Exhibit 10.53


 


INDEMNIFICATION AGREEMENT


 


This Indemnification Agreement (the “Agreement”) is made as of           ,
            , by
and between Green Plains Renewable Energy, Inc., an Iowa corporation (the “Company”),
and person whose signature appears at the end of this Agreement (the “Indemnitee”),
an officer and/or director of the Company.


 


RECITALS


 


A.            The Indemnitee is
currently serving as an officer and/or director of the Company and in such
capacity renders valuable services to the Company.


 


B.            Both the Company and
the Indemnitee recognize the substantial risk of litigation against officers
and directors of corporations, and the Indemnitee has indicated that he or she
does not regard the indemnification available under the Company’s Bylaws as
adequate to protect against legal risks associated with service to the Company
and may be unwilling to continue in office in the absence of greater protection
and indemnification.


 


C.            The Board of Directors
of the Company has determined that it is in the best interests of the Company
and its shareholders to induce the Indemnitee to continue to serve as an
officer and/or director and retain the benefits of his or her experience and
skill by entering into this Agreement to provide protection from potential
liabilities which might arise by reason of the fact that he or she is an
officer and/or director of the Company beyond the protection afforded by Iowa
law and the Company’s Bylaws.


 


AGREEMENT


 


In consideration of the continued services of the lndemnitee and as an inducement
to the Indemnitee to continue to serve as an officer and/or director, the
Company and the Indemnitee do hereby agree as follows:


 


1.             DEFINITIONS.  As used in this Agreement:


 


(a)           The
term “Company’ shall include Green Plains Renewable Energy, Inc., an Iowa
corporation, and any wholly-owned subsidiary.


 


(b)           The
term “Expenses” includes, without limitation, attorneys’ fees, disbursements
and retainers, accounting and witness fees, travel and deposition costs. any
interest, assessment or other charges, any federal, state, local or foreign
taxes imposed as a result of the actual or deemed receipt of any payments under
this Agreement, any other expense, liability or loss, any amounts paid or to be
paid in settlement by or on behalf of Indemnitee, and any expenses of
establishing a right to indemnification (pursuant to this Agreement or
otherwise), paid or incurred in connection with investigating, defending, being
a witness in, or participating in, or preparing for any of the foregoing in,
any Proceeding relating to an Indemnifiable Event, including reasonable
compensation for time spent by the Indemnitee in connection with the
investigation, defense or appeal of a Proceeding or of an action for
indemnification for which he or she is not otherwise compensated by the Company
or any third party. The lndemnitee shall be deemed to be compensated by the
Company or a third party for time spent in connection with the investigation,
defense or appeal of a Proceeding or an action for Indemnification if, among other
things, he or site is a salaried employee of the Company or such third party
and his or her salary is not reduced in proportion to the time spent in
connection with the Proceeding or action for Indemnification.  The term “Expenses” does not include the amount
of judgments, fines, penalties or ERISA excise taxes actually levied against
the Indemnitee.


 


(c)           The
term “lndemnifiable Event” shall include any event or occurrence that takes
place either prior to or after the execution of this Agreement, related to the
service of Indemnitee as an officer and/or director of the Company, or his or
her service at the request of the Company as a director, officer, employee,
trustee, agent, or fiduciary of another foreign or domestic corporation,
partnership, joint venture, employee benefit plan, trust. or other enterprise
or related to anything done or not done by lndemnitee in any such capacity,
whether or not the basis of a Proceeding arising in whole or in part from such
Indemnifiable Event is alleged action in an official capacity as a director,
officer, employee, or agent or in any other capacity while serving as a
director, officer, 


 

















 


employee, or agent of the Company or at the request of the Company, as
described above, and whether or not he or she is serving in such capacity at
the time any liability or Expenses are incurred for which indemnification or
reimbursement is to be provided under this Agreement.


 


(d)           The
term “Proceeding” shall include (i) any threatened, pending or completed
action, suit or proceeding, whether brought in the name of the Company or
otherwise and whether of a civil, criminal, administrative, investigative or
other nature; and (ii) any inquiry, hearing or investigation, whether or
not conducted by the Company, that Indemnitee in good faith believes might lead
to the institution of any such action, suit or proceeding.


