share of such Taxes.


 


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Section 10.3 Cooperation on Tax Matters. Newco and the Company shall furnish or cause
to be furnished to each other, as promptly as practicable, such information and assistance relating
to the Purchased Assets and the Assumed Liabilities as is reasonably necessary for the preparation
and filing of any Tax Return, claim for refund or other filings relating to Tax matters, for the
preparation for any Tax audit, for the preparation for any Tax protest, for the prosecution or
defense of any suit or other proceeding relating to Tax matters.



ARTICLE XI

RISK OF LOSS




The risk of loss, damage or destruction to the Purchased Assets from fire or other casualty or
cause, shall be borne by the Company at all times up to the Closing. It shall be the
responsibility of the Company prior to the Closing to use reasonable commercial efforts to repair
or cause to be repaired and to restore the affected property to its condition prior to any such
loss, damage or destruction. In the event of any such loss, damage or destruction, subject to the
consent of the Company’s Senior Lender, the proceeds of any claim for any loss payable under any
insurance policy with respect thereto shall be used to repair, replace or restore any such property
to its former condition subject to the conditions stated below. In the event that property
reasonably required for the normal operation of the Business is not repaired, replaced, or restored
prior to the Closing, Purchaser, at its sole option, and as Purchaser’s sole remedy with respect to
any of the foregoing, upon written notice to the Company: (a) may elect to postpone Closing until
such time as the property has been repaired, replaced, or restored, or (b) may elect to consummate
the Closing and accept the property in its then condition, in which event the Company shall assign
to Purchaser all proceeds of insurance theretofore, or to be, received, covering the property
involved; and if Purchaser shall extend the time for Closing pursuant to clause (a) above, and the
repairs, replacements, or restorations are not completed within sixty (60) days after the date on
which all of the conditions set forth in Article VIII has been satisfied or waived (other
than conditions by their nature are to be satisfied at Closing), Purchaser may, as its sole right
and remedy, terminate this Agreement by giving written notice thereof to the Company, without any
party having any Liability or obligation under or in respect of this Agreement.



ARTICLE XII

MISCELLANEOUS




Section 12.1 No Survival of Representations and Warranties. Except for the survival
of the representations made by Newco in Section 5.2, which representations in Section 5.2 shall
survive the Closing (but not the Termination) of this Agreement indefinitely, the representations
and warranties of the parties contained in this Agreement, any certificate delivered pursuant
hereto or any Company Document or Purchaser Document shall not survive the Closing or the
Termination of this Agreement.


 


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Section 12.2 Notices. All notices and communications hereunder shall be deemed to
have been duly given, delivered or made if in writing and if served by personal delivery upon the
party for whom it is intended or delivered by registered or certified mail, return receipt
requested, or if sent by telecopier or email; provided that the telecopy or email is promptly
confirmed by telephone confirmation thereof, to the Person at the address set forth below, or such
other address as may be designated in writing hereafter, in the same manner, by such Person:



	 	 	 
	To Newco or Purchaser:

	 	REG Newco, Inc.
	 

	 	416 S. Bell Avenue, P.O. Box 888 
	 

	 	Ames, Iowa 50010
	 

	 	Telephone: 515-239-8000
	 

	 	Facsimile: 515-239-8009
	 

	 	Attn: Jeffery Stroburg
	 
	 	 
	With a copy to:

	 	Wilcox, Polking, Gerken, Schwarzkopf & Copeland, P.C.
	 

	 	115 E. Lincolnway Street, Suite 200 
	 

	 	Jefferson, Iowa 50129
	 

	 	Telephone: 515-386-3158
	 

	 	Facsimile: 515-386-8531
	 

	 	Attn: John A. Gerken
	 
	 	 
	To the Company:

	 	Central Iowa Energy, LLC
	 

	 	3426 E. 28th Street, N 
	 

	 	Newton, Iowa 50208
	 

	 	Telephone:641-791-1010
	 

	 	Facsimile: 641-791-1192
	 

	 	Attn: James Johnston
	 
	 	 
	With a copy to:

	 	Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C.
	 

	 	666 Grand Avenue, Suite 2000 
	 

	 	Des Moines, Iowa 50309
	 

	 	Telephone: (515) 242-2400
	 

	 	Facsimile: (515) 323-8514
	 

	 	Attn: Thomas D. Johnson






 


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	To REG:

	 	Renewable Energy Group, Inc.
	 

	 	416 S. Bell Avenue, P.O. Box 888 
	 

	 	Ames, Iowa 50010
	 

	 	Telephone: 515-239-8000
	 

	 	Facsimile: 515-239-8009
	 

	 	Attn: Jeffery Stroburg
	 
	 	 
	With a copy to:

	 	Wilcox, Polking, Gerken, Schwarzkopf & Copeland, P.C.
	 

	 	115 E. Lincolnway Street, Suite 200 
	 

	 	Jefferson, Iowa 50129
	 

	 	Telephone: 515-386-3158
	 

	 	Facsimile: 515-386-8531
	 

	 	Attn: John A. Gerken






Section 12.3 Specific Performance. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive
of any other remedy conferred hereby, or by Law or equity upon such party, and the exercise by a
party of any one remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable harm for which monetary damages would not be an adequate remedy would occur
in the event that any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. The parties accordingly agree that, in addition
to other remedies to which they are entitled at Law or in equity, each party shall be entitled to
seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state having jurisdiction
without the necessity of proving the inadequacy of monetary damages as a remedy. In the event of
any breach of this Agreement (other than a breach of a representation or warranty), the
non-breaching party shall be entitled to recover reasonable attorneys’ fees and legal expenses
incurred by it in connection with any litigation with respect to such breach.



Section 12.4 Amendment; Waiver. Any provision of this Agreement may be amended if,
and only if, such amendment is in writing and signed by Newco, Purchaser, REG and the Company;
provided, however, that after the Company Unitholder Approval has been obtained, no amendment shall
be made which pursuant to applicable Law requires further approval by the Company’s unitholders
without such further approval. Any provision of this Agreement may be waived if, and only if, such
waiver is in writing and signed by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies provided by Law.


 


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Section 12.5 No Third Party Beneficiaries. Except for the Company Unitholders, upon
dissolution of the Company after Closing, the representations, warranties and covenants set forth
herein are solely for the benefit of the parties hereto, in accordance with and subject to the
terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any
Person other than the parties hereto and the Company Unitholders any rights or remedies hereunder,
including, without limitation, the right to rely upon the representations and warranties set forth
herein.



Section 12.6 Successors and Assigns. This Agreement may not be assigned by any party
hereto without the prior written consent of the other parties. Subject to the foregoing, all of
the terms and provisions of this Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.



Section 12.7 Entire Agreement. This Agreement (including all recitals, Schedules and
Exhibits hereto) and the Ancillary Agreements contain the entire agreement between the parties
hereto with respect to the subject matter hereof and thereof and supersedes all prior or
contemporaneous agreements and understandings, oral or written, with respect to such matters,
except for the Confidentiality Agreement, which shall remain in full force and effect after the
Closing according to its terms.



Section 12.8 Public Disclosure. Notwithstanding anything to the contrary contained
herein, except as may be required to comply with the requirements of any applicable Law and the
rules and regulations of any Government Entity, from and after the date hereof, no press release or
similar public announcement or communication shall be made or caused to be made relating to this
Agreement unless specifically approved in advance by each of Newco, Purchaser, REG and the Company.



Section 12.9 Expenses. Except as otherwise expressly provided in this Agreement or
the Ancillary Agreements, whether or not the transactions contemplated by this Agreement are
consummated, all costs and expenses incurred in connection with this Agreement and the Ancillary
Agreements and the transactions contemplated hereby or thereby shall be borne by the party
incurring such costs and expenses, including all legal, accounting, financial advisory, consulting
and all other fees and expenses of third parties.



Section 12.10 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of
Trial by Jury. THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF IOWA, WITHOUT REGARD TO THE LAWS OF ANY OTHER JURISDICTION THAT MIGHT
BE APPLIED BECAUSE OF THE CONFLICTS OF LAWS PRINCIPLES OF THE STATE OF IOWA. Each party hereto
agrees that it shall bring any action or proceeding in respect of any claim arising out of or
related to this Agreement or the transactions contained in or contemplated by this Agreement,
exclusively in the United States District Court for the Southern District of Iowa or any Iowa state
court (the “Chosen Courts”), and solely in connection with claims arising under this
Agreement or the transactions that are the subject of this Agreement (i) irrevocably submits to the
exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such
action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an
inconvenient forum or do not have jurisdiction over any party hereto and
(iv) agrees that service of process upon such party in any such action or proceeding shall be
effective if notice is given in accordance with Section 9.1 of this Agreement. EACH PARTY HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


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Section 12.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall constitute one and
the same Agreement.



