Exhibit 10.10**ICM License Agreement****THIS LICENSE AGREEMENT**(this “License Agreement”) is entered into and made effective as of the13th day of March, 2006 (“Effective Date”) by and between Advanced BioEnergy, LLC, aDelaware Limited Liability Company (“OWNER”), and ICM, Inc., a Kansas corporation (“ICM”).     WHEREAS, OWNER has entered into that certain Design-Build Lump Sum Contract dated March 13,2006 (the “Contract”) with Fagen, Inc., a Minnesota corporation (“Fagen”), under which Fagen is todesign and construct a 100 million gallon per year ethanol plant for OWNER to be located in or nearFairmont, Nebraska (the “Plant”);     WHEREAS, ICM has granted Fagen the right to use certain proprietary technology and informationof ICM in the design and construction of the Plant; and     WHEREAS, OWNER desires from ICM, and ICM desires to grant to OWNER, a license to use suchproprietary technology and information in connection with OWNER’s ownership, operation, maintenanceand repair of the Plant, all upon the terms and conditions set forth herein;     NOW, THEREFORE, the parties, in consideration of the foregoing premises and the mutualpromises contained herein and for other good and valuable consideration, receipt of which is herebyacknowledged, agree as follows:1. Upon substantial completion of the Plant by Fagen pursuant to the terms of the Contract or,if later, payment by OWNER of all amounts due and owing to Fagen under the Contract, ICM grantsto OWNER a perpetual limited license to use the Proprietary Property (hereinafter defined)solely in connection with the ownership, operation, maintenance and repair of the Plant,subject to the limitations provided herein (the “Purpose”).2. The “Proprietary Property” means, without limitation, documents, Operating Procedures(hereinafter defined), materials and other information that are furnished by ICM to OWNER inconnection with the Purpose, whether orally, visually, in writing, or by any other means,whether tangible or intangible, directly or indirectly (including, without limitation, throughFagen) and in whatever form or medium including, without limitation, the design, arrangement,configuration, and specifications of (i) the combinations of distillation, evaporation, andalcohol dehydration equipment (including, but not limited to, pumps, vessels, tanks, heatexchangers, piping, valves and associated electronic control equipment) and all documentssupporting those combinations; (ii) the combination of the distillers grain drying (DGD), andheat recovery steam generation (HRSG) equipment (including, but not limited to, pumps, vessels,tanks, heat exchangers, piping and associated electronic control equipment) and all documentssupporting those combinations; and (iii) the computer system, known as the distributed controlsystem (DCS and/or PLC) (including, but not limited to, the software configuration,programming, parameters, set points, alarm points, ranges, graphical interface, and systemhardware connections) and all documents supporting that system. The “Operating Procedures”means, without limitation, the process equipment and specifications manuals, standards ofquality, service protocols, data collection methods, construction specifications, trainingmethods, engineering standards and any other information prescribed by ICM from time to timeconcerning the Purpose. Proprietary Property shall not include any information or materialsthat OWNER can demonstrate by clear and convincing written evidence: (i) was lawfully in thepossession of OWNER prior to disclosure by ICM or Fagen; (ii) was in the
 

 
public domain prior to disclosure by ICM or Fagen; (iii) was disclosed to OWNER by a thirdparty other than Fagen having the legal right to possess and disclose such information ormaterials; or (iv) after disclosure by ICM or Fagen comes into the public domain through nofault of OWNER or its members, directors, officers, employees, agents, contractors, consultantsor other representatives (hereinafter collectively referred to as “Representatives”).Information and materials shall not be deemed to be in the public domain merely because suchinformation is embraced by more general disclosures in the public domain, and any combinationof features shall not be deemed to be within the foregoing exceptions merely because individualfeatures are in the public domain if the combination itself and its principles of operation arenot in the public domain.3. OWNER shall not use the Proprietary Property for any purpose other than the Purpose. OWNERshall not use the Proprietary Property in connection with any expansion or enlargement of thePlant. ICM and its Representatives shall have the express right at any time to enter upon thepremises of the Plant to inspect the Plant and its operation to ensure that OWNER is complyingwith the terms of this License Agreement.4. OWNER’s failure to materially comply with the Operating Procedures shall void allguarantees, representations and warranties, whether expressed or implied, if any, that weregiven by ICM to OWNER, directly or indirectly through Fagen, concerning the performance of thePlant that ICM reasonably determines are materially affected by OWNER’s failure to materiallycomply with such Operating Procedures. OWNER agrees to indemnify, defend and hold harmlessICM, Fagen and their respective Representatives from any and all losses, damages and expensesincluding, without limitation, reasonable attorneys’ fees resulting from, relating to orarising out of Owner’s or its Representatives’ (a) failure to materially comply with theOperating Procedures or (b) negligent use of the Proprietary Property.5. Any and all modifications to the Proprietary Property by OWNER or its Representatives shallbe the property of ICM. OWNER shall promptly notify ICM of any such modification and OWNERagrees to assign all right, title and interest in such modification to ICM; provided, however,OWNER shall retain the right, at no cost, to use such modification in connection with thePurpose.6. ICM has the exclusive right and interest in and to the Proprietary Property