 


2.             AGREEMENT
TO SERVE.  The Indemnitee agrees to
continue to serve as an officer and/or director of the Company at the will of
the Company for so long as lndemnitee is duly elected or appointed or until
such time as Indemnitee tenders a resignation in writing; provided, however,
that nothing in this Agreement shall be construed as providing the Indemnitee
any right to continued employment.


 


3.             INDEMNIFICATION
IN PARTY ACTIONS.  In connection with any
Proceeding arising in whole or in part from an Indemnifiable Event (other than
a Proceeding by or in the name of the Company to procure a judgment in its
favor), the Company shall indemnify the lndemnitee against all Expenses and all
judgments, fines, penalties and ERISA excise taxes actually and reasonably
incurred by the Indemnitee in connection with such Proceeding, to the fullest
extent permitted by Iowa law.  The
Company shall also cooperate fully with Indemnitee and render such assistance
as Indemnitee may reasonably require in the defense of any Proceeding in which
Indemnitee was or is a party or is threatened to be made a party, and shall
make available to Indemnitee and his or her counsel all information and
documents reasonably, available to it which relate to the subject of any such
Proceeding.


 


4.             INDEMNIFICATION
IN PROCEEDINGS BY OR IN THE NAME OF THE COMPANY.  In any Proceeding by or in the name of the
Company to procure a judgment in its favor arising in whole or in part from an
Indemnifiable Event, the Company shall indemnify the Indemnitee against all
Expenses actually and reasonably incurred by Indemnitee in connection with such
Proceeding, to the fullest extent permitted by Iowa law.


 


5.             CONCLUSIVE
PRESUMPTION REGARDING STANDARD OF CONDUCT. The lndemnitee shall be conclusively
presumed to have met the relevant standards of conduct as defined by Iowa law
for indemnification pursuant to this Agreement, unless a determination is made
that the Indemnitee has not met such standards by (i) the Board of
Directors of the Company by a majority vote of a quorum thereof consisting of
directors who were not parties to such Proceeding, (ii) the shareholders
of the Company by majority vote, or (iii) in a written opinion by independent
legal counsel, selection of whom has been approved by the Indemnitee in
writing.


 


6.             INDEMNIFICATION
OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any other provisions of this
Agreement, to the extent that the Indemnitee has been successful in defense of
any Proceeding or in defense of any claim, issue or matter therein, on the
merits or otherwise, including the dismissal of a Proceeding without prejudice
the Indemnitee shall be indemnified against all Expenses incurred in connection
therewith to the fullest extent permitted by Iowa law.


 


7.             ADVANCES
OF EXPENSES.  The Expenses incurred by
the Indemnitee in any Proceeding shall be paid promptly by the Company in
advance of the final disposition of the Proceeding at the ‘written request of
the Indemnitee to the fullest extent permitted by Iowa law; provided that if
Iowa law in effect at the time so requires, the Indemnitee shall undertake in
writing to repay such amount to the extent that it is ultimately determined
that the Indemnitee is not entitled to indemnification.


 


8.             PARTIAL
INDEMNIFICATION.  If the Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of the Expenses, judgments, fines, penalties or
ERISA excise taxes actually and reasonably incurred by Indemnitee in the
investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
the Indemnitee for the portion of such Expenses, judgments, fines, penalties or
ER1SA excise taxes to which the Indemnitee is entitled.


 





















 


9.             INDEMNIFICATION
PROCEDURE; DETERMINATION OF RIGHT TO INDEMNIFICATION.


 


(a)           Promptly
after receipt by the Indemnitee of notice of the commencement of any
Proceeding, the Indemnitee will, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company of the
commencement thereof.


 


(b)           If
a claim under this Agreement is not paid by the Company within 30 days of
receipt of written notice, the right to indemnification as provided by this
Agreement shall be enforceable by the Indemnitee in any court of competent
jurisdiction.  It shall be a defense to
any such action (other than an action brought to enforce a claim for Expenses
incurred in defending any Proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the Company)
that the Indemnitee has failed to meet a standard of conduct which makes it
permissible under lowa law for the Company to indemnity the Indemnitee for the
amount claimed.  The burden of proving by
clear and convincing evidence that indemnification or advances are not
appropriate shall be on the Company. 
Neither the failure of the directors or shareholders of the Company or
independent legal counsel to have made a determination prior to the
commencement of such action that indemnification or advances are proper in the
circumstances because the Indemnitee has met the applicable standard of
conduct, nor an actual determination by the directors or shareholders of the
Company or independent legal counsel that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.


