Exhibit 10.12


 


AVENTINE RENEWABLE ENERGY HOLDINGS, INC.


2010 EQUITY INCENTIVE PLAN


RESTRICTED
STOCK UNIT AGREEMENT


 


This
Restricted Stock Unit Agreement (the “Agreement”),
effective as of the 15th day of March, 2010 (the “Date
of Grant”) by and between Aventine Renewable Energy Holdings, Inc.
(the  “Company”),
and                           
(the “Participant”), evidences the
grant by the Company of restricted Common Share units (the “Award”) to the Participant on such
date and the Participant’s acceptance of the Award in accordance with the
provisions of the Company’s 2010 Equity Incentive Plan (the “Plan”).  The Company and the Participant agree as
follows:


 


1.                                       Basis for Award.  This Award is made under the Plan
pursuant to Section 9 thereof for services to be rendered to the Company
by the Participant as a member of the Company’s Board.


 


2.                                       Restricted Stock Units
Awarded.


 


(a)                                  The Company hereby awards to the
Participant, in the aggregate,                 
restricted Common Share units (“Restricted Stock Units”), which
shall be subject to the terms of the Plan and this Agreement.


 


(b)                                 The Restricted Stock Units shall be
credited to a separate account maintained for the Participant on the books of
the Company (the “Account”).  The Award shall vest and settle in accordance
with Section 3 hereof.


 


3.                                       Vesting and Settlement. The Restricted Stock Units shall vest
and become non-forfeitable in full on the first anniversary of the Date of
Grant, or if earlier, upon the occurrence of a Change in Control  (the “Vesting Date”);
provided, that, the Participant is then a member of the Board.
The Company shall issue and deliver to the Participant one Common Share for
each vested Restricted Stock Unit (the “RSU Shares”)
(and upon such settlement, the Restricted Stock Units shall cease to be
credited to the Account) on the earlier of (x) the sixtieth (60th) day following the termination of the Participant’s
Board service for any reason and (y) the date of a Change in Control (such date,
the “Settlement Date”) and upon such settlement the Company
shall enter the Participant’s name as a shareholder of record with respect to
the RSU Shares on the books of the Company.


 


4.                                       Dividend Equivalents. 
If the Company pays a cash dividend on its outstanding Common Shares for
which the Record Date (for purposes of this Agreement, the “Record Date” is the date on which shareholders of
record are determined for purposes of paying the cash dividend on Common
Shares) occurs after the Date of Grant, the Participant shall receive a lump
sum cash payment on the Settlement Date equal to the aggregate amount of the
cash dividends paid by the Company on a single Common Share multiplied by the
number of Restricted Stock Units awarded under this Agreement that are unvested
and unpaid as of each applicable Record Date, plus interest on such amount at
the Company’s borrowing rate as in effect from time to time.


 


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5.                                       Restrictions. 
The Award granted hereunder may not be sold, pledged or otherwise
transferred (other than by will or the laws of descent and distribution or as
otherwise permitted by the Committee) and may not be subject to lien,
garnishment, attachment or other legal process. 
The Participant acknowledges and agrees that, with respect to each Restricted
Stock Unit credited to his Account, the Participant has no voting rights with
respect to the Company unless and until such Restricted Stock Unit is settled
in RSU Shares pursuant to Section 3 hereof.


 


6.                                       Compliance with Laws and
Regulations.  The issuance and transfer of RSU Shares shall
be subject to compliance by the Company and the Participant with all applicable
requirements of securities laws and with all applicable requirements of any
stock exchange on which the Company’s Common Shares may be listed at the time
of such issuance or transfer.


 


7.                                       General Assets. 
All amounts credited to the Participant’s Account under this Agreement
shall continue for all purposes to be part of the general assets of the
Company.  The Participant’s interest in
the Account shall make the Participant only a general, unsecured creditor of
the Company.


