exv10w61



 





EXHIBIT 10.61




Advanced BioEnergy, LLC




Restricted Unit Agreement




Name of Holder:                      Perry C. Johnston




	 	 	 
	No. of Restricted Units:                      15,000

	 	Date of Grant:                      October 1, 2007
	 
	 	 
	Restricted Unit Vesting Schedule (Cumulative):
	 	 






	 	 	 	 	 
	Vesting Date(s)	 	 
	That Vest on Such Date	 	Percentage of Restricted Units
	October 1, 2008

	 	 	20	%
	October 1, 2009

	 	 	20	%
	October 1, 2010

	 	 	20	%
	October 1, 2011

	 	 	20	%
	October 1, 2012

	 	 	20	%






     This is a Restricted Unit Agreement (“Agreement”) between Advanced BioEnergy, LLC, a Delaware
limited liability company (the “Company”), and Perry C. Johnston (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 the Employee is eligible to receive a grant of restricted
units of the Company pursuant to the terms of Section 4(h) of that certain Employment Agreement
dated as of July 7, 2007 between the Company and the Employee.



     C. The Committee has determined that this purpose can best be achieved by granting the
Employee restricted 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 Restricted Units.




     (a) Grant of Restricted Units. The Company hereby grants to the Employee,
effective as of the Date of Grant specified above, the number of restricted units
specified at the beginning of this Agreement.



     (b) Rights as Holder. Each restricted unit granted hereunder (a “Restricted 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 is subject to the terms of the LLC Agreement as well as the
restrictions specified in this Agreement. Subject to the provisions of the LLC
Agreement, the Employee will have all rights of a member of the Company with
respect to each Restricted Unit (including the right to receive distributions, if
any, and the right to vote such Restricted Unit).



     (c) Unit Certificates. The Restricted Units will be evidenced by one or
more duly issued unit certificates registered in the name of the Employee. Each
certificate evidencing any Restricted 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. The Company may, in its discretion, retain custody of any
certificates representing Restricted Units until such Restricted Units vest in
accordance with this Agreement.


2. Forfeiture and Transfer Restrictions.




     (a) Forfeiture. Except as provided in Sections 3(b) and (c), any Restricted
Units not yet vested will be forfeited by the Employee and deemed immediately
cancelled and the Employee will thereafter have no right, title or interest
whatsoever in such Restricted Units if the Employee’s employment with the
Company and its Affiliates (as defined in Appendix A to this Agreement)
terminates. Upon forfeiture of any Restricted Units, the Employee agrees to
promptly return to the Company any certificate(s) representing such Restricted
Units, and appoints the Secretary of the Company as his attorney in fact to
transfer any such forfeited Restricted Units on the books of the Company and to
effect their cancellation.



     (b) Limitation on Transfer. Until such time as the Restricted Units have
vested as provided in this Agreement, the Employee shall not transfer the
Restricted Units and the Restricted Units shall not be subject to pledge,
hypothecation, execution, attachment or similar process. Notwithstanding the
prior sentence, any Restricted Units, whether vested or unvested, will in any
event 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



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of any Restricted Units contrary to the provisions hereof or thereof, and any
attempt to levy any attachment or pursue any similar process with respect to
them, shall be null and void.



3. Vesting of Restricted Units.




     (a) Normal Vesting. The Restricted Units will vest in the amounts and on
the dates specified in the Schedule at the beginning of this Agreement. Once
Restricted Units have vested pursuant to this Section 3, they shall no longer
be subject to forfeiture under Section 2(a) of this Agreement, and will not be
subject to any further restrictions under this Agreement, but will continue to
be subject to any restrictions on transfer set forth in the LLC Agreement or as
otherwise agreed to by the Employee.



     (b) Death or Disability; Termination without Cause; Termination for Good
Reason. If the Employee’s employment with the Company and its Affiliates
terminates because of the Employee’s death or Disability (as defined in
Appendix A to this Agreement), or if Company terminates the Employee’s
employment with Company without Cause (as defined in the Employee’s Employment
Agreement with Company), or if Employee terminates his employment with Company
for Good Reason (as defined in the Employee’s Employment Agreement with
Company), the Restricted Units will automatically vest in full.



     (c) Change in Control. If a Change in Control (as defined in Appendix A
to this Agreement) occurs, the Restricted Units will automatically vest in
full.



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
or vesting of the Restricted Units. 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 of
the Restricted Units vest 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 Restricted Units that vested as of such vesting date. 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 Restricted Units
that vested as of such vesting date by giving written notice to the Company
specifying the number of Restricted 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 Restricted 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 Restricted Units purchased by the Company hereunder
shall be paid by the Company to the Employee in cash or, at the election of
the



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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 and Stop-Transfer Orders.




     (a) Legends. In addition to any legends required by the LLC Agreement or otherwise,
the certificate or certificates representing the Restricted Units shall bear the
following legend (as well as any legends required by applicable state and federal limited
liability company
and securities laws) noting the existence of the restrictions and the Company’s
rights set forth in this Agreement:



“THE UNITS REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF A RESTRICTED UNIT AGREEMENT BETWEEN THE
COMPANY AND THE HOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.”



     (b) Stop-Transfer Notices. The Employee agrees that, in order to ensure compliance
with the restrictions referred to herein, the Company may issue appropriate “stop
transfer” instructions to its transfer agent, if any, and that, if the Company transfers
its own securities, it may make appropriate notations to the same effect in its own
records.



     (c) Refusal to Transfer. The Company shall not be required (i) to transfer on its
books any Restricted Units that have been sold or otherwise transferred in violation of
any of the provisions of this Agreement or (ii) to treat as owner of the Restricted
Units or to accord the right to vote or pay distributions to any purchaser or other
transferee to whom the Restricted Units shall have been so transferred.


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, nor does this Agreement
restrict the Company or any Affiliate employing the Employee from terminating his
employment at any time and otherwise dealing with the Employee without regard to the
effect that such termination 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 sets forth the entire agreement and
understanding of the parties hereto with respect to the issuance of the
Restricted Units and supersedes all prior agreements, arrangements, plans, and
understandings relating to the issuance of these Restricted 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. Restricted Units Subject to LLC Agreement. The Employee acknowledges
that the Restricted 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
by their signatures below.



	 	 	 	 	 
	 

	 	/s/ Perry C. Johnston	 	 
	 

	 	 	 	 
	 

	 	Perry C. Johnston	 	 
	 
	 	 	 	 
	 

	 	Date: 12/27/07	 	 
	 
	 	 	 	 
	 

	 	ADVANCED BIOENERGY, LLC	 	 






	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Revis L. Stephenson III	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Revis L. Stephenson	 	 
	 	 	Its: Chairman and CEO	 	 
	 
	 	 	 	 	 	 
	 	 	Date: 12/27/07	 	 






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Appendix A



“Affiliates” for purposes of the Restricted Unit 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 Restricted Unit 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





 









 







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.


“Disability” for purposes of the Restricted Unit Agreement shall mean the inability of
Employee to perform on a full-time basis the duties and responsibilities of Employee’s
employment with the Company by reason of illness or other physical or mental impairment
or condition, if such inability continues for an uninterrupted period of 90 days or for
more than 90 complete days during any 12-month period.





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