 


(c)           The
Indemnitee’s Expenses incurred in connection with any Proceeding concerning
Indemnitee’s right to indemnification or advances in whole or in part pursuant
to this Agreement shall also be indemnified by the Company regardless of the
outcome of such Proceeding, unless a court of competent jurisdiction determines
that each of the material assertions made by the Indemnitee in such Proceeding
was not made in good faith or was frivolous.


 


(d)           With
respect to any Proceeding for which indemnification is requested, the Company
will be entitled to participate therein at its own expense and, except as
otherwise provided below, to the extent that it may wish, the Company may
assume the defense thereof, with counsel satisfactory to the Indemnitee.  After notice from the Company to the
Indemnitee of its election to assume the defense of a Proceeding, the Company
will not be liable to the Indemnitee under this Agreement for any legal or
other expenses subsequently incurred by the Indemnitee in connection with the
defense thereof, other than reasonable costs of investigation or as otherwise
provided below. The Indemnitee shall cooperate fully with the Company and
render such assistance as the Company may reasonably, require in the Company’s
participation in any such Proceeding and shall make available to the Company
and its counsel all information and documents reasonably available to
Indelnnitee which relate to the subject of such Proceeding. The Company shall
not be liable to indemnify the Indemnitee under this Agreement with regard to
any judicial award if the Company was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of such action.  The Company’s liability hereunder shall not
be excused if participation in the Proceeding by the Company was barred.  The Company shall not settle any Proceeding
in any manner which would impose any penalty or limitation on the Indemnitee
without the Indemnitee’s prior written consent. The Indemnitee shall have the
right to employ counsel in any Proceeding, but the fees and expenses of such
counsel incurred after notice from the Company of its assumption of the defense
thereof shall be at the expense of the Indemnitee, unless (i) the
employment of counsel by the Indemnitee has been authorized by the Company, (ii) the
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of the defense
of a Proceeding, or (iii) the Company shall not in fact have employed
counsel to assume the defense of a Proceeding, in each of which cases the fees
and expenses of the indemnitee’s counsel shall be at the expense of the
Company.  The Company shall not be
entitled to assume the defense of any Proceeding brought by or on behalf of the
Company or as to which the Indemnitee has made the conclusion that there may be
a conflict of interest between the Company and the Indemnitee.


 


10.           LIMITATIONS
ON INDEMNIFICATION. No payments pursuant to this Agreement shall be made by the
Company:


 


(a)           To
indemnify or advance Expenses to the Indemnitee with respect to Proceedings
initiated or brought voluntarily by the Indemnitee and not by way of defense,
except with respect to Proceedings 


 





















 


brought to establish or enforce a right to indemnification under this
Agreement or any other statute or law or otherwise as required under Iowa law,
but such Indemnification or advancement of Expenses may be provided by the
Company in specific cases if a majority of the Board of Directors finds it to
be appropriate;


 


(b)           To
indemnify the Indemnitee for any Expenses, judgments, fines, penalties or ER1SA
excise taxes for which the Indemnitee is indemnified by the Company otherwise
than pursuant to this Agreement;


 


(c)           To
indemnify the Indemnitee under this Agreement for any amounts paid in
settlement of any Proceeding effected without the Company’s written consent;
however, the Company will not unreasonably withhold its consent to any proposed
settlement;


 


(d)           To
indemnify the lndemnitee for any Expenses, judgments, fines, penalties or ERISA
excise taxes for which payment is actually made to the Indemnitee under a valid
and collectible insurance policy, except in respect of any excess beyond the
amount of payment under such insurance;


 


(e)           To
indemnify the Indemnitee for any Expenses, judgments, fines or penalties
sustained in any Proceeding for an accounting of profits made from the purchase
or sale by Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934, the rules and
regulations promulgated thereunder and amendments thereto or similar provisions
of any federal, state or local statutory 1aw;