 


8.                                       Rights as Shareholder. 
Upon and following the Settlement Date, the Participant shall be the
record owner of the RSU Shares unless and until such shares are sold or otherwise
disposed of, and as record owner shall be entitled to all rights of a
shareholder of the Company (including voting rights).  Prior to the Settlement Date, the Participant
shall not be deemed for any purpose to be the owner of the Common Shares underlying
the Restricted Stock Units subject to the Award, other than with respect to the
Participant’s right to receive payment pursuant to Section 4 hereof.


 


9.                                       Governing Law. 
This Agreement shall be governed by the laws of the state of New York
without regard to conflict of law principles.


 


10.                                 Plan. 
Except as otherwise provided herein, or unless the context clearly
indicates otherwise, capitalized terms herein which are defined in the Plan
have the same definitions as provided in the Plan.  The terms and provisions of the Plan are
incorporated herein by reference, and the Participant hereby acknowledges
receiving a copy of the Plan.  In the
event of a conflict or inconsistency between the terms and provisions of the
Plan and the provisions of this Agreement, this Agreement shall govern and
control.  Notwithstanding anything herein
or in the Plan to the contrary, the provisions of Section 15 of the Plan
shall not apply to the Participant.


 


11.                                 Adjustment. 
In the event of any adjustment pursuant to Section 12 of the Plan
that would adversely affect the value of the Award granted hereunder or cause
such Award to become subject to Section 409A of the Code, such adjustment
may only be made with the Participant’s written consent, which consent shall
not be unreasonably withheld.


 


12.                                 Taxes. 
Upon settlement of the Award in accordance with Section 3
hereof, the Participant shall recognize taxable income in respect of the Award
and the Company shall report such income to the appropriate taxing authorities
in respect of the Award as it 


 


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determines to be necessary and appropriate.  The Participant shall be responsible for
payment of any taxes due on income in respect of the Award.  For purposes hereof, Common Shares shall be
valued at Fair Market Value.


 


13.                                 Notice. 
Every notice or other communication relating to this Agreement shall be
in writing, and shall be mailed to or delivered to the party for whom it is
intended at such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided; provided,
that, unless and until some other address be so designated, all notices
or communications by the Participant to the Company shall be mailed or
delivered to the Company at its principal Participant office, and all notices
or communications by the Company to the Participant may be given to the
Participant personally or may be mailed to him/her at his/her address as
recorded in the records of the Company.


 


14.                                 Section 409A. 
Notwithstanding anything herein to the contrary, this Agreement is
intended to be interpreted and applied so that the payments and benefits set
forth herein either shall either be exempt from the requirements of Code Section 409A,
or shall comply with the requirements of Code Section 409A, and,
accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be exempt from or in compliance with Code Section 409A.  If the Participant notifies the Company (with
specificity as to the reason therefor) that the Participant believes that any
provision of this Agreement  would cause
the Participant to incur any additional tax or interest under Code Section 409A
or the Company independently makes such determination, the Company shall, after
consulting with the Participant, reform such provision (or award of
compensation or benefit) to attempt to comply with or be exempt from Code Section 409A
through good faith modifications to the minimum extent reasonably
appropriate.  To the extent that any
provision hereof is modified in order to comply with Code Section 409A,
such modification shall be made in good faith and shall, to the maximum extent
reasonably possible, maintain the original intent and economic benefit to
Participant and the Company without violating the provisions of Section 409A.


 


15.                                 Severability. 
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, and each other provision shall be severable and enforceable to the
extent permitted by law.


 


16.                                 Entire Agreement. 
This Agreement and the Plan contain the entire agreement between the
parties hereto with respect to the subject matter contained herein and
supersede all prior communications, representations and negotiations in respect
thereto.  No change, modification or
waiver of any provision of this Agreement shall be valid unless in writing and
signed by the parties hereto.


 


17.                                 Counterparts. 
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.


 


[signature page follows]


 


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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first set forth above.


 


 


	
   

  	
  AVENTINE RENEWABLE ENERGY
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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  Name: