EXHIBIT 10.1


Advanced BioEnergy, LLC


Change of
Control Agreement


This
is a Change of Control Agreement (“Agreement”),
dated as of July __, 2007, between Advanced BioEnergy, LLC, a Delaware limited
liability company (the “Company”), and ____________ (the “Employee”), an employee of the Company.


Background


A.            The board of directors of the
Company (the “Board”) or a committee of two or
more directors of the Company (the “Committee”) has
the authority to grant and administer equity awards (if the Board has not appointed
a committee to administer the awards, then the Board shall constitute the
Committee).


B.            The Committee has determined that it
would be in the best interest of the Company to provide Employee with the right
to receive an additional ownership interest in the Company, conditioned upon
occurrence of a change of control transaction regarding the Company, to provide
further incentive to the Employee to continue his service with the Company,
advance the interest of the Company, and to more closely align his interests
with those of the members of the Company.


C.            The Committee has determined that
this purpose can best be achieved by granting the Employee the right to receive
units on the terms and conditions and subject to the restrictions set forth
herein.


The
parties hereto agree as follows:


Terms and
Conditions


1.             Issuance and Terms of
Units.


(a)           Grant of Units.  The Company hereby grants to the
Employee, effective as of the date of this Agreement, the right to receive
______ Units on the terms and under the conditions specified in this Agreement.


(b)           No  Rights as Holder. 
Each Unit to be issued hereunder (a “Unit”)
represents one Unit of the Company as defined in the Company’s Third Amended
and Restated Operating Agreement, as it may be amended from time to time (the “LLC Agreement”), and when issued will be subject to the
terms of the LLC Agreement as well as the restrictions specified in this
Agreement.  Unless and until any Unit is
issued under this Agreement, the Employee will have no rights as a member or
Unit holder of the Company by virtue solely of entering into this Agreement.


(c)           Unit Certificates.
 The
Units will be evidenced by one or more duly issued unit certificates registered
in the name of the Employee.  Each
certificate evidencing any Units will contain such legends and transfer
instructions or limitations as may be determined or authorized by the Company
in its sole discretion and as otherwise required under this Agreement and the
LLC Agreement.













2.             Termination of Employment
and Transfer Restrictions.


(a)           Termination of
Employment.  Except as
provided in Section 3, if
the Employee’s employment with the Company and its Affiliates (as defined in
Appendix A to this Agreement) terminates for any reason prior to a Change in
Control (as defined in Appendix A to this Agreement), including because of the
Employee’s death or disability, this Agreement will immediately terminate and
neither the Company nor Employee or Employee’s estate or beneficiary(ies) will
be deemed to have any rights or obligations with respect to the issuance of any
Units under this Agreement.


(b)           Limitation on Transfer.  The right to receive Units under this
Agreement is personal to Employee and may not be transferred to any third party
or family member of Employee.  Any Units
issued under this Agreement will be subject to any limitations on transfer set
forth in the LLC Agreement and applicable Federal and state securities
laws.  Any attempt to assign, transfer,
pledge, hypothecate or otherwise dispose of the right to receive any Units
under this Agreement contrary to the provisions thereof, and any attempt to
levy any attachment or pursue any similar process with respect to them, shall
be null and void.


3.             Issuance of Units.


If a Change in Control
occurs and the Employee’s employment with the Company or its successor is
terminated by the Company or its successor without “cause” (as that term may be
defined in any employment agreement to which the Employee is then subject or
otherwise) during a period beginning the earlier of (i) the date the Company
signs a definitive agreement governing the Change in Control transaction and
(ii) 60 days prior to the consummation of the Change in Control
transaction, and ending on the date two years after consummation of the
Change in Control transaction, then the Employee shall be entitled to have
issued to him the number of Units specified in section 1(a) of this Agreement
(or such number of replacement securities as may be issuable in their place in
accordance with Section 8 of this Agreement).  Such Units will be immediately issued to the
Employee (and in no event later than 90 days after such employment termination)
unless the Employee is, at that time, a “specified employee” within the meaning
of Section 409A of the Internal Revenue Code and regulations promulgated
thereunder (“Section 409A”).  If Employee
is a specified employee, the Units will be issued to him six months and one day
after such termination of employment. 
Notwithstanding the foregoing, the Committee may, in its sole discretion,
elect to pay to the Employee, in lieu of the issuance of the Units described
above, cash in an amount equal to the fair market value, as of the time of the
Change in Control, of the number of Units specified in Section 1(a).  Payment of such amount will be made at the
same time as the issuance of the Units would otherwise have occurred.  For purposes of this Section 3, “fair market
value” of a Unit means the fair market value of a Unit as determined in good
faith by the Committee, which shall be equal to the fair market value of the
consideration to be received per Unit by the members of the Company or paid by
the acquirer in connection with a Change in Control that involves payment of
consideration on a per Unit basis.  A
termination of employment shall be deemed to have occurred for purposes of this
Section 3 if it constitutes a “separation from service” within the meaning of
Section 409A.



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4.                                       Tax
Withholding.


(a)           Withholding.  The parties hereto recognize that the Company
may be obligated to withhold federal and state taxes or other taxes upon the
issuance of Units under this Agreement. 
The Employee agrees that, at such time, if the Company is required to
withhold such taxes, the Employee will promptly pay to the Company, in cash and
upon demand by the Company, such amounts as shall be necessary to satisfy such
obligation.


(b)          Put Right to Satisfy
Withholding Taxes.  Within
five days after any Units are issued in accordance with the terms of this
Agreement, the Company shall send written notice (the “Valuation
Notice”) to the Employee specifying the Board’s or the Committee’s
determination of the fair market value of the Units so issued.  Within ten days after the receipt of the
Valuation Notice, the Employee shall have the right to require that the Company
purchase up to 40% of the Units issued as of such vesting date by giving
written notice to the Company specifying the number of Units that the Employee
desires to sell to the Company pursuant to this Section 4(b).  The closing with respect to such transfer
shall occur within five days following receipt by the Company of the Employee’s
notice specifying the number of Units that the Employee desires to sell to the
Company.  The time periods specified in
this Section 4(b) may be tolled for a reasonable period of time in the event
that the Company determines that any action taken by Employee under this
Section 4(b) would otherwise violate the Company’s insider trading policies
then in effect.  The purchase price for
any Units purchased by the Company hereunder shall be paid by the Company to
the Employee in cash or, at the election of the Employee, retained by the
Company and used to satisfy all or a portion of the Employee’s obligation to
remit withholding taxes to the Company pursuant to Section 4(a) hereof.


5.             Restrictive Legends.  The certificate or certificates
representing the Units issued under this Agreement shall bear the legend
required by the LLC Agreement as well as any legends required by applicable
state and federal limited liability company and securities laws.


6.             Interpretation of this
Agreement.  All decisions
and interpretations made by the Committee with regard to any question arising
hereunder shall be binding and conclusive upon the Company and the Employee.


7.             Discontinuance of
Employment.  This
Agreement shall not give the Employee a right to continued employment with the
Company or any Affiliate, and the Company or any Affiliate employing the
Employee may terminate his employment at any time and otherwise deal with the
Employee without regard to the effect it may have upon him under this
Agreement.


8.             Adjustment
for Changes in Capitalization.  In the event of any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, unit dividend, unit split,
combination of Units, rights offering, or extraordinary dividend or divestiture
(including a spin-off), or any other change in the structure or Units of
the Company, including any conversion by the Company into to a corporate form,
the Committee (or if the Company does not survive any such transaction, the
board of directors or an authorized committee of the board of directors of the
surviving company) shall, without the consent of the Employee, make such
adjustments as it determines in its discretion to be appropriate as to the
number and kind of securities subject to this Agreement in order to prevent
dilution or enlargement of the rights of the Employee.



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9.             Binding Effect.  This Agreement shall be binding in all respects
on the heirs, representatives, successors and assigns of the Employee.


10.           Choice of Law.  This Agreement is entered into under the laws of
the State of Delaware and shall be construed and interpreted thereunder
(without regard to its conflict of law principles).


