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EX-32 - EX-32 - Advanced BioEnergy, LLC | c55271a1exv32.htm |
EX-31.2 - EX-31.2 - Advanced BioEnergy, LLC | c55271a1exv31w2.htm |
EX-31.1 - EX-31.1 - Advanced BioEnergy, LLC | c55271a1exv31w1.htm |
Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Amendment No. 1 on
Form 10-K/A
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2009
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2009
Commission file number: 000-52421
ADVANCED BIOENERGY, LLC
(Exact name of Registrant as Specified in its Charter)
Delaware | 20-2281511 | |
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
10201 Wayzata Boulevard, Suite 250
Minneapolis, Minnesota 55305
(763) 226-2701
Minneapolis, Minnesota 55305
(763) 226-2701
(Address, including zip code, and telephone number,
including area code, of Registrants Principal Executive Offices)
including area code, of Registrants Principal Executive Offices)
Securities registered pursuant to Section 12(b) of the Act:
None
None
Securities registered pursuant to Section 12(g) of the Act:
Membership Units
Membership Units
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes o No þ
Indicate by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Exchange Act. Yes o No þ
Indicate by check mark whether the registrant: (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files.) Yes o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best of registrants
knowledge, in definitive proxy or information statements incorporated by reference in Part III of
this Form 10-K or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act). Yes o No þ
Our membership units are not publicly traded; therefore, our public float is not
measurable.
As of January 28, 2010, the number of outstanding units was 17,814,180.
Table of Contents
EXPLANATORY NOTE
Advanced BioEnergy, LLC is filing this Amendment No. 1 on Form 10-K/A in order to amend
our Annual Report on Form 10-K for the fiscal year ended September 30, 2009 (which was filed on
December 29, 2009) to set forth the information required by Items 10, 11, 12, 13 and 14 under
Part III of Form 10-K, because a definitive proxy statement containing such information will not be
filed within 120 days after the end of the fiscal year covered by our original Form 10-K filing.
This Form 10-K/A amends Part III and Part IV of our original Form 10-K filing only, and all other
portions of our original Form 10-K filing remain in effect and have not been updated to reflect the
events and developments since the original December 29, 2009 filing date.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Directors
Our operating agreement provides that the board of directors shall be fixed at nine directors,
divided into three groups. Our current board of directors as of January 28, 2010 is comprised of
the following:
Director | ||||||||||
Name | Age | Position | Since | |||||||
Group II term expiring in 2010: |
||||||||||
Troy L. Otte |
42 | Director | 2005 | |||||||
Keith E. Spohn |
61 | Director | 2005 | |||||||
Richard R. Peterson |
44 | Director | 2009 | |||||||
Group III term expiring in 2011: |
||||||||||
Neil S. Hwang |
31 | Director | 2009 | |||||||
Thomas A. Ravencroft |
73 | Director | 2008 | |||||||
John E. Lovegrove |
55 | Chairman and Director | 2005 | |||||||
Group I term expiring in 2012: |
||||||||||
Scott A. Brittenham |
51 | Director | 2008 | |||||||
Joshua M. Nelson |
37 | Director | 2009 | |||||||
Bruce L. Rastetter |
53 | Director | 2009 |
The following is a brief description of the business experience and background of our
directors.
Troy L. Otte has been involved in a family-owned farm in the Fillmore County, Nebraska area
since 1990. The current operation consists of 1,600 acres of corn, soybeans and wheat, with both
irrigated and dry land acres.
Richard R. Peterson joined our company as vice president of accounting and finance and chief
financial officer in November 2006 and was named chief executive officer in October 2008. From July
2001 until November 2006, Mr. Peterson served as the director of finance, North American Operations
for Nilfisk Advance, Inc., a manufacturer of commercial and industrial cleaning equipment. Prior to
joining Nilfisk Advance, Mr. Peterson served as the chief financial officer for PPT Vision, Inc., a
manufacturer of 2D and 3D vision inspection equipment from April 1999 to July 2001 and the chief
financial officer of Premis Corporation, a point-of-sale software development company from December
1996 to April 1999.
Keith E. Spohn has been an active farmer for the past 40 years in the Friend, Nebraska area.
He is currently farming with his son. His farming operations include 5,000 acres of corn, soybeans
and seed corn.
Scott A. Brittenham co-founded and has served as president and chief executive officer of
Clean Energy Capital, LLC, formerly Ethanol Capital Management, LLC, the largest fund manager for
ethanol investments in the United States, since 2003. From 1999 through 2003, Mr. Brittenham served
as the president and Chief Executive Officer of Fidelity Mortgage Inc. and from 1995 through 1999, Mr. Brittenham served as the
president and a director of Brittenham Investment Management. As disclosed in our Form 10-K for
the fiscal year ended September 30, 2009 filed on December 29, 2009, the Company and certain other
parties are parties to the Voting Agreement, which, among other things, requires the parties
thereto to nominate, recommend and vote for election to the board two designees of Hawkeye Energy
Holdings, LLC (Hawkeye), two designees of Ethanol Investment Partners, LLC (EIP) and the Chief
Executive Officer of the Company. Pursuant to the Voting Agreement, Mr. Brittenham was elected as
a designee of EIP. Mr. Brittenham also serves on the board of directors of Highwater Ethanol, LLC.
Joshua M. Nelson is a Managing Director at Thomas H. Lee Partners, L.P., a private equity firm
based in Boston, Massachusetts where he has worked since 2003. Prior to this, he worked at JPMorgan
Partners, the private equity affiliate of JPMorgan Chase.
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Mr. Nelson has been a director of Hawkeye since 2006. On December 21, 2009, Hawkeye
Renewables, LLC, a subsidiary of Hawkeye, filed for reorganization under chapter 11 of the U.S.
Bankruptcy Code in Delaware. Pursuant to the Voting Agreement, Mr. Nelson was elected as a
designee of Hawkeye.
Bruce L. Rastetter is currently the Chief Executive Officer of Hawkeye Renewables, LLC, an
Iowa-based renewable energy company where he has worked since 2003. Mr. Rastetter is also the Chief
Executive Officer of Hawkeye and Hawkeye Gold, LLC. Prior to these positions, Mr. Rastetter founded
Heartland Pork Enterprises, Inc. in 1994, and was the Chief Executive Officer of that company until
2004.
Mr. Rastetter also owns a farming operation headquartered
in northern Iowa called Summit Farms.
On December 21, 2009, Hawkeye Renewables, LLC, a subsidiary of Hawkeye, filed for
reorganization under chapter 11 of the U.S. Bankruptcy Code in Delaware. Pursuant to the Voting
Agreement, Mr. Rastetter was elected as a designee of Hawkeye.
Neil S. Hwang is currently the Chief Financial and Compliance Officer of Clean Energy Capital,
LLC, formerly Ethanol Capital Management, LLC, the largest fund manager for ethanol investments in
the United States, where he has worked since August 2009. Mr. Hwang was a senior analyst for
Caliburn Partnership, an affiliate of Greenhill & Co., an independent investment bank in Australia
and New Zealand from July 2008 to June 2009, and an associate for Booz Allen Hamilton (now Booz &
Company), a management consulting firm, from August 2007 to June 2008. Prior to this, Mr. Hwang
was a graduate student at MIT Sloan School of Management and Harvard University Kennedy School of
Government, where he earned MBA and MPA degrees in 2007. Pursuant to the Voting Agreement and an
Agency Agreement, dated November 2, 2009, between Clean Energy Capital, LLC and Mr. Hwang,
Mr. Hwang was appointed to the board of directors of the Company.
Thomas
A. Ravencroft spent 40 years with Dean Foods Co., Inc. (Dean Foods) from 1954 until
his retirement in August 2000. He became an officer of Dean Foods in 1970 and served as vice
president, corporate planning until 1990. From 1990 until 1995, he served as a senior vice
president. From 1995 until his retirement, he served as president of Dean Foods dairy division. He
served on the Dean Foods board of directors from 1979 until August 2000.
John E. Lovegrove has served as chairman since October 2008, and has been a life-long farmer
in Fillmore County, Nebraska. He operates a family farm along with two brothers consisting of
8,000 acres of irrigated corn, soybeans and Pioneer Hy-Brid International seed corn.
Executive Officers
See also Part I in our Form 10-K for the fiscal year ending September 30, 2009 filed on
December 29, 2009 under the heading Item X. Executive Officers of the Registrant.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act requires our directors, officers and 10% or
greater unitholders to file initial reports of share ownership and reports of changes in share
ownership with the SEC. Our directors and officers are required by SEC regulations to furnish us
with copies of all Section 16(a) forms they file.
Based solely on a review of the copies of such forms furnished to us and written
representations from our directors and officers, all Section 16(a) filing requirements were met for
fiscal 2009, except that Mr. Brittenham failed to timely file a Form 4 reporting his ownership
change upon EIPs acquisition of units, Mr. Rastetter failed to timely file a Form 4 reporting his
ownership change upon Hawkeyes acquisition units and Mr. Ravencroft failed to timely file a Form 3
reporting his ownership interest upon becoming a director.
Audit Committee
We have a separately-designated standing audit committee established in accordance with
Section 3(a)(58)(A) of the Exchange Act. The audit committee consists of Messrs. Brittenham,
Ravencroft and Hwang. Mr. Cerny served on the audit committee until his resignation in August
2009. Mr. Hwang was named to the audit committee in November 2009. The audit committees function
is one of oversight and, in that regard, the audit committee meets with our management and
independent registered accounting firm to review and discuss our financial reporting and our
controls respecting accounting. The board has determined that Messrs. Brittenham, Hwang and
Ravencroft are audit committee financial experts as that term is defined in Item 407(d)(5) of
Regulation S-K, and Messrs. Ravencroft and Hwang are
independent as independence is defined for audit
committee members in the rules of the NASDAQ Stock Market.
Code of Ethics
The Company has adopted a code of ethics that applies to its principal executive officer,
principal financial officer, principal accounting officer or controller, or persons performing
similar functions. The Company has posted this Code of Business Conduct and Ethics on the Advanced
Bioenergy website at www.advancedbioenergy.com.
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Recommendations of Nominees to Board of Directors
There were no material changes to the procedures by which unitholders may recommend nominees
to the board of directors since our last report.
ITEM 11. EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
This section discusses the principal elements of compensation paid to our named executive
officers for 2009 and the compensation philosophy and objectives of our compensation program. We
refer to the individual who served as our principal executive officer and principal financial
officer during 2009, as well as the other individuals included in the Summary Compensation Table
below as the named executive officers. Two of our named executive officers are no longer with the
company. The employment of Revis L. Stephenson, our former Chief Executive Officer, and Perry C.
Johnston, our former Vice President, General Counsel and Secretary, ended in 2009. Because Richard
R. Peterson is expected to be our only named executive officer in 2010, the following discussion
about our compensation objectives for the next fiscal year applies only to Mr. Peterson and any
other individual who may be listed in the Summary Compensation Table for 2010.
Our compensation committee is responsible for discharging the boards responsibilities
relating to compensation of the Companys executives, including the named executive officers. Our
compensation committee has the authority to retain compensation consultants to assist it in the
evaluation of compensation. In the past, our compensation committee has retained the Stanton Group
to provide recommendations regarding the compensation of our executives. In particular, the Stanton
Group has provided the compensation committee with certain benchmarking information and provided
modeling information for short and long-term incentive plans. Our compensation committee also has
the responsibility for monitoring adherence with our compensation philosophy further described
below and ensuring that the total compensation paid to our executive officers is transparent, fair,
reasonable and competitive.
