exv4w2






Exhibit 4.2




Execution Version



THIS WARRANT HAS BEEN, AND THE UNITS WHICH MAY BE RECEIVED PURSUANT TO THE EXERCISE OF THIS WARRANT
WILL BE, ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH,
ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR SUCH UNITS HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER ANY STATE SECURITIES
LAWS. SUCH SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR
QUALIFICATION OR AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
REGISTRATION OR QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE SECURITIES LAWS.




	 	 	 
	No. 2

	 	August 28, 2009






WARRANT TO PURCHASE UNITS OF ADVANCED BIOENERGY, LLC




     This Warrant to Purchase Units (this “Warrant”) certifies that, for good and valuable
consideration, PJC CAPITAL LLC, a Delaware limited liability company (along with its permitted
assignees, the “Holder”) is entitled to purchase from ADVANCED BIOENERGY, LLC, a Delaware limited
liability company (the “Company”), SEVEN HUNDRED FORTY-TWO THOUSAND FIVE HUNDRED NINETY-EIGHT
(742,598) fully paid and nonassessable Units (as defined in the Company’s Third Amended and
Restated Operating Agreement dated February 1, 2006 (the “LLC Agreement”)) (the “Units”) of the
Company, as adjusted pursuant to Section 3 hereof (the “Warrant Units”), at an exercise
price per Unit equal to $1.50 (as adjusted pursuant to Section 3 hereof) (the “Exercise
Price”), subject to the provisions and upon the terms and conditions hereinafter set forth. This
Warrant is issued in connection with the Amended and Restated Secured Term Loan Note made by the
Company in favor of the initial Holder dated as of the date hereof (the “Note”). Unless otherwise
defined in this Warrant, capitalized terms defined in the Note are used in this Warrant as defined
in the Note.



     This Warrant replaces and is being delivered in exchange for the Warrant to Purchase Units of
Advanced BioEnergy, LLC, dated October 17, 2007 and numbered No. 1 issued by the Company to the
Holder (the “Prior Warrant”), and as of the date hereof the Prior Warrant shall be terminated and
have no further force and effect. The Holder shall surrender the Prior Warrant in exchange for
this Warrant.



1. Exercise; Payment.




     (a) Exercise Period. This Warrant may be exercised in whole or part by the Holder
during the term (as set forth in Section 11) and in compliance with the provisions of this
Warrant at any time after the date of issuance set forth above (the “Warrant Date”), by the
surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit A
(the “Notice of Exercise”) duly executed) at the principal office of the Company. If this Warrant
shall have been exercised in part, the Company shall, at the time of delivery of the certificate or
certificates representing Warrant Units, deliver to the Holder a new Warrant evidencing the rights
of the



 









 




Holder to purchase the unpurchased Warrant Units, which new Warrant shall in all other
respects be identical with this Warrant, or at the request of the Holder, appropriate notation may
be made on this Warrant and the same returned to the Holder.




     (b) Cash Exercise. Upon exercise of this Warrant, the Holder shall pay the Company an
amount equal to the product of (x) the Exercise Price multiplied by (y) the total number of Warrant
Units purchased pursuant to the Exercise of this Warrant, by wire transfer or check payable to the
order of the Company. The Holder shall be deemed to have become the holder of record of, and shall
be treated for all purposes as the record holder of, the Warrant Units represented by such exercise
(and such Warrant Units shall be deemed to have been issued) immediately prior to the close of
business on the date upon which this Warrant is exercised.



     (c) Net Exercise. The Exercise Price also may be paid at the Holder’s election by
surrender of all or a portion of the Warrant for Units to be exercised under this Warrant (“Net
Exercise”). If the Holder elects the Net Exercise method, the Company will issue Warrant Units in
accordance with the following formula:




X = Y(A-B)




           A



          Where:





	 	X =	 	 the number of Warrant Units to be issued upon
exercise of the Warrant
	 
	 	Y =	 	 the number of Warrant Units requested to be
exercised
	 
	 	A =	 	 the fair market value of 1 Unit on the date
of exercise of this Warrant
	 
	 	B =	 	 the Exercise Price





     For purposes of the above calculation, the fair market value of a Unit shall mean:



          (i) if at any time the Units are not listed on any securities exchange or traded in the
over-the-counter market, the fair market value of the Units shall be the highest price per Unit
which the Company could obtain from a willing buyer (other than an employee, director or
“Affiliate” of the Company, as such term is defined in Rule 405 under the Securities Act of 1933,
as amended (the “Securities Act”) for Units sold by the Company, as determined in good faith by its
Directors (as defined in the LLC Agreement);




