exv4w3



 





Exhibit 4.3




ESCROW AGREEMENT





     THIS
ESCROW AGREEMENT, dated as of May 29, 2007 (this “Agreement”), is entered into by and
between Ozark Ethanol, LLC, a Delaware limited liability company (the “Company”), and US Bank,
located in Lamar, Missouri (the “Escrow Agent”).




RECITALS




     A. The Company is raising equity capital to construct and operate an ethanol production
facility plant in Vernon County, Missouri or such other location as may be determined by the
Company.




     B. The Company is offering up to an aggregate of 40,000,000 Class A Units, at a purchase price
of $2.00 per Unit, to investors pursuant an offering registered with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the “Offering”).




     C. Each investor who subscribes to purchase Units (a “Subscriber”) will execute a Subscription
Agreement, a Promissory Note and a signature page to the Company’s Limited Liability Company
Agreement, and will supply a check or other funds as part or all of the purchase price for the
Units (the foregoing documents and funds, a “Subscription”). The terms of the Offering provide
that Subscriptions will be held in escrow until certain conditions for release from escrow are
satisfied and the Subscriptions and Offering proceeds are released to the Company or until such
Subscriptions are required to be returned to Subscribers.



     D. The minimum investment by each Subscriber in the Offering is $20,000 (10,000 Units), with a
payment equal to at least ten percent (10%) of the total purchase price due at the time the
Subscription is made (an “Initial Payment”) and with payment for the remaining balance of the total
purchase price due upon 30 days written notice from the Company pursuant to the terms of a
promissory note (a “Promissory Note”) to be executed and delivered as part of each Subscriber’s
Subscription. Initial Payments and payments received on Promissory Notes are herein referred to as
“Payments.”



     E. The Company and the Escrow Agent desire to enter into an agreement with respect to said
escrow of Subscriptions in an escrow account to be established with the Escrow Agent (the “Escrow
Account”) in accordance with the terms and conditions of this Agreement.



     NOW THEREFORE, in consideration of the premises and covenants set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, for themselves, their successors and assigns, hereby agree as follows:



1. Definitions. The following terms shall have the following meanings when used herein:



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     “Escrow Funds” shall mean the funds deposited with the Escrow Agent pursuant to this
Agreement, together with any interest and other income thereon.



     “Escrow Closing Date” shall mean ___, ___[one year and 90 days following the
effective date of the registration statement filed with the Securities and Exchange Commission],
unless prior to such date, the Company provides written notice to the Escrow Agent of the extension
of the Escrow Closing Date in accordance with applicable federal and state laws, in which case the
Escrow Closing Date shall mean the extended date established by such extension.




     “Final Offering Closing Date” shall mean ___, ___[one year
and 90 days following
the effective date of the registration statement filed with the Securities and Exchange
Commission], unless prior to such date, the Company provides written notice to the Escrow Agent of
the extension of the Final Offering Closing Date in accordance with applicable federal and state
laws, in which case the Final Offering Closing Date shall mean the extended date established by
such extension.




     “Notice of Escrow Closing” shall mean a written certificate that is signed on behalf of the
Company by a duly authorized officer thereof stating that the following conditions to the release
of Subscriptions and Escrow Funds from escrow have been satisfied:





     (i) The Company has received, approved and deposited or caused to be deposited in
escrow Subscriptions and cash Payments on such Subscriptions (including the cash amount of
Initial Payments and cash payments on Promissory Notes) in the amount of $30,000,000 or
more, exclusive of interest; and






     (ii) The Company has received a written commitment or commitments for senior and
subordinated debt financing which, combined with the total amount of cash Payments deposited
in escrow and funds received or receivable from previous equity offerings, grants and other
resources, would equal at least $120,000,000.




     “Payment Instrument” shall mean a check, money order, promissory note, or similar instrument
received by the Company as a Payment for the Units subscribed for by any Subscriber in the
Offering.