In 2009, decisions regarding the compensation of our named executive officers were made by our
board, upon the recommendation of our compensation committee in consultation with our current Chief
Executive Officer, Mr. Peterson. For 2010, decisions regarding the compensation of Mr. Peterson,
currently our only named executive officer, were made by our board upon the recommendation of our
compensation committee.
Compensation Philosophy and Objectives
Our compensation philosophy embodies the following principles:
| the compensation program should retain management to foster continuity in our operations; | ||
| the compensation program should align the interests of our management with those of our members; and | ||
| the compensation program should reward management for outstanding business results. |
In structuring a compensation program that will implement these principles, we have developed
the following objectives for our executive compensation program:
| overall compensation levels must be sufficiently competitive to retain executives; and | ||
| a portion of total compensation should be contingent on, and variable with, achievement of personal and company performance goals. |
Compensation Elements
For 2009, the principal components of our compensation for our named executive officers
included:
| base salary; | ||
| cash bonuses; | ||
| equity compensation; and | ||
| perquisites and other personal benefits. |
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We expect that the principal components of compensation for Mr. Peterson and any other named
executive officer in 2010 will be comprised of the same principal components. These components have
typically been included in the employment agreements for each named executive officer, as well as
in company policies. As discussed above, all of the employment agreements with our named executive
officers have now terminated, except the employment agreement with Mr. Peterson. The key terms of
Mr. Petersons employment agreement are further described in narrative text following the Summary
Compensation Table below. In addition to employment agreements, we have also entered into certain
restricted unit agreements and change of control agreements with our named executive officers,
including Mr. Peterson, which are further described below under Equity Compensation and in the
narrative text following the Summary Compensation Table.
Base Salary
Base salary is targeted to provide our named executive officers with a fixed base amount of
compensation for services rendered during the year. We believe this is consistent with competitive
practices and will help assure we retain qualified leadership in those positions in light of salary
norms in our industry and the general marketplace. Base salary for our named executive officers has
been included in our employment agreements. The amounts of base salary contained in those
employment agreements were determined for each executive based on his position and responsibility
by using market data obtained by the Stanton Group. After receiving the information from the
Stanton Group with respect to base salary for comparable companies, our compensation committee
targeted salaries for our named executive officers at the lower end of the median range for
comparable companies. While it has been difficult for the compensation committee to gather
information for comparable companies on an on-going basis, the compensation committee periodically
reviews base compensation in connection with execution and renegotiation of employment agreements
with executives to ensure that a competitive position is maintained.
Cash Bonuses
The compensation committee has used, and expects to continue to use, cash bonuses to focus our
management on achieving key company financial objectives, to motivate certain desired individual
behaviors and goals and to reward substantial achievement of these company financial objectives and
individual behaviors and goals.
The compensation committee believes that as a growth company, we should reward achievement of
both personal performance objectives and company financial objectives, such as gallons of ethanol
sold and earnings before interest, taxes, depreciation and amortization (EBITDA). The employment
agreements with our named executive officers have traditionally included a provision that makes the
executives eligible for an annual bonus in an amount up to 25% of the executives base salary
during a fiscal year, based upon criteria established by the board or any committee of the board.
In addition, certain other company employees also participate in the companys corporate bonus
plan. For 2009 and 2010, the compensation committee used a formula for its corporate bonus plan
based on the following three criteria: (1) EBITDA targets per gallon of ethanol sold (25%), (2)
gallons of ethanol produced (25%) and (3) personal performance objectives (50%).
For 2009, the EBITDA financial target was calculated on a consolidated plant basis for the
companys facility in Nebraska and corporate office operations and measured by EBITDA per gallon of
ethanol sold. In order to receive a minimum payout based on EBITDA, EBITDA had to be equal to or
greater than $.12 per gallon and to receive a maximum payout, EBITDA had to be equal to or greater
than $.18 per gallon. The payout was increased by 12% increments for every $.01 improvement in
EBITDA per gallon for results between the minimum and maximum. In order to receive a minimum payout
based on gallons of 200 proof ethanol produced, gallons of ethanol produced at the Nebraska plant
had to be equal to or greater than 95.2 million gallons and to receive a maximum payout, gallons of
200 proof ethanol produced had to be at least 103 million gallons. The targets for gallons produced
were subject to adjustments for planned production in slowdowns or planned plant shutdowns due to
economic reasons or any act of God causing a disruption in production (but not repairs,
maintenance, warranty issues or other similar occurrences). The payout based on ethanol production
increased in 1% increments for every 103,466 gallons produced over the minimum up to the maximum.
For 2009, the personal performance objectives included three or four goals or expectations,
approved by the compensation committee in the case of named executive officers and by the companys
executive officers in the case of other employees. In 2009, the maximum gallons of 200 proof
production target was met and the Company met the minimum EBITDA target. In 2009, Mr. Peterson and
Mr. Johnston received cash bonuses based on this formula in the amount detailed in the Summary
Compensation Table below.
For 2010, the compensation committee modified the financial targets to reflect the ethanol
industrys continued capacity surplus and the narrow margins in the ethanol industry created by
commodity movements. The financial targets for 2010 also reflect that the company expects that its
production facilities in Aberdeen and Huron, South Dakota operated by its subsidiary, Heartland
Grain Fuels, LP (HGF) will not be transferred to HGFs senior lenders, and that the company now
intends to pursue with HGFs senior lenders, as well as the subordinated revenue bond holders, a
restructuring of the current lending arrangements for HGF that may permit the company to maintain a
significant portion of its ownership of those facilities. Therefore, the financial targets for 2010
will be based on the financial results of the companys Fairmont, Nebraska plant, as well as its
plants in Huron and Aberdeen, South Dakota. In order to receive a minimum payout based on EBITDA in
2010, EBITDA has to be equal to or greater than $.16 per gallon and to receive a maximum payout,
EBITDA has to be equal to or greater than $.25 per gallon. The payout based on EBITDA will be
calculated on a pro-rata basis for performance between the minimum and the maximum. In order to
receive a minimum payout based on gallons of ethanol produced,
gallons of 200 proof ethanol produced at the
Fairmont plant has to be equal to or greater than 100 million gallons and to
receive a maximum payout, gallons of 200 proof ethanol produced has
to be 114.3 million gallons. The
targets for gallons produced are also subject to certain adjustments as described above. The payout
based on ethanol production will be calculated on a pro-rata basis for performance between the
minimum and the maximum. In 2010, Mr. Peterson as well as certain other employees will be eligible
for a cash bonus.
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In the past, the compensation committee has also approved retention bonus opportunities for
certain named executive officers that are in excess of the bonus opportunities provided in their
respective employment agreements. The compensation committee believes that the use of retention
bonuses is a useful tool in retaining management to provide the company with continuity.
Equity Compensation
From time to time, the board of directors, upon the recommendation of the compensation
committee, has granted our named executive officers equity awards that vest over time through
restricted unit agreements. Like the strategic bonuses described above, the compensation committee
believes that such equity awards encourage our named executive officers to increase their ownership
stake in the company and focus on the long-term performance of the company. These restricted unit
awards have included put rights, which provide the named executive officer the right to sell back
up to 40% of the vested units to our company at the then-current fair market value of the
membership units to cover the related tax requirements of the individual officers. The compensation
committee believes that such put provisions are appropriate since sale of our units is highly
restricted under our companys operating agreement. On
July 31, 2007, Peterson Holdings, Inc. was awarded
15,000 units pursuant to a restricted unit agreement. This award vests in equal yearly installments
over a period of five years. Certain former officers also received grants of restricted units as
further described below under the heading Restricted Unit
Grants, but any restricted units held
that had not vested upon their termination of employment were forfeited.
The units held by Mr. Johnston vested immediately upon his
termination.
We have also entered into change of control agreements with certain named executives officers
of the company which provide executives with the right to receive units of the company upon their
termination without cause after change of control. A change of control is defined in these
agreements as (1) the acquisition by any individual, entity or group of beneficial ownership of 30%
or more of our membership units, (2) certain changes in the composition of our board,
(3) consummation of a reorganization, merger, consolidation or statutory exchange of our membership
units, (4) consummation of a sale or other disposition of all or a substantial portion of our
assets or (5) in some agreements, approval by our unit holders of a complete liquidation or
dissolution of our company. Currently, the only named executive officer with such an agreement is
Mr. Peterson. Mr. Petersons change in control agreement entitles him to receive 14,000 units upon
his termination without cause after a change in control. The compensation committee believes that
such an agreement is appropriate in the event of such a transaction given the need for the
companys chief executive officer to be focused on closing a potential transaction that may result
in a change of control if it is in the best interests of our members. Additional information about
potential payouts to Mr. Peterson under this agreement is provided under the heading Payments upon
Resignation, Retirement or Other Termination below.
Perquisites and Other Personal Benefits
We provide named executive officers with perquisites and other personal benefits that the
compensation committee believes are reasonable and consistent with our overall compensation
program. We believe that such perquisites better enable us to attract and retain superior employees
for key positions and are consistent with the Companys employment agreements. The compensation
committee believes that the benefits provided to Mr. Peterson, which primarily consists of the use
of a company-owned vehicle, are consistent with market practices and necessary for him to
effectively serve as the chief executive officer of the Company.
Accounting and Tax Treatment
We account for equity compensation paid to our employees under the rules of SFAS No. 123R,
which requires us to estimate and record an expense over the service period of the award.
Accounting rules also require us to record cash compensation as an expense at the time the
obligation is earned. We structure cash bonus compensation so that it is taxable to our executives
at the time it becomes available to them.
The compensation committee reviews and considers the deductibility of executive compensation
under Section 162(m) of the Internal Revenue Code, which provides that we may not deduct
compensation of more than $1,000,000 that is paid to certain individuals. We currently intend that
all cash compensation paid will be tax deductible.
Compensation Committee Report
The compensation committee has reviewed and discussed the foregoing Compensation Discussion
and Analysis with management. Based on that review and discussion, the compensation committee
recommended to the board that the Compensation Discussion and Analysis be included in this
Amendment No. 1 on Form 10-K/A and in the Companys proxy statement for the 2010 Regular Meeting of
Members.