          (ii) if the exercise is in connection with the conversion of the Units to common stock of the
Company (“Common Stock”) in order to facilitate a public offering of such Common Stock, and if the
Company’s Registration Statement relating to such initial public offering has been declared
effective by the SEC, then the fair market value per Unit shall be the initial “Price to Public” of
the Common Stock specified in the final prospectus with respect to the



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offering, giving effect to the conversion mechanism with respect to such conversion of the
Units to Common Stock;




          (iii) if the exercise is not in connection with a public offering, and:




               (A) if the Units (or the Common Stock, if the Units have been converted to Common Stock) are
traded on a securities exchange, the fair market value shall be deemed to be the average of the
closing prices over a 5 day period ending 3 days before the day the fair market value of the Units
or the Common Stock, as applicable, is being determined; or



               (B) if the Units (or the Common Stock, if the Units have been converted to Common Stock) are
traded over-the-counter, the fair market value shall be deemed to be the average of the closing bid
and asked prices quoted on the principal market on which or through which the Units or the Common
Stock, as applicable, are traded over the 5 day period ending 3 days before the day the fair market
value of the Units or the Common Stock, as applicable, is being determined;



          (iv) if property or securities in addition to or in substitution for Units shall be issuable
upon exercise of the Warrant, the fair market value of such property (to the extent such property
does not include a security which is listed on any securities exchange or traded in the
over-the-counter market, in which fair market value shall be calculated as provided in
Section 1(c)(i) — (iii) above) shall be determined in good faith by the Company’s Directors
(as defined in the LLC Agreement).




     (d) Exercise Prior to Expiration. To the extent this Warrant has not been previously
exercised as to any Warrant Units issuable hereunder, and if the fair market value of one Warrant
Unit immediately before expiration of the Warrant is greater than the Exercise Price then in
effect, this Warrant shall be deemed automatically exercised pursuant to the Net Exercise
provisions in Section 1(c) (even if not surrendered) immediately before its expiration. In
such event, the fair market value of one Warrant Unit shall be determined pursuant to Section
1(c). To the extent this Warrant or any portion thereof is deemed automatically exercised
pursuant to this Section 1(d), the Company agrees to promptly notify the Holder of the
number of Units, if any, and any other property, which the Holder is entitled to receive by reason
of such automatic exercise.



     (e) Unit Certificates. In the event of the exercise of this Warrant, certificates for
the Warrant Units so purchased shall be delivered to the Holder within a reasonable time after
exercise, to the extent that the Units are certificated.


2. Units Fully Paid; Reservation of Units. All of the Units issuable upon the exercise of this
Warrant, upon issuance and receipt by the Company of the Exercise Price therefor (or upon Net
Exercise thereof, as provided in Section 1(c)), shall be fully paid and nonassessable, and
free from all preemptive rights, rights of first refusal or first offer, taxes, liens and charges
with respect to the issuance thereof. During the period within which the rights represented by
this Warrant may be exercised, the Company shall at all times have authorized and reserved for
issuance a sufficient number of Units to provide for the exercise of this Warrant.




3









 







3. Adjustment of Exercise Price and Number of Units. The number and kind of Warrant Units
purchasable upon the exercise of this Warrant and the Exercise Price payable therefor shall be
subject to adjustment from time to time upon the occurrence of certain events, as follows:




     (a) Unit Distributions, Subdivisions, Combinations. If the Company shall (i) make a
distribution in respect of the Units in additional Units (or securities convertible into,
exchangeable for or otherwise entitling the registered holder to receive Units), (ii) subdivide the
outstanding Units into a greater number of Units or (iii) combine the outstanding Units into a
smaller number of Units, the number of Units purchasable upon exercise of this Warrant immediately
prior to the record date applicable to such event shall be adjusted so that the Holder shall
thereafter be entitled to receive that kind and number of Units or other securities of the Company
that the Holder would have owned or have been entitled to receive after the happening of any of the
events described above, had the Warrant been exercised immediately prior to the happening of such
event or any record date with respect thereto. The Exercise Price per Warrant Unit purchasable
upon exercise of any Warrant shall be subject to adjustment from time to time such that upon each
adjustment of the number of Warrant Units purchasable pursuant to this Section 3(a), the
Exercise Price shall be reduced or increased, as the case may be, to a price determined by dividing
the aggregate Exercise Price of all Warrant Units in effect prior to such adjustment by the total
maximum number of Warrant Units purchasable upon the exercise of all Warrants immediately after
such adjustment.



