Exhibit 10.7


 


EXECUTION COPY


 


LIMITED LIABILITY COMPANY

SECURITYHOLDERS AGREEMENT


 


Dated June 30, 2006


 


Among


 


HAWKEYE INTERMEDIATE, LLC



AND



THE OTHER PARTIES HERETO


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  REPRESENTATIONS
  AND WARRANTIES OF THE PARTIES

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Representations and
  Warranties of the Company

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.2

  	
  Representations and
  Warranties of the Securityholders

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  VOTING
  AGREEMENTS

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Election of Managers

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Actions Requiring Certain
  Approvals

  	
  4

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Other Voting Matters

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  TRANSFERS
  OF SECURITIES

  	
  4

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  General Restrictions on
  Transfers of Securities

  	
  4

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Right of First Refusal

  	
  5

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Rights of Co-Sale

  	
  6

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Securities Act Compliance

  	
  7

  
	
   

  	
   

  	
   

  
	
  3.5

  	
  Transfers in Violation of
  Agreement

  	
  7

  
	
   

  	
   

  	
   

  
	
  3.6

  	
  Transfers and Other
  Actions in Connection with Public Offering or Recapitalization

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  TAKE-ALONG
  RIGHTS ON APPROVED SALE

  	
  9

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Take-Along Right

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  INFORMATION
  RIGHTS

  	
  11

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Information Rights

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  PRE-EMPTIVE
  RIGHTS

  	
  11

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Issuance of New Securities

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  AMENDMENT
  AND TERMINATION

  	
  13

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Amendment and Waiver

  	
  13

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Termination of Agreement

  	
  13

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Termination as to a Party

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  MISCELLANEOUS

  	
  13

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Certain Defined Terms

  	
  13

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Legends

  	
  18

  
	
   

  	
   

  	
   

  
	
  8.3

  	
  Severability

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.4

  	
  Entire Agreement

  	
  19

  



 


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  8.5

  	
  Successors and Assigns

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.6

  	
  Counterparts

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.7

  	
  Remedies

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.8

  	
  Notices

  	
  20

  
	
   

  	
   

  	
   

  
	
  8.9

  	
  Governing Law

  	
  20

  
	
   

  	
   

  	
   

  
	
  8.10

  	
  Consent of THL

  	
  21

  
	
   

  	
   

  	
   

  
	
  8.11

  	
  Descriptive Headings

  	
  21

  



 


ii

















 


LIMITED LIABILITY COMPANY SECURITYHOLDERS AGREEMENT


 


THIS LIMITED LIABILITY
COMPANY SECURITYHOLDERS AGREEMENT (this “Agreement”) is entered into as
of June 30, 2006 by and among (i) Hawkeye Intermediate, LLC, a
Delaware limited liability company (the “Company”), (ii) Hawkeye
Holdings, L.L.C., an Iowa limited liability company (“HH”),
(iii) THL Hawkeye Acquisition Partners, THL Hawkeye Acquisition Partners
II, THL Hawkeye Acquisition Partners III, and certain other parties identified
on the signature pages hereto as a “THL Holder” that is or becomes a holder of
Units (each, a “THL Holder” and collectively “THL”), and
(iv) the initial parties to this Agreement who are identified as
Management Holders on the signature pages hereto (each, a “Management Holder,”
collectively, the “Management Holders”). HH, THL, the Management Holders
and each other holder of Securities that is or may become a party to this
Agreement as contemplated hereby are sometimes referred to herein collectively
as the “Securityholders” and individually as a “Securityholder”.
The Securities (as defined below) owned by each Securityholder are set forth on
Schedule A attached hereto.


 


The parties hereto agree as
follows:


 


ARTICLE I

REPRESENTATIONS AND WARRANTIES OF THE PARTIES


 


1.1           Representations and Warranties of the Company. The
Company hereby represents and warrants to the Securityholders that as of the
date of this Agreement:


 


(a)
                it is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, it has full power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby,
and the execution, delivery and performance by it of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary limited liability company action;


 


(b)
               this Agreement has been
duly and validly executed and delivered by the Company and constitutes a legal
and binding obligation of the Company, enforceable against the Company in
accordance with its terms; and


 


(c)
                the execution, delivery
and performance by the Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby will not, with or without the
giving of notice or lapse of time, or both (i) violate any provision of
law, statute, rule or regulation to which the Company is subject,
(ii) violate any order, judgment or decree applicable to the Company or
(iii) conflict with, or result in a breach or default under, any term or
condition of the Company’s organizational documents or any agreement or
instrument to which the Company is a party or by which it is bound.


 


1.2           Representations and Warranties of the Securityholders.
Each Securityholder (as to himself or itself only) represents and warrants to
the Company and the other Securityholders that, as of the time such Securityholder
becomes a party to this Agreement:


 

















 


(a)
                this Agreement (or the
separate joinder agreement executed by such Securityholder) has been duly and
validly executed and delivered by such Securityholder, and this Agreement
constitutes a legal and binding obligation of such Securityholder, enforceable
against such Securityholder in accordance with its terms; and


 


(b)
               the execution, delivery and
performance by such Securityholder of this Agreement (or any joinder to this
Agreement, if applicable) and the consummation by such Securityholder of the
transactions contemplated hereby (and thereby, if applicable) will not, with or
without the giving of notice or lapse of time, or both, (i) violate any
provision of law, statute, rule or regulation to which such Securityholder is
subject, (ii) violate any order, judgment or decree applicable to such
Securityholder or (iii) conflict with, or result in a breach or default
under, any term or condition of any agreement or other instrument to which such
Securityholder is a party or by which such Securityholder is bound.


 


ARTICLE II

VOTING AGREEMENTS


 


2.1           Election of Managers.


 


(a)
                Size and Composition of
the Board. The holders of a majority of the outstanding Class A Common
Units shall be entitled to elect the managers to the Board. Each
Securityholder, other than the Company, that is a party to this Agreement
hereby agrees that such Securityholder will vote, or cause to be voted, all
voting securities of the Company over which such Securityholder has the power to
vote or direct the voting, and will take all other necessary or desirable
reasonable actions within such Securityholder’s control, and the Company will
take all necessary and desirable reasonable actions within its control, to
cause the authorized number of managers of the Board to be established at up to
nine (9) managers, with the initial Board fixed at seven (7)
managers, and cause to be continued in office, the following individuals:


 


(i)            one (1) manager designated by HH
(the “HH Manager”); provided, however, that HH shall lose
its right to designate a manager when HH (or the HH Members) fails to own at
least a majority of the Preferred Units and Class A Common Units it owns as of
the date hereof;


 


(ii)           four (4) managers designated by the
THL Holders as follows: one (1) manager designated by THL Hawkeye
Acquisition Partners or its designee (with the Company to be notified of such
designation), two (2) managers designated by THL Hawkeye Acquisition
Partners II or its designee (with the Company to be notified of such
designation) and one (1) manager designated by THL Hawkeye Acquisition
Partners III or its designee (with the Company to be notified of such
designation) (collectively, the “THL Managers”); and


 


(iii)          one (1) manager who shall be the Chief
Executive Officer of the Company.


