Voting Agreement
Exhibit 4.3
This Voting Agreement (this “Agreement”) is made and entered into as of this
28th day of August, 2009, by and among Advanced BioEnergy, LLC, a Delaware limited liability
company (the “Company”), Hawkeye Energy Holdings, LLC, a Delaware limited liability company
(“Hawkeye”), Ethanol Investment Partners, LLC, a Delaware limited liability company
(“Partners” and each of Hawkeye and Partners, an “Investor”), South Dakota Wheat
Growers Association, a South Dakota cooperative (“SDWG”), and each of the undersigned
directors (the “Directors”) of the Company. The Company, Hawkeye, Partners, SDWG and
Directors are collectively referred to herein as the “Parties.” Hawkeye, Partners, SDWG
and Directors are collectively referred to herein as the “Members.”
Background
A. On the date hereof, the Company and Hawkeye entered into that certain Subscription
Agreement (the “Subscription Agreement ”) and a related letter agreement (the
“Subscription Letter Agreement” and together with the Subscription Agreement and the
Registration Rights Agreement, the “Subscription Documents”) providing for the issuance and
sale of membership units of the Company (“Units”) to Hawkeye (the 2,200,000 Units issued to
Hawkeye on the date hereof, the “Hawkeye Units”). Capitalized terms used herein but not
otherwise defined have the meaning given to them in the Subscription Documents.
B. Prior to the date hereof, Partners, together with Tennessee Ethanol Partners, LP, its
Affiliate, acquired 3,250,000 Units (the “Partners Units”). Partners currently has rights
pursuant to that certain Voting Agreement (the “Prior Partners Voting Agreement”) between
the Company, Partners and certain of the Directors and Officers, dated as of May 4, 2007, and the
Parties desire to amend and restate the Prior Partners Voting Agreement in its entirety pursuant to
this Agreement.
C. In connection with the Subscription Documents, two representatives of Hawkeye were
appointed to the board of directors of the Company (the “Board”), and prior to the date
hereof one representative of Ethanol Capital Management, LLC designated by Partners was elected to
the Board.
D. The Parties desire to cause, in accordance with the terms of this Agreement, two
representatives of Hawkeye (the “Hawkeye Board Members”), two representatives of Ethanol
Capital Management, LLC designated by Partners (the “Partners Board Members”) and the Chief
Executive Officer of the Company (the “CEO Board Member”) to be nominated and elected as
members of the Board.
Agreement
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein,
the Parties agree as follows:
1.1 Board of Directors.
(a) At each meeting of the Company’s members at which the Board position held by any of
the Hawkeye Board Members, the Partners Board Members or the CEO Board Member is up for
election, each of the Parties will, as applicable:
(i) nominate for election to the Board each of the Hawkeye Board Members, each
of the Partners Board Members and the CEO Board Member (each of such respective
nominees, a “Designee”);
(ii) recommend to the members (or other security holders) of the Company at any
meeting of the members (or other security holders) at which directors are elected
the election of each of the Designees;
(iii) vote (or act by written consent) all Units (or other voting equity
securities of the Company) they beneficially own, hold of record or otherwise
control at any time, in person or by proxy, to elect each of the Designees to the
Board;
(iv) not take any action that would result in (and take any action necessary to
prevent) the removal of any of the Designees from the Board or the increase in the
size of the Board to more than nine members without the consent of the Hawkeye.
Partners and CEO Board Members; and
(v) not grant a proxy with respect to any Units that is inconsistent with his,
her or its obligations under this Agreement.
(b) With respect to the second Partners Board Member, who is not a member of the Board
as of the date of this Agreement, each of the Parties will have the obligations set forth in
Section 1.1(a) from and after the earlier of (i) such time as a vacancy exists on the Board
(after the appointment of both of the Hawkeye Board Members) or (ii) the 2010 meeting of the
members of the Company.
