ADVANCED BIOENERGY, LLC SUBSCRIPTION AGREEMENT Limited Liability Company Membership Units $1.50 per Unit Minimum Investment of 6,666 Units ($10,000)
EXHIBIT
6
ADVANCED
BIOENERGY, LLC
Limited
Liability Company Membership Units
$1.50 per
Unit
Minimum
Investment of 6,666 Units ($10,000)
666 Unit
Increments Thereafter ($1,000)
The
undersigned subscriber, desiring to become a member of Advanced BioEnergy, LLC
(“Advanced BioEnergy”),
a Delaware limited liability company, with its principal place of business at
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereby,
subject to the Confidential Private Placement Memorandum of Advanced BioEnergy,
to confirmation with the undersigned of the subscription contemplated hereby, to
acceptance by Advanced BioEnergy of the subscription contemplated hereby and to
the other terms and conditions of the offering, subscribes for the purchase of
the membership interests (“units”) of Advanced BioEnergy, and agrees to pay the
related purchase price, identified below.
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A.
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SUBSCRIBER INFORMATION.
Please print your individual or entity name and address. Joint
subscribers should provide their respective names. Your name and address
will be recorded exactly as printed below.
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INDIVIDUALS:
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ENTITIES:
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Hawkeye
Energy Holdings, LLC
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Name
of Individual Subscriber (Please Print)
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Name
of Entity (Please Print)
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▇▇▇▇,
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Attn:
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Address
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Telephone
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Telephone
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Facsimile
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Facsimile
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Email
Address
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Email
Address
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| B. |
NUMBER OF UNITS PURCHASED.
The minimum participation is $10,000. We may lower the minimum
purchase requirement for certain investors at our discretion. Additional
units must be purchased in $1,000 unit increments. We presently have
12,651,962 units outstanding. The maximum number of units to be sold in
this offering is 4,666,666.
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Number
of Units Requested to Be Purchased:
1,133,333
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1
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PURCHASE PRICE. Indicate
the dollar amount of your requested investment (minimum investment is
$10,000).
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| 1. | Total Purchase Price | |
| ($1.50 per unit multiplied by the number of units to be purchased indicated in Item B above) | ||
| $ 1,699,999.50 |
| D. |
GENERAL INSTRUCTION FOR
SUBSCRIBERS. You should read the Confidential Private Placement
Memorandum dated July 24, 2009 (the “Memorandum”) in its entirety
including exhibits for a complete explanation of an investment in Advanced
BioEnergy.
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Instructions
if you are subscribing prior to
Advanced BioEnergy’s release of funds from escrow:
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1.
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Complete
all information required in this Subscription Agreement, and date and sign
the Subscription Agreement and the Member Signature Page Addenda to our
Third Amended and Restated Operating Agreement attached as Exhibit B
to the Memorandum.
A copy of the Subscription Agreement and the Member Signature Page
Addenda for you to return to the Company has been
enclosed.
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2.
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Immediately
provide your personal or business check for the entire investment amount
made payable to “Advanced BioEnergy, LLC.” You will determine this amount
in Item C.1 of this Subscription Agreement.
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3.
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Deliver
each of the original executed documents referenced in Items 1 and 2 of
these instructions, together with your personal or business check
described in Item 2 of these instructions, to the
following:
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Advanced
BioEnergy, LLC
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Attention:
Chief Executive Officer
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4.
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Until
confirmation by Advanced BioEnergy of your subscription contemplated
hereby and the acceptance by Advanced BioEnergy of the subscription
contemplated hereby, this instrument shall be deemed an offer to subscribe
for units and shall be non-binding on the undersigned and the undersigned
may revoke for any reason, by delivering written notice to Advanced
BioEnergy, this subscription. Upon acceptance by Advanced BioEnergy of
your offer to subscribe, your subscription will become irrevocable and
Advanced BioEnergy will deposit your check and deliver to you a copy of
your completed Subscription Agreement signed by Advanced BioEnergy. Any
request received from a subscriber for a withdrawal of his, her or its
subscription prior to acceptance by Advanced BioEnergy will be honored,
and the subscriber’s check for the subscription amount will be immediately
returned (without interest).
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5.
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Upon
acceptance of your subscription by Advanced BioEnergy, your funds will be
placed in Advanced BioEnergy’s escrow account. The funds will be released
to Advanced BioEnergy or returned to you in accordance with the
arrangements described in the Memorandum. Advanced BioEnergy may, in its
sole discretion, reject or accept any part or all of your subscription at
any time. If Advanced BioEnergy rejects your subscription, your
Subscription Agreement and check will be promptly returned to you, without
interest. Advanced BioEnergy may not consider the acceptance or rejection
of your subscription until a future date near the end of this
offering.