and thegoodwill associated therewith. OWNER will not, directly or indirectly, contest ICM’s ownershipof the Proprietary Property. OWNER’s use of the Proprietary Property does not give OWNER anyownership interest or other interest in or to the Proprietary Property except for the limitedlicense granted to OWNER herein. Goodwill created by the operation of the plant and allfinancial benefits therefrom shall be the property of the Owner.7. OWNER shall pay no license fee or royalty to ICM for OWNER’s use of the Proprietary Propertypursuant to this License Agreement, the consideration for the perpetual limited license grantedherein is included in the amounts payable by OWNER to Fagen for the construction of the Plantunder the Contract.8. OWNER may not assign the perpetual limited license granted herein, in whole or inpart, without the prior written consent of ICM, which will not be unreasonably withheld ordelayed. Prior to any assignment, OWNER shall obtain from such assignee a written instrument,in form and substance reasonably acceptable to ICM, agreeing to be bound by all the terms andprovisions of this License Agreement. Any assignment of this License Agreement shall notrelease OWNER from (i) its duties and obligations hereunder concerning the disclosure and
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use of the Proprietary Property by OWNER or its Representatives, or (ii) damages to ICMresulting from, or arising out of, a breach of such duties or obligations by OWNER or itsRepresentatives. ICM may assign its right, title and interest in the Proprietary Property, inwhole or part, subject to the limited license granted herein.9. The Proprietary Property is confidential and proprietary. OWNER shall keep the ProprietaryProperty confidential and shall use all reasonable efforts to maintain the Proprietary Propertyas secret and confidential for the sole use of OWNER and its Representatives for the Purpose.OWNER shall retain all Proprietary Property at its principal place of business and/or thePlant. OWNER shall not at any time without ICM’s prior written consent, copy, duplicate,record, or otherwise reproduce the Proprietary Property, in whole or in part, or otherwise makethe same available to any unauthorized person provided, OWNER shall be permitted to copy,duplicate or otherwise reproduce the Proprietary Property in whole or in part in connectionwith, and to the extent it is necessary and essential for, the Purpose so long as all suchcopies, duplicates or reproductions are kept at its principal place of business and/or thePlant and are treated the same as any other Proprietary Property. OWNER shall not disclose theProprietary Property except to its Representatives who are directly involved with the Purpose,and even then only to such extent as is necessary and essential for such Representative’sinvolvement. OWNER shall inform such Representatives of the confidential and proprietarynature of such information and, if requested by ICM, OWNER shall obtain from suchRepresentative a written instrument, in form and substance reasonably acceptable to ICM,agreeing to be bound by all of the terms and provisions of this License Agreement to the sameextent as OWNER. OWNER shall make all reasonable efforts to safeguard the Proprietary Propertyfrom disclosure by its Representatives to anyone other than permitted hereby. OWNER shallnotify ICM immediately upon discovery of any unauthorized use or disclosure of the ProprietaryProperty, or any other breach of this License Agreement by OWNER or its Representatives, andshall cooperate with ICM in every reasonable way to help ICM regain possession of theProprietary Property and prevent its further unauthorized use or disclosure. In theevent that OWNER or its Representatives are required by law to disclose the ProprietaryProperty, OWNER shall provide ICM with prompt written notice of same so that ICM may seek aprotective order or other appropriate remedy. In the event that such protective order or otherappropriate remedy is not obtained, OWNER or its Representatives will furnish only that portionof the Proprietary Property which in the reasonable opinion of its or their legal counsel islegally required and will exercise its reasonable efforts to obtain reliable assurance that theProprietary Property so disclosed will be accorded confidential treatment.10. OWNER agrees to indemnify ICM for any and all damages (including, without limitation,reasonable attorneys’ fees) arising out of or resulting from any unauthorized disclosure or useof the Proprietary Property by OWNER or its Representatives. OWNER agrees that ICM would beirreparably damaged by reason of a violation of the provisions contained herein and that anyremedy at law for a breach of such provisions would be inadequate. OWNER agrees that ICM shallbe entitled to seek injunctive or other equitable relief in a court of competent jurisdictionagainst OWNER or its Representatives for any unauthorized disclosure or use of the ProprietaryProperty without the necessity of proving actual monetary loss or posting any bond. It isexpressly understood that the remedy described herein shall not be the exclusive remedy of ICMfor any breach of such covenants, and ICM shall be entitled to seek such other relief orremedy, at law or in equity, to which it may be entitled as a consequence of any breach of suchduties or obligations.11. The duties and obligations of OWNER under this License Agreement, and all provisionsrelating to the enforcement of such duties and obligations shall survive and remain in fullforce