 


(f)            To
indemnify the Indemnitee against any Expenses, judgments, fines, penalties or
ERISA excise taxes based upon or attributable to the Indemnitee having been
finally adjudged to have gained any personal profit or advantage to which he or
she was not legally entitled;


 


(g)           To
indemnify the Indemnitee for any Expenses. judgments, fines, penalties or ERISA
excise taxes resulting from Indemnitee’s conduct which is finally adjudged to
have been willful misconduct, knowingly fraudulent, deliberately dishonest or
in violation of indemnitee’s duty of loyalty to the Company; or


 


(h)           If
a court of competent jurisdiction shall finally determine that any
indemnification hereunder is unlawful.


 


11.           MAINTENANCE
OF LIABILITY INSURANCE.


 


(a)           The
Company hereby covenants and agrees that, as long as the Indemnitee shall
continue to serve as an officer and/or director of the Company and thereafter
so long as the Indemnitee shall be subject to any possible Proceeding, the
Company, subject to subsection (c), shall promptly obtain and maintain in full
force and effect directors’ and officers’ liability insurance (“D&O
Insurance”) in reasonable amounts from established and reputable insurers.


 


(b)           In
all D&O Insurance policies, the Indemnitee shall be named as an insured in
such a manner as to provide the Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company’s officers or directors.


 


(c)           Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain
D&O Insurance if the Company determines in good faith that such insurance
is not reasonably available, the premium costs for such insurance are
disproportionate to the amount of coverage provided, or the coverage provided
by such insurance is so limited by exclusions that it provides an insufficient
benefit.


 


12.           INDEMNIFICATION
HEREUNDER NOT EXCLUSIVE.  The
indemnification provided by this Agreement shall not be deemed to limit or
preclude any other rights to which the Indemnitee may be entitled under the
Articles of Incorporation, the Bylaws, any agreement, any vote of shareholders
or disinterested directors, Iowa law, or otherwise, both as to action in
Indemnitee’s official capacity and as to action in another capacity on behalf
of the Company while holding such office.


 

















 


13.           SUCCESSORS
AND ASSIGNS.  This Agreement shall be
binding upon, and shall inure to the benefit of, the Indemnitee and Indemnitee’s
heirs, personal representatives and assigns, and the Company and its successors
and assigns.


 


14.           SEPARABILITY.  Each provision of this Agreement is a
separate and distinct agreement and Independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof. 
To the extent required, any provision of this Agreement may be modified
by a court of competent jurisdiction to preserve its validity and to provide
the Indemnitee with the broadest possible indemnification permitted under Iowa
law.


 


15.           SAVINGS
CLAUSE.  If this Agreement or any portion
thereof be invalidated on any ground by any court of competent jurisdiction,
then the Company shall nevertheless indemnify Indemnitee as to Expenses,
judgments, fines, penalties or ERISA excise taxes with respect to any
Proceeding to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated or by any applicable provision
of the law of Iowa or the law of any other jurisdiction.


 


16.           INTERPRETATION;
GOVERNING LAW.  This Agreement shall be
construed as a whole and in accordance with its fair meaning.  Headings are for convenience only and shall
not be used in construing meaning.  This
Agreement shall be governed and interpreted in accordance with the laws of the
State of Iowa.


 


17.           AMENDMENTS.  No amendment, waiver, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by the party against whom enforcement is sought.  The Indemnification rights afforded to the
Indemnitee hereby are contract rights and may not be diminished, eliminated or
otherwise affected by amendments to the Company’s Articles of Incorporation,
Bylaws or agreements including D&O Insurance policies.


 


18.           COUNTERPARTS.  This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.


 


19.           NOTICES.  Any notice required to be given under this
Agreement shall be directed to the Company at: 4124 Airport Road, Shenandoah,
IA 51602 and to Indemnitee at the address specified below or to such other
address as either shall designate in writing.


 


20.           SUBJECT
MATTER.  The intended purpose of this
Agreement is to provide for Indemnification, and this Agreement is not intended
to affect any other aspect of any relationship between the Indemnitee and the
Company.


 


IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.


 


	
  GREEN PLAINS RENEWABLE ENERGY, INC.

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
   

  
	
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