     “Subscription Accounting” shall mean an accounting prepared by the Company of all
Subscriptions for Units received by the Company as of the date of such accounting for which
Payment(s) has been deposited into the Escrow Account, indicating for each Subscription (i) the
Subscriber’s name, address and federal taxpayer identification number, (ii) the amount of the
Payment(s) received for the subscribed Units, (iii) the date of deposit by the Company of the
Payment Instrument relating thereto and notations of any nonpayment of the Payment Instrument
submitted with any such Subscription, and (iv) any rejection of any such Subscription in whole or
in part by the Company, or any other termination, for whatever reason, of any such Subscription.



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2. Appointment of and Acceptance by Escrow Agent. The Company hereby appoints the Escrow Agent to
serve as escrow agent hereunder, and the Escrow Agent hereby accepts such appointment and agrees to
act as Escrow Agent in accordance with the terms of this Agreement.



3. Deposits into Escrow.




     a. Delivery of Subscriptions. All Subscriptions received by the Company or its agents prior
to the termination of this Agreement shall, as soon as practicable after such receipt, be forwarded
to the Escrow Agent for deposit into the Escrow Account. All Payment Instruments shall be
delivered to the Escrow Agent within five (5) business days from the date of the receipt thereof,
endorsed (if appropriate) to the Escrow Agent, together with a list of the applicable Subscribers,
showing, with respect to each such Subscriber, the Subscriber’s name and address, subscription
date, amount of subscription and amount paid. From time to time and upon request by the Escrow
Agent, the Company shall provide a Subscription Accounting to the Escrow Agent.



     ALL ESCROW FUNDS SHALL REMAIN THE PROPERTY OF THE SUBSCRIBERS ACCORDING TO THEIR RESPECTIVE
INTERESTS, SHALL NOT BE OR BECOME THE PROPERTY OR ASSETS OF THE COMPANY, AND SHALL NOT BE SUBJECT
TO ANY LIEN OR CHARGE BY THE ESCROW AGENT, ANY LIEN OR CLAIM BY THE COMPANY OR BY JUDGMENT OR
CREDITORS CLAIMS AGAINST THE COMPANY, UNTIL RELEASED TO THE COMPANY IN ACCORDANCE WITH SECTION
4 HEREOF. IN NO EVENT SHALL ANY OF THE ESCROW FUNDS BE COMMINGLED WITH DEPOSIT ACCOUNTS OF THE
ESCROW AGENT OR OTHERWISE TREATED AS A DEPOSIT ACCOUNT OF THE ESCROW AGENT OR REFLECTED ON THE
FINANCIAL STATEMENTS OF THE ESCROW AGENT.



     b. Availability of Funds. Notwithstanding anything to the contrary contained in this
Agreement, the Company understands and agrees that all Payment Instruments received by the Escrow
Agent hereunder are subject to collection requirements of presentment and final payment, and that
the funds represented thereby cannot be drawn upon or disbursed until such time as final payment in
collected funds has been made and is no longer subject to dishonor. Upon receipt, the Escrow Agent
shall process each Payment Instrument it receives for collection, and the proceeds thereof shall be
held as part of the Escrow Funds and disbursed in accordance with Sections 4 and 5 hereof. If,
upon presentment for payment, any Payment Instrument is dishonored, the Escrow Agent shall notify
the Company of such dishonor and return such Payment Instrument to the Company to take whatever
action it deems necessary. The Escrow Agent shall have no duty or responsibility to establish
whether any Payment Instrument is valid and enforceable or represents collectible funds and shall
have no duty or responsibility to take any action for the collection (other than deposit for
payment) or enforcement of any Payment Instrument.



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4. Release of Subscriptions and Escrow Funds to the Company.



     a. Escrow Closing. Promptly upon receipt of the following documents from or at the direction
of the Company, the Escrow Agent shall release the Subscriptions and Escrow Funds to the Company.



     1. A Notice of Escrow Closing in the form attached hereto as Exhibit A; and



2. Subscription Accounting as of the date of the Notice of Escrow Closing.



Escrow Funds shall be remitted to the Company by wire transfer or such other means as may be
requested by the Company.