     (b) Reorganization or Reclassification. In case of any capital reorganization or
reclassification of the equity interests of the Company, or the conversion of the Company into a
corporation (whether pursuant to a merger, consolidation, statutory conversion or otherwise), each
Warrant shall thereafter be exercisable from the number of Units or other securities or property
receivable upon such capital reorganization, reclassification or conversion, as the case may be, by
a holder of the number of Units into which the Warrant was exercisable immediately prior to such
capital reorganization, reclassification or conversion; and, in any such case, appropriate
adjustment shall be made in the application of the provisions herein set forth with respect to the
rights and interests thereafter of the Holder of the Warrant to the end that the provisions set
forth herein shall thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other securities or property thereafter deliverable upon the exercise of the
Warrant.



     (c) Issuance of Securities Under Certain Circumstances.



          (i) If the Company shall issue or sell (or, in accordance with clause (ii) below, shall be
deemed to have issued or sold) any Units (other than Excluded Units, as defined below) without
consideration or for a consideration per unit that is less than the Exercise Price in effect
immediately prior to such issuance or sale, as adjusted for any unit splits, combinations, unit
dividends or similar transactions after the date hereof, then, effective immediately upon such
issuance or sale, (a) this Warrant shall immediately become exercisable for such additional Warrant
Units as are necessary to maintain the percentage ownership interest in the Company’s Units
(calculated on an as-converted, fully diluted basis assuming the issuance of all outstanding
options and warrants other than this Warrant) held by the Holder immediately prior to such issuance
and (b) the Exercise Price in effect immediately prior to such issuance or sale shall be reduced,
concurrently with such issuance or sale, to the consideration per Unit received by the



4









 






Company for such issuance, sale or deemed issuance of such additional Units; provided
that if such issuance, sale or deemed issuance was without consideration, then the Company shall be
deemed to have received an aggregate of $0.01 of consideration for all such additional Units
issued, sold or deemed to be issued. Adjustments shall be made successively whenever such an
issuance or sale is made.




          (ii) For the purpose of determining the adjusted Exercise Price under Section 3(c),
the following shall be applicable:




               (A) If the Company in any manner issues or grants any Option Rights or Convertible Securities
(each as defined below) and the price per unit for which Units are issuable upon the exercise of
such Option Rights or upon conversion or exchange of such Convertible Securities is less than the
Exercise Price, then the total maximum number of Units issuable upon the exercise of such Option
Rights or upon conversion or exchange of the total maximum amount of such Convertible Securities
(or any Convertible Securities issuable upon the exercise of such Option Rights) shall be deemed to
be outstanding and to have been issued and sold by the Company for such lesser price per unit. For
purposes of this paragraph, the price per unit for which a Unit is issuable upon exercise of Option
Rights or upon conversion or exchange of Convertible Securities (or any Convertible Securities
issuable upon exercise of Option Rights) shall be determined by dividing (x) the total amount, if
any, received or receivable by the Company as consideration for the issuing or granting of such
Option Rights or Convertible Securities, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of all such Option Rights or the exchange or
conversion of all such Convertible Securities (plus in the case of such Option Rights which relate
to Convertible Securities, the minimum aggregate amount of additional consideration, if any,
payable to the Company upon the issuance or sale of such Convertible Securities and the conversion
or exchange thereof) by (y) the total maximum number of Units issuable upon exercise of such Option
Rights or Convertible Securities (or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such Option Rights).



               (B) If the purchase price provided for in any Option Rights, the additional consideration, if
any, payable upon the issuance, conversion or exchange of any Convertible Securities or the rate at
which any Convertible Securities are convertible into or exchangeable for Units decreases at any
time, then the number of Warrant Units issuable upon the exercise of this Warrant and the Exercise
Price (each as in effect at the time of such decrease) shall be readjusted to number of Warrant
Units and the Exercise Price which would have been in effect at such time had such Option Rights or
Convertible Securities still outstanding provided for such decreased purchase price, additional
consideration or changed conversion rate, as the case may be, at the time initially granted, issued
or sold.