1.2 Termination of Rights. In the event that any Investor ceases to own a number of
Units (or other voting equity securities of the Company) equal to at least 10% of the then
outstanding Units, such Investor shall no longer have the right to appoint two Designees and shall
instead have the right to appoint one Designee. In the event that any Investor ceases to own a
number of Units (or other voting equity securities of the Company) equal to at least 5% of the then
outstanding Units, such Investor shall no longer have the right to appoint any Designee.
1.3 Proxy. So long as Hawkeye has a right to appoint one or more Designees, each of
the Members hereby grants to Hawkeye an irrevocable proxy coupled with an interest to vote,
including in any action by written consent, such Member’s Units in accordance with such Member’s
agreement to elect the Hawkeye Board Member(s) to the Board in accordance with Section 1.1.
So long as Partners has a right to appoint one or more Designees, each of the Members hereby
grants to Partners an irrevocable proxy coupled with an interest to vote, including in any action
by written consent, such Member’s Units in accordance with such Member’s agreement to elect the
Partners Board Member(s) to the Board in accordance with Section 1.1. Each of the Members
hereby grants to each of the Investors an irrevocable proxy
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coupled with an interest to vote, including in any action by written consent, such Member’s
Units in accordance with such Member’s agreement to elect the CEO Board Member in accordance with
Section 1.1.
1.4 Observation Rights. For so long as Hawkeye owns a number of Units (or other
voting equity securities of the Company) equal to at least 75% of the Hawkeye Units, Hawkeye shall
be entitled to appoint at any one time one representative (the “Observer”) to the Board.
The Observer shall (a) receive all notices and information that the Company distributes to the
Board in connection with regularly scheduled meetings (but not special meetings) of the Board at
the same time and manner as given to the members of the Board and (b) have the right to attend and
observe in a non-voting capacity all regularly scheduled meetings (but not special meetings) of the
Board; provided, however, that the Company reserves the right to exclude the Observer from access
to any material or meeting or portion thereof if the Company believes on the advice of counsel that
such exclusion is reasonably necessary to preserve the attorney-client privilege; and, provided
further, that the Observer shall agree to maintain the confidentiality of all Company information
and all proceedings of the Board to the same extent as he would be required to do if he were a
director of the Company.
1.5 Directors’ and Officers’ Insurance. The Company shall purchase and maintain for
such periods as the Board shall in good faith determine, at its expense, insurance in an amount
determined in good faith by the Board to be appropriate, on behalf of any person who after the date
hereof is a director of the Company, against any expense, liability or loss asserted against such
Person and incurred by such Person in any such capacity, or arising out of such Person’s status as
such, subject to customary exclusions. The provisions of this Section 1.5 shall survive
any termination of this Agreement.
1.6 Specific Enforcement. Each Party acknowledges and agrees that each of the
Investors will be irreparably damaged in the event any of the provisions of this Agreement are not
performed by the Parties in accordance with their specific terms or are otherwise breached.
Accordingly, it is agreed that each of the Investors shall be entitled to an injunction to prevent
breaches of this Agreement and to specific enforcement of this Agreement and its terms and
provisions in any action instituted in any court of the United States or any state having subject
matter jurisdiction, in addition to any other remedy to which each of the Investors may be entitled
at law or in equity. No breach by any Party of, or other failure of any Party to perform, any of
the respective covenants or obligations of the Parties under this Agreement shall relieve any other
Party of its obligations under this Agreement.
1.7 Aggregation of Units. All Units held by an Investor and its Affiliates shall be
aggregated together for purposes of determining the availability of any rights under this
Agreement. “Affiliate” means, with respect to any Person, any other Person who, directly
or indirectly, controls such first Person or is controlled by said Person or is under common
control with said Person, where “control” means power and ability to direct, directly or
indirectly, or share equally in or cause the direction of, the management and/or policies of a
Person, whether through ownership of voting shares or other equivalent interests of the controlled
Person, by contract (including proxy) or otherwise.
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1.8 Transferees Bound. Each of the Members agrees that any Person to whom any Member
transfers any of such Member’s Units shall be bound by the provisions of this Agreement as if such
transferee were originally a party hereto, provided, however that no transferee who receives a
Member’s Units pursuant to a registered public offering or to the public pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended, shall be bound by the provisions of this
Agreement. Any attempted transfer in violation of this Section 1.8 shall be null and void.