Section 12.12 Headings. The heading references herein and the table of contents
hereof are for convenience purposes only, and shall not be deemed to limit or affect any of the
provisions hereof.



Section 12.13 Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this Agreement, or the
application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable
and equitable provision shall be substituted therefor in order to carry out, so far as may be valid
and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other Persons or circumstances
shall not be affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.



Section 12.14 Joint Authorship. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement, and any rule of construction or interpretation
otherwise requiring this Agreement to be construed or interpreted against any party by virtue of
the authorship of this Agreement will not apply to the construction and interpretation hereof.



[SIGNATURE PAGE FOLLOWS]



 


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IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed as of
the date first written above.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	REG NEWCO, INC.	 	RENEWABLE ENERGY GROUP, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Jeffery Stroburg	 	By:	 	/s/ Jeffery Stroburg	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Jeffery Stroburg
	 	 	 	Name:
	 	Jeffery Stroburg	 	 
	 

	 	Title:
	 	CEO
	 	 	 	Title:
	 	CEO	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	REG NEWTON, LLC	 	CENTRAL IOWA ENERGY, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Daniel J. Oh	 	By:	 	/s/ James Johnston	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Daniel J. Oh
	 	 	 	Name:
	 	James Johnston	 	 
	 

	 	Title:
	 	President
	 	 	 	Title:
	 	Chairman	 	 






Signature Page to Asset Purchase Agreement





 


 









 







CERTIFICATE OF DESIGNATION OF SERIES




AND DETERMINATION OF RIGHTS AND PREFERENCES




OF




SERIES A CONVERTIBLE PREFERRED STOCK




OF




REG NEWCO, INC.




REG Newco, Inc., a Delaware corporation (the “Company”), acting pursuant to Section
151 of the General Corporation Law of Delaware, does hereby submit the following Certificate of
Designation of Series and Determination of Rights and Preferences of its Series A Preferred Stock.




FIRST: The name of the Company is REG Newco, Inc.



SECOND: By approval of the Board of Directors of the Company dated
 _____, 2009, the
following resolutions were duly adopted:



WHEREAS, the Certificate of Incorporation of the Company authorizes preferred stock consisting
of sixty million (60,000,000) shares, par value $0.0001 per share, issuable from time to time in
one or more series;



WHEREAS, the Board of Directors of the Company is authorized, subject to limitations
prescribed by law and by the provisions of Article IV of the Company’s Certificate of
Incorporation, to establish and fix the number of shares to be included in any series of preferred
stock and the designation, rights, preferences, powers, restrictions and limitations of the shares
of such series;



WHEREAS, it is the desire of the Board of Directors to establish and fix the number of shares
to be included in a new series of Preferred Stock and the designation, rights, preferences and
limitations of the shares of such new series.



NOW, THEREFORE, BE IT RESOLVED that pursuant to Article IV of the Certificate of
Incorporation, there is hereby established a series of fourteen million (14,000,000) shares of
cumulative convertible preferred stock of the Company designated as the “Series A Preferred
Stock” which shall have the rights, preferences, powers, restrictions and limitations set forth
as follows.


 


 









 





ARTICLE II RELATIVE SENIORITY. THE SERIES A PREFERRED STOCK SHALL, WITH RESPECT
TO PAYMENT OF DIVIDENDS OR IN THE CASE OF REDEMPTION, LIQUIDATION, DISSOLUTION OR WINDING UP OF THE
COMPANY, RANK (A) SENIOR AND PRIOR TO THE COMMON STOCK OF THE COMPANY AND TO ANY OTHER CLASS OR
SERIES OF CAPITAL STOCK ISSUED BY THE COMPANY NOT DESIGNATED AS RANKING SENIOR TO OR PARI PASSU
WITH THE SERIES A PREFERRED STOCK WITH RESPECT TO PAYMENT OF DIVIDENDS OR IN THE CASE OF
REDEMPTION, LIQUIDATION, DISSOLUTION OR WINDING UP OF THE COMPANY (COLLECTIVELY, THE “JUNIOR
STOCK”); (B) PARI PASSU WITH ANY OTHER CLASS OR SERIES OF CAPITAL STOCK OF THE COMPANY, THE TERMS
OF WHICH SPECIFICALLY PROVIDE THAT SUCH CLASS OR SERIES SHALL RANK PARI PASSU WITH THE SERIES A
PREFERRED STOCK WITH RESPECT TO PAYMENT OF DIVIDENDS OR IN THE CASE OF REDEMPTION, LIQUIDATION,
DISSOLUTION OR WINDING UP OF THE COMPANY (SUCH OTHER CLASS OR SERIES OF CAPITAL STOCK AND THE
SERIES A PREFERRED STOCK TOGETHER, THE “PARITY STOCK”); AND (C) JUNIOR TO ANY OTHER CLASS OR SERIES
OF CAPITAL STOCK OF THE COMPANY, THE TERMS OF WHICH SPECIFICALLY PROVIDE THAT SUCH CLASS OR SERIES
SHALL RANK SENIOR TO THE SERIES A PREFERRED STOCK WITH RESPECT TO PAYMENT OF DIVIDENDS OR IN THE
CASE OF REDEMPTION, LIQUIDATION, DISSOLUTION OR WINDING UP OF THE COMPANY (THE “SENIOR STOCK”).





ARTICLE III DIVIDENDS.



Section 3.1 General. The holders of the Series A Preferred Stock shall accrue dividends at
the rate of $.88 per share per annum (subject to appropriate adjustments in the event of any stock
dividend, stock split, combination or other similar recapitalization affecting such shares)
calculated on the basis of a 360-day year, consisting of twelve 30-day months, and shall accrue on
a daily basis from the date of issuance thereof, compounded annually from the date of issuance,
whether or not declared and shall be cumulative (the “Accrued Dividends”); provided,
however, that except as set forth in Sections 3, 5 and 6, the Company shall be under no obligation
to pay such Accrued Dividends; and, provided further, the holders’ right to receive dividends
pursuant to this Section 2(a) shall terminate (other than with respect to Accrued Dividends as of
the date of conversion) upon the conversion of the shares of Series A Preferred Stock into Common
Stock pursuant to Section 5 below. In the event that, during any calendar year, dividends are paid
on both the Series A Preferred Stock and the Common Stock, and the amount of dividends each share
of Series A Preferred Stock would have received had it been converted into Common Stock on the
first day of such calendar year exceeds the amount of dividends per share paid to the holders of
Series A Preferred Stock during such year, then, within five (5) business days following the end of
such calendar year, the holders of Series A Preferred Stock shall receive an amount per share equal
to the difference between the amount of dividends each share of Series A Preferred Stock would have
received had it been converted to Common Stock as of the first day of such year and the amount of
dividends paid with respect to each share of Series A Preferred Stock during such year (the
“Participating Dividend Payment”), and the amount of the Participating Dividend Payment
will be subtracted from the Accrued Dividends
with respect to each outstanding share of Preferred Stock as of the date the Participating
Dividend Payment is made.


 


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Section 3.2 Dividends in Arrears. If any Accrued Dividends on the Series A Preferred Stock
shall not have been paid, or declared and set apart for payment, the deficiency shall be fully paid
or declared and set apart for payment before any dividend (other than dividends on shares of Common
Stock payable in shares of Common Stock) shall be paid or declared or set apart for Junior Stock
and before any purchase or acquisition of any Junior Stock is made by the Company, except the
repurchase of Junior Stock from employees of the Company upon termination of employment. At the
earlier of: (i) the redemption of the Series A Preferred Stock; (ii) the conversion of the Series
A Preferred Stock pursuant to Section 5; or (iii) the liquidation, dissolution or winding up of the
Company (including in connection with an Acquisition as defined in Subsection 3(c) below), all
Accrued Dividends shall be paid to the holders of record of outstanding shares of Series A
Preferred Stock as provided in Section 6 in the event of a redemption of the Series A Preferred
Stock, Sections 2(c) or 5, as applicable, in the event of the conversion of the Series A Preferred
Stock and Section 3(a) in the event of a liquidation, dissolution or winding up of the Company
(including an Acquisition). No accumulation of dividends on the Series A Preferred Stock shall
bear interest.