               (C) If any Units, Option Rights or Convertible Securities are issued or sold or deemed to have
been issued or sold for cash, then the consideration received therefor shall be deemed to be the
gross amount received by the Company therefor. If any Units, Option Rights or Convertible
Securities are issued or sold for consideration other than cash, then the amount of consideration
received by the Company shall be the fair value of such consideration determined in good faith by
the Directors of the Company.



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          (iii) For purposes of this Section 3(c):




               (A) “Convertible Securities” means any securities or other obligations issued or issuable by
the Company or any other Person that are exchangeable for, or convertible into, (i) any Units or
(ii) any securities exchangeable for, or convertible into, any Units.



               (B) “Excluded Units” means, collectively, (i) Units or Option Rights issued in any of the
transactions described in Sections 3(a) or 3(b), (ii) Units issued or issuable to officers,
directors or employees of, or consultants to, the Company pursuant to equity incentive plans or
agreements on terms approved by the Directors of the Company in an amount not to exceed 742,598
Units in the aggregate during the term of this Warrant, (iii) Units issued after the date hereof
upon the exercise of other Option Rights or the exchange or conversion of Convertible Securities in
each case outstanding on the date hereof and (iv) the issuance of this Warrant or any Warrant Units
pursuant to this Warrant.



               (C) “Option Rights” means any warrants, options or other rights to subscribe for or purchase,
or obligations to issue, any Units, or any Convertible Securities, including, without limitation,
any options or similar rights issued or issuable under any employee equity incentive plan, pension
plan or other employee benefit plan of the Company.



     (d) Notice of Certain Transactions. In the event that the Company shall propose at
any time to effect any action of the type described in Sections 3(a), (b) or (c), or any
right to subscribe for or purchase any evidences of its indebtedness, any units or capital stock of
any class or any other securities or property, or to receive any other right, or take any similar
extraordinary action affecting the Company’s Units or equity capital (including but not limited to
the transfer of substantially all of the Company’s assets), then, in connection with each such
event, the Company shall send notice thereof to all Holders no later than 10 days after the earlier
to occur of (i) the date on which such event became effective or (ii) the record date for such
event, in each case specifying in reasonable detail what the transaction or event consists of and,
if applicable, the aggregate amount or value of any cash or property distributed, paid, purchased
or received by the Company in connection therewith.



4. Investment Representations of Holder; Transfer of Warrant and Warrant Units.




     (a) Holder represents and warrants to the Company that: (i) it is an “Accredited Investor” as
that term is defined in Rule 501 of Regulation D promulgated under the Securities Act; and (ii) it
has the ability to bear the economic risks of such Holder’s prospective investment, including a
complete loss of Holder’s investment in the Warrants and the Warrant Units; and (iii) the Warrants
and the Warrant Units are purchased for the Holder’s own account, and not with view to distribution
of either the Warrants or any securities purchasable upon exercise thereof; provided however that
the Holder may transfer the Warrant and any Warrant Units to any Affiliate of the Holder.



     (b) This Warrant and the Warrant Units may only be Transferred (as defined in the LLC
Agreement) in compliance with federal and state securities laws. At the time of the surrender of
this Warrant in connection with any Transfer of this Warrant or the Transfer of the Warrant Units
(except to an Affiliate), the Company may require, as a condition of allowing such



6









 







Transfer (i) that the Holder or transferee of this Warrant or the Warrant Units, as the case
may be, furnish to the Company a written opinion of counsel that is reasonably acceptable to the
Company to the effect that such Transfer may be made without registration under the Securities Act
or qualification under any state securities laws and/or (ii) that the Holder or transferee execute
and deliver to the Company an investment representation letter in form and substance acceptable to
the Company and substantially in the form of Exhibit B hereto and the transfer application
used by the Company, a form of which has previously been provided to the Holder. Transfer of this
Warrant and all rights hereunder, in whole or in part, in accordance with the foregoing provisions,
shall be registered on the books of the Company to be maintained for such purpose, upon surrender
of this Warrant at the principal office of the Company or the office or agency designated by the
Company, together with a written assignment of this Warrant substantially in the form of
Exhibit C hereto duly executed by the Holder or its attorney-in-fact. Upon such surrender
and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees and in the denomination specified in such instrument of
assignment, and shall issue to the Holder a new warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall be deemed cancelled.