1.9 Conflicts of Interest. Nothing herein shall limit the ability of the Board to
limit the participation of any Board Member or Observer in circumstances where the Board determines
in good faith that the Board Member has a conflict of interest with any matter relating to the
Company; provided, however, that the Company shall provide to the Board Member(s) or Observer whose
participation is limited (a) to the extent practicable, prior notice of such limitation and (b) in
as much detail as is practicable, a description of the matters discussed in his, her or their
absence.
2. MISCELLANEOUS
2.1 Assignment. This Agreement shall not be assignable by any of the Investors
without the prior written consent of the Company.
2.2 Governing Law. This Agreement shall be governed by and construed in accordance
with the Limited Liability Company Act of the State of Delaware as to matters within the scope
thereof, and as to all other matters shall be governed by and construed in accordance with the
internal laws of the State of Delaware, without regard to its principles of conflicts of laws.
2.3 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement may also be executed and delivered by facsimile signature and in
multiple counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
2.4 Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
2.5 Notices. All notices required or permitted to be given hereunder shall be in
writing and may be delivered by hand, by facsimile, by nationally recognized private courier, or by
United States mail. Notices delivered by mail shall be deemed given three (3) business days after
being deposited in the United States mail, postage prepaid, registered or certified mail, return
receipt requested. Notices delivered by hand, by facsimile, or by nationally recognized private
courier shall be deemed given on the day of receipt (if such day is a business day or, if such day
is not a business day, the next succeeding business day); provided, however, that a notice
delivered by facsimile shall only be effective if confirmation is received of receipt of the
facsimile at the number provided in this Section 2.5 or if such notice is also delivered by hand,
or deposited in the United States mail, postage prepaid, registered or certified mail (return
receipt requested), on or before two (2) business days following transmission by facsimile. All
notices shall be addressed as follows:
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If to Hawkeye:
|
with a copy to: | |
Hawkeye Energy Holdings, LLC
|
Xxxxxx X. Xxx Partners | |
000 X. Xxxx Xxx.
|
000 Xxxxxxx Xxxxxx, 00xx Xxxxx | |
Xxxx, Xxxx 00000
|
Xxxxxx, Xxxxxxxxxxxxx 00000 | |
Attention: Xxxxxxx X. Xxxxxxxx
|
Attention: Xxxxxx X. Xxxxxx | |
Fax: (000) 000-0000
|
Fax: (000) 000-0000 | |
| and a copy to: | ||
| Weil, Gotshal & Xxxxxx LLP | ||
| 000 Xxxxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||
| Attention: Xxxxxx X. Xxxx | ||
| Fax: (000) 000-0000 | ||
If to Partners:
|
with a copy to: | |
Ethanol Investment Partners, LLC
|
Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx | |
c/o Ethanol Capital Management, LLC
|
000 Xxxxxxxx Xxxxxx, Xxxxx 0000 | |
0000 Xxxx Xxxxxxxx Xxxx.
|
Xxxxxxxxx, Xxxxxxxxx 00000 | |
Xxxxxx, Xxxxxxx 00000
|
Attn: Xxxxx Xxxxxxx Grindon | |
Attention: Xxxxx Xxxxxxxxxx
|
Telephone: (000) 000-0000 | |
Telephone: (000) 000-0000
|
Fax: (000) 000-0000 | |
Fax: (000) 000-0000 |
||
If to the Company:
|
with a copy to: | |
| Faegre & Xxxxxx LLP | ||
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
|
2200 Xxxxx Xxxxx Xxxxxx | |
Xxxxxxxxxxx, Xxxxxxxxx 00000
|
00 Xxxxx Xxxxxxx Xxxxxx | |
Attention: Xxxxxxx Xxxxxxxx
|
Xxxxxxxxxxx, Xxxxxxxxx 00000 | |
Fax: (000) 000-0000
|
Attention: Xxxxx X. Xxxxxx | |
| Fax: (000) 000-0000 | ||
If to SDWG:
|
with a copy to: | |
South Dakota Wheat Growers Association
|
Husch Xxxxxxxxx Xxxxxxx LLP | |
000 0xx Xxxxxx XX
|
0000 Xxxx Xxxxxx, Xxxxx 0000 | |
Xxxxxxxx, Xxxxx Xxxxxx 00000
|
Xxxxxx Xxxx, Xxxxxxxx 00000 | |
Attention: CEO
|
Attention: Xxxxx X. Xxxxxxx | |
Fax: (000) 000-0000
|
Fax: (000) 000-0000 | |
If to the Directors and Officers:
|
with a copy to: | |
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| Faegre & Xxxxxx LLP | ||
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
|
2200 Xxxxx Xxxxx Xxxxxx | |
Xxxxxxxxxxx, Xxxxxxxxx 00000
|
00 Xxxxx Xxxxxxx Xxxxxx | |
Attention: Xxxxxx Xxxxx
|
Xxxxxxxxxxx, Xxxxxxxxx 00000 | |
Fax: (000) 000-0000
|
Attention: Xxxxx X. Xxxxxx | |
| Fax: (000) 000-0000 |
and/or to such other respective addresses and/or addressees as may be designated by notice given in
accordance with the provisions of this Section 2.5.
2.6 Future Parties to the Agreement. If any person becomes a member of the Board
after the date hereof and is or becomes a direct holder of Units, the Company agrees to use good
faith efforts to cause each such person to become a party to, and be bound by the terms of, this
Agreement as a Director. If a person who is a Director ceases to be a member of the Board, without
any further action of any other Party, such person shall cease to be a Party to this Agreement as
of the day such person ceases to be a member of the Board; provided, however, for the avoidance of
doubt, such cessation of a Director to be a Party to this Agreement shall not release any entity
that may be affiliated with or otherwise related to such Director from the obligations of this
Agreement.
2.7 Amendment; Waiver. This Agreement may be amended or modified and the observance
of any term hereof may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument executed by the Company, each of the
Investors and SDWG; provided, however, that any amendment, modification or waiver that materially
and adversely affects a Member disproportionately as compared to all other Members shall require
the prior written consent of a majority-in-interest of such Members so adversely affected.
2.8 Entire Agreement. This Agreement, together with the Subscription Documents,
constitutes the full and entire understanding and agreement between the Parties with respect to the
subject matter hereof, and any other written or oral agreement relating to the subject matter
hereof existing between the Parties is expressly terminated. The Prior Partners Voting Agreement
is hereby amended and restated in its entirety pursuant to this Agreement.
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In Witness Whereof, the Parties hereto have executed this Voting Agreement on the date first
above written.
| Advanced BioEnergy, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Its: | CEO | |||
| Hawkeye Energy Holdings, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Its: | Chief Financial Officer | |||
| Ethanol Investment Partners, LLC |
||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Its: | President | |||
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| Signature Page to ABE Voting Agreement | ||
| South Dakota Wheat Growers Association |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Its: CEO/Treasurer | ||||
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| Signature Page to ABE Voting Agreement | ||
Directors: |
||
/s/ Xxxxx X. Xxxxxxxxxx III |
/s/ Xxxx Xxxx | |
Xxxxx X. Xxxxxxxxxx III
|
Xxxx Xxxx | |
Director
|
Director | |
/s/ Xxxxx Xxxxxxxxxx |
/s/ Xxxxx X. Xxxxx | |
Xxxxx Xxxxxxxxxx
|
Xxxxx X. Xxxxx | |
Director
|
Director | |
/s/ Xxxxxxx Xxxxxxxx |
/s/ Xxxxxx Xxxxxxxxxx | |
Xxxxxxx Xxxxxxxx
|
Xxxxxx Xxxxxxxxxx | |
Director
|
Director | |
/s/ Xxxxx X. Xxxxx |
||
Xxxxx X. Xxxxx |
||
Director |
||
/s/ Xxxx X. Xxxxxxxxx |
||
Xxxx X. Xxxxxxxxx |
||
Director |
*****
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Signature Page to ABE Voting Agreement