11.           Entire Agreement.  This Agreement, together with any employment
agreement between the Company and the Employee, sets forth the entire agreement
and understanding of the parties hereto with respect to the issuance of the
Units and supersedes all prior agreements, arrangements, plans, and understandings
relating to the issuance of these Units. 
The Employee acknowledges that the Company has directed the Employee to
seek independent advice regarding the applicable provisions of the Internal
Revenue Code of 1986, and the income tax laws of any municipality, state or
foreign country in which the Employee may reside or in which the Company does
business.


12.           Amendment and Waiver.  This Agreement may be amended, waived,
modified, or canceled only by a written instrument executed by the parties or,
in the case of a waiver, by the party waiving compliance.


13.           Units Subject to LLC Agreement.  The Employee acknowledges that the Units
granted under this Agreement are subject to the Company’s LLC Agreement and any
applicable federal or state laws, rules or regulations.  The Employee acknowledges and agrees that the
Employee will become a party to the Company’s LLC Agreement, as currently in
effect, if such Employee is not already a party to that agreement.


IN WITNESS WHEREOF, the Employee and the Company have
executed this Agreement as of the ____ day of _______, 2007.


	
  

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ADVANCED BIOENERGY, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
								



 



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Appendix A


“Affiliates”
for purposes of the Change of Control Agreement shall mean each corporation,
partnership, LLC or other entity that controls the Company, is controlled by
the Company, or is under common control with the Company (in each case, “control”
meaning the direct or indirect ownership of 50% or more of all outstanding
equity interests).


“Change in Control”
for purposes of the Change of Control Agreement shall mean (and occur when):


(1)           The
acquisition by any individual, entity or group (within the meaning of Sections
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”))
of beneficial ownership (within the meaning of Exchange Act Rule 13d-3) of
30% or more of the then-outstanding membership interests of the Company (the “Outstanding Units”); provided, however,
that the following acquisitions shall not constitute a Change in Control:


(A)         any acquisition of voting securities of
the Company directly from the Company or by the Company or any of its
wholly-owned subsidiaries,


(B)          any acquisition of voting securities
of the Company by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries, or


(C)          any acquisition by any entity with
respect to which, immediately following such acquisition, more than 70% of,
respectively, the then-outstanding shares of voting securities of such entity
is then beneficially owned, directly or indirectly, by all or substantially all
of the individuals and entities who were the beneficial owners, respectively,
of the Outstanding Units immediately before such acquisition in substantially
the same proportions as was their ownership, immediately before such
acquisition, of the Outstanding Units;


(2)           Individuals
who, as of the Date of Grant, constitute the Board (the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director of the Board after the Date of Grant whose
election, or nomination for election by the Company’s Unit holders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest;


(3)           Consummation
of a reorganization, merger, consolidation or statutory exchange of Outstanding
Units, unless immediately following such reorganization, merger, consolidation
or exchange, all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding Units immediately before such
reorganization, merger, consolidation or exchange beneficially own, directly or
indirectly, more than 70% of the then-outstanding voting 



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securities entitled to vote generally in the
election of directors, as the case may be, of the entity resulting from such
reorganization, merger, consolidation or exchange in substantially the same
proportions as was their ownership, immediately before such reorganization,
merger, consolidation or exchange, of the Outstanding Units;


(4)           Consummation
of a sale or other disposition of all or substantially all of the assets of the
Company, other than to an entity with respect to which, immediately following
such sale or other disposition, more than 70% of, respectively, the then-outstanding
voting securities of such entity is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners of the Outstanding Units immediately before such
sale or other disposition in substantially the same proportion as was their
ownership, immediately before such sale or other disposition; or


(5)           Approval
by the Unit holders of the Company of a complete liquidation or dissolution of
the Company.


Notwithstanding the above, a
Change in Control will not be deemed to occur if the acquisition of the 30% or
greater interest referred to in clause (1) is by a group, acting in
concert, that includes the Employee or if at least 30% of the then-outstanding
voting securities of the surviving entity or of any entity acquiring all or
substantially all of the assets of the Company shall be beneficially owned,
directly or indirectly, immediately after a reorganization, merger,
consolidation, statutory share exchange or disposition of assets referred to in
paragraphs (3) or (4) by a group, acting in concert, that includes
the Employee.


 



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