The Escrow Agent shall have no duty or responsibility to review or seek to determine the truth,
accuracy or sufficiency of documents contemplated or referred to in the Notice of Escrow Closing.
The Escrow Agent shall have no duty to review any Subscription Accounting, it being the
understanding and agreement of the parties hereto that the Escrow Agent shall release the
Subscriptions and disburse the Escrow Funds upon receipt of documents the Escrow Agent believes,
without any duty of further inquiry, to conform to the requirements set forth in this Section 4(a).



     b. Issuance and Registration of Units. Until the terms of this Agreement have been met and
the Subscriptions have been released and Escrow Funds have been disbursed to the Company, the
Company shall not issue any Units to Subscribers or register any Units in the names of any
Subscribers, and Subscribers shall have no ownership interest in any Units until the Units are so
issued and registered.



5. Return of Subscriptions and Escrow Funds to Subscribers.



     a. Failure to Obtain Minimum Offering Proceeds. If, by the date that is five (5) business
days after the Final Offering Closing Date, the Escrow Agent is not in receipt of approved
Subscriptions, including Payments and Promissory Notes, but exclusive of interest, which total
$30,000,000 or more, then the Escrow Agent shall (i) notify the Company in writing that the minimum
Subscriptions required for the Offering have not been received, (ii) as soon as practicable but no
later than thirty (30) days following the Final Offering Closing Date, return the Subscriptions and
Escrow Funds then held by the Escrow Agent directly to the Subscribers by certified mail, including
a check in the amount of the Payments received in respect of such Subscriptions and on deposit in
the Escrow Account, together with interest earned on the amount of such Payments and without
deduction except as stated in Sections 7 and 13 of and Exhibit B to this Agreement (interest earned
will be calculated at the end of the month of account termination and may be disbursed through a
separate payment following calculation) and (iii) notify the Company in writing of such return.



     b. Failure to Reach Escrow Closing. If, by the date that is five (5) business days after the
Escrow Closing Date, the Escrow Agent is not in receipt of the documents described in Section 4(a),
then the Escrow Agent shall (i) notify the Company in writing that the conditions



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set forth in
Section 4(a) have not been satisfied, (ii) as soon as practicable but no later than thirty (30)
days following the Escrow Closing Date, return the Subscriptions and Escrow Funds then held by the
Escrow Agent directly to the Subscribers by certified mail, including a check in the amount of the
Payments received in respect of such Subscriptions and on deposit in the Escrow Account, together
with interest earned on the amount of such Payments and without deduction except as stated in
Sections 7 and 13 of and Exhibit B to this Agreement (interest earned will be calculated at the end
of the month of account termination and may be disbursed through a separate payment following
calculation) and (iii) notify the Company in writing of such return.



     c. Rejection of Any Subscription. As soon as practicable but no later than thirty (30) days
after receipt by the Escrow Agent of written notice from the Company that the Company intends to
reject a Subscriber’s Subscription in whole or in part, the Escrow Agent shall return directly to
the applicable Subscriber, by certified mail, the Subscriber’s Subscription, including funds equal
to the Payment(s) made by or on behalf of such Subscriber, together with interest earned on the
amount of such Payments and without deduction except as stated in Section Sections 7 and 13 of and
Exhibit B to this Agreement (interest earned will be calculated at the end of the month of account
termination and may be disbursed through a separate payment following calculation).



     d. Abandonment of Offering; Insolvency or Bankruptcy. As soon as practicable but no later
than thirty (30) days after receipt by the Escrow Agent of (i) written notice from the Company that
it is abandoning the Offering, together with a copy of a resolution of the Company’s Board of
Managers so abandoning the Offering, duly attested to by the Secretary of the Company, or (ii)
written notice from the Company of the Company’s insolvency or bankruptcy, or the institution of
bankruptcy, reorganization, insolvency, or liquidation proceedings by or against the Company and,
if against the Company, such proceedings have continued without termination for at least one
hundred twenty (120) days; the Escrow Agent shall return directly to the Subscribers by certified
mail the Subscribers’ Subscriptions, including funds equal to the Payments made by or on behalf of
each such Subscriber, together with interest earned on the amount of such Payments and without
deduction except as stated in Sections 7 and 13 of and Exhibit B to this Agreement (interest earned
will be calculated at the end of the month of account termination and may be disbursed through a
separate payment following calculation).



     e. Accounting. In connection with a return of funds to Subscribers pursuant to this Section
5, the Company shall provide the Escrow Agent with a Subscription Accounting. Under no
circumstances may a Subscriber receive less than the principal amount of all Payments made by the
Subscriber in connection with a return of funds to Subscribers pursuant to this Section 5.



6. Suspension of Performance or Disbursement Into Court. If, at any time, there shall exist any
dispute between the Company, the Escrow Agent, any Subscriber or any other person with respect to
the holding or disposition of any portion of any Subscription or Escrow Funds or any other
obligations of the Escrow Agent hereunder, or if at any time the Escrow Agent is unable to
determine, to the Escrow Agent’s reasonable satisfaction, the proper disposition of any portion of
the Subscriptions or the Escrow Funds or the Escrow Agent’s proper actions with respect to its
obligations hereunder, or if the Escrow Agent is uncertain concerning its duties or rights under
this Agreement, or if the Escrow Agent shall have received instructions, claims or 


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demands from the
Company or Subscribers or others which, in its opinion, are in conflict with any of the provisions
of this Agreement, or if the Company has not within 30 days of the furnishing by the Escrow Agent
of a notice of resignation pursuant to Section 9 hereof appointed a successor Escrow Agent to act
hereunder, then the Escrow Agent may, in its sole discretion, consult legal counsel selected by it
and take either or both of the following actions:



     a. Suspend the performance of any of its obligations under this Agreement until such dispute,
uncertainty or conflict shall be resolved to the reasonable satisfaction of the Escrow
Agent or until a successor Escrow Agent shall have been appointed (as the case may be); provided,
however, that the Escrow Agent shall continue to hold the Subscriptions and to invest the Escrow
Funds in accordance with Section 7 hereof; and/or



     b. Petition (by means of an interpleader action or any other appropriate method) any court of
competent jurisdiction of the state of Missouri, for instructions with respect to such dispute or
uncertainty, and pay into such court all Subscriptions and Escrow Funds for holding and disposition
in accordance with the instructions of such court, and the Escrow Agent shall thereupon be
discharged from all further duties under this Escrow Agreement.



     The Escrow Agent shall have no liability to the Company, any Subscriber or any other person
with respect to any such suspension of performance or disbursement into court, specifically
including any liability or claimed liability that may arise, or be alleged to have arisen, out of
or as a result of any delay in the disbursement of Escrow Funds or any delay in or with respect to
any other action required or requested of the Escrow Agent, except in instances of the Escrow
Agent’s bad faith, gross negligence or willful misconduct.



7. Investment of Funds. The Escrow Agent shall invest and reinvest the Escrow Funds as the Company
shall direct (subject to applicable minimum investment requirements) in writing; provided, however,
that no investment or reinvestment may be made except in the following:



     a. Direct obligations of the United States of America or obligations the principal of and the
interest on which are unconditionally guaranteed by the United States of America;



     b. Savings accounts, certificates of deposit or repurchase agreements of any bank, trust
company or national banking association (including the Escrow Agent and its affiliates); or



     c. United States Treasury Money Market funds (money market funds investing exclusively in U.S.
Treasury securities and other investments that are backed by the full faith and credit of the
United States of America).



     Notwithstanding anything to the contrary herein, in no event may Escrow Funds be held in any
deposit account of the Escrow Agent in an amount that exceeds $100,000.



     If the Escrow Agent has not received written instructions from the Company when an investment
decision needs to be made, the Escrow Agent shall invest the Escrow Funds, or such portion thereof
as to which no written instructions have been received, in any of the investments described in
clause (a) or clause (c) as it deems appropriate. Each of the foregoing investments



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shall be made
in the name of the Escrow Agent in its stated capacity
hereunder. No investment shall be made in
any instrument or security that has a maturity of greater than three (3) months or would mature
after     ,      [one year and 90 days following the effective date of the registration
statement filed with the Securities and Exchange Commission], and any and all investments hereunder
shall be made in investments that are currently marketable or may be liquidated within five (5)
business days without penalty or charge. Notwithstanding anything to the contrary contained
herein, the Escrow Agent may, without notice to the Company, sell or liquidate any of the foregoing
investments at any time if the proceeds thereof are required for any
release of funds permitted or required hereunder. The Escrow Agent shall have no liability for any
loss or diminution in the Escrow Account resulting from investments made in accordance with the
provisions of this Agreement. Except as provided in Section 23 hereof, the Escrow Agent shall have
no duty by reason of this Agreement to prepare or file any federal or state tax report or return
with respect to the Escrow Account or any income earned thereon.



     Transaction costs associated with the investment of the Escrow Funds, such as commissions,
brokerage fees and the like, shall be paid out of the Escrow Funds, but in no event shall such
costs exceed the amount of interest earned on the Escrow Funds.



8. Inspection of Records. The Company may, at any time upon reasonable notice, inspect and copy
the records of the Escrow Agent, insofar as they relate to this Agreement, for the purpose of
determining compliance with and conformance to the provisions of this Agreement and the
Subscriptions.



9. Resignation and Removal of Escrow Agent. The Escrow Agent may resign from the performance of
its duties hereunder at any time by giving thirty (30) days’ prior notice to the Company and upon
providing an accounting of all Subscriptions and Escrow Funds accepted, held and disbursed by the
Escrow Agent hereunder. The Escrow Agent may be removed, with or without cause, by the Company, at
any time upon thirty (30) days’ prior written notice to the Escrow Agent. Such resignation or
removal shall take effect upon the appointment of a successor Escrow Agent, as provided herein
below, and upon receipt by the Company and a successor Escrow Agent of an accounting of all
Subscriptions and Escrow Funds accepted, held and disbursed by the Escrow Agent hereunder. Upon
any such notice of resignation or removal, the Company shall appoint a successor Escrow Agent
hereunder. Upon the acceptance in writing of any appointment as Escrow Agent hereunder by a
successor Escrow Agent, and upon receipt of the full accounting referred to above, such successor
Escrow Agent shall thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its
duties and obligations under this Agreement, but shall not be discharged from any liability
hereunder for actions taken as the Escrow Agent prior to such succession. Notwithstanding anything
to the contrary herein provided, in the event the Escrow Agent resigns as Escrow Agent hereunder
and no successor Escrow Agent has been designated and accepted appointment as successor Escrow
Agent within forty-five (45) days following the date of the Escrow Agent’s notice of resignation,
the Escrow Agent shall have the right to deposit all property held pursuant to this Agreement into
the registry of any court of competent jurisdiction of the state of Missouri and notify the parties
hereto of such deposit, and thereupon the Escrow Agent shall be discharged from all further duties
and responsibilities as Escrow Agent under this Agreement. After any Escrow Agent’s 


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resignation or
removal, the provisions of this Agreement shall continue to apply as to any actions taken or
omitted to be taken by it while it was Escrow Agent under this Agreement.



10. Duty and Liability of Escrow Agent. The sole duty of the Escrow Agent, other than as herein
specified, shall be to receive the Subscriptions and Escrow Funds and hold them subject to release,
in accordance herewith, and the Escrow Agent shall be under no duty to determine whether the
Company is complying with the requirements of this Agreement or any applicable laws or regulations,
including but not limited to federal or state securities laws, in tendering to the Escrow Agent
said proceeds from the sale of the Units. The Escrow Agent may conclusively
rely upon and shall be protected in acting upon any statement, certificate, notice, request,
approval, consent, order or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall have no duty or liability to
verify any such statement, certificate, notice, request, consent, order or other document, and its
sole responsibility shall be to act only as expressly set forth in this Agreement. The Escrow
Agent may consult counsel with respect to any question arising under this Agreement and the Escrow
Agent shall not be liable for any action taken or omitted in good faith upon advice of such
counsel. The Escrow Agent shall not be required to act upon or take notice of any direction,
demand, notice, communication or instructions provided to the Escrow Agent by any Subscriber, but
shall act upon and take notice solely of notices, communications and instructions provided to the
Escrow Agent by the Company or as otherwise set forth in this Agreement. The Escrow Agent shall
have no implied duties or obligations and shall not be charged with knowledge or notice of any fact
or circumstance not specifically set forth herein or in any notices given to it in accordance with
the notice provisions of this Agreement. The Escrow Agent shall have no liability with respect to
the transfer or distribution of any funds effected by the Escrow Agent pursuant to wiring or
transfer instructions provided to the Escrow Agent by any party to this Agreement. The Escrow
Agent shall not be obligated to take any legal action or to commence any proceedings in connection
with the Escrow Account or this Agreement, or to appear in, prosecute or defend in any such legal
action or proceedings. In performing its duties under this Agreement, or upon the claimed failure
to perform its duties, the Escrow Agent shall have no liability except for the Escrow Agent’s bad
faith, willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for
incidental, indirect, special, consequential or punitive damages.



11. Indemnification. The Company shall indemnify and hold harmless the Escrow Agent and each
director, officer, employee and agent of the Escrow Agent (collectively, the “Indemnified Parties”)
from and against any and all claims, demands, suits, actions or proceedings (including any inquiry
or investigation) arising directly or indirectly from or in connection with the negotiation,
preparation, execution, performance or failure of performance of this Agreement or any transactions
contemplated herein, whether or not any such Indemnified Party is a party to any such action,
proceeding, suit or the target of any such inquiry or investigation. This indemnity and hold
harmless agreement shall include indemnity against all costs, expenses, damages and liabilities,
including reasonable attorneys’ fees, incurred by or asserted against any of the Indemnified
Parties in connection with any such claims, demands, suits, actions or proceedings, except for any
consequential damages suffered by the Indemnified Parties as a result of any such claims, demands,
suits, actions or proceedings, which consequential damages are expressly excluded from the
foregoing indemnity. Provided, further, that the foregoing indemnity shall not apply to any
claims, demands, suits, actions or 


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proceedings arising from the bad faith, gross negligence or
willful misconduct of any Indemnified Parties. The provisions of this Section 11 shall survive the
termination of this Agreement, any release, return or distribution of Subscriptions and Escrow
Funds hereunder, and any resignation or removal of the Escrow Agent.



12. Securities Law Matters. The Escrow Agent shall have no duty or responsibility for determining
whether the Units or the offer and sale thereof conform to the requirements of applicable Federal
or state securities laws, including but not limited to the Securities Act of 1933 and the
Securities Exchange Act of 1934. The Escrow Agent has not participated in the
preparation or review of any sales or offering material relating to the Units described in this
Agreement. In addition to any other indemnities provided for in this Agreement, the Company shall
indemnify and hold harmless the Escrow Agent and each of its officers, directors, agents and
employees from and against all claims, liabilities, losses and damages (including attorneys’ fees)
incurred by the Escrow Agent or such persons and which directly or indirectly result from any
violation or alleged violation of Federal or state securities laws. The name of the Escrow Agent
or any similar words shall not be used by the Company or reproduced in any prospectus or offering,
sales or similar material utilized by the Company or anyone acting on the Company’s behalf in
connection with the offering or sale of the Units, other than to state that Subscriptions will be
deposited in an escrow account that it has established with the Escrow Agent and describing the
terms and conditions on which the Subscriptions will be held and released. The Escrow Agent
understands and agrees that this Agreement shall be filed as an exhibit to the registration
statement filed with the Securities and Exchange Commission relating to the Offering and with state
securities authorities. The Escrow Agent shall cooperate with the Company with respect to any
special requirements of the Securities and Exchange Commission and state securities authorities
regarding this Agreement and the terms of escrow provided herein. In
connection therewith, the securities authorities of any state in
which the offering is made may, at any time upon reasonable notice,
inspect and copy the records of the Escrow Agent, insofar as they
relate to this Agreement, for the purpose of determining compliance
with the securities laws and regulations of such state.



13. Fees and Expenses of Escrow Agent. The Escrow Agent shall be entitled to compensation as
described in Exhibit B attached hereto, promptly paid by the Company at such time or times as set
forth therein, for the services provided by Escrow Agent hereunder. The provisions of this Section
13 shall survive any termination of this Agreement or the resignation or removal of the Escrow
Agent. The fees agreed upon for services rendered hereunder are intended as full compensation for
the Escrow Agent’s services as contemplated by this Agreement; provided, however, that in the event
the Escrow Agent renders any material service not contemplated in this Agreement, or there is any
assignment of any interest in the subject matter of this Agreement, or any material modification
hereof, or if any material controversy arises hereunder, or the Escrow Agent is made a party to any
litigation pertaining to this Agreement, then the Escrow Agent shall be reasonably compensated for
such extraordinary services and reimbursed for all costs and expenses, including reasonable
attorney’s fees, occasioned by any delay, controversy, litigation or event, and the same shall be
recoverable from the Company, but not from the Escrow Account.



14. Representations and Warranties.




     a. The Company makes the following representations and warranties to the Escrow
Agent, as of the date hereof:



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     1. The Company is a limited liability company duly organized, validly existing, and in
good standing under the laws of the state of Delaware, is authorized by the Missouri
Secretary of State to transact business in the State of Missouri, and has full power and
authority to execute and deliver this Agreement and to perform its obligations hereunder;




     2. This Agreement has been duly approved by all necessary action of the Company, has
been executed by duly authorized persons of the Company, and constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms;




     3. The execution, delivery, and performance by the Company of this Agreement will not
violate, conflict with, or cause a default under the Company’s governing instruments, any
applicable law or regulation, any court order or administrative ruling or decree to which
the Company is a party or any of its property is subject, or any agreement, contract,
indenture or other binding arrangement to which the Company is a party or any of its
property is subject; and




     4. The Company hereby acknowledges that the status of the Escrow Agent is that of agent
only for the limited purposes set forth herein, and hereby represents and covenants that no
representations or implications shall be made that the Escrow Agent has investigated the
desirability or advisability of an investment in the Units or has approved, endorsed or
passed upon the merits of the investments therein and that the name of the Escrow Agent has
not and shall not be used in any manner in connection with the offer or sale of the Units
other than to state that the Escrow Agent has agreed to serve as agent for the limited
purposes set forth herein.



     b. The Escrow Agent represents and warrants to the Company, as of the date hereof, that the
Escrow Agent has all necessary powers and authority to act as an escrow agent as set forth in this
Agreement.



15. Consent to Jurisdiction and Venue. In the event that any party hereto commences a lawsuit or
other proceeding relating to or arising from this Agreement, the parties hereto agree that the
courts of the state of Missouri shall have sole and exclusive jurisdiction and shall be proper
venue for any such lawsuit or judicial proceeding and the parties hereto waive any objection to
such venue. The parties hereto consent to and agree to submit to the jurisdiction of the courts
specified herein and agree to accept service or process to vest personal jurisdiction over them in
any of these courts.



16. Notice. Any notice and other communications hereunder shall be in writing and shall be deemed
to have been validly served, given or delivered five (5) days after deposit in the United States
mail, by certified or registered mail with return receipt requested and postage prepaid, at the
time of delivery when delivered personally, one (1) day after delivery to any overnight courier, or
when transmitted by facsimile transmission facilities, and addressed to the party to be notified as
follows, provided, however, that the Escrow Agent shall not be deemed to have received any notice
or communication prior to its actual receipt thereof:



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     If to the Company at:


Ozark Ethanol, LLC

Attention: Chair

300 West Kneeland Street

Liberal, Missouri 64762

Fax:




     If to the Escrow Agent:


US Bank

Attn: Lloyd R. Tubaugh, Market President

1011 Gulf Street

Lamar, Missouri 64759

Fax:




or to such other address as each party may designate for itself by like notice.



17. Amendment or Waiver. This Agreement and any provision hereof may be amended, changed, waived,
discharged, superseded, cancelled or terminated only by a writing signed by the Company and the
Escrow Agent. No delay or omission by any party in exercising any right with respect hereto shall
operate as a waiver. A waiver on any one occasion shall not be construed as a bar to, or wavier
of, any right or remedy on any future occasion.



18. Severability. To the extent any provision of this Agreement is prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement.



19. Governing Law. This Agreement shall be construed and interpreted in accordance with the
internal laws of the state of Missouri without giving effect to the conflict of laws principles
thereof.



20. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating
to the acceptance, collection, holding, investment, release, return and disbursement of the
Subscriptions and Escrow Funds and sets forth in their entirety the obligations and duties of the
Escrow Agent with respect to the Subscriptions and Escrow Funds.



21. Binding Effect. All of the terms of this Agreement, as amended from time to time, shall be
binding upon, inure to the benefit of and be enforceable by the respective successors and assigns
of the Company and the Escrow Agent; provided, however, that neither this Agreement nor any rights
or obligations hereunder may be assigned by any party hereto without the express written consent of
each of the other party hereto.



22. Execution in Counterparts. This Agreement may be executed in any number of counterparts,
which, when so executed, shall constitute one and the same agreement.



11









 







23. Termination. Upon the first to occur of the release of all Subscriptions and disbursement of
all amounts in the Escrow Account pursuant to Section 4 or 5 hereof or deposit of all Subscriptions
and all amounts in the Escrow Account into court pursuant to Section 6 hereof, this Agreement shall
terminate and the Escrow Agent shall have no further responsibilities whatsoever with respect to
this Agreement or the Subscriptions or the Escrow Funds, except that the Escrow Agent may be
required to prepare and issue IRS Forms 1099 to the appropriate party(ies) in the event that an IRS
Form 1099 filing requirement arises with respect to interest or other income earned on the Escrow
Funds.



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



	 	 	 	 	 	 	 
	 	 	OZARK ETHANOL, LLC
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Kerry Rose
	 	 	 	 	 
	 	 	Name:	 	Kerry Rose
	 	 	 	 	 
	 	 	Its:	 	President
	 	 	 	 	 
	 	 	Federal Taxpayer I.D. number:	 	 
	 

	 	 	 	 	 	 






	 	 	 	 	 
	 	 	US BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Lloyd R. Tubaugh
	 

	 	 	 	 
	 

	 	Name:
	 	Lloyd R. Tubaugh
	 

	 	 	 	 
	 

	 	Its:
	 	Market President
	 

	 	 	 	 






12









 





EXHIBIT A




Form of Notice of Escrow Closing




(To be on Company letterhead)




(Date)




US Bank

Attn: Ray Tubaugh, Market President

1011 Market Street

Lamar, Missouri 64759




Fax:




     Re: Ozark Ethanol, LLC — Notice of Escrow Closing



Dear Sir/Madam:




     You are hereby notified that the following conditions to release of Subscriptions and Escrow
Funds being held in the Escrow Account for Ozark Ethanol, LLC (the “Company”) have been satisfied:





     (i) The Company has received, approved and deposited or caused to be deposited in
escrow Subscriptions and cash Payments on such Subscriptions (including the cash amount of
Initial Payments and cash payments on Promissory Notes) in the amount of $30,000,000 or
more, exclusive of interest; and






     (ii) The Company has received a written commitment or commitments for senior and
subordinated debt financing which, combined with the total amount of cash Payments deposited
in escrow and funds received or receivable from previous equity offerings, grants and other
resources, would equal at least $120,000,000.





     IN WITNESS WHEREOF, the undersigned hereby certifies he is duly authorized to execute this
notice on behalf of Ozark Ethanol, LLC.



	 	 	 	 	 
	 	 	OZARK ETHANOL, LLC
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 






 









 





EXHIBIT B




Compensation of Escrow Agent




     There are no charges associated with the handling of the Escrow Account as the Escrow Agent.
Fees for additional services will be charged accordingly.