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Respectfully submitted,
Compensation Committee
TROY L. OTTE
JOSHUA M. NELSON
THOMAS A. RAVENCROFT
JOSHUA M. NELSON
THOMAS A. RAVENCROFT
Summary Compensation Table
The following table shows, for our Chief Executive Officer, President and Chief Financial
Officer, former Chairman and Chief Executive Officer and former Vice President and Legal Counsel,
together referred to as our named executive officers, information concerning compensation earned
for services in all capacities for the fiscal years ended September 30, 2009, September 30, 2008
and September 30, 2007:
Unit | Non-Equity | All Other | ||||||||||||||||||||||||||
Name and Principal | Bonus | Awards | Incentive Plan | Compensation | ||||||||||||||||||||||||
Position | Year | Salary ($) | ($)(5) | ($)(1) | Compensation ($)(6) | ($) | Total ($) | |||||||||||||||||||||
Richard R. Peterson |
2009 | 272,334 | 35,547 | 42,000 | 64,453 | 34,076 | (2) | 448,410 | ||||||||||||||||||||
Chief Executive Officer, |
2008 | 200,000 | | 84,000 | 31,750 | 23,308 | (2) | 339,058 | ||||||||||||||||||||
President and Chief Financial Officer |
2007 | 154,807 | 152,500 | | | 19,805 | (2) | 327,112 | ||||||||||||||||||||
Revis L. Stephenson III |
2009 | 124,948 | | 11,667 | | 9,990 | (3) | 146,605 | ||||||||||||||||||||
Chairman and Chief |
2008 | 300,000 | | 462,537 | 10,125 | 42,818 | (3) | 815,480 | ||||||||||||||||||||
Executive Officer |
2007 | 300,000 | 150,000 | 1,202,274 | | 23,327 | (3) | 1,675,601 | ||||||||||||||||||||
Perry C. Johnston |
2009 | 115,385 | | 168,000 | 25,391 | 82,692 | (4) | 391,468 | ||||||||||||||||||||
Vice President and Legal Counsel |
2008 | 200,000 | | 42,000 | 31,750 | 8,077 | (4) | 281,827 | ||||||||||||||||||||
2007 | 15,384 | | | | 125,000 | (4) | 140,384 |
(1) | Values expressed represent the actual compensation expense recognized by our company for financial reporting purposes in each fiscal year ended September 30. We calculated these amounts in accordance with Statement of Financial Accounting Standards No. 123 (revised 2004), Share-Based Payment, based on the grant date fair value of the awards utilizing the assumptions set forth in Notes 1 and 5 to our consolidated financial statements included in Item 8 of our Annual Report on Form 10-K for the fiscal year ending September 30, 2009 filed on December 29, 2009. The expressed values exclude any monetary amount received for the sale of related units to the company through exercising put options. | |
(2) | The 2009 amounts consist of $20,063 for the portion of the lease, fuel, insurance and maintenance expenses cost for personal use of a company-owned vehicle and $14,013 in company contributions to the 401(k) plan. The 2008 amounts consist of $11,943 for the portion of the lease, fuel, insurance and maintenance expenses cost for personal use of a company-owned vehicle and $11,365 in company contributions to the 401(k) plan. The 2007 amounts consist of $14,083 for the portion of the lease, fuel, insurance and maintenance expenses cost for personal use of a company-owned vehicle and $5,722 in company contributions to the 401(k) plan. Mr. Peterson was hired in fiscal year 2007 and was Vice President of Accounting and Finance and Chief Financial Officer for fiscal years 2007 and 2008. Mr. Peterson was named Chief Executive Officer in October 2008. | |
(3) | The 2009 amounts consist of $7,765 for the portion of the lease, fuel, insurance and maintenance expenses cost for personal use of a company-owned vehicle and $2,225 for reimbursement of expenses for tax planning and tax return preparation. The 2008 amounts consist of $12,830 for the portion of the lease, fuel, insurance and maintenance expenses cost for personal use of a company-owned vehicle, $11,731 in company contributions to the 401(k) plan, $1,925 in reimbursement of expenses for tax planning and tax return preparation and $16,332 in reimbursement of penalties and interest incurred for prior year tax returns due to Form 1099s not being prepared timely by the Company. The 2007 amounts consist of $10,795 for the portion of the lease, fuel, insurance and maintenance expenses cost for personal use of a company-owned vehicle, $9,807 in company contributions to the 401(k) plan, and $2,725 in reimbursement of expenses for tax planning and tax return preparation. The Company terminated Mr. Stephensons employment on January 20, 2009. | |
(4) | The 2009 amounts consist of $69,231 in severance payments, $8,725 for unused vacation at the time of his termination without cause and $4,736 in Company contributions to the 401(k) Plan. The 2008 amounts consist of $8,077 in company contributions to the 401(k) plan. The 2007 amounts consist of a $125,000 moving allowance. Mr. Johnston was hired on August 8, 2007. The Company terminated Mr. Johnstons employment without cause on April 17, 2009. | |
(5) | Amounts consist of bonuses earned under employment agreements and other discretionary bonuses separately approved by the board of directors. |
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(6) | Amounts consist of bonuses earned under the corporate bonus plan. |
Grants of Plan-Based Awards in 2009
The following table sets forth each grant of an award made to a named executive officer during
the year ended September 30, 2009.
Estimated Future Payouts Under Non-Equity | ||||||||||||||||
Incentive Plan Awards(1) | ||||||||||||||||
Name | Grant Date | Threshold ($)(2) | Target ($)(3) | Maximum ($)(4) | ||||||||||||
Richard R. Peterson |
June 17, 2009 | 8,594 | 21,482 | 68,750 | ||||||||||||
Perry C. Johnston |
June 17, 2009 | 6,250 | 15,625 | 50,000 |
(1) | The actual payouts received are reflected in the non-equity incentive plan compensation column of the Summary Compensation Table for 2009. The payments of the non-equity incentive plan compensation for 2009 were made in December 2009. | |
(2) | The 2009 corporate bonus plan was comprised of company financial targets (50%) and personal performance objectives (50%). The threshold payouts were based on meeting one of four personal performance objectives, representing 25% of the possible 50% payout for personal performance objectives, or one of the 2 minimum financial targets, representing 12.5% of the possible 25% for each financial target. This would be the minimum amount payable for a certain level of performance. | |
(3) | The target payouts were based on the company meeting the minimum EBITDA target of $.12 per gallon of ethanol and a minimum of 95.2 million gallons of 200 proof ethanol produced and a named executive officer meeting one of four personal performance objectives. | |
(4) | The maximum payouts are determined in the employment agreements for each named executive officer as further described below. |
Employment Agreements with Named Executive Officers
Richard R. Peterson. On December 11, 2007, we entered into an amended and restated employment
agreement with Mr. Peterson. The agreement calls for Mr. Peterson to receive (i) an annual base
salary of $200,000; (ii) the right to participate in all employee benefit plans and programs of our
company; (iii) use of an automobile while employed by our company; (iv) three weeks annually of
paid vacation time off in accordance with our normal policies; (v) reimbursement for all reasonable
and necessary out-of-pocket business, travel and entertainment expenses; and (vi) an annual cash
performance bonus of up to 25% of his base salary based on achievement of certain criteria
established by our compensation committee. The agreement was amended in December 2008 to among
other things give Mr. Peterson a $75,000 increase in annual salary retroactive to October 16, 2008.
Mr. Peterson has agreed, as part of the employment agreement, that (a) he will not divulge our
confidential information or any know-how or trade secret information conceived or originated by him
during his employ; (b) he will not take a corporate opportunity from our company; (c) he will not
engage in competition with our company; (d) he will not attempt to hire an employee of our company
during his employ or during a 24-month period thereafter; (e) he will not solicit our customers or
suppliers during his employ or during the 24-month period thereafter; and (f) he will disclose to,
and give all rights and ownership to, us in any improvements, inventions or copyrightable material
he conceives during his employ and relating to our business.
If Mr. Petersons employment is terminated by our company without cause or by Mr. Peterson
for good reason, Mr. Peterson shall receive certain severance payments and benefits, including
(a) an amount equal to 52 weeks of Mr. Petersons weekly base salary at the time of termination of
employment, paid in installments in accordance with our regular payroll practices; (b) a payment
equal to the pro rata portion of any annual cash performance bonus that would have been payable to
Mr. Peterson during the fiscal year in which the termination occurs; and (c) health, dental,
disability and life insurance benefits for Mr. Peterson and his dependents for a 12-month period,
to the extent that such benefits were in effect at termination, unless Mr. Peterson obtains such
coverage through any other employer. In addition, if Mr. Petersons employment terminates for the
reasons described above in connection with or within two years after a change in control, he will
receive an additional 52 weeks of base salary. Mr. Peterson has agreed that the existence of the
Voting Agreement or the exercise of rights thereunder does not constitute a change of control.
Upon termination, Mr. Peterson shall promptly deliver to us any and all company records and
property in his possession or under his control.
Revis L. Stephenson III. Pursuant to Mr. Stephensons employment agreement, his employment
commenced on April 7, 2006 and ended on January 20, 2009, when his employment was terminated. In
June 2009, Mr. Stephenson filed a demand for arbitration with the American Arbitration Association
alleging that the Company breached its employment agreement with Mr. Stephenson when his employment
was terminated in January 2009. Mr. Stephenson is seeking additional compensation, including but
not limited to, two years of compensation and benefits.
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The agreement called for Mr. Stephenson to receive (i) an annual base salary of $300,000;
(ii) an annual cash performance bonus (of up to $50,000 through fiscal 2007 and 25% of his base
salary beginning in fiscal 2008) based on achievement of certain criteria established by our
compensation committee; (iii) a strategic bonus, payable in units, based on additional production
of ethanol by our company; (iv) the right to participate in all employee benefit plans and programs
of our company; (v) use of an automobile while employed by our company; (vi) reimbursement for all
reasonable and necessary out-of-pocket business, travel and entertainment expenses;
(vii) reimbursement for reasonable fees and expenses of annual tax return preparation and planning;
and (viii) at least four weeks annually of paid vacation time off in accordance with the normal
policies of our company.
Mr. Stephenson had agreed, as part of the employment agreement, that (a) he will not divulge
our confidential information or any know-how or trade secret information conceived or originated by
him during his employ; (b) he will not take a corporate opportunity from our company; (c) he will
not engage in competition with our company; (d) he will not attempt to hire an employee of our
company during Mr. Stephensons employ or during a 12-month period thereafter; (e) he will not
solicit our customers or suppliers during his employ or during the 24-month period thereafter; and
(f) he will disclose to, and give all rights and ownership to, us in any improvements, inventions
or copyrightable material he conceives during his employ and relating to our business.
In October 2008, in accordance with Mr. Stephensons employment agreement with the Company,
the Company gave written notice to Mr. Stephenson that the Company was not extending the term of
his employment. Accordingly, Mr. Stephensons employment with the Company under his employment
agreement was scheduled to expire on April 7, 2009. Effective October 15, 2008, Mr. Stephenson was
suspended as Chief Executive Officer of the Company and was replaced as chairman of the Companys
Board of Directors. On January 20, 2009, Mr. Stephensons employment was terminated.
Perry C. Johnston. On December 11, 2007, we entered into an amended and restated employment
agreement with Perry Johnston. Mr. Johnstons employment was terminated by our company in April
2009. In accordance with his employment agreement, Mr. Johnston received certain severance payments
and benefits, including (a) an amount equal to 52 weeks of Mr. Johnstons weekly base salary at the
time of termination of employment, paid in installments in accordance with our regular payroll
practices; (b) a payment equal to the pro rata portion of any annual cash performance bonus that
would have been payable to Mr. Johnston during the fiscal year in which the termination occurs; and
(c) health, dental, disability and life insurance benefits for Mr. Johnston and his dependents for
a 12-month period, unless Mr. Johnston obtains such coverage through any other employer. The
agreement called for Mr. Johnston to receive (i) an annual base salary of $200,000; (ii) the right
to participate in all employee benefit plans and programs of our company; (iii) three weeks
annually of paid vacation time off in accordance with our normal policies; (iv) reimbursement for
all reasonable and necessary out-of-pocket business, travel and entertainment expenses; (v) an
annual cash performance bonus of up to 25% of his base salary based on achievement of certain
criteria established by our compensation committee; and (vi) a relocation package of $125,000.