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Instructions
if you are subscribing after Advanced BioEnergy’s release of funds from
escrow:
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1.
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Complete
all information required in this Subscription Agreement, and date and sign
the Subscription Agreement and the Member Signature Page Addenda to our
Third Amended and
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2
| Restated Operating Agreement attached to the Memorandum as Exhibit B. A copy of the Subscription Agreement and the Member Signature Page Addenda for you to return to the Company has been enclosed. | ||||
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2.
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Immediately
provide your personal or business check for investment amount made payable
to “Advanced BioEnergy, LLC.” You will determine this amount in
Item C.1 of this Subscription Agreement.
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3.
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Deliver
each of the original executed documents referenced in Item 1 of these
instructions, together with your personal or business check described in
Item 2 of these instructions, to the following address:
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Advanced
BioEnergy, LLC
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Attention:
Chief Executive Officer
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If
you are subscribing after we have released funds from escrow and we accept
your investment, your funds will be immediately at-risk as described in
the Memorandum. Advanced BioEnergy may, in its sole discretion, reject or
accept any part or all of your subscription. If Advanced BioEnergy rejects
your subscription, your Subscription Agreement and check will be promptly
returned to you, without interest. Advanced BioEnergy may not consider the
acceptance or rejection of your subscription until a future date near the
end of this offering.
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You
may direct your questions to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, our President, Chief
Executive Officer and Chief Financial Officer at
(▇▇▇) ▇▇▇-▇▇▇▇.
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E.
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ADDITIONAL SUBSCRIBER
INFORMATION. The subscriber, named above, certifies the following
under penalties of perjury:
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1.
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FORM
OF OWNERSHIP. Check the appropriate box (one only) to indicate form of
ownership. If the subscriber is a Custodian, Corporation, Partnership or
Trust, please provide the additional information
requested.
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o
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Individual
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o
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Joint
Tenants with Right of Survivorship (Both signatures must appear on page
8.)
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X
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Corporation,
Limited Liability Company or Partnership (Corporate Resolutions, Operating
Agreement or Partnership Agreement must be enclosed.)
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o
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Trust
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Trustee’s
Name:
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Trust
Date:
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o
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Other:
Provide detailed information in the space immediately
below.
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2.
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SUBSCRIBER’S
TAXPAYER INFORMATION. Check the appropriate box if you are a non- resident
alien, a U.S. citizen residing outside the United States or subject to
backup withholding. Trusts should provide their taxpayer identification
number. Custodians should provide the minor’s Social Security Number.
All individual
subscribers should provide their Social Security Number. Other entities
should provide their taxpayer identification
number.
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3
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Subscriber’s
Social Security No.
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Joint
Subscriber’s Social Security No.
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ENTITY
Taxpayer Identification No.
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Check
any or all boxes that might apply:
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o
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Check box if you are a non-resident alien | |
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o
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Check box if you are a U.S. citizen residing outside of the United States | |
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Check this box if you are subject to backup withholding |
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3.
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Duplicate
REPORT ADDRESS. If you would like duplicate copies of member reports sent
to an address that is different than the address identified in
Item A, please complete this section.
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Attention:
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Street
Boston,
MA 02110
City,
State, Zip Code
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4.
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SUBSCRIBER’S
REPRESENTATIONS AND WARRANTIES. You must read and certify your
representations and warranties and sign and date this Subscription
Agreement. By initialing and signing below the subscriber represents and
warrants to Advanced BioEnergy that he, she or it: Joint subscribers must
both initial all
items
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Initial
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Here
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TC
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a.
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has
received a copy of Advanced BioEnergy’s Memorandum
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TC
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b.
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has
been informed that the units of Advanced BioEnergy are to be issued
pursuant to this Subscription Agreement can only be sold to a person
deemed to be accredited
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TC
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c.
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has
been informed that the securities purchased pursuant to this Subscription
Agreement have not been registered under the securities laws of any state
and that Advanced BioEnergy is relying in part upon the representations of
the undersigned subscriber contained herein;
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TC
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d.