     (c) Subject to the requirements of Section 4(b) of this Warrant and Section 9.2 of the
LLC Agreement, the Holder shall be entitled to Transfer all or any portion of the Warrant Units to
any Person, whether or not such Person is an Affiliate of the Holder, provided that
notwithstanding the provisions of Section 9.2(b)(i) of the LLC Agreement, a Transfer to any Person
that would otherwise require the consent of the Directors in writing under such section, shall be
subject to the consent of a majority of the Directors (as defined in the LLC Agreement), such
consent not to be unreasonably withheld, delayed or conditioned.



5. Legend.




     (a) Each certificate evidencing the Warrant Units issued upon exercise of this Warrant shall
be stamped or imprinted with a legend substantially in the following form:




THE TRANSFERABILITY OF THE MEMBERSHIP 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 STRICT ACCORDANCE
WITH, THE TERMS AND CONDITIONS SET FORTH IN THE OPERATING AGREEMENT OF THE COMPANY.




THE UNITS REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, OFFERED FOR SALE, OR
TRANSFERRED IN ABSENCE OF AN EFFECTIVE REGISTRATION OR EXEMPTION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND UNDER APPLICABLE STATE SECURITIES LAW.



7









 





     (b) Removal of Legend and Transfer Restrictions. Any legend endorsed on a certificate
pursuant to this Section 5 shall be removed, and the Company shall issue a certificate
without such legend to the holder of such Warrant Units if (i) such Warrant Units are resold
pursuant to an effective registration statement under the Securities Act, (ii) if such holder
satisfies the requirements of Rule 144(k) under the Securities Act or (iii) if such holder provides
the Company with an opinion of counsel for such holder of the Warrant Units, in form and substance
reasonably satisfactory to the Company, to the effect that a sale, transfer or assignment of such
Warrant Units may be made without registration and that upon such sale, transfer or assignment such
Warrant Units will not be deemed “restricted securities,” as such term is defined in Rule 144 under
the Securities Act.


6. Fractional Units. No fractional Warrant Units will be issued in connection with any exercise of
this Warrant, but in lieu of such fractional Units the Company shall make a cash payment therefor
upon the basis of the Exercise Price then in effect.



7. Rights as a Member. Except as set forth in Section 3, the Holder shall not be entitled
to vote, or receive dividends or distributions, or be deemed a holder of Units or a member of the
Company, nor shall anything contained herein be construed to confer upon the Holder any of the
rights of a member of the Company or any right to vote for the election of directors or upon any
matter submitted to members at any meeting thereof, or to give or withhold consent to any action
with respect to the Warrant Units, until this Warrant shall have been exercised and the Warrant
Units purchasable upon the exercise of this Warrant shall have become deliverable, as provided in
Section 1(b). Upon exercise of this Warrant, the Holder shall automatically be deemed to
be a Member (as defined in the LLC Agreement) of the Company with all rights of a Member, including
the Membership Voting Interest (as defined in the LLC Agreement), without any further approval of
the members, directors, officers or managers of the Company required; provided that the
Holder shall execute such documents as are reasonably requested by the Company to document the
Holder’s agreement to be bound by the terms and provisions of the LLC Agreement and evidence of the
authority of the Holder to execute and deliver such agreement to be so bound.



8. Information Rights. At all times when Holder is holding this Warrant (whether or not exercised
in part) or any Warrant Units, and if not already delivered pursuant to another agreement, the
Company will deliver to the Holder the financial statements delivered to the Members of the Company
pursuant to the LLC Agreement, including, without limitation, Section 7.3 thereof.




9. Registration Rights; Resales Under Rule 144.




     (a) Registration Rights. If the Company at any time converts into a corporation, and
the Company, as converted, proposes to register any Common Stock solely for cash pursuant to a
registration statement under the Securities Act, other than a registration solely for the sale of
securities to participants in a Company stock or other incentive plan or in connection with a
transaction under Rule 145 promulgated under the Securities Act, the Company shall use its best
efforts to cause to be registered for resale under the Securities Act all of the Common Stock that
the Holder has requested to be registered on such registration statement.



8









 





     (b) Compliance with Rule 144(c). If the Holder proposes to sell Common Stock, the
Warrant or any Warrant Units in compliance with Rule 144 under the Securities Act, then, upon
Holder’s written request the Company shall furnish to the Holder, within 3 days after receipt of
such request, a written statement confirming the Company’s compliance with the “Current Public
Information” requirements of Rule 144(c), as such Rule may be amended from time to time.