Section 3.3 Manner of Payment. Except as set forth in Subsection 5(a) or Subsection 5(b)
below, dividends on the Series A Preferred Stock shall be paid in cash at the time specified in
Subsection 2(b) above; provided, however, in the event of a conversion pursuant to Subsection 5(a)
or Subsection 5(b), as applicable, in which the Company and such holder do not jointly elect to
include the amount of Accrued Dividends in the conversion, and such conversion occurs prior to

 _____, 2013, then the Company may elect to postpone the cash payment of any or all Accrued
Dividends until up to the earliest to occur of (i) a QPO (as defined in Subsection 5(a)(i) below),
(ii) the liquidation, dissolution or winding up of the Company (including in connection with an
Acquisition deemed to be a liquidation pursuant to Subsection 3(c) below) or (iii)
 _____, 2013. When payable hereunder, each dividend shall be mailed to the holders of record of the Series
A Preferred Stock as their names and addresses appear on the share register of the Company or at
the office of the transfer agent.



Section 3.4 Waiver of Dividend. Notwithstanding anything herein to the contrary, the timing
or amount of any payment of Accrued Dividends owing to the holders of Series A Preferred Stock
hereunder may be waived by the written consent or affirmative vote of the holders of at least
seventy percent (70%) of the outstanding shares of Series A Preferred Stock then outstanding.


 


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ARTICLE IV LIQUIDATION, DISSOLUTION OR WINDING UP. 



Section 4.1 General. In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, (i) the holders of shares of Series A Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the Company available for distribution to its
stockholders, after and subject to the payment in full of all amounts required to be distributed to
the holders of any Senior Stock, but before any payment shall be made to the
holders of Junior Stock by reason of their ownership thereof, an amount equal to $13.75 per
share of Series A Preferred Stock (subject to appropriate adjustments in the event of any stock
dividend, stock split, combination or other similar recapitalization affecting such shares)
(“Series A Base Value”) plus any and all Accrued Dividends accrued but unpaid thereon
(whether or not declared), together with any other dividends declared but unpaid thereon in an
amount which together for such Series A Base Value plus Accrued Dividends and any other dividends
declared but unpaid thereon shall not exceed $16.50 per share (the “Series A Accreted
Value”) and (ii) the holders of previously converted shares of Series A Preferred Stock shall
be entitled to be paid out of the assets of the Company available for distribution to its
stockholders, after and subject to the payment in full of all amounts required to be distributed to
the holders of any Senior Stock, but before any payment shall be made to the holders of Junior
Stock by reason of their ownership thereof, any accrued and unpaid dividends on such previously
converted shares of Series A Preferred Stock, in an amount which does not exceed the Series A
Accreted Value less the Series A Base Value. If upon any such liquidation, dissolution or winding
up of the Company the remaining assets of the Company available for distribution to its
stockholders shall be insufficient to pay the holders of shares of Series A Preferred Stock and the
holders of previously converted shares of Series A Preferred Stock the full amount to which they
shall be entitled, the holders of Parity Stock shall first share ratably in any distribution of the
remaining assets and funds of the Company in proportion to the respective amounts which would
otherwise be payable in respect of the Parity Stock held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full, and the holders of previously
converted shares of Parity Stock shall then share ratably in any distribution of any remaining
assets and funds of the Company in proportion to the respective amounts which would otherwise be
payable in respect of any accrued and unpaid dividends on such shares previously held by them upon
such distribution if all amounts payable on or with respect to such shares were paid in full.



Section 4.2 Participation. After the payment of all preferential amounts required to be paid
to the holders of Preferred Stock upon the dissolution, liquidation, or winding up of the Company,
all of the remaining assets and funds of the Company available for distribution to its stockholders
shall be distributed ratably among the holders of the Common Stock and the holders of the Series A
Preferred Stock as if the Series A Preferred Stock has been converted pursuant to Section 5.



Section 4.3 Treatment of Consolidations, Mergers, and Sales of Assets. The merger or
consolidation of the Company into or with another corporation which results in the exchange of
outstanding shares of the Company, the sale of all or substantially all the assets of the Company,
or the license of all or substantially all of the assets of the Company, including without
limitation any sale (whether by merger or otherwise) of all or substantially all of the assets or
the license of all or substantially all of the assets of one or more subsidiaries (the “Subject
Subsidiaries”) of the Company if substantially all of the assets of the Company and its
subsidiaries taken as a whole are held by the Subject Subsidiaries shall be deemed to be a
liquidation, dissolution or winding up of the Company for purposes of this Section, unless the
Company’s stockholders of record as constituted immediately prior to any such transaction, by
virtue of securities issued as consideration for such transaction hold at least 50% of the voting
power of the surviving or acquiring entity in approximately the same relative percentages after such



 


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transaction as before (any transaction so deemed to be a liquidation, dissolution or
winding up, an “Acquisition”). The amount deemed distributed to the holders of Series A
Preferred Stock upon any such merger or consolidation shall be the cash or the value of the
property, rights and/or securities distributed to such holders by the acquiring person, firm or
other entity; provided, however, that if the holders of at least seventy-five percent (75%) of the
then outstanding shares of Series A Preferred Stock that were issued in exchange for shares of the
series A, series AA, series B or series BB preferred stock of Renewable Energy Group, Inc. a
Delaware corporation (“REG”), pursuant to the Agreement and Plan of Merger dated
 _____, 2009 by and among the Company, REG and REG Merger Sub, Inc. (the “Preferred
Supermajority”), affirmatively approve by written consent an Acquisition in accordance with
Section 4 below and, in connection with such approval, expressly agree in writing that the cash,
securities or other property shall be distributed among the holders of Preferred Stock and Common
Stock in accordance with the applicable agreement or agreements setting forth the terms and
conditions of such Acquisition, the holders of Preferred Stock and Common Stock shall be entitled
to receive upon the closing of such Acquisition only such amounts as are set forth in such
agreement or agreements. The value of such property, rights or other securities shall be
determined in good faith by the Board of Directors of the Company, taking into consideration the
relevant terms of any underlying transaction documents. In the event the Company continues to
exist following an Acquisition, after payment in full of the liquidation preference as provided for
in this Section 3, the certificates representing shares of the Series A Preferred Stock issued and
outstanding immediately prior to the consummation of the Acquisition shall be cancelled and
extinguished and the holders of such shares of Series A Preferred Stock shall have no further
rights in the Company.




ARTICLE V VOTING.



Section 5.1 Each holder of outstanding shares of Series A Preferred Stock shall be entitled to
the number of votes equal to the number of whole shares of Common Stock into which the shares of
Series A Preferred Stock held by such holder are convertible (as adjusted from time to time
pursuant to Section 5 hereof), at each meeting of stockholders of the Company (and written actions
of stockholders in lieu of meetings) with respect to any and all matters presented to the
stockholders of the Company for their action or consideration. Except as provided by law, by the
provisions of Subsection 4(b) below or by the provisions establishing any other series of Preferred
Stock, holders of Series A Preferred Stock and of any other outstanding series of Preferred Stock
shall vote together with the holders of Common Stock as a single class.


 


-5-









 





Section 5.2 Protective Provisions. Subject to the rights of series of Preferred Stock that
may from time to time come into existence and any contractual agreements or restrictions which may
be then in effect in any agreement of stockholders or other organizational document to which the
holders of Series A Preferred Stock and the Company may be a party, the approval by written consent
of the Preferred Supermajority (in addition to any other applicable stockholder approval
requirements required by law) shall be required for the Company to take the following actions:



(a) authorize or issue, or obligate itself to issue, any shares of Preferred Stock or any
other equity security on parity with or having a preference over any series of Preferred Stock with
respect to dividends, liquidation, redemption or voting, including any security convertible into or
exercisable for any such equity security, or authorize any subsidiary to issue any equity security
or any such securities convertible or exercisable therefor;




(b) increase or decrease the number of authorized shares of any series of Preferred Stock;



(c) amend the Certificate of Incorporation or Bylaws of the Company, including the amendment
of the Certificate of Incorporation by the adoption or amendment of any Certificate of Designation
or similar document, or amend the organizational documents of any subsidiary, in any such case
other than amendments solely to the extent required to authorize the issuance of any Junior Stock
or any security convertible into or exercisable for any Junior Stock;



(d) alter or change the rights, preferences or privileges of the shares of any series of the
Preferred Stock;



(e) issue, or cause any subsidiary to issue, any indebtedness, other than trade accounts
payable and/or letters of credit, performance bonds or other similar credit support incurred in the
ordinary course of business, or amend, renew, increase or otherwise alter in any material respect
the terms of any indebtedness previously approved or required to be approved by the holders of the
Preferred Stock other than the incurrence of debt solely to fund the payment of Accrued Dividends
on the Preferred Stock or solely to fund the redemption of the Preferred Stock pursuant to Section
6;



(f) increase the authorized number of directors constituting the Board of Directors of the
Company from fourteen (14) directors;



(g) redeem, purchase or otherwise acquire (or pay into or set aside for a sinking fund for
such purpose) any share or shares of capital stock of the Company; provided, however, that this
restriction shall not apply to the repurchase of shares of Preferred Stock pursuant to Section 6 or
the repurchase of shares of Junior Stock from employees, officers, directors, consultants or other
persons performing services for the Company or any subsidiary pursuant to agreements under which
the Company has the option to repurchase such shares at cost upon the occurrence of certain events,
such as the termination of employment;



(h) declare or pay dividends or otherwise make distributions with respect to any shares of
capital stock of the Company, other than dividends on the Preferred Stock;



(i) declare bankruptcy, dissolve, liquidate or wind up the affairs of the Company or any
subsidiary;


 


-6-









 





(j) modify or change the nature of the Company’s business such that a material portion of the
Company’s business is devoted to any business other than the business of (A) designing,
constructing or operating facilities for biofuels, chemicals or by-products thereof and (B)
procurement, manufacturing, selling, distribution, logistics, marketing or risk management related
to biofuels, chemicals or by-products thereof;



(k) make or permit any subsidiary to make any capital expenditure in excess of $500,000 which
is not otherwise included in the annual budget previously approved by the Board of Directors of the
Company;




(l) effect any Acquisition;



(m) acquire directly or through a subsidiary the stock or any material assets of another
corporation, partnership or other person or entity for consideration valued at more than ten
percent (10%) of the total assets of the Company as of the most recent month-end prior to such
acquisition as reflected on the balance sheet of the Company prepared in accordance with generally
accepted accounting principles consistently applied; or




(n) agree or commit to do any of the foregoing;



provided, however, that nothing in this Section 4(b) shall be deemed to alter any statutory
provision entitling a particular class or series of shares to vote as a class or series with
respect to such matter.




ARTICLE VI CONVERSION RIGHTS.



The holders of the Series A Preferred Stock shall have conversion rights as follows (the
“Conversion Rights”):




Section 6.1 Automatic Conversion.



(a) Each of the issued and outstanding shares of Series A Preferred Stock shall be
automatically converted into such number of fully paid and nonassessable shares of Common Stock as
is determined by dividing the Original Series A Issue Price (as defined below), plus (to the extent
the Company and such holder jointly elect to include the amount of Accrued Dividends in the
conversion) Accrued Dividends, by the Conversion Price (as defined below) in effect at the time of
conversion, upon (A) the closing of the sale of shares of Common Stock, at a price per share to the
public (before deducting any commissions or other expenses) of at least two times the Original
Series A Issue Price (as defined below) (subject to appropriate adjustments in the event of any
stock dividend, stock split, combination or other similar recapitalization affecting such shares),
in a firm commitment underwritten public offering pursuant to an effective registration statement
on Form S-1 (or any such successor form) under the Securities Act of 1933, as amended (the
“Act”), underwritten by a nationally recognized and reputable investment bank, resulting in
an aggregate proceeds to the Company of at least $40,000,000 (a “QPO”), or (B) the date
specified in a written contract or agreement of the Preferred Supermajority, or (C) if the shares
of Common Stock have a closing price on NASDAQ or any national securities exchange in excess of
$24.75 per share for ninety (90)
consecutive trading days with an average daily trading volume on such trading days of at least
US $8,000,000.


 


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(b) All holders of record of shares of Series A Preferred Stock then outstanding will be given
at least 10 days’ prior written notice of the date fixed and the place designated for automatic
conversion of all such shares of Series A Preferred Stock pursuant to this Section 5(a). Such
notice will be sent by first class or registered mail, postage prepaid, to each record holder of
Series A Preferred Stock at such holder’s address last shown on the records of the transfer agent
for the Series A Preferred Stock (or the records of the Company, if it serves as its own transfer
agent).



Section 6.2 Optional Right to Convert. Each share of Series A Preferred Stock shall be
convertible, at the option of the holder thereof, at any time and from time to time, into such
number of fully paid and nonassessable shares of Common Stock as is determined by dividing $11.00
per share of Series A Preferred Stock (the “Original Series A Issue Price”), plus (to the
extent the Company and such holder jointly elect to include the amount of Accrued Dividends in the
conversion) Accrued Dividends, by the Conversion Price (as defined below) in effect at the time of
conversion. The Conversion Price at which shares of Common Stock shall be deliverable upon
conversion of Series A Preferred Stock without the payment of additional consideration by the
holder thereof (the “Conversion Price”) shall initially be the Original Series A Issue
Price. Such initial Conversion Price, and the rate at which shares of Series A Preferred Stock may
be converted into shares of Common Stock, shall be subject to adjustment as provided below.



In the event of a liquidation of the Company, the Conversion Rights shall terminate at the
close of business on the first full day preceding the date fixed for the payment of any amounts
distributable on liquidation to the holders of Series A Preferred Stock.




Section 6.3 Mechanics of Conversion.



(a) In order to convert shares of Series A Preferred Stock into shares of Common Stock in
accordance with this Section 5, the holder shall (A) in the event of a conversion pursuant to
Subsection 5(a)(i)(B) or Subsection 5(b) (an “Elective Conversion”), provide written notice
to the Company that such holder elects to convert all or any number of the shares represented by
such certificate or certificates and the date of conversion which notice, if notice is provided
after
 _____, 2013, must be received by the Company at least sixty (60) days prior to the
date selected by the holder for conversion (the “Conversion Notice”), (B) surrender the
certificate or certificates for such shares of Series A Preferred Stock at the office of the
transfer agent (or at the principal office of the Company if the Company serves as its own transfer
agent), and (C) state in writing such holder’s name or the names of the nominees in which such
holder wishes the certificate or certificates for shares of Common Stock to be issued. If required
by the Company, certificates surrendered for conversion shall be endorsed or accompanied by a
written instrument or instruments of transfer, in form satisfactory to the Company, duly executed
by the registered holder or his or its attorney duly authorized in writing. The conversion date
shall be the date for conversion specified in the Conversion Notice in the case of an Elective
Conversion or in any other case on the date of receipt of such certificates by
the transfer agent or the Company following the occurrence of the event (other than an
Elective Conversion) giving rise to conversion. The Company shall, as soon as practicable after
the conversion date, issue and deliver at such office to such holder, or to his nominees, a
certificate or certificates for the number of shares of Common Stock to which such holder shall be
entitled, together with cash in lieu of any fraction of a share and, except as provided in Section
2(c), cash in the amount of any Accrued Dividends (through the date one day prior to the date the
shares of Series A Preferred Stock were converted) payable in respect of the shares of Series A
Preferred Stock converted pursuant to this Section 5.


 


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(b) The Company shall at all times during which the Series A Preferred Stock shall be
outstanding, reserve and keep available out of its authorized but unissued stock, for the purpose
of effecting the conversion of the Series A Preferred Stock, such number of its duly authorized
shares of Common Stock as shall from time to time be sufficient to effect the conversion of all
outstanding Series A Preferred Stock (including any Accrued Dividends). Before taking any action
which would cause an adjustment reducing the Conversion Price below the then par value of the
shares of Common Stock issuable upon conversion of the Series A Preferred Stock, the Company will
take any corporate action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable shares of Common Stock at such
adjusted Conversion Price.



(c) All shares of Series A Preferred Stock which shall have been surrendered for conversion as
herein provided shall no longer be deemed to be outstanding and all rights with respect to such
shares shall immediately cease and terminate on the applicable conversion date, except only the
right of the holders thereof to receive shares of Common Stock in exchange therefor. Any shares of
Series A Preferred Stock so converted shall be retired and cancelled and shall not be reissued, and
the Company may from time to time take such appropriate action as may be necessary to reduce the
number of shares of authorized Series A Preferred Stock accordingly.



(d) If the conversion is in connection with an underwritten offer of securities registered
pursuant to the Act, the conversion may at the option of any holder tendering Series A Preferred
Stock for conversion be conditioned upon the closing with the underwriter of the sale of securities
pursuant to such offering, in which event the person(s) entitled to receive the Common Stock
issuable upon such conversion of the Series A Preferred Stock shall not be deemed to have converted
such Series A Preferred Stock until immediately prior to the closing of the sale of securities.



Section 6.4 Conversion Price Adjustments of Series A Preferred Stock for Certain Dilutive
Issuances, Splits and Combinations.



(a) The Conversion Price of the Series A Preferred Stock, as applicable, shall be subject to
adjustment from time to time as follows:



(i) If the Company shall issue, after the date upon which any shares of Series A Preferred
Stock were first issued (the “Purchase Date”), any Additional Stock (as defined below)
without consideration or for a consideration per share less than the
Conversion Price for Series A Preferred Stock in effect immediately prior to the issuance of
such Additional Stock, the Conversion Price for such Series A Preferred Stock in effect immediately
prior to each such issuance shall forthwith (except as otherwise provided in this clause (i)) be
adjusted to a price determined by multiplying such Conversion Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately prior to such issuance
(including shares of Common Stock deemed to be issued pursuant to subsection 5(d)(i)(E)(1) or (2))
plus the number of shares of Common 


 


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Stock that the aggregate consideration received by the Company
 for such issuance would purchase at such Conversion Price; and the denominator of which shall be
the number of shares of Common Stock outstanding immediately prior to such issuance (including
shares of Common Stock deemed to be issued pursuant to subsection 5(d)(i)(E)(1) or (2)) plus the
number of shares of such Additional Stock; provided, however, for purposes of such calculation (1)
it shall not include any additional shares of Common Stock issuable with respect to shares of
Preferred Stock, convertible securities, or exercisable options, warrants or other rights for the
purchase of shares of stock or convertible securities, solely as a result of the adjustment of such
Series A Conversion Price (or other conversion ratios) resulting from the issuance of Additional
Stock causing such adjustment and (2) the grant, issue or sale of Additional Stock consisting of
the same class of security, and warrants to purchase such security and notes convertible into such
security, issued or issuable at the same price at two or more closings within a six month period
shall be aggregated and shall be treated as one sale of Additional Stock occurring on the earliest
date on which such securities were granted, issued or sold.



(ii) No adjustment of the Conversion Price for the Series A Preferred Stock shall be made in
an amount less than one cent per share, provided that any adjustments that are not required to be
made by reason of this sentence shall be carried forward and shall be either taken into account in
any subsequent adjustment made prior to three (3) years from the date of the event giving rise to
the adjustment being carried forward, or shall be made at the end of three (3) years from the date
of the event giving rise to the adjustment being carried forward. Except to the limited extent
provided for in subsections (E)(3) and (E)(4), no adjustment of such Conversion Price pursuant to
this subsection 5(d)(i) shall have the effect of increasing the Conversion Price above the
Conversion Price in effect immediately prior to such adjustment.



(iii) In the case of the issuance of Common Stock for cash, the consideration shall be deemed
to be the amount of cash paid therefor before deducting any discounts, commissions or other
expenses allowed, paid or incurred by the Company for any underwriting or otherwise in connection
with the issuance and sale thereof.



(iv) In the case of the issuance of the Common Stock for a consideration in whole or in part
other than cash, the consideration other than cash shall be deemed to be the fair value thereof as
determined in good faith by the Board of Directors irrespective of any accounting treatment, taking
into consideration the relevant terms of any underlying transaction documents.


 


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(v) In the case of the issuance (whether before, on or after the applicable Purchase Date) of
options to purchase or rights to subscribe for Common Stock, securities by their terms convertible
into or exchangeable for Common Stock or options to purchase or rights to subscribe for such
convertible or exchangeable securities, the following provisions shall apply for all purposes of
this subsection 5(d)(i) and subsection 5(d)(ii):



(a) The aggregate maximum number of shares of Common Stock deliverable upon exercise (assuming
the satisfaction of any conditions to exercisability, including without limitation, the passage of
time, but without taking into account potential antidilution adjustments) of such options to
purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time
such options or rights were issued and for a consideration equal to the consideration (determined
in the manner provided in subsections 5(d)(i)(C) and (d)(i)(D)), if any, received by the Company
upon the issuance of such options or rights plus the minimum exercise price provided in such
options or rights (without taking into account potential antidilution adjustments) for the Common
Stock covered thereby.



(b) The aggregate maximum number of shares of Common Stock deliverable upon conversion of, or
in exchange (assuming the satisfaction of any conditions to convertibility or exchangeability,
including, without limitation, the passage of time, but without taking into account potential
antidilution adjustments) for, any such convertible or exchangeable securities or upon the exercise
of options to purchase or rights to subscribe for such convertible or exchangeable securities and
subsequent conversion or exchange thereof shall be deemed to have been issued at the time such
securities were issued or such options or rights were issued and for a consideration equal to the
consideration, if any, received by the Company for any such securities and related options or
rights (excluding any cash received on account of accrued interest or accrued dividends), plus the
minimum additional consideration, if any, to be received by the Company (without taking into
account potential antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to be determined in
the manner provided in subsections 5(d)(i)(C) and (d)(i)(D)).



(c) In the event of any change in the number of shares of Common Stock deliverable or in the
consideration payable to the Company upon exercise of such options or rights or upon conversion of
or in exchange for such convertible or exchangeable securities, including, but not limited to, a
change resulting from the antidilution provisions thereof, the Conversion Price of the Series A
Preferred Stock to the extent in any way affected by or computed using such options, rights or
securities, shall be recomputed to reflect such change, but no further adjustment shall be made for
the actual issuance of Common Stock or any payment of such consideration upon the exercise of any
such options or rights or the conversion or exchange of such securities.


 


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(d) Upon the expiration of any such options or rights, the termination of any such rights to
convert or exchange or the expiration of any options or rights related to such convertible or
exchangeable securities, the Conversion Price of the Series A Preferred Stock, to the extent in any
way affected by or computed using such options, rights or
securities or options or rights related to such securities shall be recomputed to reflect the
issuance of only the number of shares of Common Stock (and convertible or exchangeable securities
that remain in effect) actually issuable upon the exercise of such options or rights, upon the
conversion or exchange of such securities or upon the exercise of the options or rights related to
such securities.



(e) The number of shares of Common Stock deemed issued and the consideration deemed paid
therefor pursuant to subsections 5(d)(i)(E)(1) and (2) shall be appropriately adjusted to reflect
any change, termination or expiration of the type described in either subsection 5(d)(i)(E)(3) or
(4).



(b) “Additional Stock” shall mean any shares of capital stock issued (or deemed to
have been issued pursuant to subsection 5(d)(i)(E)) by the Company after the Purchase Date other
than:




(i) Common Stock issued pursuant to a transaction described in subsection 5(d)(iii) hereof;



(ii) Shares of Common Stock issuable or issued to employees, consultants, directors, officers,
advisors or vendors (if in transactions with primarily non-financing purposes) of the Company or
directors of West Central Cooperative, directly or pursuant to a stock option plan, stock purchase
or restricted stock plan, or other arrangement or agreement approved by the Board of Directors of
the Company, in an aggregate amount not to exceed 5,400,000 shares;



(iii) Shares of Common Stock issued, issuable or deemed to have been issued by the Company
upon conversion of Preferred Stock;



(iv) shares of Common Stock issued or issuable (I) in a public offering before or in
connection with which all outstanding shares of Preferred Stock will be converted to Common Stock
or (II) upon exercise of warrants or rights granted to underwriters in connection with such a
public offering;



(v) Shares of Common Stock issued, issuable or deemed to have been issued in connection with
the acquisition by the Company of the stock or assets of another corporation, partnership or other
entity, provided that such issuances are first approved by the Board of Directors and for purposes
other than primarily equity financing for the Company; and



(vi) Shares of Common Stock issued, issuable or deemed to have been issued to a vendor, lender
or equipment lessor or in connection with strategic or licensing transactions, joint ventures or
similar transactions, provided that such issuances are first approved by the Board of Directors
(including the affirmative approval of a majority of the directors designated by NGP, Westway and
Bunge and the affirmative approval of the director designated by the USBG Group as provided in the
Stockholder Agreement dated on or about
 _____, 2009 by and between the Company and certain
of its stockholders);


 


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(vii) The issuance up to 1,313,359 shares of Common Stock upon the exercise of warrants
outstanding as of
 _____, 2009 at the exercise prices specified therein (subject to
anti-dilution adjustments provided therein); and



(viii) Shares of Common Stock issued, issuable or deemed to have been issued in connection
with any borrowings by the Company, direct or indirect, from financial institutions, whether or not
presently authorized, including any type of loan or payment evidenced by any type of debt
instrument, provided that such issuances are approved by the Board of Directors (including the
affirmative approval of a majority of the directors designated by NGP, Westway and Bunge and the
affirmative approval of the director designated by the USBG Group as provided in the Stockholder
Agreement dated on or about
 _____, 2009 by and between the Company and certain of its
stockholders.)



(c) In the event the Company should at any time or from time to time after a Purchase Date fix
a record date for the effectuation of a split or subdivision of the outstanding shares of Common
Stock or the determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock or other securities or rights convertible
into, or entitling the holder thereof to receive directly or indirectly, additional shares of
Common Stock (hereinafter referred to as “Common Stock Equivalents”) without payment of any
consideration by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon conversion or exercise
thereof), then, as of such record date (or the date of such dividend distribution, split or
subdivision if no record date is fixed), the Conversion Price of the Series A Preferred Stock shall
be appropriately decreased so that the number of shares of Common Stock issuable on conversion of
each share of such series shall be increased in proportion to such increase of the aggregate of
shares of Common Stock outstanding and those issuable with respect to such Common Stock Equivalents
with the number of shares issuable with respect to Common Stock Equivalents determined from time to
time in the manner provided for deemed issuances in subsection 5(d)(i)(E).



(d) If the number of shares of Common Stock outstanding at any time after a Purchase Date is
decreased by a combination of the outstanding shares of Common Stock, then, following the record
date of such combination, the Conversion Price for the Series A Preferred Stock shall be
appropriately increased so that the number of shares of Common Stock issuable on conversion of each
share of such series shall be decreased in proportion to such decrease in outstanding shares.



Section 6.5 Other Distributions. In the event the Company shall declare a distribution
payable in securities of other persons, evidences of indebtedness issued by the Company or other
persons, assets (excluding cash dividends) or options or rights not referred to in subsection
5(d)(iii), then, in each such case for the purpose of this subsection 5(e), the holders of the
Series A Preferred Stock shall be entitled to a proportionate share of any such distribution as
though they were the holders of the number of shares of Common Stock of the Company into which
their shares of Preferred Stock are convertible as of the record date fixed for the
determination of the holders of Common Stock of the Company entitled to receive such
distribution.


 


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Section 6.6 Recapitalizations. If at any time or from time to time there shall be a
recapitalization of the Common Stock (other than a subdivision, combination or merger or sale of
assets transaction provided for elsewhere in this Section 5 or Section 3) provision shall be made
so that the holders of the Series A Preferred Stock shall thereafter be entitled to receive upon
conversion of such Preferred Stock the number of shares of stock or other securities or property of
the Company or otherwise, to which a holder of Common Stock deliverable upon conversion would have
been entitled on such recapitalization. In any such case, appropriate adjustment shall be made in
the application of the provisions of this Section 5 with respect to the rights of the holders of
such Preferred Stock after the recapitalization to the end that the provisions of this Section 5
(including adjustment of the Conversion Price then in effect and the number of shares purchasable
upon conversion of such Preferred Stock) shall be applicable after that event as nearly equivalent
as may be practicable.



Section 6.7 No Impairment. The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or performed hereunder by
the Company, but will at all times in good faith assist in the carrying out of all the provisions
of this Section 5 and in the taking of all such action as may be necessary or appropriate in order
to protect the Conversion Rights of the holders of the Series A Preferred Stock against impairment.




Section 6.8 No Fractional Shares and Certificate as to Adjustments.



(a) No fractional shares shall be issued upon the conversion of any share or shares of the
Series A Preferred Stock, and the number of shares of Common Stock to be issued shall be rounded to
the nearest whole share (with one-half being rounded upward). The calculation of the number of
shares to be issued shall be determined on the basis of the total number of shares of Series A
Preferred Stock the holder is at the time converting into Common Stock and the number of shares of
Common Stock issuable upon such aggregate conversion.



(b) Upon the occurrence of each adjustment or readjustment of the Conversion Price of Series A
Preferred Stock pursuant to this Section 5, the Company, at its expense, shall promptly compute
such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each
holder of such series of Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or readjustment is based.
The Company shall, upon the written request at any time of any holder of Series A Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting forth (A) such
adjustment and readjustment, (B) the Conversion Price and (C) the number of shares of Common Stock
and the amount, if any, of other property that at the time would be received upon the conversion of
a share of Series A Preferred Stock.


 


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Section 6.9 Notices of Record Date. In the event of any taking by the Company of a record of
the holders of any class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, the Company shall mail to each holder of
Series A Preferred Stock, at least ten (10) business days prior to the date specified therein, a
notice specifying the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, and the amount and character of such dividend, distribution or
right.



Section 6.10 Reservation of Stock Issuable Upon Conversion. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common Stock, solely for
the purpose of effecting the conversion of the shares of the Series A Preferred Stock, such number
of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of
all outstanding shares of Series A Preferred Stock; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of Series A Preferred Stock, in addition to such other remedies as shall be
available to the holder of Series A Preferred Stock, the Company will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for such purposes, including, without
limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary
amendment to the Certificate of Incorporation, and shall not, until such action is taken to
increase the authorized but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purpose, issue any shares of Common Stock.



Section 6.11 Notices. Any notice required by the provisions of this Section 5 to be given to
the holders of shares of Series A Preferred Stock shall be deemed given if deposited in the United
States mail, postage prepaid, and addressed to each holder of record at his address appearing on
the books of the Company or by electronic transmission in the manner permitted by the General
Corporation Law of the State of Delaware.



Section 6.12 Waiver of Adjustment of Conversion Price. Notwithstanding anything herein to the
contrary, any downward adjustment of the Conversion Price of any series of Preferred Stock may be
waived by the consent or vote of the holders of the majority of the outstanding shares of such
series either before or after the issuance causing the adjustment.




ARTICLE VII REDEMPTION OF THE PREFERRED STOCK.



Section 7.1 At any time and from time to time on or after
 _____, 2013, the Preferred
Supermajority may require, by providing written notice thereof to the Company (a “Redemption
Election”), that all or part of the issued and outstanding shares of Preferred Stock be
redeemed by the Company out of funds lawfully available therefor; provided, however, that any such
redemptions shall be for an aggregate Redemption Price, as defined below, of at least $5,000,000.
Within fourteen (14) days following the receipt by the Company
of a Redemption Election, the Company shall provide written notice to all holders of Preferred
Stock of the Redemption Election (a “Redemption Notice”) which shall set forth the date of
such redemption (the “Redemption Date”) and shall allow all other holders of Preferred
Stock the opportunity to participate in the redemption transaction by providing written notice to
the Company (an “Election Notice”) within ten (10) days following the receipt of the
Redemption Notice of such holder’s election to participate and the number and series of shares held
by such holder to be redeemed by the Company. The Redemption Date shall be determined by the
Company and shall be (i) a date not less than forty-five (45) days and not more than one hundred
and eighty (180) days after the date of the Redemption Notice (a “Standard Redemption Date”), or (ii) a date that is more than one hundred and eighty (180) days after the date of
the Redemption Election



 


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but prior to the date which is eighteen months following such date (a
“Delayed Redemption Date”). On the applicable Redemption Date, concurrently with surrender
by the holders of the certificates representing such shares to be redeemed, the Company shall, to
the extent it may lawfully do so, redeem all issued and outstanding shares of Series A Preferred
Stock to be redeemed by paying an amount per share therefor equal to (i) in the event such
redemption occurs on a Standard Redemption Date, the greater of (A) the Fair Market Value (as
defined in Section 6(d) below) per share of Series A Preferred Stock, as of the date of the
Redemption Election or (B) the Series A Accreted Value; or (ii) in the event such redemption occurs
on a Delayed Redemption Date, the greater of (x) the Fair Market Value per share of Series A
Preferred Stock, as of the date which is sixty (60) days prior to the Delayed Redemption Date, or
(y) the Series A Accreted Value, (in each case, the “Redemption Price”). Each holder of
Preferred Stock to be redeemed shall surrender to the Company the certificate or certificates
representing such shares, in the manner and at the place designated in the Redemption Notice, and
thereupon the applicable Redemption Price of such shares shall be payable to the order of the
person whose name appears on such certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled. In the event less than all the shares represented by
any such certificate are redeemed, a new certificate shall be issued representing the unredeemed
shares. If the Company does not have sufficient funds legally available to redeem on any
Redemption Date all shares of Preferred Stock to be redeemed on such Redemption Date, (i) the
Company shall redeem a pro rata portion of each holder’s redeemable shares of Preferred Stock out
of funds legally available therefor, based on the respective amounts which would otherwise be
payable in respect of the shares to be redeemed if the legally available funds were sufficient to
redeem all such shares, and shall redeem the remaining shares to have been redeemed as soon as
practicable after the Company has funds legally available therefore, and (ii) the Company shall use
commercially reasonable efforts to obtain sufficient legally available funds in order to effectuate
the complete redemption of all shares of Preferred Stock to be redeemed on the Redemption Date as
soon as practicable after the Redemption Date.



Section 7.2 In the event the Company sets a Delayed Redemption Date, upon written notice to
the Company not less than thirty (30) days prior to the Delayed Redemption Date, each holder of
shares of Preferred Stock electing to redeem shares pursuant to an Election Notice shall have the
right, by written notice to the Company, to revoke their election to have such shares redeemed.


 


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Section 7.3 From and after a Redemption Date, all rights of the holders of the shares of
Preferred Stock designated for redemption as holders of Preferred Stock (except the right to
receive the Redemption Price, without interest, upon surrender of their certificate or
certificates) shall cease with respect to such shares, and such shares shall not thereafter be
transferred on the books of the Company or be deemed to be outstanding for any purpose whatsoever.
The shares of Preferred Stock covered by an Election Notice but not redeemed due to the Company’s
having insufficient funds legally available for redemption thereof shall remain outstanding and
entitled to all the rights and preferences provided herein until redeemed as provided in Section
7(a) above.



Section 7.4 For purposes of calculating the Redemption Price, the “Fair Market Value”
per share of Series A Preferred Stock, shall be determined in good faith by the Board of Directors
(other than those directors affiliated with or nominated by any holder of Preferred Stock that has
submitted an Election Notice) as of the applicable date and in making such determination it shall
not give consideration to any discount related to shares representing minority interest or related
to any illiquidity or lack of marketability of shares arising from restrictions on transfer under
applicable federal or state securities laws, but shall take into consideration the rights and
preferences of the Preferred Stock. If the holders of a majority of the Preferred Stock to be
redeemed disagree with such determination of Fair Market Value, such holders shall provide written
notice to the Company thereof (a “Value Dispute”) and the Fair Market Value per share of
the Series A Preferred Stock, shall be determined by the following procedures. Each of the
Company, on the one hand, and the holders of Series A Preferred Stock submitting the Value Dispute,
on the other hand, shall appoint an independent appraiser, each of whom shall independently
determine the Fair Market Value per share of Series A Preferred Stock (the “Appraised
Values”). If the higher of the Appraised Values is not more than 25% higher than the lower of
the Appraised Values, then the Fair Market Value per share will be the average of the two Appraised
Values. If the higher of the Appraised Values is more than 25% higher than the lower of the
Appraised Values, then the parties shall appoint a third independent appraiser who shall, within
thirty (30) days following receipt of the Appraised Values, select one of the two Appraised Values
as the Fair Market Value per share which is closest to the Fair Market Value per share determined
by such third party appraiser (the “Third Party Determination”). The Third Party
Determination shall be binding on and non-appealable by the Company and the holders of the shares
of Preferred Stock to be redeemed. Following the receipt of the Third Party Determination, the
Redemption Date shall be deemed to be the date which is ten (10) days thereafter. All costs of the
appraisers pursuant to this Section 6(d) shall be split equally by the Company on the one hand and
the holders of Preferred Stock to be redeemed on the other hand.




ARTICLE VIII SINKING FUND.



There shall be no sinking fund for the payment of dividends, or liquidation preferences on the
Series A Preferred Stock or the redemption of any shares thereof.


 


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ARTICLE IX AMENDMENT.



This Certificate of Designation constitutes an agreement between the Company and the holders
of the Series A Preferred Stock. It may be amended by vote of the Board of Directors of the
Company and the written consent of the Preferred Supermajority; provided, however, that nothing in
this Section 8 shall be deemed to alter any statutory provision entitling a particular class or
series of shares to vote as a class or series with respect to such amendment; provided further,
however, any such amendment that would have a material adverse effect on the rights of a particular
holder of shares of Preferred Stock provided in this Certificate of Designation, but would not have
a similar material adverse effect on all holders of Preferred Stock generally, shall require the
consent of such materially adversely affected holder.



[SIGNATURE PAGE TO FOLLOW]




 


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IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by its Chief
Executive Officer and attested to by its Treasurer this
 _____ 
day of
 _____, 2009.



	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Jeffrey Stroburg,
	 	 
	 

	 	 	 	Chief Executive Officer	 	 






ATTEST:



	 	 	 
	 

Natalie Lischer, Secretary and Treasurer

	 	 






Series A Certificate of Designation Signature Page





 


-19-









 







Exhibit B




CERTIFICATE OF INCORPORATION




OF




REG NEWCO, INC.




ARTICLE I





The name of the Corporation (hereinafter called the “Corporation”) is REG Newco, Inc.



ARTICLE II




The address of the registered office of the Corporation in the State of Delaware is 2711
Centerville Road, Suite 400, city of Wilmington, County of New Castle, and the name of the
registered agent of the Corporation in the State of Delaware at such address is Corporation Service
Company.



ARTICLE III




The purpose of the Corporation is to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of the State of Delaware.



ARTICLE IV




A. The Corporation is authorized to issue two classes of shares to be designated respectively
Preferred Stock (“Preferred Stock”) and Common Stock (“Common Stock”). The total number of shares
of capital stock that the Corporation is authorized to issue is two hundred million (200,000,000).
The total number of shares of Preferred Stock the Corporation shall have authority to issue is
sixty million (60,000,000). The total number of shares of Common Stock the Corporation shall have
authority to issue is one hundred forty million (140,000,000). The Preferred Stock shall have a par
value of $0.0001, and the Common Stock shall have a par value of $0.0001.



B. The shares of Preferred Stock may be issued from time to time in one or more series. The
Board of Directors of the Corporation (the “Board of Directors”) is expressly authorized to provide
for the issue of all or any of the undesignated shares of Preferred Stock in one or more series,
and to fix the number of shares and to determine or alter for each such series, such voting powers,
full or limited, or no voting powers, and such designations, preferences, and relative,
participating, optional, or other rights and such qualifications, limitations, or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such shares (a “Preferred Stock Designation”) and as may be
permitted
by the General Corporation Law of the State of Delaware. The Board of Directors is also
expressly authorized to increase or decrease (but not below the number of shares of such series
then outstanding) the number of shares of any series subsequent to the issue of shares of that
series. In case the number of shares of any such series shall be so decreased, the shares
constituting such decrease shall resume the status they had prior to the adoption of the resolution
originally fixing the number of share of such series.


 


 









 





C. The powers, preferences rights, restrictions, and other matters relating to the Common
Stock are as follows:



1. Relative Rights of Preferred Stock and Common Stock. All preferences, voting
powers, relative, participating, optional or other special rights and privileges, and
qualifications, limitations, or restrictions of the Common Stock are expressly made subject and
subordinate to those that may be fixed with respect to any shares of the Preferred Stock.



2. Voting Rights. Except as otherwise required by law or this Certificate of
Incorporation, each holder of Common Stock shall have one vote in respect of each share of stock
held by such holder of record on the books of the Corporation for the election of directors and on
all matters submitted to a vote of stockholders of the Corporation.



3. Dividends. Subject to the preferential rights of the Preferred Stock, the holders
of shares of Common Stock shall be entitled to receive, when and if declared by the Board of
Directors, out of the assets of the Corporation which are by law available therefor, dividends
payable either in case, in property or in shares of capital stock.



4. Dissolution, Liquidation or Winding Up. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of shares of the Preferred Stock,
holders of Common Stock shall be entitled, unless otherwise provided by law or this Certificate of
Incorporation, to receive all of the remaining assets of the Corporation of whatever kind available
for distribution to stockholders ratably in proportion to the number of shares of Common Stock held
by them respectively.



ARTICLE V




In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors of the Corporation shall have the power, subject to the rights of any holders of
Preferred Stock that may be in existence at such time, both before and after receipt of any payment
for any of the Corporation’s capital stock, to adopt, amend, repeal or otherwise alter the Bylaws
of the Corporation without any action on the part of the stockholders; provided, however, that the
grant of such power to the Board of Directors of the Corporation shall not divest the stockholders
of nor limit their power, to adopt, amend, repeal or otherwise alter the Bylaws.


 


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ARTICLE VI





Elections of directors need not be by written ballot.



ARTICLE VII





The name and mailing address of the incorporator is:



John A. Gerken

c/o Wilcox, Polking, Gerken, Schwarzkopf & Copeland, P.C.

115 E. Lincolnway, Suite 200

Jefferson, IA 50129




ARTICLE VIII




The Corporation reserves the right to adopt, repeal, rescind or amend in any respect any
provisions contained in this Certificate of Incorporation in the manner now or hereafter prescribed
by applicable law, and all rights conferred on stockholders herein are granted subject to this
reservation.



ARTICLE IX




A. A director of the Corporation shall, to the full extent permitted by the Delaware
General Corporation Law as it now exists or as it may hereafter be amended, not be liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director.



B. The Corporation shall, to the fullest extent permitted by law and to the extent
authorized from time to time by the Board of Directors of the Corporation, grant rights to
indemnification and to the advancement of expenses to any person made or threatened to be made a
party to an action or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director, officer, employee or
agent of the Corporation or any predecessor of the Corporation or serves or served at any other
enterprise as a director, officer or employee at the request of the Corporation or any
predecessor to the Corporation.



C. Neither any amendment nor repeal of this Article IX nor the adoption of any provision of
this Certificate of Incorporation inconsistent with this Article IX, shall eliminate or reduce
the effect of this Article IX in respect of any matter occurring, or any cause of action, suit or
claim that, but for this Article IX, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision. If the Delaware General Corporation Law hereafter is
amended to further eliminate or limit the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability provided herein,
shall be limited to the fullest extent permitted by the amended Delaware General Corporation Law.
Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall not adversely affect
any limitation on the personal liability of a director of the Corporation existing at the time of
such repeal or modification.


 


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ARTICLE X




A. No share of capital stock of the Corporation now or hereafter issued shall be sold,
pledged, or otherwise transferred, in whole or in part, voluntarily or involuntarily, by any
stockholder, such stockholder’s executor, administrator, trustee in bankruptcy, receiver or other
representative, or by any other person, to any person, unless and until the prior written consent
of the Corporation has first been obtained. This general restriction on transfer shall remain in
effect until the earlier of the following occurrences:




	 	1.	 	One hundred eighty (180) days after the effective date of a
registration statement relating to the Corporation’s first firm commitment
underwritten public offering of its common stock registered under the
Securities Act of 1933, as amended (the “IPO”), provided that such 180-day
period may be extended for not more than eighteen (18) days if such extension
is reasonably necessary to allow the Corporation’s underwriters to comply with
FINRA Conduct Rule 2711 (or any similar successor rule); or







	 	2.	 	December 31, 2010 at 5:00 p.m. New York time plus up to an
additional one hundred eighty (180) days after the effective date on or before
December 31, 2010 of a registration statement relating to the IPO, provided
that such 180-day period may be extended for not more than eighteen (18) days
if such extension is reasonably necessary to allow the Corporation’s
underwriters to comply with FINRA Conduct Rule 2711 (or any similar successor
rule).






B. The transfer restrictions provided for in section A of this Article X shall not apply to
the following permitted transfers, provided that the restrictions shall continue to apply to the
 shares transferred in a permitted transfer:




	 	1.	 	A transfer to a partner, member, stockholder, subsidiary or
other affiliate of the stockholder, whether voluntarily or by operation of law;







	 	2.	 	A transfer to an entity that is the legal successor of the
stockholder;







	 	3.	 	A transfer in accordance with a marital dissolution decree
issued by a court of competent jurisdiction;







	 	4.	 	A bona fide gift;







	 	5.	 	A transfer by will or intestacy;







	 	6.	 	A transfer by a stockholder, which is a trust, to the principal
beneficiaries of that trust;







	 	7.	 	A transfer by a stockholder, who is an individual, to a member
of such stockholder’s family or to a revocable trust for estate planning
purposes; or







	 	8.	 	A transfer pursuant to a bona fide pledge of shares for
collateral purposes.





 


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C. The transfer restrictions provided for in section A of this Article X shall not apply to
the sale of shares in the IPO nor shall any transfer restrictions continue with respect to any
such shares sold in the IPO.



D. Any certificates evidencing shares of capital stock of the Corporation shall bear a
legend referring to the above transfer restrictions.



I, THE UNDERSIGNED, being the incorporator herein before named, for the purpose of forming a
corporation pursuant to the General Corporation Law of the State of Delaware, do make this
certificate hereby declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 28th day of April 2009.



	 	 	 	 	 
	 

	 	/s/ John A. Gerken
 

John A. Gerken, Incorporator
	 	 







 


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Attachment to Newco Disclosure Schedule 5.2(i)

(As of Closing Date*)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Number of Preferred	 	 	Percent of Preferred	 	 	Number of	 	 	Percent of Common	 	 	 	 	 	 	Percent of	 
	Holder Name	 	Shares	 	 	Shares	 	 	Common Shares	 	 	Shares	 	 	Total Shares	 	 	Total Shares	 
	Bunge North America,
Inc.
	 	 	1,361,723	 	 	 	9.93	%	 	 	702,780	 	 	 	1.92	%	 	 	2,064,503	 	 	 	4.11	%
	ED&F Man Holdings B.V.
	 	 	1,770,334	 	 	 	12.91	%	 	 	1,081	 	 	 	0.00	%	 	 	1,771,415	 	 	 	3.52	%
	Natural Gas Partners
VII, L.P.
	 	 	2,559,808	 	 	 	18.66	%	 	 	1,096	 	 	 	0.00	%	 	 	2,560,904	 	 	 	5.09	%
	NGP Energy Technology
Partners, L.P.
	 	 	2,559,808	 	 	 	18.66	%	 	 	0	 	 	 	0.00	%	 	 	2,559,808	 	 	 	5.09	%
	Energy Technology
Partners, LLC
	 	 	0	 	 	 	0.00	%	 	 	1,096	 	 	 	0.00	%	 	 	1,096	 	 	 	0.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	West Central Cooperative
	 	 	563,635	 	 	 	4.11	%	 	 	9,500,000	 	 	 	25.98	%	 	 	10,063,635	 	 	 	20.01	%
	USBG Group**
	 	 	4,349,049	 	 	 	31.71	%	 	 	3,289,755	 	 	 	9.00	%	 	 	7,638,804	 	 	 	15.19	%
	Sargeco, Inc.
	 	 	0	 	 	 	0.00	%	 	 	1,018,253	 	 	 	2.78	%	 	 	1,018,253	 	 	 	2.02	%
	Bkye Marble Investors,
LLC
	 	 	0	 	 	 	0.00	%	 	 	696,210	 	 	 	1.90	%	 	 	696,210	 	 	 	1.38	%
	West Central Biodiesel
Investors, LLC
	 	 	0	 	 	 	0.00	%	 	 	1,409,053	 	 	 	3.85	%	 	 	1,409,053	 	 	 	2.80	%
	Biofuels Company of
America, LLC
	 	 	0	 	 	 	0.00	%	 	 	1,980,488	 	 	 	5.42	%	 	 	1,980,488	 	 	 	3.94	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Scott P. Chesnut
	 	 	0	 	 	 	0.00	%	 	 	1,435	 	 	 	0.00	%	 	 	1,435	 	 	 	0.00	%
	Delbert Christensen
	 	 	0	 	 	 	0.00	%	 	 	1,435	 	 	 	0.00	%	 	 	1,435	 	 	 	0.00	%
	Michael Jackson
	 	 	0	 	 	 	0.00	%	 	 	1,081	 	 	 	0.00	%	 	 	1,081	 	 	 	0.00	%
	Rick Vanderheiden
	 	 	0	 	 	 	0.00	%	 	 	1,354	 	 	 	0.00	%	 	 	1,354	 	 	 	0.00	%
	Blackhawk Biofuels, LLC
	 	 	133,377	 	 	 	0.97	%	 	 	6,753,088	 	 	 	18.47	%	 	 	6,886,465	 	 	 	13.69	%
	Central Iowa Energy, LLC
	 	 	158,041	 	 	 	1.15	%	 	 	4,248,840	 	 	 	11.62	%	 	 	4,406,881	 	 	 	8.76	%
	Western Iowa Energy, LLC
	 	 	259,012	 	 	 	1.89	%	 	 	6,963,377	 	 	 	19.04	%	 	 	7,222,389	 	 	 	14.36	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total
	 	 	13,714,787	 	 	 	100.00	%	 	 	36,570,422	 	 	 	100.00	%	 	 	50,285,209	 	 	 	100.00	%






*Subject to adjustment for issuance of fractional shares pursuant to the Agreement and Common Plan
Agreements.

**As defined in the REG Merger Agreement.