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has
been informed that the securities subscribed for have not been approved or
disapproved by the securities departments, nor has any regulatory
authority passed upon the accuracy or adequacy of the Memorandum
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TC
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e
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intends
to acquire the units for his, her or its own account without a view to
public distribution or resale and that he, she or it has no contract,
undertaking, agreement or arrangement to sell or otherwise transfer or
dispose of any units or any portion thereof to any other
person;
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TC
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f.
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understands
that there is no present market for Advanced BioEnergy’s units, that the
units will not trade on an exchange or automatic quotation system, that no
such market is expected to develop in the future and that there are
significant restrictions on the transferability of the
units;
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TC
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g.
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should
seek the advice of his, her or its legal counsel and accountants or other
financial advisers with respect to the tax and other considerations
relating to the purchase of units;
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4
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TC
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h.
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has
received a copy of the Advanced BioEnergy Third Amended and Restated
Operating Agreement and understands that upon acceptance of the
subscription by Advanced BioEnergy, the subscriber and the units will be
bound by the provisions of this operating agreement, which contains, among
other things, provisions that restrict the transfer of
units;
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TC
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i.
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understands
that the units are subject to substantial restrictions on transfer under
state securities laws along with restrictions in the Advanced BioEnergy
Third Amended and Restated Operating Agreement and agrees that if the
units or any part thereof are sold or distributed in the future, the
subscriber shall sell or distribute them pursuant to the terms of the
Third Amended and Restated Operating Agreement, as may be amended from
time to time, and the requirements of the Securities Act of 1933, as
amended, and applicable state securities laws;
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TC
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j.
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meets
the definition of an accredited investor as described in the Memorandum
and is capable of bearing the economic risk of this investment, including
the possible total loss of the investment;
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TC
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k.
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understands
that Advanced BioEnergy will place a restrictive legend on any certificate
representing any unit containing substantially the following language as
the same may be amended by Advanced BioEnergy in its sole discretion: THE
TRANSFERABILITY OF THE UNITS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED. SUCH UNITS MAY NOT BE SOLD, ASSIGNED, OR TRANSFERRED, NOR WILL
ANY ASSIGNEE, VENDEE, TRANSFEREE, OR ENDORSEE THEREOF BE RECOGNIZED AS
HAVING ACQUIRED ANY SUCH UNITS FOR ANY PURPOSES, UNLESS AND TO THE EXTENT
SUCH SALE, TRANSFER, HYPOTHECATION, OR ASSIGNMENT IS PERMITTED BY, AND IS
COMPLETED IN ACCORDANCE WITH, APPLICABLE STATE AND FEDERAL LAW AND THE
TERMS AND CONDITIONS SET FORTH IN THE OPERATING AGREEMENT AS AGREED TO BY
EACH MEMBER.
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, OFFERED FOR
SALE, OR TRANSFERRED IN THE ABSENCE OF EITHER AN EFFECTIVE REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND UNDER APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND UNDER APPLICABLE STATE SECURITIES
LAWS.
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TC
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l.
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understands
that, to enforce the above legend, Advanced BioEnergy may place a stop
transfer order with its registrar and stock transfer agent (if any)
covering all certificates representing any of the units;
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TC
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m.
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may
not transfer or assign this subscription agreement, or any of the
subscriber’s interest therein;
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TC
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n.
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has
written his, her or its correct taxpayer identification number under
Item E(2); and
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TC
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o.
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is
not subject to back up withholding either because he, she or it has not
been notified by the Internal Revenue Service (“IRS”) that he, she or it
is subject to backup withholding as a result of a failure to report all
interest or dividends, or the IRS has notified him, her or it that he, she
or it is no longer subject to backup withholding. (Note: this clause
(o) should be crossed out if the backup withholding box in
Item E(2) is checked.)
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5
SIGNATURE OF
SUBSCRIBER/JOINT SUBSCRIBER:
Date:
September 16, 2009
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INDIVIDUALS:
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ENTITIES:
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Name
of Individual Subscriber (Please Print)
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Hawkeye
Energy Holdings, LLC
Name
of Entity (Please Print)
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Signature
of Individual
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer
Print
Name and Title of Officer
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Name
of Joint Individual Subscriber (Please Print)
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/s/
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Signature
of Officer
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Signature
of Joint Individual Subscriber
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ACCEPTANCE OF
SUBSCRIPTION BY ADVANCED BIOENERGY, LLC:
Advanced
BioEnergy, LLC hereby accepts the subscription for the above units.
Dated
this September 17 , 2009.
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ADVANCED
BIOENERGY, LLC
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By:
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/s/
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Its:
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Chief
Executive Officer
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6