10. Parallel Rights; No Impairment. The Holder shall be entitled, but not required, to become a
signatory to and entitled to the benefits of, any investor rights agreement to the extent any such
agreement is entered into on or after the Warrant Date until the consummation of a Change of
Control (as defined in the Note), including any such agreement entered into in connection with a
Change of Control. The Company shall not, by amendment of its certificate of formation or the LLC
Agreement or through a reorganization, transfer of assets, consolidation, merger, dissolution,
issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed under this Warrant by the Company,
but shall at all times in good faith assist in carrying out of all the provisions of this Warrant
and in taking all such action as may be necessary or appropriate to protect Holder’s rights under
this Warrant against impairment.




11. Term of Warrant; Early Termination.




     (a) This Warrant shall become exercisable on the Warrant Date and shall no longer be
exercisable as of 5:00 p.m., Central Time, on October 1, 2014 (the “Exercise Period”).



     (b) Notwithstanding Section 11(a), in the case of any consolidation of the Company
with, or merger of the Company into, any other Person, any merger of another Person into the
Company (other than a merger which does not result in any reclassification, conversion, exchange or
cancellation of outstanding securities as to which Warrants may then be exercised and other than a
merger solely to change the jurisdiction of organization of the Company) or any sale, transfer or
lease of all or substantially all of the assets of the Company to any Person, in each case during
the Exercise Period, the Company shall provide the Holder with written notice of such proposed
transaction, in reasonable detail, no less than 10 days prior to the consummation thereof, and this
Warrant shall terminate upon the consummation of such transaction unless exercised prior to such
consummation.



12. Registry of Warrants.




     The Company shall maintain a registry showing the name and address of the registered holder of
this Warrant. Holder’s initial address, for purposes of such registry, is set forth below Holder’s
signature on this Warrant. Holder may change such address by giving written notice of such changed
address to the Company.



13. Miscellaneous.




     (a) This Warrant shall be construed and enforced in accordance with and governed by the laws
of the State of Delaware, without giving effect to principles of conflicts of laws.



     (b) The Company shall pay all expenses (including attorneys fees and expenses) in connection
with, and all taxes and other governmental charges that may be imposed in respect of,



9









 







the issue or delivery of any Warrant Units issuable upon the exercise of any Warrant
(excluding any applicable income taxes payable by the Holder); provided that the Company
shall not be required to pay any tax or other charge imposed in connection with any transfer
involved in the issue of Warrant Units in any name other than that of the Holder.



     (c) The headings in this Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof.



     (d) The terms of this Warrant shall be binding upon and shall inure to the benefit of any
successors or assigns of the Company and of the Holder and of the Warrant Units issued or issuable
upon the exercise hereof.



     (e) Any notice provided for or permitted under this Warrant shall be treated as having been
given (i) upon receipt, when delivered personally, (ii) one day after sending, when sent by
commercial overnight courier with written verification of receipt, (iii) upon confirmed
transmission when sent via facsimile on a business day prior to 5:00 pm (Central Time) or, if sent
after 5:00 pm (Central Time), the next business day after confirmed transmission, or (iv) three
business days after deposit with the United States Postal Service, when mailed postage prepaid by
certified or registered mail, return receipt requested, addressed at such address or facsimile
number as set forth on the signature page below, or at such other place of which the other party
has been notified in accordance with the provisions of this Section 13(e).



     (f) This Warrant, together with that side letter agreement dated August 20, 2009 between the
Company and Holder, constitutes the full and entire understanding and agreement between the parties
with regard to the matters contained herein.



     (g) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, upon surrender and cancellation of such Warrant, the
Company at the Holder’s expense will execute and deliver to the holder of record, in lieu thereof,
a new Warrant of like date and tenor.



     (h) This Warrant and any provision hereof may be amended, waived or terminated only by an
instrument in writing signed by the Company and the Holder.



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     IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized
officer, all as of the day and year first above written.



     COMPANY:



	 	 	 	 	 	 	 
	 	 	ADVANCED BIOENERGY, LLC	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Richard Peterson	 	 
	 

	 	Name:
	 	Richard Peterson

	 	 
	 

	 	Title:
	 	President, Chief  Executive Officer, 

Chief Financial Officer and 

Vice President of Accounting and Finance 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 
	 

	 	Notice Address:
	 	10201 Wayzata Blvd., Suite 250
	 

	 	 	 	Minneapolis, MN 55305
	 

	 	 	 	Attn: Richard Peterson
	 

	 	 	 	Facsimile: (763) 226-2728






	 	 	 	 	 	 	 
	     WARRANTHOLDER:	 	 PJC CAPITAL LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Robert P. Rinek	 	 
	 

	 	 	 	 

Robert P. Rinek
	 	 
	 

	 	 	 	Co-President and Co-Chief Operating
Officer	 	 






	 	 	 	 	 
	 

	 	Notice Address:
	 	c/o Piper, Jaffray & Co.
	 

	 	 	 	800 Nicollet Mall
	 

	 	 	 	Minneapolis, MN 55402
	 

	 	 	 	Attn: Robert P. Rinek
	 

	 	 	 	Facsimile: (612) 303-1068






WARRANT TO PURCHASE UNITS OF ADVANCED BIOENERGY, LLC SIGNATURE PAGE



 








 








EXHIBIT A




NOTICE OF EXERCISE





			
	TO:	 	                                        

                                        

                                        




1. Cash Exercise. The undersigned hereby elects to purchase                      Units (“Units”),
of ADVANCED BIOENERGY, LLC, a Delaware limited liability company (the “Company”) pursuant to the
terms of Section 1(b) of the Warrant to Purchase Units dated August 28, 2009, (the
“Warrant”), and tenders herewith payment of the Exercise Price (as such term is defined in the
Warrant) therefor.



2. Net Exercise. The undersigned hereby elects to effect a Net Exercise for                     
Units pursuant to Section 1(c) of the Warrant.



Please issue a certificate or certificates representing said                      Units in the name of the
undersigned or in such other name as is specified below:




	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 
	 

	 	 	 	 

	 	 






     The undersigned hereby represents and warrants that the aforesaid Units are being acquired for
the account of the undersigned for investment and not with a view to, or for resale, in connection
with the distribution thereof, and that the undersigned has no present intention of distributing or
reselling such shares.




	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 

	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 

	 	 






 









 








EXHIBIT B




FORM OF INVESTMENT REPRESENTATION LETTER



In connection with the acquisition of [warrants (the “Warrants”) to purchase                      Units
of ADVANCED BIOENERGY, LLC (the “Company”)] [Units of ADVANCED BIOENERGY, LLC (the
“Company”)] (the “Units”), by                      (the “Holder”) from
                    , the Holder hereby represents and warrants to the Company as follows:



The Holder has such knowledge and experience in financial and business matters that the Holder is
capable of evaluating the merits and risks of an investment in the Warrants and the Units issuable
upon the exercise thereof (collectively, the “Securities”); and, has the ability to bear
the economic risks of such Holder’s investment, including a complete loss of the Holder’s
investment in Securities.



The Holder, by acceptance of the [Warrants/Units], represents to the Company that the Warrants and
all securities acquired upon any and all exercises of the Warrants are purchased for the Holder’s
own account, and not with view to distribution of either the Warrants or any securities purchasable
upon exercise thereof in violation of applicable securities laws.



The Holder acknowledges that (i) the Securities have not been registered under the Act, (ii) the
certificate(s) representing the Securities shall bear a legend as set forth in the Warrant
Agreement until such Securities shall have been registered for resale by the Holder under the Act
that has been declared effective by the SEC; or (ii) in the opinion of counsel in form and
substance reasonably satisfactory to the Company, such Securities may be sold without registration
under the Act.



IN WITNESS WHEREOF, the Holder has caused this Investment Representation Letter to be executed in
its corporate name by its duly authorized officer this [___] day of [                    ], 20[___].



[Name]




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






 









 






EXHIBIT C




ASSIGNMENT FORM



FOR VALUE RECEIVED, the undersigned owner of this Warrant for the purchase of Units of ADVANCED
BIOENERGY, LLC, a Delaware limited liability company (the “Company”) hereby sells, assigns and
transfers unto the assignee named below all of the rights of the undersigned under this Warrant,
with respect to the number of Units set forth below:




  
        
        
       
        
        
         
         
        
        
     




    
           
          
           
          
           
          
      
       




   
            
           
            
           
            
           
        

(Name and Address of Assignee)




  
            
           
            
          
           
          
            

(Number of Units)




and does hereby irrevocably constitute and appoint                                         attorney-in-fact to register
such transfer on the books of the Company, maintained for the purpose, with full power of
substitution in the premises.



Dated:                                                            




[Name]




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title: