ADVANCED BIOENERGY, LLC SUBSCRIPTION AGREEMENT Limited Liability Company Membership Units $1.50 per Unit Minimum Investment of 6,667 Units ($10,000)
EXHIBIT
9
ADVANCED
BIOENERGY, LLC
Limited
Liability Company Membership Units
$1.50 per
Unit
Minimum
Investment of 6,667 Units ($10,000)
667 Unit
Increments Thereafter ($1,000)
The
undersigned subscriber, desiring to purchase membership interests (“units”) of Advanced
BioEnergy, LLC (“Advanced
BioEnergy”), a Delaware limited liability company, with its principal
place of business at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, hereby, subject (i) to the Confidential Private
Placement Memorandum (the “Memorandum”) of Advanced
BioEnergy, (ii) to the Backstop Commitment Agreement dated as of April 7, 2010
between the undersigned subscriber and Advanced BioEnergy (the “Backstop Commitment”)
(including, without limitation, the conditions to closing set forth in Section 7
of the Backstop Commitment) and (iii) to the other terms and conditions of the
offering, subscribes for the purchase of the units of Advanced BioEnergy, and
agrees to pay the related purchase price, identified below.
Advanced
BioEnergy acknowledges and agrees that all rights granted by Advanced BioEnergy
to the undersigned subscriber with respect to the units of Advanced BioEnergy
previously issued to the undersigned subscriber (including, without limitation,
the Pro-Rata Participation Rights set forth in Section 2 of that certain letter
agreement (“Letter
Agreement”), dated August 21, 2009, by and between Advanced BioEnergy and
the undersigned subscriber, the anti-dilution rights set forth in Section 3 of
the Letter Agreement (with the “Total Hawkeye Purchase Price” (as used in the
Letter Agreement) defined to include the amount set forth in Item C.1 of this
Subscription Agreement) and the rights set forth in that certain Registration
Rights Agreement, dated August 28, 2009, by and between Advanced BioEnergy and
the undersigned subscriber) shall apply to the units purchased pursuant to this
Subscription Agreement.
The
Backstop Commitment remains in full force and effect in accordance with the
terms therein, and nothing in this Subscription Agreement amends or otherwise
modifies the Backstop Commitment.
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A.
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SUBSCRIBER INFORMATION.
Please print your individual or entity name and address. Joint
subscribers should provide their respective names. Your name and address
will be recorded exactly as printed
below.
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INDIVIDUALS: ENTITIES:
____________________________________ Hawkeye
Energy Holdings, LLC
Name of
Individual Subscriber (Please
Print) Name
of Entity (Please Print)
____________________________________ 000
X. Xxxx Xxx.
____________________________________ Xxxx,
Xxxx 00000
____________________________________ Attention: Xxxxxxx
X. Xxxxxxxx
Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx
____________________________________ ______________________________________
Telephone
Telephone
____________________________________ (000)
000-0000
Facsimile Facsimile
____________________________________ xxxxxxxxx@xxxxxxx-xxxxxx.xxx
Email
Address
Email Address
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B.
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NUMBER OF UNITS
PURCHASED. Your pro rata share of units offered in this
offering, if applicable, is listed
below.
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Pro Rata
Share: 1,648,521
Number of
Units Requested
1
to Be
Purchased: 5,171,891 (the “Units”)
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C.
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PURCHASE PRICE. Indicate
the dollar amount of your requested
investment.
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($1.50 per unit multiplied by
the
number of units to be
purchased
indicated in Item B above)
$7,757,836.50
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D.
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GENERAL INSTRUCTION FOR
SUBSCRIBERS. You should read the Memorandum in its entirety for a
complete explanation of an investment in Advanced
BioEnergy.
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1.
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Complete
all information required in this Subscription Agreement, and date and sign
the Subscription Agreement.
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2.
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Immediately
provide a wire transfer for the investment amount in accordance with the
wiring instructions previously provided by Advanced BioEnergy. You will
determine this amount in Item C.1 of this Subscription
Agreement.
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3.
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Deliver
this original executed Subscription Agreement, together with your payment
described in Item 2 of these instructions, to the following
address:
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Advanced BioEnergy, LLC
00000 Xxxxxxx Xxxxxxxxx, Xxxxx
000
Xxxxxxxxxxx, XX 00000
Attention: Chief Executive
Officer
Subject
to the satisfaction of the conditions set forth in the Backstop Commitment and
completing the Restructuring, your funds will be immediately at-risk as
described in the Memorandum and the Backstop Commitment. If the issuance of the
Units has not been completed on or prior to June 30, 2010 (or such later date as
the undersigned subscriber may determine in its sole discretion) (which issuance
shall not take place unless and until the Restructuring is completed and the
other closing conditions set forth in Section 7 of the Backstop Commitment are
satisfied), your funds will be promptly returned to you, without
interest. Unless and until the Units are issued, your funds will be
maintained in an account of Advanced BioEnergy for the sole benefit of the
parties hereto in accordance with the terms hereof, and not for the benefit of
any third party, including, without limitation, any subsidiary of Advanced
BioEnergy. This Subscription Agreement does not confer any rights or
remedies upon any third party, including, without limitation, any subsidiary of
Advanced BioEnergy.
You
may direct your questions to Xxxxxxx Xxxxxxxx, our President, Chief Executive
Officer and Chief Financial Officer at (000) 000-0000.
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E.
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ADDITIONAL SUBSCRIBER
INFORMATION. The subscriber, named above, certifies the following
under penalties of perjury:
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| o |
Individual
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| o |
Joint
Tenants with Right of Survivorship (Both signatures must appear on page
5.)
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| x |
Corporation,
Limited Liability Company or Partnership (Corporate Resolutions, Operating
Agreement or Partnership Agreement must be
enclosed.)
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2
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¨
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Trust
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Trustee’s
Name:__________________________________________________
Trust
Date:______________________________________________________
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¨
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Other:
Provide detailed information in the space immediately
below.
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_______________________________________________________________
_______________________________________________________________
| Subscriber’s Social Security No. | |||
| Joint Subscriber’s Social Security No. | |||
| ENTITY Taxpayer Identification No. | XX-XXXXXXX |
Check any
or all boxes that might apply:
¨ Check box if
you are a non-resident alien
¨ Check box if
you are a U.S. citizen residing outside of the United States
¨ Check this
box if you are subject to backup withholding
| Xxxxxx X. Xxx Partners | ||
| 000 Xxxxxxx Xxxxxx, 00xx Xxxxx; Attn: Xxxxxx Xxxxxx | ||
| Street | ||
| Boston, MA 02110 | ||
| City, State, Zip Code |
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4.
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SUBSCRIBER’S
REPRESENTATIONS AND WARRANTIES. You must read and certify your
representations and warranties and sign and date this Subscription
Agreement. By initialing and signing below the subscriber
represents and warrants to Advanced BioEnergy that he, she or it: Joint
subscribers must both initial all
items.
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Initial
Here
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HEH
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a.
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has
received a copy of Advanced BioEnergy’s Memorandum;
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HEH
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b.
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has
been informed that the units of Advanced BioEnergy are to be issued
pursuant to this Subscription Agreement can only be sold to a person
deemed to be accredited;
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HEH
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c.
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has
been informed that the securities purchased pursuant to this Subscription
Agreement have not been registered under the federal securities laws or
securities laws of any state and that Advanced BioEnergy is relying in
part upon the representations of the undersigned subscriber contained
herein;
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3
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HEH
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d.
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has
been informed that the securities subscribed for have not been approved or
disapproved by the securities departments, nor has any regulatory
authority passed upon the accuracy or adequacy of the
Memorandum;
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HEH
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e.
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intends
to acquire the units for his, her or its own account without a view to
public distribution or resale and that he, she or it has no contract,
undertaking, agreement or arrangement to sell or otherwise transfer or
dispose of any units or any portion thereof to any other
person;
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HEH
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f.
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understands
that there is no present market for Advanced BioEnergy’s units, that the
units will not trade on an exchange or automatic quotation system, that no
such market is expected to develop in the future and that there are
significant restrictions on the transferability of the
units;
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HEH
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g.
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should
seek the advice of his, her or its legal counsel and accountants or other
financial advisers with respect to the tax and other considerations
relating to the purchase of units;
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HEH
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h.
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has
received a copy of the Advanced BioEnergy Fourth Amended and Restated
Operating Agreement and understands that upon acceptance of the
subscription by Advanced BioEnergy, the subscriber and the units will be
bound by the provisions of this operating agreement, which contains, among
other things, provisions that restrict the transfer of
units;
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HEH
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i.
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understands
that the units are subject to substantial restrictions on transfer under
federal and state securities laws along with restrictions in the Advanced
BioEnergy Fourth Amended and Restated Operating Agreement and agrees that
if the units or any part thereof are sold or distributed in the future,
the subscriber shall sell or distribute them pursuant to the terms of the
Fourth Amended and Restated Operating Agreement, as may be amended from
time to time, and the requirements of the Securities Act of 1933, as
amended, and applicable state securities laws;
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HEH
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j.
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meets
the definition of an accredited investor as described in the Memorandum
and is capable of bearing the economic risk of this investment, including
the possible total loss of the investment;
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HEH
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k.
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understands
that Advanced BioEnergy will place a restrictive legend on any certificate
representing any unit containing substantially the following language as
the same may be amended by Advanced BioEnergy in its sole
discretion: THE TRANSFERABILITY OF THE UNITS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED. SUCH UNITS MAY NOT BE SOLD,
ASSIGNED, OR TRANSFERRED, NOR WILL ANY ASSIGNEE, VENDEE,
TRANSFEREE, OR ENDORSEE THEREOF BE RECOGNIZED AS HAVING ACQUIRED ANY SUCH
UNITS FOR ANY PURPOSES, UNLESS AND TO THE EXTENT SUCH
SALE, TRANSFER, HYPOTHECATION, OR ASSIGNMENT IS PERMITTED BY,
AND IS COMPLETED IN ACCORDANCE WITH, APPLICABLE STATE AND FEDERAL LAW AND
THE TERMS AND CONDITIONS SET FORTH IN THE OPERATING AGREEMENT AS AGREED TO
BY EACH MEMBER.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, OFFERED FOR SALE, OR TRANSFERRED IN THE ABSENCE OF EITHER
AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND UNDER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND UNDER
APPLICABLE STATE SECURITIES LAWS.
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HEH
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l.
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understands
that, to enforce the above legend, Advanced BioEnergy may place a stop
transfer order with its registrar and stock transfer agent (if any)
covering all certificates representing any of the
units;
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HEH
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m.
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may
not transfer or assign this subscription agreement, or any of the
subscriber’s interest therein;
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4
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HEH
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n.
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has
written his, her or its correct taxpayer identification number under Item
E(2); and
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HEH
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o.
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is
not subject to backup withholding either because he, she or it has not
been notified by the Internal Revenue Service (“IRS”) that he, she or it
is subject to backup withholding as a result of a failure to report all
interest or dividends, or the IRS has notified him, her or it that he, she
or it is no longer subject to backup withholding. (Note: this clause (o)
should be crossed out if the backup withholding box in Item E(2) is
checked.)
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E.
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ADVANCED BIOENERGY’S
REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Advanced BioEnergy contained in Section 3 of the Backstop
Commitment are true and correct in all material respects as if made on the
date hereof (except for representations and warranties made of a specific
date, which shall be true and correct in all material respects as of such
specified date.)
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Date:
June 4, 2010
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INDIVIDUALS:
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ENTITIES:
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HAWKEYE
ENERGY HOLDINGS, LLC
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Name
of Individual Subscriber (Please Print)
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Name
of Entity (Please Print)
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Xxxxxxx
X. Xxxxxxxx, Chief Financial Officer
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Signature
of Individual
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Print
Name and Title of Officer
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| /s/ Xxxxxxx X. Xxxxxxxx | |||
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Name
of Joint Individual Subscriber (Please Print)
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Signature
of Officer
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Signature
of Joint Individual Subscriber
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Advanced
BioEnergy, LLC hereby accepts the subscription for the above
units.
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Dated
this 4th day of June, 2010.
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ADVANCED
BIOENERGY, LLC
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By:
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/s/ Xxxxxxx X. Xxxxxxxx | ||
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Xxxxxxx
X. Xxxxxxxx
President
and Chief Executive Officer
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