Mr. Johnston had agreed, as part of the employment agreement, that (a) he will not divulge our
confidential information or any know-how or trade secret information conceived or originated by him
during his employ; (b) he will not take a corporate opportunity from our company; (c) he will not
engage in competition with our company; (d) he will not attempt to hire an employee of our company
during his employ or during a 24-month period thereafter; (e) he will not solicit our customers or
suppliers during his employ or during the 24-month period thereafter; and (f) he will disclose to,
and give all rights and ownership to, us in any improvements, inventions or copyrightable material
he conceives during his employ and relating to our business.
Restricted Unit Grants
Other Awards. On July 31, 2007, the board of directors, upon the recommendation of the
compensation committee, granted Peterson Holdings, Inc., an affiliate of Mr. Peterson, and Mr.
Johnston awards of 15,000 restricted units that vest in equal installments over five years. Vesting
of the awards to Peterson Holdings, Inc. will be accelerated if Mr. Petersons employment is
terminated due to death or disability or after a change in control. Mr. Johnston had his remaining
12,000 units vest immediately upon his termination without cause in April 2009. These awards
contain put rights, which provide the right to sell back up to 40% of the vested membership units
to our Company at the then-current fair market value of the membership units to cover the related
tax requirements of the individual officers. In December 2008, Messrs. Peterson and Johnston each
exercised put rights for the sale of 1,200 units at $2.55 per unit. In May 2009, Mr. Johnston
exercised put rights for the sale of 4,800 units at $2.55 per unit. In October 2009, Mr. Peterson
exercised put rights for the sale of 1,200 units at $1.50 per unit.
Strategic Bonus Awards. We entered into a restricted unit agreement with an entity owned by
Mr. Stephenson pursuant to which units restricted as to transfer and subject to possible
forfeiture were issued as the strategic bonus contemplated by the employment agreement with that
individual. That agreement provided that one restricted unit would be issued to Stephenson
Holdings, Inc., an entity owned by Mr. Stephenson, for each 1,000 gallons of ethanol production
capacity acquired or built on or prior to April 3, 2009 other than the Nebraska plant. On
November 8, 2006, 39,000 restricted units were granted to Stephenson Holdings, Inc. due to our
acquisition of the partnership interests of Heartland Grain Fuels. In October 2007, an additional
40,000 restricted units were granted to Stephenson Holdings, Inc. in connection with the expansion
of production capacity at the Aberdeen, South Dakota plant. Mr. Stephenson had 10,000 of these
strategic bonus units forfeited upon his termination.
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Outstanding Equity Awards at 2009 Fiscal Year-End
The following table sets forth certain information concerning equity awards outstanding to the
named executive officers at September 30, 2009.
Unit Awards | ||||||||
Number of | Market Value of | |||||||
Units That have | Units That have | |||||||
not Vested | not Vested | |||||||
Name | (#) | ($)(1) | ||||||
Richard R. Peterson |
9,000 | (2) | 13,500 | |||||
Revis L. Stephenson III |
| | ||||||
Perry C. Johnston |
| |
(1) | Amount shown is based on a unit price of $1.50, which was the estimated market value of the units at the end of fiscal 2009. | |
(2) | 3,000 of these units will vest on each October 1 of the years 2009-2011. |
2009 Units Vested
The following table sets forth certain information concerning units that have vested during
the fiscal year ended September 30, 2009.
Unit Awards | ||||||||
Number of Units Acquired | Value Realized on | |||||||
Name | on Vesting (#) | Vesting ($)(1) | ||||||
Richard R. Peterson |
3,000 | 7,650 | ||||||
Revis L. Stephenson III |
19,750 | 50,363 | ||||||
Perry C. Johnston |
12,000 | 30,600 |
(1) | Amount shown is based on a unit price of $2.55, which was the estimated market value of the units at the time that the units vested. |
Payments Upon Resignation, Retirement or Other Termination
Neither Mr. Stephenson nor Mr. Johnston were serving as named executive officers at the end of
the last fiscal year. Mr. Stephenson was not entitled to any payments as a result of the
termination of his employment and Mr. Johnston is receiving the payments detailed above upon his
termination without cause in April 2009. Therefore, the discussion below currently only pertains
to Mr. Peterson.
Mr. Petersons employment agreement provides for severance payments in certain circumstances,
as described above under the caption Employment Agreements with Named Executive Officers. As
described above under the caption Restricted Unit Grants, the vesting of restricted unit awards
to Mr. Peterson will accelerate if his employment is terminated due to death or disability. Our
employees, including named executive officers, may participate in a tax-qualified 401(k) retirement
plan. Under that plan, an employee may contribute up to the annual federal limitation. The company
matches an employees contributions to the plan up to 5% of an employees annual compensation. The
employees contributions and the companys match vest immediately.
On July 31, 2007, the board, upon the recommendation of the compensation committee, granted to
the named executive officers the right to receive units of the company on the terms and conditions
included in the form of Change in Control Agreement approved by the compensation committee. The
only named executive officer that currently has a Change in Control Agreement is Mr. Peterson. The
board granted Mr. Peterson the right to receive 14,000 units if his employment is terminated by the
company or its successor without cause within 60 days prior to or within two years after a change
in control of the company.
If Mr. Petersons employment is terminated by the company without cause or by him for good
reason in connection with or after a change in control, Mr. Peterson will receive enhanced
severance benefits. As described above under the caption Restricted Unit Grants, the restricted
unit awards to Mr. Peterson will vest in full upon the occurrence of a change in control. As
discussed below, Mr. Peterson has agreed that the existence of the Voting Agreement or the exercise
of rights thereunder does not constitute a change in control.
For purposes of these agreements, a change in control is generally defined as (1) the
acquisition by any individual, entity or group of beneficial ownership of 30% or more of our
membership units, (2) certain changes in the composition of our board, (3) consummation of a
reorganization, merger, consolidation or statutory exchange of our membership units,
(4) consummation of a sale or other disposition of all or a substantial portion of our assets or
(5) in some agreements, approval by our unit holders of a
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complete liquidation or dissolution of us. Each of these transactions is subject to certain
exceptions, including if a change of control transaction is caused by a group, acting in concert,
that includes the named executive officer.
For purposes of these agreements, cause is generally defined to include (1) acts of
dishonesty intended to result in personal enrichment at the expense of the company, (2) unlawful
conduct or gross misconduct that is materially injurious to the company, (3) conviction for a
felony, (4) willful and deliberate breach of fiduciary obligations, (5) persistent failure to
perform material duties, or (6) a material breach of the applicable agreement by the individual.
Good reason is generally define to include (a) material breach of the applicable agreement by the
company, (b) a material adverse change in the individuals duties, responsibilities or authority,
(c) failure to pay or reduction in base salary or bonus, (d) a material adverse change in reporting
relationships, (e) a failure by the company to assign or a successor to assume the applicable
agreement, (f) requiring the individual to be based more than 50 miles from Minneapolis, Minnesota.
The following table discloses the potential payments and benefits provided upon termination of
employment without cause or after a change of control for Mr. Peterson, our only named executive
officer who was currently serving at the end of the last fiscal year calculated as if the
termination of his employment had occurred on September 30, 2009:
Following Change in Control | ||||||||||||||||
Involuntary | Involuntary (Not for | |||||||||||||||
(Not for Cause) | Cause) or Good | |||||||||||||||
Termination | Reason Termination | Value | ||||||||||||||
Name | Salary and Bonus ($) | Salary and Bonus ($) | of Units ($) | Benefits ($) | ||||||||||||
Richard R. Peterson(1) |
296,482 | 592,964 | 21,000 | $ | 13,897 |
(1) | Includes 1 year annual salary and one year target bonus of $21,482; includes 2 years annual salary and target bonuses plus 14,000 units issuable upon a change in control event at $1.50 per unit. Includes one year of medical dental and life insurance premiums for Mr. Peterson and his beneficiaries. Payments and benefits provided upon a change in control or termination of employment would be based on his current annual salary and target bonus. |
Director Compensation
In connection with their service on our board of directors, for fiscal 2009 each of our
non-employee directors is entitled to receive a $10,000 annual retainer, an additional $1,000 for
serving as a member of the audit and compensation committees (with
the chairman of each such committee receiving an additional $500), an additional $1,500 for serving as a member
of the risk management committee (with the chairman receiving an additional
$500). In addition, each of our non-employee directors also receive an additional $500 for
serving as a member of the nominating committee. In 2009, we also compensated our non-employee
directors for their service on two of our special committees of the board, the Strategic Review
Committee ($1,500) and the Finance Committee ($1,000). All directors are also reimbursed for their
reasonable out-of-pocket expenses incurred in attending meetings of the board of directors and
committees.
The following table shows director compensation earned for each of our non-employee directors
during the fiscal year ended September 30, 2009. Our directors have not yet been paid for these
fees.
Fees Earned or | Unit | All Other | ||||||||||||||
Name | Paid in Cash ($) | Awards ($) | Compensation ($) | Total ($) | ||||||||||||
John E. Lovegrove |
15,000 | | | 15,000 | ||||||||||||
Scott A. Brittenham |
15,000 | | | 15,000 | ||||||||||||
Neil S. Hwang |
| | | | ||||||||||||
Joshua M. Nelson |
| | | | ||||||||||||
Troy L. Otte |
13,000 | | | 13,000 | ||||||||||||
Bruce L. Rastetter |
| | | | ||||||||||||
Thomas Ravencroft |
12,500 | | | 12,500 | ||||||||||||
Revis Stephenson(1) |
6,667 | | | 6,667 | ||||||||||||
Keith E. Spohn |
11,500 | | | 11,500 | ||||||||||||
Larry L. Cerny(2) |
11,667 | | | 11,667 | ||||||||||||
Robert W. Holmes(3) |
1,667 | | | 1,667 | ||||||||||||
Dale Locken(4) |
| | | |
(1) | Resigned effective September 18, 2009. | |
(2) | Resigned effective August 28, 2009. | |
(3) | Resigned effective November 21, 2008. | |
(4) | Resigned effective October 15, 2008. |
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Securities Authorized for Issuance Under Equity Compensation Plans
As of the end of the most recent fiscal year, we had no units remaining available for future
issuance under equity compensation plans.
Compensation Committee Interlocks and Insider Participation
None of the members of the board who served on our compensation committee during 2009 has ever
been an officer or employee of our company. No executive officer serves, or in the past has
served, as a member of the board of directors or compensation committee (or other board committee
performing equivalent functions) of any other entity that has any of its executive officers serving
as a member of our board of directors or compensation committee.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
UNITHOLDER MATTERS
Security Ownership of Certain Beneficial Owners
The following table sets forth, as of January 28, 2010, the ownership of units by each member
whom we know to own beneficially more than 5% of the outstanding units, each director and director
nominee, each named officer and all executive officers and directors as a group. At the close of
business on January 28, 2010, there were 17,814,180 units issued and outstanding, each of which is
entitled to one vote.