 


2

















 


In addition, the Board will
have the right to appoint up to an additional three (3) independent members of
the Board, none of whom shall be either an employee of the Company or its
Subsidiaries or an Affiliate of THL or HH.


 


(b)                Number of Votes. At each
meeting of the Board (or any committee thereof) at which a quorum is present,
each manager shall be entitled to one vote on each matter to be voted on at
such meeting.


 


(c)
                Resignation and Removal.
If at any time any manager ceases to serve on the Board (whether due to
resignation, removal or otherwise), the Securityholder(s) shall designate a
successor manager to fill the vacancy created thereby on the terms and subject
to the conditions of paragraph (a) above. If at any time an HH Manager who is
an employee of the Company ceases his employment with the Company, such HH
Manager shall be removed from the Board and HH shall designate a new HH
Manager. Each Person that is a party hereto agrees to vote, or cause to be
voted, all voting securities of the Company over which such Person has the
power to vote or direct the voting, and shall take all such other reasonable
actions as shall be necessary or desirable, to cause the designated successor
to be elected to fill such vacancy. Any party or parties hereto entitled to
designate a specific manager, may remove such manager, at any time and from
time to time, with or without cause (subject to applicable law or the LLC
Agreement), in such party’s or parties’ sole discretion, and after written
notice to each of the parties hereto of the new designee to replace such
manager, the Securityholders shall promptly vote, or cause to be voted, all
voting securities of the Company over which such Securityholder has the power
to vote or direct the voting, and will take all other necessary or desirable
reasonable actions within such Securityholder’s control, to elect such designee
to the Board in accordance with this Section 2.1. To the extent any
Securityholder entitled to designate a manager pursuant to Section 2.1(a)
fails to do so, the individual currently serving as a manager will continue in
office until his or her successor is designated and elected.


 


(d)                Removal for Cause.
Nothing in this Agreement shall be construed to impair any rights that the
Securityholders of the Company may have to remove any manager for cause under
applicable law or the LLC Agreement. No such removal of an individual
designated pursuant to this Section 2.1 for cause shall affect any
of the Securityholders’ rights to designate a different individual pursuant to
this Section 2.1 to fill the position from which such individual
was removed.


 


(e)
                Committees of the Board.
The Board shall establish an audit committee, compensation committee and
nominating committee and such other committees as the Board from time to time
may determine. Each committee shall be comprised of three (3) members, two
(2) of which shall be THL Managers as provided above.


 


(f)
                Transfer of Rights to Designate
Managers. In the event any of the THL Holders shall Transfer any of their
Preferred Units and Class A Common Units to a third party, THL shall have
the right, if it so elects, to permit such Transferee thereafter to have the
right to designate such number of managers (who theretofore were THL Managers)
as is determined by THL and that is reasonably proportionate to the Preferred
Units and


 


3

















 


Class A Common Units
transferred to such Transferee. HH’s right to designate a manager is not
transferable, other than to the HH Members acting by the consent of the holders
of a majority of the Units held by the HH Members.


 


2.2           Actions Requiring Certain Approvals.


 


(a)           Board Approval. Exhibit A hereto sets
forth a list of actions on the part of the Company or its Subsidiaries that
require approval of the Board. Notwithstanding the foregoing, the payment of
any fees by the Company to any Securityholder or their Affiliates (other than
pursuant to the Management Agreement as in effect on the date hereof) or any
transactions between the Company and any Affiliate shall require the approval
of a majority of the disinterested members of the Board.


 


(b)           Member Approval. The actions on the part of the
Company or its subsidiaries set forth on Exhibit A shall also
require the approval of the holders of a majority of the outstanding Preferred
Units.


 


2.3           Other Voting Matters. In order to effectuate the
provisions of Sections 3.6 and 4.1, each HH Member and each
Management Holder grants to the Chief Executive Officer of the Company, or if
he or she shall be unable to exercise this proxy due to illness or absence or
if the position of Chief Executive Officer of the Company shall be vacant, to
the President and Chief Financial Officer of the Company, a proxy to vote at
any annual or special meeting of Securityholders, or to take any action by
written consent in lieu of such meeting with respect to, or to otherwise take
action in respect of, all of the Securities owned or held of record by such
holder in connection with the matters set forth in Sections 3.6 and
4.1 in accordance with the provisions of Sections 3.6 and 4.1.
EACH OF THE PROXIES GRANTED HEREBY IS IRREVOCABLE AND IS COUPLED WITH AN
INTEREST. To effectuate the provisions of this Section 2, the
secretary of the Company, or if there be no secretary, such other officer or
employee of the Company or as the Board may appoint to fulfill the duties of
the secretary, shall not record any vote or consent or other action contrary to
the terms of this Section 2.


 


ARTICLE III

TRANSFERS OF SECURITIES


 


3.1           General Restrictions on Transfers of Securities.


 


(a)
                General. Prior to
the second anniversary of the Closing Date, neither HH nor any Management
Holder may Transfer any Units without the prior written consent of the Board.
Notwithstanding anything to the contrary contained in this Agreement, HH and
each Management Holder may Transfer without the necessity of prior approval all
or any of its, his or her Units pursuant to an Exempt Transfer and the
restrictions in this Section 3.1(a) shall not apply to any Exempt
Transfer; provided, however, that Preferred Units or Class A
Common Units may not be transferred separately. If a Unitholder proposes to
transfer Preferred Units or Class A Common Units, it shall also transfer a pro
rata amount of the other class of interests, as the case may be.


 


4

















 


(b)                Execution by Transferee of
Counterpart Signature Page. No Transfer of any Securities by any Securityholder,
other than a Public Sale, shall become effective unless and until the
Transferee (unless such Transferee already is a party to this Agreement)
executes and delivers to the Company a counterpart to this Agreement and the
LLC Agreement, agreeing to be treated in the same manner and have the same
status as the transferring Securityholder. Upon such Transfer and such
execution and delivery, the Transferee shall be bound by, and entitled to the
benefits of this Agreement with respect to the Transferred Securities in the
same manner as the transferring Securityholder. Any attempted Transfer of
Securities by any Securityholder not in accordance with this Section 3.1
shall not be effective and shall be void.


 


(c)
                HH Voting Matters.
If HH makes a distribution in kind to any HH Member, any action requiring the
consent or vote of HH hereunder will require the consent of the holders of a
majority of the Units held by the HH Members.


 


3.2           Right of First Refusal.


 


(a)
                After the second
anniversary of the Closing Date, if HH or any Management Holder (the “Transferring
Holder”) proposes to Transfer any Units to a third party (the “Proposed
Transferee”), then the Transferring Holder shall, before such Transfer,
deliver to the Company at least twenty (20) days’ prior written notice of
such proposed Transfer (the “Transfer Notice”) and the terms of such
Transfer, including (A) the number of Units to which the Transfer relates
(the “Transfer Units”), (B) the name and address of the proposed
Transferee, and (C) the proposed amount and type of consideration and the
terms and conditions of payment proposed by the Transferring Holder.


 


(b)                The Company (or its designees,
which may include other Securityholders) shall have the first right to purchase
all, but not less than all, of the Transfer Units. If the Company (or its
designee) desires to purchase all of the Transfer Units, it shall communicate
in writing its election to purchase all of the Transfer Units to the
Transferring Holder, which communication shall be given within ten (10)
days of the date the Transfer Notice was received by the Company. Such
communication shall be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of all of the Transfer Units.
Sales of the Transfer Units to be sold to the Company (or its designee)
pursuant to this Section 3.2 shall be made at the offices of the
Company within sixty (60) days following the date the Transfer Notice was
given.


 


(c)
                If the Company (or its
designee) does not purchase all of the Transfer Units, then the Transfer Units
may be sold by the Transferring Holder at any time within ninety (90) days
after the date the Transfer Notice was made, subject to the provisions of this Article III.
Any such sale shall be to the Proposed Transferee at not less than the price
and upon other terms and conditions, if any, not more favorable to the Proposed
Transferee than those specified in the Transfer Notice. If the Transfer Units
are not sold within such 90-day period, they shall continue to be subject to
the requirements of a prior offer pursuant to this Article III, and
may not be transferred except in compliance with the provisions of this Article III.


 


5

















 


(d)                The provisions of Section 3.2
shall not apply to any Exempt Transfer.


 


3.3           Rights of Co-Sale.


 


(a)
                Tag-Along Rights.
Prior to (i) HH making any Transfer of Units (other than a Transfer
described in Section 3.3(b)) with respect to which the Company does
not elect to purchase all of such Units pursuant to Section 3.2,
and (ii) THL making any Transfer of Units (other than a Transfer described
in Section 3.3(b)), such holder of Units proposing to make such a
Transfer (for purposes of this Section 3.3, a “Selling Holder”)
shall give at least fifteen (15) days’ prior written notice to each other
Securityholder (for purposes of this Section 3.3, each an “Other
Holder”), and the Company, which notice (for purposes of this Section 3.3,
the “Sale Notice”) shall identify the Units that are proposed to be sold
(for purposes of this Section 3.3, the “Co-Sale Offered
Securities”), and describe in reasonable detail the terms and conditions of
such proposed Transfer and identify each prospective Transferee. Any of the
Other Holders may, within ten (10) days of the receipt of the Sale Notice,
give written notice (each, a “Tag-Along Notice”) to the Selling Holder
that such Other Holder wishes to participate in such proposed Transfer upon the
terms and conditions set forth in the Sale Notice, which Tag-Along Notice shall
specify the Units such Other Holder desires to include in such proposed
Transfer; provided, however, that (1) each Other Holder
shall be required, as a condition to being permitted to sell Units pursuant to
this Section 3.3(a) in connection with a Transfer of Co-Sale
Offered Securities, to sell its proportionate amount (based on the respective
Pro Rata Amounts of the Selling Holder and each Other Holder exercising
tag-along rights under this Section 3.3(a)) of the Units proposed
to be sold by the Selling Holder and (2) to exercise its tag-along rights
hereunder, each Other Holder must agree to make to the Transferee the same
representations, warranties, covenants, indemnities and agreements as the
Selling Holder agrees to make in connection with the Transfer of the Co-Sale
Offered Securities (except that in the case of representations and warranties
pertaining specifically to, or covenants made specifically by, the Selling
Holder, the Other Holders shall make comparable representations and warranties
pertaining specifically to (and, as applicable, covenants by) themselves), and
must agree to bear his or its ratable share (which shall be proportionate based
on the value of Units that are Transferred but shall not exceed the amount of
proceeds received in connection with such Transfer) of all liabilities to the
Transferees arising out of representations, warranties and covenants (other
than those representations, warranties and covenants that pertain specifically
to a given Securityholder, who shall bear all of the liability related
thereto), indemnities or other agreements made in connection with the Transfer.
Each participating Other Holder will bear its or his pro-rata share (based upon
the relative amount of Units sold) of all reasonable and customary costs of the
sale of Units pursuant to this Section 3.3(a) to the extent such
costs are not otherwise paid by the Transferee. If any holder of Class B Common
Units wishes to participate in any sale pursuant to this Section 3.3(a),
appropriate economic adjustments to the Class B Common Units offered for sale
in the Tag-Along Notice may be made to reflect the economic value of the Class
B Common Units (as determined in accordance with Section 5.4 of the LLC
Agreement). Any holder of Class B Common Units shall only be entitled to
participate in sales of Common Units hereunder.


 


6

















 


If none of the Other Holders
gives the Selling Holder a Tag-Along Notice prior to the expiration of the
10-day period for giving Tag-Along Notices with respect to the Transfer
proposed in the Sale Notice, then (notwithstanding the first sentence of this Section 3.3(a))
the Selling Holder may Transfer such Co-Sale Offered Securities on the terms
and conditions set forth, and to or among any of the Transferees identified (or
Affiliates of Transferees identified), in the Sale Notice at any time within
ninety (90) days after expiration of the 10-day period for giving
Tag-Along Notices with respect to such Transfer. Any such Co-Sale Offered
Securities not Transferred by the Selling Holder during such 90-day period will
again be subject to the provisions of Section 3.2 and this Section 3.3(a)
upon subsequent Transfer. If one or more Other Holders give the Selling Holder
a timely Tag-Along Notice, then the Selling Holder shall use all reasonable
efforts to obtain the agreement of the prospective Transferee(s) to the
participation of such Other Holders in any contemplated Transfer, on the same
terms and conditions as are applicable to the Co-Sale Offered Securities, and
no Selling Holder shall transfer any of its Securities to any prospective
Transferee if such prospective Transferee(s) declines to allow the
participation of such Other Holders, as provided herein.


 


(b)                Excluded Transfers. The rights
and restrictions contained in Section 3.3(a) shall not apply with
respect to any Exempt Transfer or any Transfer of Securities in a Public Sale.


 


(c)
                Excluded Securities.
No Securities that have been transferred by the Selling Holder or an Other Holder
in a Transfer pursuant to the provisions of Section 3.3(a) (“Excluded
Securities”) shall be subject again to the restrictions set forth in Section 3.3(a),
nor shall any Securityholder holding Excluded Securities be entitled to
exercise any rights as an Other Holder under Section 3.3(a) with
respect to such Excluded Securities, and no Excluded Securities held by a
Selling Holder or any Other Holder shall be counted in determining the
respective participation rights of such holders in a Transfer subject to Section 3.3(a).


 


3.4           Securities Act Compliance. No Securities may be
Transferred by a Securityholder (other than pursuant to an effective
registration statement under the Securities Act) unless such Securityholder
first delivers, upon the Company’s request, to the Company an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory to the
Company, to the effect that such Transfer is not required to be registered
under the Securities Act.


 


3.5           Transfers in Violation of Agreement. Any Transfer
or attempted Transfer of any Securities in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported Transferee of such Securities as the owner of such
Securities for any purpose.


 


3.6           Transfers and Other Actions in Connection with Public
Offering or Recapitalization.


 


(a)
                If a Public Offering has
been approved by the Board and the Board deems it necessary or advisable to
(i) cause the outstanding equity securities of the Company to be
contributed to a corporation (the “IPO Corp.”) (including, without 


 


7

















 


limitation, the contribution
of such equity interests to one of the THL Corporate Holders), or
(ii) effect a transaction having a similar effect, all Securityholders
shall take any and all reasonable actions requested by the Board to cause the
outstanding equity securities of the Company to be exchanged or contributed
(through merger or otherwise) to such IPO Corp. The Company shall not take any
action which is inconsistent with treating such exchange or contribution of the
equity securities of the Company as an exchange or contribution of a capital
asset for a capital asset of IPO Corp. Upon the contribution of the outstanding
equity securities of the Company to IPO Corp., the Securityholders shall enter
into a securityholders agreement with IPO Corp. in the form attached hereto as Exhibit B.
The Company and the Securityholders shall use reasonable best efforts to structure
any contribution by Securityholders to IPO Corp. to be governed by
Section 351 of the Code and otherwise minimize adverse tax consequences to
the Securityholders. For the avoidance of doubt, the consummation of the
transactions contemplated in this Section 3.6(a) will not
constitute a Sale of the Company. The securities of IPO Corp. received by each
Securityholder shall have a fair value at least equal to the fair value of the
Securities replaced thereby, calculated as if the Company were being liquidated
in a hypothetical liquidation under Section 6.2(c) of the LLC Agreement.
With respect to the Preferred Units, the holders of the Preferred Units will
receive shares of redeemable preferred stock of IPO Corp. containing the
following terms: (i) the redeemable preferred stock shall have an accruing
dividend of 8% per year, compounding annually, from the date hereof through the
date of redemption or conversion of such redeemable preferred stock; the
redeemable preferred stock will participate in any dividends with respect to
the Common Stock of IPO Corp. to the extent such dividends on the Common Stock
exceed the 8% accruing dividend; (ii) the redeemable preferred stock will
be redeemable upon the initial Public Offering at a price equal to $351,000,000
plus all accrued and unpaid Preferred Returns (the “Redemption Amount”);
(iii) to the extent, whether for market or other reasons, IPO Corp. cannot
redeem the full amount of the redeemable preferred stock upon the initial
Public Offering, upon the election of either THL or HH to convert the
redeemable preferred stock into Common Stock, all redeemable preferred stock
held by THL and HH and not redeemed shall convert into that number of shares of
common stock of IPO Corp. equal to the Redemption Amount divided by the price
to the public of shares of Common Stock in the Public Offering; and
(iv) the redeemable preferred stock will be redeemable upon a liquidation,
winding up or sale of the Company at a price equal to the greater of
(x) the Redemption Amount plus any and all accrued and unpaid dividends
and (y) the same price per share payable with respect to the Common Stock
(with accrued and unpaid dividends to be forgiven). With respect to the Class B
Common Units, vesting restrictions applicable to such Class B Common Units will
continue to apply unchanged to the shares of Common Stock of IPO Corp. received
in exchange for such Class B Common Units.


 


(b)                If approved by the managing
underwriter, IPO Corp. may distribute to each of THL and HH, in an amount based
on each of THL and HH’s Pro Rata ownership of Common Units immediately prior to
the contribution of the outstanding equity securities of the Company to IPO
Corp., the right to receive certain payments from IPO Corp. following the
Public Offering, which such payments will be in amounts equal to the tax
savings recognized by IPO Corp. in connection with certain tax attributes
transferred to IPO Corp. in connection with the restructuring.


 


8

















 


(c)
                If the Board deems it
necessary or advisable to form a limited liability company as a holding company
to own 100% of the outstanding equity interests of the Company (“Holdco LLC”),
all Securityholders shall take any and all reasonable actions requested by the
Board to cause the outstanding Securities of the Company to be contributed to
such Holdco LLC in exchange for equity securities (the “Holdco LLC
Securities”) having the same terms as the Securities contributed and such
Holdco LLC Securities to be held among the Securityholders in the same
proportion as the Securities are held immediately prior to the contribution and
exchange. Upon the contribution of the outstanding Securities of the Company to
Holdco LLC in exchange for the Holdco LLC Securities, Holdco LLC shall become
party to this Agreement and all references herein to the Company shall be
deemed to refer to Holdco LLC and the Company shall be a “Subsidiary” of the
Company. For the avoidance of doubt, the consummation of the transactions
contemplated in this Section 3.6(c) will not constitute a Sale of
the Company. The securities of Holdco LLC received by each Securityholder shall
be of like kind and have a fair value at least equal to the fair value of the
Securities replaced thereby, calculated as if the Company were being liquidated
in a hypothetical liquidation under Section 6.2(c) of the LLC Agreement.


 


ARTICLE IV

TAKE-ALONG RIGHTS ON APPROVED SALE


 


4.1           Take-Along Right.


 


(a)
                Sale of the Company.
If THL elects to consummate, or to cause the Company to consummate, a
transaction constituting a Sale of the Company by way of a sale of at least 75%
of the Units held by THL in a bona fide third-party sale, THL shall notify the
Company and the other Securityholders in writing of that election, all other
Securityholders will agree to participate in, consent to and raise no
objections to the proposed transaction (other than with respect to fiduciary
duty claims and conflict of interest claims), and the Securityholders and the
Company will take all other actions reasonably necessary or desirable to cause
the consummation of such Sale of the Company on the terms proposed by THL. In
connection therewith, each other Securityholder shall be required to make the
same representations, warranties, covenants, indemnities and agreements as THL
agrees to make in connection with the Sale of the Company (except in the case
of representations and warranties pertaining specifically to, or covenants made
specifically by, THL, the other Securityholders shall make comparable
representations and warranties pertaining specifically to (and, as applicable,
covenants by) themselves), and must agree to bear his, her or its ratable share
(which shall be proportionate based on the value of Securities sold) of all
liabilities to the Transferees arising out of representations, warranties and
covenants (other than those representations, warranties and covenants that
pertain specifically to a given Securityholder), indemnities or other
agreements made in connection with the Sale of the Company. Each Securityholder
will bear its, his or her pro-rata share (based on the relative amount of
Securities sold) of all reasonable and customary costs of the sale of
Securities pursuant to this Section 4.1(a) to the extent such costs
are not otherwise paid by the acquirer. Without limiting the foregoing,
(i) if the proposed Sale of the Company is structured as a sale of assets
or a merger or consolidation, or otherwise


 


9

















 


requires equityholder
approval, the Securityholders and the Company will vote or cause to be voted
all Securities that they hold or with respect to which such Securityholder has
the power to direct the voting and which are entitled to vote on such
transaction in favor of such transaction and will waive any appraisal rights
which they may have in connection therewith and (ii) if the proposed Sale
of the Company is structured as or involves a sale or redemption of Securities,
the Securityholders will agree to sell their pro rata share of the Securities
being sold in such Sale of the Company on the terms and conditions approved by
THL, and the Securityholders will execute any merger, asset purchase, security
purchase, recapitalization or other sale agreement approved by THL in
connection with such Sale of the Company.


 


(b)                Conditions. The
obligations of the Securityholders with respect to the Sale of the Company are
subject to the satisfaction of the following conditions: upon the consummation
of the Sale of the Company, all of the holders of a particular class or series
of Securities shall receive the same form and amount of consideration per
share, unit or amount of Securities, or if any holders of a particular class or
series of Securities are given an option as to the form and amount of
consideration to be received, all holders of such class or series will be given
the same option. The amount to be received by each such Securityholder will be
in accordance with the provisions of Section 5.4 of the LLC Agreement.


 


(c)
                Costs and Expenses.
Each Securityholder will bear its, his or her pro-rata share (based upon the
relative amount of Securities sold) of the reasonable and customary costs of
any sale of Securities pursuant to a Sale of the Company to the extent such
costs are incurred for the benefit of all Securityholders and are not otherwise
paid by the Company or the acquiring party. Costs incurred by or on behalf of a
Securityholder for its, his or her sole benefit will not be considered costs of
the transaction hereunder. In the event that any transaction that THL elects to
consummate or cause to be consummated pursuant to this Section 4.1
is not consummated for any reason (other than a breach by THL), the Company
will reimburse THL for all actual and reasonable expenses paid or incurred by
THL in connection therewith; provided, however, that the Company
shall not be required to reimburse THL for the expenses of more than one legal
or financial adviser, as the case may be.


 


(d)                Further Assurances. In
the event of a sale or exchange by the Securityholders of all or substantially
all of the Securities held by the Securityholders (whether by sale, merger,
recapitalization, reorganization, consolidation, combination or otherwise),
each Securityholder shall receive in exchange for the Securities held by such
Securityholder the same portion of the aggregate consideration from such sale
or exchange that such Securityholder would have received if such aggregate
consideration had been distributed by the Company in complete liquidation
pursuant to the rights and preferences set forth in the LLC Agreement as in
effect immediately prior to such sale or exchange. Each Securityholder shall
take all necessary or desirable reasonable actions in connection with the
distribution of the aggregate consideration from such sale or exchange as
requested by the Company.


 


10

















 


ARTICLE V

INFORMATION RIGHTS


 


5.1           Information Rights. Prior to the consummation of
the initial Public Offering by the Company or any successor entity, the Company
shall provide to holders of more than one percent (1%) of the outstanding
Units:


 


(a)
                Audited Annual
Statements. Within one hundred twenty (120) days after the end of each
fiscal year, an audited balance sheet of the Company as of the end of such
fiscal year, and an audited statement of income and statement of cash flows of
the Company for such year, in each case prepared in accordance with GAAP and
setting forth in comparative form the figures for the previous fiscal year, all
in reasonable detail.


 


(b)                Quarterly Statements.
Within forty-five (45) days after the end of each of the first three fiscal
quarters of each fiscal year, unaudited balance sheets of the Company as of the
end of such fiscal quarter, unaudited statements of income, and unaudited
statements of cash flows for such fiscal quarter and for the current fiscal
year to date. Such financial statements shall be prepared in accordance with
GAAP consistently applied (other than omission of accompanying notes) and
compared with both the actual results from the corresponding quarter of the
previous fiscal year and the budget for the current fiscal year, all in
reasonable detail.


 


ARTICLE VI

PRE-EMPTIVE RIGHTS


 


6.1           Issuance of New Securities.


 


(a)
                Purchase Rights. If
at any time after the date of this Agreement the Company proposes to issue or
sell any Units, Common Stock, Common Stock Equivalents or Preferred Stock of
the Company (collectively, “New Securities”) to any Person, the Company
shall first offer to sell to the Securityholders holding Common Units that have
vested or are not subject to vesting pursuant to the terms of any agreement
with the Company a portion of each type of such New Securities equal to the
quotient determined by dividing (x) the number of vested Common Units
which are held or beneficially owned by such Securityholder, by (y) the
total number of Common Units outstanding immediately prior to such issuance or
sale. The Securityholders shall be entitled to purchase all or any portion of
their respective portions (as determined in the immediately preceding sentence)
of such New Securities at the most favorable price and on the most favorable
terms as such New Securities are to be offered to any Person.


 


(b)                Offer Period. In order to
exercise its purchase rights hereunder, each Securityholder must, within
thirty (30) days after receipt of written notice from the Company
describing in reasonable detail the New Securities being offered, the purchase
price thereof, the payment terms and the percentage of the New Securities
available to such holder pursuant to Section 6.1(a), deliver a
written notice to the Company describing its election to exercise its purchase
rights hereunder.


 


11

















 


(c)
                Expiration of Offer
Period. Upon the expiration of the offering periods described above, the
Company shall be entitled to sell such New Securities which the Securityholders
have not elected to purchase during the one hundred eighty (180) days
following such expiration on terms and conditions no more favorable to the
purchasers thereof than those offered to the Securityholders. Any New
Securities to be sold by the Company to any Person after such 180-day period
must be reoffered to the Securityholders pursuant to the terms of this Section 6.1.


 


(d)                Exceptions to Purchase Rights.
The provisions of this Section 6.1 will not apply to the following
issuances of New Securities:


 


(i)            any New Securities issued upon the
conversion or exercise of any Common Stock Equivalents not issued in violation
of this Section 6.1;


 


(ii)           any issuance of New Securities
incident to the exercise, conversion or exchange of any securities of the
Company that were not issued in violation of this Section 6.1, a
subdivision of shares (including, without limitation, any stock dividend or
stock split), any combination of shares (including, without limitation, any
reverse stock split) or any recapitalization, reorganization or
reclassification of the Company;


 


(iii)          any New Securities issued to a
seller(s) in connection with business acquisitions or similar transactions
approved by the Board;


 


(iv)          Class B Common Units or other
incentive equity issued to employees or consultants of the Company up to five
percent (5%) of the fully diluted ownership of the Company; or


 


(v)           any securities issued in a Public
Offering.


 


(e)
                Distressed Purchase.
Nothing in this Section 6.1 shall be deemed to prevent THL or any
Affiliate of THL from purchasing for cash any New Securities without first
complying with the provisions of this Section 6.1; provided,
that in connection with such purchase, (i) the Board has determined in
good faith (1) that the Company needs an immediate cash investment,
(2) that no alternative financing on terms no less favorable to the
Company in the aggregate than such purchase is available which is of a type
that could be obtained without having to comply with this Section 6.1
and (3) that the delay caused by compliance with the provisions of this Section 6.1
in connection with such investment would be reasonably likely to cause material
and immediate harm to the Company, (ii) the Company gives prompt notice to
the other Securityholders of such investment, which notice shall describe in
reasonable detail the New Securities being purchased by the Person making such
purchase (for purposes of this Section 6.1, the “Purchasing
Holder”) and the purchase price thereof and (iii) the Purchasing
Holder and the Company take all steps necessary to enable the other
Securityholders to effectively exercise their respective rights under this Section 6.1
with respect to their purchase of a pro-rata share of the New Securities issued
to the Purchasing Holder after such purchase by the Purchasing Holder on the
terms specified in Section 6.1(a).


 


12

















 


ARTICLE VII

AMENDMENT AND TERMINATION


 


7.1           Amendment and Waiver. Except as otherwise provided
herein, no modification, amendment or waiver of any provision of this Agreement
shall be effective against the Company or the Securityholders unless such
modification, amendment or waiver is approved in writing by each of the
Company, the THL Holders and HH; provided, however, that if any
modification, amendment or waiver adversely affects the rights of the Class B
Common Units, the consent of the holders of a majority of the Class B Common
Units shall be required for such modification, amendment or waiver. The failure
of any party to enforce any of the provisions of this Agreement shall in no way
be construed as a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.


 


7.2           Termination of Agreement. This Agreement will
terminate in respect of all Securityholders upon the earliest to occur of:
(a) with the written consent of the Company, the THL Holders holding a
majority of the Units held by all THL Holders, and HH, (b) upon the
dissolution, liquidation or winding-up of the Company, (c) upon the
consummation of a Sale of the Company, or (d) the Company’s or any successor
entity’s (including the IPO Corp.’s) initial Public Offering.


 


7.3           Termination as to a Party. Any Person who ceases to
hold any Securities shall cease to be a Securityholder and shall have no
further rights or obligations under this Agreement.


 


ARTICLE VIII

MISCELLANEOUS


 


8.1           Certain Defined Terms. As used in this Agreement,
the following terms shall have the meanings set forth or as referenced below:


 


“Affiliate” of any
particular Person means any other Person Controlling, Controlled by or under
common Control with such particular Person or, in the case of a natural Person,
any other member of such Person’s Family Group.


 


“Agreement” has the
meaning given to such term in the preamble.


 


“Board” means the
Board of Managers of the Company.


 


“Class A Common Units”
means the Class A Common Units of the Company, and any units, shares or
other equity interests of the Company or a successor entity received in respect
of such Class A Common Units.


 


“Class B Common Units”
means the Class B Common Units of the Company, and any units, shares or other
equity interests of the Company or a successor entity received in respect of
such Class B Common Units.


 


13

















 


“Closing” or “Closing
Date” has the meaning given to such term in the Purchase Agreement.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time, or any successor
statute. Any reference herein to a particular provision of the Code shall mean,
where appropriate, the corresponding provision in any successor statute.


 


“Co-Sale Offered
Securities” has the meaning given such term in Section 3.3(a).


 


“Common Stock” means,
collectively, following the contribution of the outstanding equity securities
of the Company to a corporation or the Company being merged into, or otherwise
succeeded by, a corporation, the common stock of the Company or such successor
and any other class or series of authorized capital stock of the Company or
such successor which is not limited to a fixed sum or percentage of par or
stated value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the successor to the Company.


 


“Common Stock Equivalents”
means (without duplication with any Units, Common Stock or other Common Stock
Equivalents) rights, warrants, options, convertible securities, or exchangeable
securities or indebtedness, or other rights, exercisable for or convertible or
exchangeable into, directly or indirectly, Units, Common Stock or securities
exercisable for or convertible or exchangeable into Units or Common Stock, as
the case may be, whether at the time of issuance or upon the passage of time or
the occurrence of some future event.


 


“Common Units” means,
collectively, the Class A Common Units and the Class B Common Units.


 


“Company” has the
meaning given to such term in the preamble.


 


“Control” (including,
with correlative meaning, all conjugations thereof) means with respect to any
Person, the ability of another Person to control or direct the actions or
policies of such first Person, whether by ownership of voting securities, by
contract or otherwise.


 


“Excluded Securities”
has the meaning set forth in Section 3.3(c).


 


“Exempt Transfer”
means a Transfer of Securities (a) to the Company (or its designee)
pursuant to the exercise of a right of first refusal pursuant to Section
3.2(a), (b) pursuant to an exercise of tag-along rights as an Other
Holder under Section 3.3, (c) pursuant to a Sale of the
Company under Section 4.1, (d) upon the death of the holder
pursuant to the applicable laws of descent and distribution, (e) solely to
or among such Person’s Family Group (so long as the individual effecting such
Transfer maintains control over the voting and disposition of such Securities),
(f) incidental to the exercise, conversion or exchange of such Securities
in accordance with their terms, any combination of Securities (including,
without limitation, any reverse stock split) or any recapitalization,
reorganization or reclassification of, or any merger or consolidation
involving, the Company, including pursuant to Section 3.6,
(g) pursuant to the terms of the Indemnity Escrow Agreement, (h) to
or among the partners or


 


14

















 


members of THL and the
partners, securityholders and employees of such partners, or to an Affiliate of
the holder effecting such Transfer (provided, that the Affiliate to which such
Transfer is made at all times thereafter during the term of this Agreement remains
an Affiliate of the holder effecting such Transfer), (i) in an amount having a
value (based on the initial purchase price paid by THL) of up to $4.0 million,
consisting of 90% Preferred Units and 10% Class A Common Units, to Mission
Enterprises, LLC, a “qualified institutional buyer” (as such term is defined
under Rule 144A of the Securities Act of 1933, as amended) (a “QIB”),
(j) (i) pursuant to distributions in kind by HH to its members and
distributions in kind by such members to their respective shareholders,
partners or members, (ii) upon such member’s death, incapacity or
otherwise pursuant to the applicable laws of descent and distribution, or
(iii) to any member of such member’s Family Group (each holder or
transferee in this subsection (j), an “HH Member”),
(k) pursuant to distributions in kind by THL Hawkeye Coinvest Partners,
L.P. to its limited partner, distributions in kind by such limited partner to
its shareholder, and distributions in kind by such shareholder to its limited
partners, provided that each such Transferee shall continue to be referred to
as a THL Holder for purposes of this Agreement, or (l) in an aggregate
amount having a value (based on the initial purchase price paid by THL) of up
to $20.0 million, consisting of 90% Preferred Units and 10% Class A Common
Units to certain lenders, each of which will be a QIB, under (i) that
certain First Lien Credit Agreement dated as of June 30, 2006 among the
Company, THL-Hawkeye Acquisition LLC, the lenders party thereto and Credit Suisse,
as administrative agent and collateral agent for such lenders, and
(ii) that certain Second Lien Credit Agreement dated as of June 30, 2006
among the Company, THL-Hawkeye Acquisition LLC, the lenders party thereto and
Credit Suisse, as administrative agent and collateral agent for such lenders.


 


“Family Group” means,
with respect to any individual, such individual’s spouse, parents, siblings and
descendants (whether natural or adopted) and any trust, partnership, limited
liability company or similar vehicle established and maintained solely for the
benefit of (or the sole members or partners of which are) such individual, such
individual’s spouse and/or such individual’s parents, siblings and descendants.


 


“GAAP” shall mean
United States generally accepted accounting principles.


 


“HH” has the meaning
given such term in the preamble.


 


“HH Manager” has the
meaning given such term in Section 2.1(a)(i).


 


“HH Member” has the
meaning given such term in the definition of Exempt Transfer.


 


“Indemnity Escrow
Agreement” means that certain Indemnity Escrow Agreement by and among The
Bank of New York, HH, THL and the Company dated the date hereof.


 


“LLC Agreement” means
the Amended and Restated Limited Liability Company Agreement dated as of the
date hereof among the Company, THL, HH and the other parties thereto.


 


15

















 


“Management Agreement”
means the Management Agreement dated as of the date hereof by and between the
Company and THL Managers VI, LLC.


 


“Management Holder(s)”
has the meaning given to such term in the preamble.


 


“New Securities” has
the meaning given such term in Section 6.1(a).


 


“Other Holder” has
the meaning given such term in Section 3.3(a).


 


“Person” means an
individual, a partnership, a joint venture, a corporation, an association, a
joint stock company, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency or political
subdivision thereof.


 


“Preferred Return”
has the meaning set forth in the LLC Agreement.


 


“Preferred Stock”
means collectively, following the contribution of the outstanding equity
securities of the Company to a corporation or the Company being merged into, or
otherwise succeeded by, a corporation, the classes or series of authorized capital
stock of the Company that is limited to a fixed sum or percentage of par value
or stated value in respect of the rights of the holders thereof to participate
in dividends and in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of the successor to the
Company.


 


“Preferred Units”
means the Class A Redeemable Preferred Units of the Company.


 


“Pro Rata Amount” or “Pro
Rata” means, with respect to (a) Preferred Units, the quotient
obtained by dividing (i) the number of Preferred Units held by such
Securityholder by (ii) the aggregate number of Preferred Units held by all
Securityholders, and (b) Common Units, the quotient obtained by dividing
(i) the number of Common Units that are not subject to further vesting
pursuant to the terms of any agreement with the Company held by such
Securityholder by (ii) the aggregate number of Common Units held by all
Securityholders. In each case, Securities held in escrow under the Indemnity
Escrow Agreement shall be deemed to be owned by HH or, if applicable, HH
Members to whom such Securities have been distributed.


 


“Public Offering”
means a sale of Common Stock to the public in an offering pursuant to an
effective registration statement filed with the SEC pursuant to the Securities
Act, as then in effect, provided that a Public Offering shall not include an
offering made in connection with a business acquisition or combination or an
employee benefit plan.


 


“Public Sale” means a
sale of Securities pursuant to a Public Offering or a Rule 144 Sale or its
equivalent.


 


“Purchase Agreement”
means the Membership Interest Purchase Agreement dated as of May 11, 2006
by and among HH, Hawkeye Renewables, LLC, THL Hawkeye Acquisition Partners and
certain other parties thereto, as amended to date.


 


16

















 


“Purchasing Holder”
has the meaning given such term in Section 6.1(e).


 


“Rule 144” means Rule
144 adopted under the Securities Act (or any successor rule or regulation).


 


“Rule 144 Sale” means
a sale of Securities to the public through a broker, dealer or market-maker
pursuant to the provisions of Rule 144 (other than Rule 144(k) prior
to a Public Offering) adopted under the Securities Act (or any successor rule
or regulation).


 


“Sale of the Company”
means the consummation of a transaction, whether in a single transaction or in
a series of related transactions that are consummated contemporaneously (or
consummated pursuant to contemporaneous agreements), with any other Person or
group of related Persons on an arm’s-length basis other than an Affiliate of
THL, pursuant to which such party or parties (a) acquire (whether by
merger, stock purchase, recapitalization, reorganization, redemption, issuance
of capital stock or otherwise) more than 50% of the voting power of the Company
or (b) acquire assets constituting all or substantially all of the assets
of the Company and its Subsidiaries on a consolidated basis; provided, however,
that in no event shall a Sale of the Company be deemed to include any
transaction effected for the purpose of (i) changing, directly or
indirectly, the form of organization or the organizational structure of the
Company or any of its Subsidiaries or (ii) contributing assets or equity
to entities controlled by the Company (or owned by the Securityholders in
substantially the same proportions as their ownership of the Company).


 


“Sale Notice” has the
meaning given such term in Section 3.3(a).


 


“SEC” means the
Securities and Exchange Commission.


 


“Securities” means
all Preferred Units, Class A Common Units and Class B Common Units
that are subject to this Agreement.


 


“Securityholder(s)”
has the meaning given such term in the preamble.


 


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


 


“Selling Holder” has
the meaning given such term in Section 3.3(a).


 


“Subsidiary” means
any corporation with respect to which another specified corporation has the
power to vote or direct the voting of sufficient securities to elect directors
having a majority of the voting power of the board of directors of such
corporation.


 


“Tag-Along Notice”
has the meaning given such term in Section 3.3(a).


 


“THL” has the meaning
given such term in the preamble.


 


17

















 


“THL Corporate Holder”
means a corporation directly or indirectly controlled by Thomas H. Lee
Partners, L.P. that holds an indirect interest in the Company through a THL
Holder.


 


“THL Managers” has
the meaning given such term in Section 2.1(a)(ii).


 


“THL Holder” has the
meaning given such term in the preamble.


 


“THL Securities”
means (a) Common Stock or Common Stock Equivalents hereafter acquired by
THL and (b) any securities of the Company issued with respect to the
securities referred to in clauses (a) or (b) above by way of a payment-in-kind,
stock dividend or stock split or in connection with a combination of shares,
exchange, conversion, recapitalization, merger, consolidation or other
reorganization.


 


“Transfer” means (in
either the noun or the verb form, including with respect to the verb form, all
conjugations thereof within their correlative meanings) with respect to any
security, the gift, sale, assignment, transfer, pledge, hypothecation or other
disposition (whether for or without consideration, whether directly or
indirectly (including transfers of equity interests in HH), and whether
voluntary, involuntary or by operation of law) of such security or any interest
therein.


 


“Transferee” means
any Person to whom a Securityholder shall Transfer Units.


 


“Units” means the
Company’s Preferred Units, Class A Common Units or Class B Common Units.


 


8.2           Legends.


 


(a)
                Securityholders
Agreement. Each certificate or instrument evidencing Securities and each certificate
or instrument issued in exchange for or upon the Transfer of any such
Securities (if such securities remain subject to this Agreement after such
Transfer) shall be stamped or otherwise imprinted with a legend (as
appropriately completed under the circumstances) in substantially the following
form:


 


“THE SECURITIES REPRESENTED
BY THIS CERTIFICATE CONSTITUTE SECURITIES UNDER A CERTAIN SECURITYHOLDERS
AGREEMENT DATED AS OF JUNE 30, 2006 AMONG THE ISSUER OF SUCH SECURITIES
(THE “COMPANY”) AND CERTAIN OF THE COMPANY’S SECURITYHOLDERS AND, AS SUCH, ARE
SUBJECT TO CERTAIN VOTING PROVISIONS, PURCHASE RIGHTS AND RESTRICTIONS ON
TRANSFER SET FORTH IN THE SECURITYHOLDERS AGREEMENT. A COPY OF SUCH
SECURITYHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO
THE HOLDER HEREOF UPON WRITTEN REQUEST.”


 


18

















 


(b)                Restricted Securities.
Each instrument or certificate evidencing Securities and each instrument or
certificate issued in exchange or upon the Transfer of any Securities shall be
stamped or otherwise imprinted with a legend substantially in the following
form:


 


“THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND MAY NOT BE OFFERED OR SOLD UNLESS IT HAS BEEN REGISTERED UNDER THE
SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE (AND, IN
SUCH CASE, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY SHALL
HAVE BEEN DELIVERED TO THE COMPANY TO THE EFFECT THAT SUCH OFFER OR SALE IS NOT
REQUIRED TO BE REGISTERED UNDER THE SECURITIES ACT).”


 


(c)
                Removal of Legends.
Whenever in the opinion of the Company and counsel reasonably satisfactory to
the Company (which opinion shall be delivered to the Company in writing) the restrictions
described in any legend set forth above cease to be applicable to any
Securities, the holder thereof shall be entitled to receive from the Company,
without expense to the holder, a new instrument or certificate not bearing a
legend stating such restriction.


 


8.3           Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.


 


8.4           Entire Agreement. Except as otherwise expressly set
forth herein, this document embodies the complete agreement and understanding
among the parties hereto with respect to the subject matter hereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.


 


8.5           Successors and Assigns. Except as otherwise
provided herein, this Agreement shall bind and inure to the benefit of and be
enforceable by the Company and its successors and assigns and the
Securityholders and any subsequent holders of Securities and the respective
successors and assigns of each of them, so long as they hold Securities.


 


8.6           Counterparts. This Agreement may be executed in
separate counterparts (including by means of telecopied signature pages) each
of which shall be an original and all of which taken together shall constitute
one and the same agreement.


 


19

















 


8.7           Remedies. The Company and the Securityholders shall
be entitled to enforce their rights under this Agreement specifically, to
recover damages by reason of any breach of any provision of this Agreement
(including, without limitation, costs of enforcement) and to exercise all other
rights existing in their favor. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that the Company or any Securityholder may in its or his
sole discretion apply to any court of law or equity of competent jurisdiction
for specific performance or injunctive relief (without posting a bond or other
security) in order to enforce or prevent any violation of the provisions of
this Agreement.


 


8.8           Notices. Any notice provided for in this Agreement
shall be in writing and shall be either personally delivered, or mailed first
class mail (postage prepaid) or sent by reputable overnight courier service
(charges prepaid) to the Company at the address set forth below and to any
other recipient at the address indicated on the Company’s records, or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party; provided that any
notice to be given to THL shall be deemed delivered if such notice is delivered
to Thomas H. Lee Partners, L.P. at the address indicated below (with a copy to
Weil, Gotshal & Manges LLP at the address indicated below). Notices will be
deemed to have been given hereunder when sent by facsimile (receipt confirmed)
delivered personally, five (5) days after deposit in the U.S. mail and one
day after deposit with a reputable overnight courier service. The Company’s
address is:


 


Hawkeye Intermediate, LLC


c/o Hawkeye Renewables, LLC


21050 140th Street


Iowa Falls, IA 50126


	
  Attention:

  	
  Chief Executive Officer

  
	
  Facsimile:

  	
  (641) 648-8925

  



 


with copies to:


 


Thomas H. Lee Partners, L.P.


100 Federal Street


Boston, MA  02110


	
  Attention:

  	
  Scott Sperling

  
	
   

  	
  Thomas Hagerty

  
	
   

  	
  Soren Oberg

  
	
  Facsimile:

  	
  (617) 227-3514

  



 


20

















 


and


 


Weil, Gotshal & Manges
LLP

100 Federal Street

Boston, MA  02110


	
  Attention:

  	
  James Westra, Esq.

  
	
   

  	
  Marilyn French, Esq.

  
	
  Facsimile:

  	
  (617) 772-8333

  



 


8.9           Governing Law. The Delaware Limited Liability
Company Act (and, following the contribution of the outstanding equity
securities of the Company to a corporation or the Company being merged into, or
otherwise succeeded by, a corporation, the relevant state corporation law)
shall govern all questions arising under this Agreement concerning the relative
rights of the Company and its equityholders. All other questions concerning the
construction, validity and interpretation of this Agreement shall be governed
by and construed in accordance with the domestic laws of the State of Delaware
applicable to contracts made and to be performed in the State of Delaware. The
parties hereto hereby irrevocably and unconditionally submit to the exclusive
jurisdiction of any State or Federal court sitting in Wilmington, Delaware over
any suit, action or proceeding arising out of or relating to this Agreement.
The parties hereby agree that service of any process, summons, notice or
document by U.S. registered mail addressed to any such party shall be effective
service of process for any action, suit or proceeding brought against a party
in any such court. The parties hereto hereby irrevocably and unconditionally
waive any objection to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. The parties hereto agree that a final judgment in any such suit, action
or proceeding brought in any such court shall be conclusive and binding upon
any party and may be enforced in any other courts to whose jurisdiction any
party is or may be subject, by suit upon such judgment.


 


8.10         Consent of THL. Unless otherwise specifically
provided in this Agreement, to the extent the consent of THL is required with
respect to any provision of this Agreement, consent shall be deemed given so
long as written consent is granted by THL Hawkeye Acquisition Partners or
Thomas H. Lee Partners, L.P.


 


8.11         Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.


 


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[SIGNATURE PAGES FOLLOW]


 


21

















 


IN WITNESS WHEREOF, the
parties hereto have executed this Securityholders Agreement on the day and year
first above written.


 


	
   

  	
  HAWKEYE INTERMEDIATE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  J.D. Schlieman

  
	
   

  	
  Name: J.D. Schlieman

  
	
   

  	
  Title: President

  



 


 


	
   

  	
  HAWKEYE HOLDINGS, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bruce Rastetter

  
	
   

  	
  Name: Bruce Rastetter

  
	
   

  	
  Title: Chief Executive

  



 


Signature
Page to


Limited
Liability Company Securityholders Agreement


 

















 


	
   

  	
  THL HOLDERS:

  
	
   

  	
   

  
	
   

  	
  THL HAWKEYE ACQUISITION
  PARTNERS

  
	
   

  	
   

  
	
   

  	
  By: THL Equity Advisors
  VI, LLC, its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Soren Oberg

  
	
   

  	
  Name: Soren Oberg

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THL HAWKEYE ACQUISITION
  PARTNERS II

  
	
   

  	
   

  
	
   

  	
  By: THL Equity Advisors
  VI, LLC, its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Soren Oberg

  
	
   

  	
  Name: Soren Oberg

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THL HAWKEYE ACQUISITION
  PARTNERS III

  
	
   

  	
   

  
	
   

  	
  By: THL Equity Advisors
  VI, LLC, its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Soren Oberg

  
	
   

  	
  Name: Soren Oberg

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THL HAWKEYE COINVEST
  PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By: THL Equity Advisors
  VI, LLC, its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Soren Oberg

  
	
   

  	
  Name: Soren Oberg

  
	
   

  	
  Title: Managing Director

  



 


Signature
Page to


Limited
Liability Company Securityholders Agreement


 

















 


	
   

  	
  MANAGEMENT HOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Robert Kaplan

  
	
   

  	
  Robert Kaplan

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Andrew Leitch

  
	
   

  	
  Andrew Leitch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Bruce Rastetter

  
	
   

  	
  Bruce Rastetter

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  J.D. Schlieman

  
	
   

  	
  J.D. Schlieman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Timothy Callahan

  
	
   

  	
  Timothy Callahan

  



 


Signature
Page to


Limited
Liability Company Securityholders Agreement


 

















 


[Counterpart Signature Page to Securityholders Agreement]


 


 


	
   

  	
   

  
	
   

  	
  [Name]