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and effect notwithstanding any termination or expiration of the Contract or this LicenseAgreement.12. ICM may terminate this License Agreement upon written notice to OWNER if OWNER willfullyor wantonly (a) uses the Proprietary Property for any purpose, or (b) discloses the ProprietaryProperty to anyone, in each case other than permitted herein. Upon termination of this LicenseAgreement, OWNER shall cease using the Proprietary Property for any purpose (including thePurpose) and, upon request by ICM, shall promptly return to ICM all documents or othermaterials in OWNER’s or its Representatives’ possession that contain Proprietary Property inwhatever format, whether written or electronic, including any and all copies or reproductionsof the Proprietary Property. OWNER shall permanently delete all such Proprietary Property fromits computer hard drives and any other electronic storage medium (including any backup orarchive system). OWNER shall deliver to ICM a written certificate which certifies that allelectronic copies or reproductions of the Proprietary Property have been permanently deleted.13. The laws of the State of Kansas, United States of America (or US), shall govern thevalidity of the provisions contained herein, the construction of such provisions, and theinterpretation of the rights and duties of the parties. Any legal action brought to enforce orconstrue the provisions of this License Agreement shall be brought in the federal or statecourts located in Wichita, Kansas, and the parties agree to and hereby submit to the exclusivejurisdiction of such courts and agree that they will not invoke the doctrine of forum nonconveniens or other similar defenses in any such action brought in such courts.Notwithstanding the foregoing, nothing in this License Agreement will affect any right ICM mayotherwise have to bring any action or proceeding relating to this License Agreement againstOWNER or its properties in the courts of any jurisdiction.14. OWNER hereby agrees to waive all claims against ICM and ICM’s Representatives for anyconsequential damages that may arise out of or relate to this License Agreement, the Contractor the Proprietary Property whether arising in contract, warranty, tort (including negligence),strict liability or otherwise, including but not limited to losses of use, profits, business,reputation or financing. OWNER further agrees that the aggregate recovery of OWNER and Fagen(and everyone claiming by or through OWNER and Fagen), as a whole, against ICM and ICM’sRepresentatives, collectively, for any and all claims that arise out of, relate to or resultfrom this License Agreement, the Proprietary Property or the Contract, whether arising incontract, warranty, tort (including negligence), strict liability or otherwise, shallnot exceed One Million US Dollars ($1,000,000).15. The terms and conditions of this License Agreement constitute the entire agreement betweenthe parties with respect to the subject matter hereof and supersede any prior understandings,agreements or representations by or between the parties, written or oral. Any rule ofconstruction to the effect that any ambiguity is to be resolved against the drafting partyshall not be applicable in the interpretation of this License Agreement. This LicenseAgreement may not be modified or amended at any time without the written consent of theparties.16. All notices, requests, demands, reports, statements or other communications (hereinreferred to collectively as “Notices”) required to be given hereunder or relating to thisLicense Agreement shall be in writing and shall be deemed to have been duly given iftransmitted by personal delivery or mailed by certified mail, return receipt requested, postageprepaid, to the address of the party as set forth below. Any such Notice shall be deemed to bedelivered and
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received as of the date so delivered, if delivered personally, or as of the third business dayfollowing the day sent, if sent by certified mail. Any party may, at any time, designate adifferent address to which Notices shall be directed by providing written notice in the mannerset forth in this paragraph.17. In the event that any of the terms, conditions, covenants or agreements contained in thisLicense Agreement, or the application of any thereof, shall be held by a court of competentjurisdiction to be invalid, illegal or unenforceable, such term, condition, covenant oragreement shall be deemed void ab initio and shall be deemed severed from this LicenseAgreement. In such event, and except if such determination by a court of competentjurisdiction materially changes the rights, benefits and obligations of the parties under thisLicense Agreement, the remaining provisions of this License Agreement shall remain unchangedunaffected and unimpaired thereby and, to the extent possible, such remaining provisions shallbe construed such that the purpose of this License Agreement and the intent of the parties canbe achieved in a lawful manner.18. The duties and obligations herein contained shall bind, and the benefits and advantagesshall inure to, the respective successors and permitted assigns of the parties hereto.19. The waiver by any party hereto of the breach of any term, covenant, agreement or conditionherein contained shall not be deemed a waiver of any subsequent breach of the same or any otherterm, covenant, agreement or condition herein, nor shall any custom, practice or course ofdealings arising among the parties hereto in the administration hereof be construed as a waiveror diminution of the right of any party hereto to insist upon the strict performance by anyother party of the terms, covenants, agreement and conditions herein contained.20. In this License Agreement, where applicable, (i) references to the singular shall includethe plural and references to the plural shall include the singular, and (ii) references to themale, female, or neuter gender shall include references to all other such genders where thecontext so requires.IN WITNESS WHEREOF, the parties hereto have executed this License Agreement, the Effective Date ofwhich is indicated on page 1 of this License Agreement.   OWNER: ICM:   **Advanced BioEnergy, LLC** ICM, Inc.   By: /s/ Revis L. Stephenson III By: /s/ Dave Vander Griend   Title: Chairman Title: CEO   Date Signed: 3/16/06 Date Signed: 3/24/06   Address for giving notices: Address for giving notices:   137 N. 8th St 301 N First StreetGeneva, NE 68361 Colwich, KS 67030
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