Unless otherwise indicated, the listed beneficial owner has sole voting power and investment
power with respect to such units, no director or executive officer has pledged as security any
units shown as beneficially owned, and the mailing address for each person listed in the table is
10201 Wayzata Blvd., Suite 250, Minneapolis, MN 55305.
Percentage of | ||||||||
Amount and Nature of | Outstanding | |||||||
Name of Beneficial Owner or Identity of Group | Beneficial Ownership (#) | Units | ||||||
Non-Employee Directors: |
||||||||
John E. Lovegrove |
63,000 | (1) | * | |||||
Scott A. Brittenham |
4,043,882 | (2) | 22.7 | % | ||||
Neil S. Hwang |
0 | * | ||||||
Joshua M. Nelson |
0 | * | ||||||
Troy L. Otte |
69,500 | * | ||||||
Bruce L. Rastetter |
3,333,333 | (3) | 18.7 | % | ||||
Thomas A. Ravencroft |
53,900 | (4) | * | |||||
Keith E. Spohn |
40,000 | (5) | * | |||||
Named Executive Officers: |
||||||||
Richard R. Peterson |
11,400 | (6) | * | |||||
Revis L. Stephenson III |
284,845 | (7) | 1.6 | % | ||||
Perry C. Johnston |
9,000 | * | ||||||
Executive officers and directors as a group (11 persons) |
7,908,860 | (8) | 44.4 | % | ||||
More than 5% Owners: |
||||||||
South Dakota Wheat Growers Association |
1,271,452 | 7.1 | % | |||||
110 6th Avenue SE Aberdeen, SD 57402 |
||||||||
Clean Energy Capital, LLC (f/k/a Ethanol Capital Management, LLC) |
4,043,882 | (2) | 22.7 | % | ||||
5151 E. Broadway, Suite 510 Tucson, AZ 85711 |
||||||||
Hawkeye Energy Holdings, LLC |
3,333,333 | (3) | 18.7 | % | ||||
224 S. Belle Ave Ames, IA 50010 |
* | Less than 1% | |
(1) | Includes units owned jointly with Mr. Lovegroves spouse. | |
(2) | Includes 2,750,000 units held by Ethanol Investment Partners, LLC, 500,000 units held by Tennessee Ethanol Partners, L.P., 475,462 units held by Ethanol Capital Partners, L.P. Series T and 318,420 units held by Ethanol Capital Partners, L.P. Series R. Mr. Brittenham serves as the Managing Member, President & CEO of Clean Energy Capital, LLC, the sole manager of Ethanol Investment Partners, LLC and an affiliate of Tennessee Ethanol Partners, L.P., Ethanol Capital Partners, L.P. Series T and Ethanol Capital Partners, L.P. Series R. Mr. Brittenham disclaims beneficial ownership of these securities. Includes 2,015,816 units that are pledged as security for a loan from Clean Energy Capital, LLC (CEC) to CECs limited partnership funds, Ethanol Investment Partners Series E,H,I,J,L,M,N,O,P,Q,S and Tennessee Ethanol Partners, L.P. | |
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(3) | Includes 3,333,333 units owned by Hawkeye of which Messrs. Nelson and Rastetter are on the board of managers and Mr. Rastetter is currently serving as Chief Executive Officer. These units are pledged as collateral to the holder of Hawkeyes senior secured notes and second lien secured notes. Mr. Rastetter disclaims beneficial ownership of these units, except to the extent of his pecuniary interest therein. | |
(4) | Includes 53,900 units held in the name of the Thomas A. Ravencroft Declaration of Trust, Mr. Ravencroft is the creator of the Trust. | |
(5) | Includes units owned jointly with Mr. Spohns spouse. | |
(6) | Includes 11,400 restricted units issued to an affiliate of Mr. Peterson. Of these units, 5,400 units are vested and the remainder will vest over a two-year period ending on October 1, 2011. | |
(7) | Includes 120,000 units pledged as security. | |
(8) | Mr. Stephenson and Mr. Johnston, named executive officers are included; however, they are no longer employed by the Company. |
Description of Voting Agreement
On August 28, 2009, Hawkeye, EIP, South Dakota Wheat Growers Association and certain directors
entered into a voting agreement (the Voting Agreement) in conjunction with the issuance and sale
of our units in a private equity offering. The number of units owned by each party to the Voting
Agreement is set forth in the table below.
The Voting Agreement requires the parties thereto to (a) nominate for election to the board
the following persons listed below (the Designees), (b) recommend to the members of the company
the Designees, and (c) vote (or act by written consent) all units beneficially owned by such party
at any meeting of our members in favor of the Designees. The Designees include:
(1) | two representatives designated by Hawkeye Joshua M. Nelson and Bruce L. Rastetter are currently designated by Hawkeye for this purpose; | ||
(2) | two representatives designated by EIP Scott A. Brittenham and Neil S. Hwang are currently designated by EIP for this purpose; and | ||
(3) | the Chief Executive Officer of the Company (the CEO Board Member) Richard R. Peterson is currently designated for this purpose. |
The Voting Agreement also requires that each party thereto not take any action that would
result in the removal of any of the Designees without the consent of Hawkeye, EIP and the CEO Board
Members. Each of the parties to the Voting Agreement granted to Hawkeye and EIP an irrevocable proxy
coupled with an interest to vote such partys units in accordance with the terms of the Voting
Agreement.
For purposes of Section 13(d) of the Securities Exchange Act of 1934, a total of 8,886,467
units may be deemed to be beneficially owned by virtue of the Voting Agreement, representing
approximately 49.9% of our outstanding units. The number of such units held by each party to the
Voting Agreement is as follows:
Name | Units Owned (#) | |||
John E. Lovegrove |
63,000 | |||
Keith E. Spohn |
40,000 | |||
Ethanol Investment Partners, LLC |
2,750,000 | (1) | ||
Tennessee Ethanol Partners, L.P. |
500,000 | (1) | ||
Ethanol Capital Partners L.P., Series T |
475,462 | (1) | ||
Ethanol Capital Partners L.P., Series R |
318,420 | (1) | ||
Thomas A. Ravencroft |
53,900 | |||
Troy L. Otte |
69,500 | |||
Richard R. Peterson |
11,400 | |||
South Dakota Wheat Growers Association |
1,271,452 | |||
Hawkeye Energy Holdings, LLC |
3,333,333 | (2) | ||
Total |
8,886,467 | |||
(1) | Scott A. Brittenham serves as the Managing Member, President & Chief Executive Officer and Neil S. Hwang serves as the Chief Financial and Compliance Officer of Clean Energy Capital, LLC, which is the sole manager of Ethanol Investment Partners, LLC and an affiliate of Tennessee Ethanol Partners, L.P., Ethanol Capital Partners, L.P. Series T and Ethanol Capital Partners, L.P. Series R. | |
(2) | Bruce L. Rastetter serves as the Chief Executive Officer of Hawkeye. Joshua M. Nelson is a member of the board of directors of Hawkeye. |
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ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Transactions with Promoters and Related Persons
The term related person as defined in Item 404(a) of Regulation S-K refers to our directors,
executive officers, holders of more than 5% of our outstanding membership units and the immediate
family members of any of those persons.
Related Party Transaction Approval Policy
We require that all future transactions with related persons will be no less favorable to us
than those generally available from unaffiliated third parties. All future related party
transactions, other than grain purchases, will be approved by a majority of the disinterested
directors. In addition to compensatory transactions described under Executive Compensation, we
have engaged in the following transactions with our related persons:
Purchase of Employment Agreement Units
On December 12, 2008, we purchased 1,200 membership units each from Mr. Peterson and Mr.
Johnston at a price of $2.55 per membership unit based on a recent independent evaluation. These
purchases were approved by our board of directors. We purchased these membership units in order to
provide these individuals with sufficient cash to pay taxes due upon the vesting of the illiquid
membership units granted.
In May 2009, Mr. Johnston exercised put rights for the sale of 4,800 units at $2.55 per unit.
In October 2009, Mr. Peterson exercised put rights for the sale of 1,200 units at $1.50 per unit.
Convertible Promissory Notes Issued To Ethanol Investment Partners, LLC
On April 20, 2007, we entered into a note purchase agreement with EIP, an affiliate of
Tennessee Ethanol Partners, L.P., an existing unitholder, pursuant to which we issued to EIP a
$10 million 15% subordinated convertible promissory note. We also granted EIP an option exercisable
until June 13, 2007 to purchase an additional 15% subordinated convertible promissory note of up to
$25 million. On June 13, 2007, EIP exercised this option to purchase a $15.9 million
15% subordinated convertible promissory note dated June 20, 2007. Scott A. Brittenham, one of our
directors, is president and chief executive officer of Clean Energy Capital, LLC, an affiliate of
EIP.
The notes bore interest at 15% per annum compounded quarterly and matured one year from the
date of issue of the second note. The principal and accrued but unpaid interest on the notes were
converted automatically at maturity into the right to receive 1,894,903 membership units upon
delivery to us of EIPs signature page to our operating agreement at $16.00 per unit. EIP was also
obligated to surrender or cause to be surrendered the notes, duly endorsed. The conversion rights
were disputed and in October 2008, a settlement agreement was reached in which EIP received
2,750,000 units for converting the notes.
In connection with the issuance of the note, we entered into a letter agreement with EIP
pursuant to which we agreed, subject to approval from South Dakota Wheat Growers Association, to
enter into a registration rights agreement that grants them up to two demand and unlimited
piggyback registration rights under certain circumstances. We entered into this agreement on
June 25, 2007.
Investment by Hawkeye Energy Holdings, LLC, Ethanol Capital Partners, L.P. Series T, Ethanol
Capital Partners, L.P. Series R and Certain Directors
On October 5, 2009, the Company completed a private offering in which it raised $7.4 million
in net proceeds from the issuance of 5,103,730 units at a price of $1.50 per unit. In connection
with the private offering, the Company issued 3,333,333 units to Hawkeye, 462,412 units to Ethanol
Capital Partners, L.P. Series T (ECP Series T), 270,982 units to Ethanol Capital Partners, L.P.
Series R (ECP Series R) 35,000 units to Mr. Otte, 20,000 units to Mr. Spohn, 35,000 units to Mr.
Ravencroft and 20,000 units to Mr. Lovegrove. On October 22, 2009, ECP Series T purchased an
additional 13,050 units and ECP Series R purchased an additional 47,438 units at a price of $1.50
per unit.
Subscription Agreement and Side Letter
In connection with the purchase of units by Hawkeye, the Company entered into a Subscription
Agreement and Side Letter which required among other things, that (1) the Company appoint two
nominees of Hawkeye to our board of directors, (2) our directors and certain other unitholders
enter into the Voting Agreement as further described under Security Ownership of Certain
Beneficial Owners Description of Voting Agreement, (3) the Company enter into a Registration
Rights Agreement (the Registration Rights Agreement) with Hawkeye, and (4) ABE Fairmont, LLC
(ABE Fairmont) enter into an Exclusive Ethanol Marketing Agreement (the Ethanol Agreement) with
13
Table of Contents
Hawkeye Gold, LLC (Hawkeye Gold). Also pursuant to
the Subscription Agreement and Side Letter, we have agreed to provide Hawkeye with the right, in
connection with the issuance of additional units by the Company, to purchase such number of
additional units (at the same price and terms as any such issuance by the Company) sufficient to
permit Hawkeye to maintain its pro rata ownership interest in the Company. Further, in the event
that we at any time prior to October 21, 2010 issue additional units for less than $1.50 per unit,
we have agreed to issue Hawkeye such additional number of units as it would have purchased had
their subscription price under the Subscription Agreement been for such lower offering price.
Board Representation and Voting Agreement
The Voting Agreement, among other things, requires the parties to (a) nominate for election to
the board two designees of Hawkeye, two designees of EIP and the Chief Executive Officer of the
Company, (b) recommend to the members the election of each of the designees, (c) 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, (d) 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, EIP and Chief Executive Officer
directors, and (e) not grant a proxy with respect to any units that is inconsistent with the
parties obligations under the Voting Agreement. The Company has granted Hawkeye board observation
rights under the Voting Agreement. At the date hereof, the parties to the Voting Agreement hold in
the aggregate approximately 49.9% of the outstanding units of the Company. Messrs. Nelson and
Rastetter are designees of Hawkeye and Messrs. Brittenham and Hwang are designees of EIP.
Registration Rights Agreement
The Company has also executed the Registration Rights Agreement, which grants Hawkeye two
demand registration rights and unlimited piggyback registration rights under certain circumstances.
In addition, the Registration Rights Agreement requires us to obtain Hawkeyes consent prior to
agreeing to register with the Securities and Exchange Commission any units held by other members
(other than members already having such rights), and to obtain Hawkeyes consent before amending
the registration rights agreement with EIP or the investor rights agreement with South Dakota Wheat
Growers Association in a manner adverse to Hawkeye.
Ethanol Agreement
ABE Fairmont, LLC has executed the Ethanol Agreement which became effective on January 1,
2010. Hawkeye Gold is an affiliate of Hawkeye. The Ethanol Agreement requires, among other things,
(1) that ABE Fairmont must sell, and Hawkeye Gold must purchase, all of the denatured fuel grade
ethanol produced by ABE Fairmont, (2) a purchase and sale of ethanol under the Ethanol Agreement
must be in the form of either a direct fixed price purchase order, a direct index price purchase
order, a terminal storage purchase order, or a transportation swap or similar transaction that is
mutually acceptable to the parties, (3) that ABE Fairmont will pay any replacement or other costs
incurred by Hawkeye Gold as a result of any failure to deliver by ABE Fairmont, and (4) that, with
certain exceptions, ABE Fairmont will sell ethanol it produces exclusively to Hawkeye Gold. The
initial term of the agreement is for two years and provides for automatic renewal for successive
18 month terms unless either party provides written notice of nonrenewal at least 180 days prior to
the end of any term.
Grain Purchases from South Dakota Wheat Growers Association
At the closing of South Dakota Wheat Growers Associations sale of its interests in Heartland
Grain Fuels and Dakota Fuels to our company, we entered into a grain origination agreement with
South Dakota Wheat Growers Association, which we refer to as SDWG, pursuant to which SDWG will
provide the corn required for the operation of the South Dakota plants. Subsequent to the execution
of this agreement, Dale Locken, the chief executive officer of SDWG, became a member of our board
of directors. During fiscal 2009, we purchased $107.9 million of corn from SDWG pursuant to this
grain origination agreement. Mr. Locken has no interest in the grain origination agreement other
than in his role as the chief executive officer of SDWG. Mr. Locken is no longer a director of the
Company.
Grain Purchases from Directors
From October 1, 2008 to December 29, 2009, we made payments for corn for the operation of our
Nebraska plant to two of our directors and entities associated with our directors, as
summarized in the table below:
Director | Grain Purchases($) | |||
John E. Lovegrove |
164,480 | (1) | ||
Troy L. Otte |
637,970 | (2) |
(1) | Includes purchases made from a corporation owned in part by Mr. Lovegrove. |
14
Table of Contents
(2) | Includes $328,850 in purchases from Mr. Otte and $309,120 in purchases from a limited liability company in which Mr. Otte has a 50% ownership interest. |
All purchases were made at prevailing market prices. We expect that purchases will continue on
market terms in the future.
Director Independence
Our securities are not listed on a national securities exchange or in an inter-dealer
quotation system that have requirements that a majority of the board of directors be independent.
We have determined that five of our non-employee directors, Messrs. Brittenham, Hwang, Lovegrove,
Ravencroft and Spohn, are independent within the definition of independence provided by the
rules of the Nasdaq Stock Market. Under Nasdaq Stock Market independence standards applicable to
committees of the board of directors, Messrs. Otte and Nelson, members of our compensation
committee, would not be considered independent members of the compensation committee and Mr.
Brittenham, a member of our audit committee, would not be considered an independent member of the
audit committee.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
Fees Billed by McGladrey & Pullen LLP
In addition to reimbursement for certain out-of-pocket expenses, the following table presents
the aggregate fees billed for professional services by McGladrey & Pullen LLP and its affiliate,
RSM McGladrey, Inc. in our fiscal years ended September 30, 2009 and 2008, for these various
services:
Fiscal 2009 | Fiscal 2008 | |||||||
Description of Fees | Amount | Amount | ||||||
Audit fees |
$ | 249,500 | $ | 239,900 | ||||
Audit-related fees |
10,000 | | ||||||
Total audit and audit-related fees |
259,500 | 239,900 | ||||||
Tax fees: |
||||||||
Tax compliance fees |
60,939 | 69,488 | ||||||
Tax consultation and advice fees |
9,718 | 112,613 | ||||||
Total tax fees |
70,657 | 182,101 | ||||||
All other fees |
| | ||||||
Total |
$ | 330,157 | $ | 422,001 | ||||
Audit Fees
Audit fees consist of fees billed by McGladrey & Pullen LLP for audit services related to
review of our interim financial statements, RIN agreed upon procedures, audit of our fiscal
year-end consolidated financial statements and separate audits of ABE Fairmont, LLC and Heartland
Grain Fuels, L.P.
Audit-Related Fees
We were billed $10,000 during fiscal year 2009 for review of our private placement memorandum.
We were not billed any amounts for audit-related services during fiscal 2008.
Tax Compliance Fees
We were billed $60,939 and $69,488 by RSM McGladrey, Inc. an entity associated with
McGladrey & Pullen LLP for compliance services during the years ended September 30, 2009 and 2008,
respectively. Compliance services consist of planning and preparation of corporate tax return and
related filings.
Tax Consultation and Advice Fees
We were billed $9,718 and $112,613 by RSM McGladrey, Inc. an entity associated with
McGladrey & Pullen LLP for tax consultation and advice fees mostly related to review of loss
allocations and related issues and other business advice matters for fiscal 2009 and 2008,
respectively.
All Other Fees
We were not billed any amounts by McGladrey & Pullen LLP for other products and services
during fiscal 2009 or fiscal 2008.
15
Table of Contents
Pre-Approval Policies and Procedures
In accordance with Section 10(A)(i) of the Securities Exchange Act of 1934, our audit
committee approves the engagement of our independent accountants to render audit and non-audit
services before those services are rendered, considering, among other things, whether the proposed
engagement would impact the independence of the auditors. All of the fees reflected above were
approved by the audit committee, and all of the work was performed by full-time, permanent
employees of McGladrey & Pullen LLP and RSM McGladrey, Inc.
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(b) | Exhibits The exhibits are set forth on the Exhibit Index filed as a part of this report beginning immediately following the signatures. |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized, on January 28, 2010.
ADVANCED BIOENERGY, LLC (Registrant) |
||||
By: | /s/ Richard R. Peterson | |||
Richard R. Peterson | ||||
Chief Executive Officer, President, Chief Financial Officer and Director |
||||
16
Table of Contents
EXHIBIT INDEX
Exhibit | ||||||
Number | Description | Method of Filing | ||||
2.1 | Partnership Interest Purchase
Agreement with HGF Acquisition, LLC,
Aventine Renewable Energy, Inc.,
Dakota Fuels, Inc., South Dakota Wheat
Growers Association, Heartland
Producers, LLC, and Heartland Grain
Fuels, L.P. dated as of November 7,
2006
|
Incorporated by reference (1) | ||||
2.2 | Partnership Interest and Stock
Purchase Agreement with HGF
Acquisition, LLC, Heartland Grain
Fuels, L.P, Heartland Producers, LLC,
South Dakota Wheat Growers Association
and Dakota Fuels, Inc. dated as of
November 7, 2006
|
Incorporated by reference (2) | ||||
3.1 | Certificate of Formation
|
Incorporated by reference (3) | ||||
3.2 | Third Amendment and Restated Operating
Agreement of the Company dated as of
February 1, 2006 as amended September
18, 2009
|
Incorporated by reference (4) | ||||
4.1 | Form of Certificate of Membership Units
|
Incorporated by reference (5) | ||||
4.3 | Amended and Restated Secured Term Loan
Note issued to PJC Capital, LLC dated
August 28, 2009
|
Incorporated by reference (6) | ||||
4.4 | Warrant to Purchase Units of Advanced
BioEnergy, LLC dated August 28, 2009
|
Incorporated by reference (7) | ||||
4.5 | Voting Agreement among Advanced
BioEnergy, LLC, Hawkeye Energy
Holdings, LLC Ethanol Investment
Partners, LLC South Dakota Wheat
Growers Association, a South Dakota
cooperative, and certain directors of
the Company dated as of August 28,
2009.
|
Incorporated by reference (8) | ||||
4.6 | Registration Rights Agreement between
Advanced BioEnergy, LLC, and Hawkeye
Energy Holdings, LLC dated as of
August 28, 2009
|
Incorporated by reference (9) | ||||
4.7 | Second Amendment to Investor Rights
Agreement between Advanced BioEnergy
LLC and South Dakota Wheat Growers
Association dated as of August 28,
2009
|
Incorporated by reference (10) | ||||
4.8 | First Amendment to Registration Rights
Agreement between Advanced BioEnergy,
LLC and Ethanol Investment Partners
dated as of August 28, 2009
|
Incorporated by reference (11) | ||||
10.1 | Promissory Note (Operating Loan) and
Loan Agreement with Farm Credit
Services of America, PCA dated
February 13, 2006
|
Incorporated by reference (12) | ||||
10.2 | Master Loan Agreement with Farm Credit
Services of America, FLCA dated
February 17, 2006
|
Incorporated by reference (13) | ||||
10.3 | Amendment to Master Loan Agreement
with Farm Credit Services of America,
FLCA dated April 11, 2006
|
Incorporated by reference (14) | ||||
10.4 | Statused Revolving Credit Supplement
with Farm Credit Services of America,
FLCA dated February 17, 2006
|
Incorporated by reference (15) | ||||
10.5 | Construction and Revolving Term Loan
Supplement with Farm Credit Services
of America, FLCA dated February 17,
2006
|
Incorporated by reference (16) | ||||
10.6 | Construction and Term Loan Supplement
with Farm Credit Services of America,
FLCA dated February 17, 2006
|
Incorporated by reference (17) | ||||
10.7 | Loan and Trust Agreement with the
County of Fillmore, State of Nebraska
and Wells Fargo N.A. dated April 1,
2006
|
Incorporated by reference (18) |
Table of Contents
Exhibit | ||||||
Number | Description | Method of Filing | ||||
10.8 | Promissory Note issued to the County
of Fillmore, State of Nebraska dated
April 27, 2006
|
Incorporated by reference (19) | ||||
10.9 | Subordinate Deed of Trust and
Construction Security Agreement with
Wells Fargo Bank dated April 27, 2006
|
Incorporated by reference (20) | ||||
10.10 | ICM License Agreement with ICM, Inc.
dated March 13, 2006
|
Incorporated by reference (21) | ||||
10.11 | Contract for Electric Service with
Perennial Public Power District dated
April 25, 2006
|
Incorporated by reference (22) | ||||
10.12 | Employment Agreement with Revis L.
Stephenson III dated April 7, 2006+
|
Incorporated by reference (23) | ||||
10.13 | Project Development Fee Agreement with
Robert W. Holmes and Revis L.
Stephenson III dated May 19, 2005
|
Incorporated by reference (24) | ||||
10.14 | Letter Agreement with Oppenheimer &
Co. Inc. dated November 22, 2005
|
Incorporated by reference (25) | ||||
10.15 | Agreement between Heartland Grain
Fuels, LP and ICM, Inc. dated July 14,
2006
|
Incorporated by reference (26) | ||||
10.16 | Investor Rights Agreement with South
Dakota Wheat Growers Association dated
as of November 7, 2006
|
Incorporated by reference (27) | ||||
10.17 | Amended and Restated Employment
Agreement with Richard Peterson dated
December 11, 2007+
|
Incorporated by reference (28) | ||||
10.18 | Restricted Unit Agreement with
Stephenson Holdings, Inc. dated
November 7, 2006+
|
Incorporated by reference (29) | ||||
10.19 | South Dakota Grain Fuels, L.P.
Agreement of Limited Partnership dated
August 27, 1991
|
Incorporated by reference (30) | ||||
10.20 | Amendment to the Agreement of Limited
Partnership of Heartland Grain Fuels,
L.P. dated November 8, 2006
|
Incorporated by reference (31) | ||||
10.21 | Master Loan Agreement between Farm
Credit Services of America, FLCA and
ABE Fairmont, LLC dated as of
November 20, 2006
|
Incorporated by reference (32) | ||||
10.22 | Construction and Term Loan Supplement
to the Master Loan Agreement between
Farm Credit Services of America, FLCA
and ABE Fairmont, LLC entered into as
of November 20, 2006
|
Incorporated by reference (33) | ||||
10.23 | Construction and Revolving Term Loan
Supplement to the Master Loan
Agreement between Farm Credit Services
of America, FLCA and ABE Fairmont, LLC
entered into as of November 20, 2006
|
Incorporated by reference (34) | ||||
10.24 | Amendment to the Construction and Term
Loan Supplement to the Master Loan
Agreement between Farm Credit Services
of America, FLCA and ABE Fairmont, LLC
entered into as of November 20, 2006
|
Incorporated by reference (35) | ||||
10.25 | Amendment to the Construction and
Revolving Term Loan Supplement to the
Master Loan Agreement between Farm
Credit Services of America, FLCA and
ABE Fairmont, LLC entered into as of
November 20, 2006
|
Incorporated by reference (36) | ||||
10.26 | Administrative Agency Agreement among
Farm Credit Services of America, FLCA,
CoBank, ACB and ABE Fairmont, LLC
dated as of November 20, 2006
|
Incorporated by reference (37) | ||||
10.27 | By-Product Marketing Agreement between
Heartland Grain Fuels L.P. and
Dakotaland Feeds, LLC dated February
1, 2001*
|
Incorporated by reference (38) | ||||
10.28 | Grain Origination Agreement between
Heartland Grain Fuels, L.P. and South
Dakota Wheat Growers Association dated
November 8, 2006*
|
Incorporated by reference (39) | ||||
10.29 | Amendment to Grain Origination
Agreement dated as of October 1, 2007
between Heartland Grain Fuels, L.P. and South Dakota Wheat Growers
Association
|
Incorporated by reference (40) |
Table of Contents
Exhibit | ||||||
Number | Description | Method of Filing | ||||
10.30 | Lump Sum Design-Build Agreement
between ABE Northfield, LLC and Fagen,
Inc. dated February 7, 2007, as
amended*
|
Incorporated by reference (41) | ||||
10.31 | Form of Change of Control Agreement
dated July , 2007 between Advanced
BioEnergy, LLC and each of Revis L.
Stephenson III and Richard Peterson+
|
Incorporated by reference (42) | ||||
10.32 | Restricted Unit Agreement dated July
31, 2007 between Advanced BioEnergy,
LLC and Peterson Holdings, Inc.+
|
Incorporated by reference (43) | ||||
10.33 | Amended and Restated Employment
Agreement with Perry C. Johnston dated
December 11, 2007+
|
Incorporated by reference (44) | ||||
10.34 | Registration Rights Agreement with
Ethanol Investment Partners, LLC dated
June 25, 2007+
|
Incorporated by reference (45) | ||||
10.35 | Investor Rights Agreement with South
Dakota Wheat Growers Association dated
as of November 7, 2006, as amended
|
Incorporated by reference (46) | ||||
10.36 | Advanced BioEnergy, LLC Promissory
Note dated October 5, 2007
|
Incorporated by reference (47) | ||||
10.37 | Senior Credit Agreement dated as of
October 1, 2007 among Heartland Grain
Fuels, L.P., the lenders referred to
therein and WestLB AG, New York
Branch, as Administrative Agent,
Collateral Agent, Issuing Bank, Lead
Arranger, Sole Bookrunner and
Syndication Agent
|
Incorporated by reference (48) | ||||
10.38 | Accounts Agreement dated as of October
1, 2007 among Heartland Grain Fuels,
L.P., Amarillo National Bank, as the
Accounts Bank and Securities
Intermediary, WestLB AG, New York
Branch, as Administrative Agent and
Collateral Agent, and Wells Fargo
Bank, National Association, as Trustee
of the Brown County, South Dakota
Subordinate Solid Waste Facilities
Revenue Bonds (Heartland Grain Fuels,
L.P. Ethanol Plant Project) Series
2008A, as the Second Lien Agent for
the Second Lien Claimholders
|
Incorporated by reference (49) | ||||
10.39 | Bond Trust Indenture dated as of
October 1, 2007 between Brown County,
South Dakota and Wells Fargo Bank,
National Association as Bond Trustee
|
Incorporated by reference (50) | ||||
10.40 | Loan Agreement dated as of October 1,
2007 between Heartland Grain Fuels,
L.P. and Brown County, South Dakota
|
Incorporated by reference (51) | ||||
10.41 | Membership Interest Pledge Agreement
dated as of October 17, 2007 entered
into by Advanced BioEnergy, LLC in
favor of PJC Capital, LLC
|
Incorporated by reference (52) | ||||
10.42 | Amendment to the Master Loan Agreement
entered into as of October 5, 2007
between Farm Credit Services of
America, FLCA and ABE Fairmont, LLC
|
Incorporated by reference (53) | ||||
10.43 | Statused Revolving Credit Supplement
to the Master Loan Agreement entered
into as of October 5, 2007 between
Farm Credit Services of America, FLCA
and ABE Fairmont, LLC
|
Incorporated by reference (54) | ||||
10.44 | Amendment to the Statused Revolving
Credit Supplement entered into as of
October 5, 2007 between Farm Credit
Services of America, FLCA and ABE
Fairmont, LLC
|
Incorporated by reference (55) | ||||
10.45 | Amendment to the Construction and Term
Loan Supplement entered into as of
October 5, 2007 between Farm Credit
Services of America, FLCA and ABE
Fairmont, LLC
|
Incorporated by reference (56) |
Table of Contents
Exhibit | ||||||
Number | Description | Method of Filing | ||||
10.46 | Change of Control Agreement between
Advanced BioEnergy, LLC and William
Paulson+
|
Incorporated by reference (57) | ||||
10.47 | Restricted Unit Agreement dated
December 27, 2007 between Advanced
BioEnergy, LLC and Perry Johnston+
|
Incorporated by reference (58) | ||||
10.48 | Master Amendment and Waiver Agreement
to the Senior Credit Agreement between
Heartland Grain Fuels, LP and the
lenders referred to therin and WestLB
AG, New York Branch, as Administrative
Agent, Collateral Agent, Issuing Bank,
Lead Arranger, sole Bookrunner and
Syndication Agent
|
Incorporated by reference (59) | ||||
10.49 | Ethanol Product Off-Take Agreement by
and among Heartland Grain Fuels, LP
and Conagra Trade Group, Inc.*
|
Incorporated by reference (60) | ||||
10.50 | Settlement Agreement and Release
between Advanced BioEnergy, LLC,
certain ABE Parties described therein,
Ethanol Investment Partners, LLC and
Clean Energy Capital, LLC
|
Incorporated by reference (61) | ||||
10.51 | Amendment to the Master Loan Agreement
effective as of December 24, 2008
between Farm Credit Services of
America, FLCA and ABE Fairmont, LLC
|
Incorporated by reference (62) | ||||
10.52 | Statused Revolving Credit Supplement
effective as of December 24, 2008
between Farm Credit Services of
America, FLCA and ABE Fairmont, LLC
|
Incorporated by reference (63) | ||||
10.53 | Revolving Credit Supplement, Letters
of Credit effective as of December 24,
2008 between Farm Credit Services of
America, FLCA and ABE Fairmont, LLC
|
Incorporated by reference (64) | ||||
10.54 | Construction and Revolving Term Loan
Supplement effective as of
December 24, 2008 between Farm Credit
Services of America, FLCA and ABE
Fairmont, LLC
|
Incorporated by reference (65) | ||||
10.55 | Construction and Term Loan Supplement
effective as of December 24, 2008
between Farm Credit Services of
America, FLCA and ABE Fairmont, LLC
|
Incorporated by reference (66) | ||||
10.56 | Forbearance Agreement effective
February 2, 2009 between Heartland
Grain Fuels, LP and WestLB as
Administrative Agent for the Lenders
|
Incorporated by reference (67) | ||||
10.57 | Forbearance Agreement effective June
1, 2009, between Advanced Bioenergy,
LLC and PJC Capital LLC
|
Incorporated by reference (68) | ||||
10.58 | Amendment to the Master Loan Agreement
effective as of May 12, 2009 between
Farm Credit Services of America, FLCA
and ABE Fairmont, LLC
|
Incorporated by reference (69) | ||||
10.59 | Amendment to the Construction and Term
Loan Supplement effective as of May
12, 2009 between Farm Credit Services
of America, FLCA and ABE Fairmont, LLC
|
Incorporated by reference (70) | ||||
10.60 | Subscription Agreement dated as of
August 21, 2009 between Advanced
BioEnergy, LLC and Hawkeye Holding,
LLC
|
Incorporated by reference (71) | ||||
10.61 | Side Letter dated as of August 21,
2009 executed by Advanced BioEnergy,
LLC in favor of Hawkeye Energy
Holdings, LLC
|
Incorporated by reference (72) | ||||
10.62 | Exclusive Ethanol Marketing Agreement
by and among Hawkeye Gold, LLC and ABE
Fairmont, LLC dated as of August 28,
2009
|
Incorporated by reference (73) | ||||
17.1 | Correspondence from Revis L.
Stephenson III to the Board of
Directors of the Company, dated
September 18, 2009
|
Incorporated by reference (74) | ||||
31.1 | Rule 13a-14(a)/15d-14(a) Certification
by Principal Executive Officer
|
Filed
herewith |
Table of Contents
Exhibit | ||||||
Number | Description | Method of Filing | ||||
31.2 | Rule 13a-14(a)/15d-14(a) Certification
by Principal Financial and Accounting
Officer
|
Filed
herewith |
||||
32 | Section 1350 Certifications
|
Filed
herewith |
* | Material has been omitted pursuant to a request for confidential treatment and these materials have been filed separately with the SEC. | |
+ | Management compensatory plan/arrangement. | |
(1) | Incorporated herein by reference to Exhibit 2.1 to the Registrants Current Report on Form 8-K, filed on November 8, 2006 (File No. 333-125335). | |
(2) | Incorporated herein by reference to Exhibit 2.2 to the Registrants Current Report on Form 8-K, filed on November 8, 2006 (File No. 333-125335). | |
(3) | Incorporated herein by reference to Exhibit 3.1 to the Registrants Registration Statement on Form SB-2, filed on May 27, 2005 (File No. 333-125335). | |
(4) | Incorporated herein by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K, filed on September 24, 2009 (File No. 000-52421). | |
(5) | Incorporated herein by reference to Exhibit 4.1 to the Registrants Registration Statement on Form SB-2, filed on May 27, 2005 (File No. 333-125335). | |
(6) | Incorporated herein by reference to Exhibit 4.1 to the Registrants Current Report on Form 8-K, filed on September 3, 2009 (File No. 000-52421). | |
(7) | Incorporated herein by reference to Exhibit 4.2 to the Registrants Current Report on Form 8-K, filed on September 3, 2009 (File No. 000-52421). | |
(8) | Incorporated herein by reference to Exhibit 4.3 to the Registrants Current Report on Form 8-K, filed on September 3, 2009 (File No. 000-52421). | |
(9) | Incorporated herein by reference to Exhibit 4.4 to the Registrants Current Report on Form 8-K, filed on September 3, 2009 (File No. 000-52421). | |
(10) | Incorporated herein by reference to Exhibit 4.5 to the Registrants Current Report on Form 8-K, filed on September 3, 2009 (File No. 000-52421). | |
(11) | Incorporated herein by reference to Exhibit 4.6 to the Registrants Current Report on Form 8-K, filed on September 3, 2009 (File No. 000-52421). | |
(12) | Incorporated herein by reference to Exhibit 10.1 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(13) | Incorporated herein by reference to Exhibit 10.2 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(14) | Incorporated herein by reference to Exhibit 10.3 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(15) | Incorporated herein by reference to Exhibit 10.4 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(16) | Incorporated herein by reference to Exhibit 10.5 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(17) | Incorporated by reference to Exhibit 10.6 to the Registrants Registration Statement on Form SB-2 filed on September 13, 2006 (File No. 333-137299). | |
(18) | Incorporated herein by reference to Exhibit 10.6 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(19) | Incorporated herein by reference to Exhibit 10.7 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(20) | Incorporated herein by reference to Exhibit 10.8 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(21) | Incorporated herein by reference to Exhibit 10.10 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(22) | Incorporated herein by reference to Exhibit 10.11 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(23) | Incorporated herein by reference to Exhibit 10.12 to the Registrants Quarterly Report on Form 10-QSB, filed on May 15, 2006 (File No. 333-125335). | |
(24) | Incorporated herein by reference to Exhibit 10.10 to the Registrants Registration Statement on Form SB-2, filed on May 27, 2005 (File No. 333-125335). | |
(25) | Incorporated herein by reference to Exhibit 10.19 to the Registrants Post-Effective Amendment No. 1 to Registration Statement on Form SB-2, filed on February 10, 2006 (File No. 333-125335). |
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(26) | Incorporated herein by reference to Exhibit 10.24 to the Registrants Annual Report on Form 10-KSB, filed on December 29, 2006 (File No. 333-125335). | |
(27) | Incorporated herein by reference to Exhibit 10 to the Registrants
Current Report on Form 8-K, filed on November 8, 2006 (File No. 333-125335). |
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(28) | Incorporated herein by reference to Exhibit 10.2 to the Registrants Current Report on Form 8-K, filed on December 17, 2007 (File No. 000-52421). | |
(29) | Incorporated herein by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed on November 7, 2006 (File No. 333-125335). | |
(30) | Incorporated herein by reference to Exhibit 10.30 to the Registrants Amendment No. 2 to Registration Statement on Form SB-2, filed on December 20, 2006 (File No. 333-137299). | |
(31) | Incorporated herein by reference to Exhibit 10.31 to the Registrants Amendment No. 2 to Registration Statement on Form SB-2, filed on December 20, 2006 (File No. 333-137299). | |
(32) | Incorporated herein by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed on November 29, 2006 (File No. 333-125335). | |
(33) | Incorporated herein by reference to Exhibit 10.2 to the Registrants Current Report on Form 8-K, filed on November 29, 2006 (File No. 333-125335). | |
(34) | Incorporated herein by reference to Exhibit 10.3 to the Registrants Current Report on Form 8-K, filed on November 29, 2006 (File No. 333-125335). | |
(35) | Incorporated herein by reference to Exhibit 10.4 to the Registrants Current Report on Form 8-K, filed on November 29, 2006 (File No. 333-125335). | |
(36) | Incorporated herein by reference to Exhibit 10.5 to the Registrants Current Report on Form 8-K, filed on November 29, 2006 (File No. 333-125335). | |
(37) | Incorporated herein by reference to Exhibit 10.6 to the Registrants Current Report on Form 8-K, filed on November 28, 2006 (File No. 333-125335). | |
(38) | Incorporated herein by reference to Exhibit 10.39 to the Registrants Amendment No. 3 to Registration Statement on Form SB-2, filed on February 7, 2007 (File No. 333-137299). | |
(39) | Incorporated herein by reference to Exhibit 10.40 to the Registrants Amendment No. 3 to Registration Statement on Form SB-2, filed on February 7, 2007 (File No. 333-137299). | |
(40) | Incorporated herein by reference to Exhibit 10.5 to the Registrants Current Report on Form 8-K, filed on October 15, 2007 (File No. 000-52421). | |
(41) | Incorporated herein by reference to Exhibit 10.6 to the Registrants Quarterly Report on Form 10-QSB, filed on August 14, 2007 (File No. 000-52421). | |
(42) | Incorporated herein by reference to Exhibit 10.1 to the Registrants
Current Report on Form 8-K, filed on August 6, 2007 (File No. 000-52421). |
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(43) | Incorporated herein by reference to Exhibit 10.3 to the Registrants
Current Report on Form 8-K, filed on August 6, 2007 (File No. 000-52421). |
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(44) | Incorporated herein by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed on December 17, 2007 (File No. 000-52421). | |
(45) | Incorporated herein by reference to Exhibit 10.3 to the Registrants Quarterly Report on Form 10-QSB, filed on August 14, 2007 (File No. 000-52421). | |
(46) | Incorporated herein by reference to Exhibit 10.5 to the Registrants Quarterly Report on Form 10-QSB, filed on August 14, 2007 (File No. 000-52421). | |
(47) | Incorporated herein by reference to Exhibit 10 to the Registrants
Current Report on Form 8-K, filed on October 11, 2007 (File No. 000-52421). |
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(48) | Incorporated herein by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed on October 15, 2007 (File No. 000-52421). | |
(49) | Incorporated herein by reference to Exhibit 10.2 to the Registrants Current Report on Form 8-K, filed on October 15, 2007 (File No. 000-52421). | |
(50) | Incorporated herein by reference to Exhibit 10.3 to the Registrants Current Report on Form 8-K, filed on October 15, 2007 (File No. 000-52421). | |
(51) | Incorporated herein by reference to Exhibit 10.4 to the Registrants Current Report on Form 8-K, filed on October 15, 2007 (File No. 000-52421). | |
(52) | Incorporated herein by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed on October 23, 2007 (File No. 000-52421). | |
(53) | Incorporated herein by reference to Exhibit 10.2 to the Registrants Current Report on Form 8-K, filed on October 23, 2007 (File No. 000-52421). |
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(54) | Incorporated herein by reference to Exhibit 10.3 to the Registrants Current Report on Form 8-K, filed on October 23, 2007 (File No. 000-52421). | |
(55) | Incorporated herein by reference to Exhibit 10.4 to the Registrants Current Report on Form 8-K, filed on October 23, 2007 (File No. 000-52421). | |
(56) | Incorporated herein by reference to Exhibit 10.5 to the Registrants Current Report on Form 8-K, filed on October 23, 2007 (File No. 000-52421). | |
(57) | Incorporated herein by reference to Exhibit 10.60 to the Registrants Annual Report on Form 10-KSB, filed on December 31, 2007 (File No. 000-52421). | |
(58) | Incorporated herein by reference to Exhibit 10.61 to the Registrants Annual Report on Form 10-KSB, filed on December 31, 2007 (File No. 000-52421). | |
(59) | Incorporated herein by reference to Exhibit 10 to the Registrants Quarterly Report on Form 10-QSB, filed on May 12, 2008 (File No. 000-52421). | |
(60) | Incorporated herein by reference to Exhibit 10.1 to the Registrants
Current Report on Form 8-K, filed on June 5, 2008 (File No. 000-52421). |
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(61) | Incorporated herein by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed on October 22, 2008 (File No. 000-52421). | |
(62) | Incorporated herein by reference to Exhibit 10.1 to the Registrants
Current Report on Form 8-K, filed on January 29, 2009 (File No. 000-52421). |
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(63) | Incorporated herein by reference to Exhibit 10.2 to the Registrants
Current Report on Form 8-K, filed on January 29, 2009 (File No. 000-52421). |
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(64) | Incorporated herein by reference to Exhibit 10.3 to the Registrants
Current Report on Form 8-K, filed on January 29, 2009 (File No. 000-52421). |
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(65) | Incorporated herein by reference to Exhibit 10.4 to the Registrants
Current Report on Form 8-K, filed on January 29, 2009 (File No. 000-52421). |
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(66) | Incorporated herein by reference to Exhibit 10.5 to the Registrants
Current Report on Form 8-K, filed on January 29, 2009 (File No. 000-52421). |
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(67) | Incorporated herein by reference to Exhibit 10.1 to the Registrants
Current Report on Form 8-K, filed on February 9, 2009 (File No. 000-52421). |
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(68) | Incorporated herein by reference to Exhibit 10.2 to the Registrants
Current Report on Form 8-K, filed on June 5, 2009 (File No. 000-52421). |
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(69) | Incorporated herein by reference to Exhibit 10.5 to the Registrants
Current Report on Form 8-K, filed on June 5, 2009 (File No. 000-52421). |
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(70) | Incorporated herein by reference to Exhibit 10.6 to the Registrants
Current Report on Form 8-K, filed on June 5, 2009 (File No. 000-52421). |
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(71) | Incorporated herein by reference to Exhibit 10.1 to the Registrants
Current Report on Form 8-K, filed on August 26, 2009 (File No. 000-52421). |
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(72) | Incorporated herein by reference to Exhibit 10.2 to the Registrants
Current Report on Form 8-K, filed on August 26, 2009 (File No. 000-52421). |
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(73) | Incorporated herein by reference to Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed on September 3, 2009 (File No. 000-52421). | |
(74) | Incorporated herein by reference to Exhibit 17.1 to the Registrants Current Report on Form 8-K, filed on September 24, 2009 (File No. 000-52421). |