DIRECTOR INDEMNIFICATION AGREEMENT January 26, 2010
EXHIBIT 10.1
January 26, 2010
This Director Indemnification Agreement (“Agreement”) is entered into effective as of
the date first above written, by and between Advanced BioEnergy, LLC, a Delaware limited liability
company (the “Company”), and , a director of the Company (the
“Director”).
Recitals
A. The Director has been elected to serve as a director of the Company and the Company desires
the Director to serve in such capacity.
B. In addition to the indemnification to which the Director is entitled under the Third
Amended and Restated Operating Agreement of the Company (as the same may be amended, restated,
amended and restated, supplemented or otherwise modified from time to time, the “Operating
Agreement”), the Company at its sole expense maintains insurance protecting its officers and
directors against certain losses arising out of actual or threatened actions, suits or proceedings
to which such persons may be made or threatened to be made parties (“D & O Insurance”).
C. Neither the Operating Agreement nor the Delaware Limited Liability Company Act (the
“Act”) limit the ability of the Company to enter into contracts between the Company and the
members of its Board of Directors with respect to indemnification of such directors in addition to
the indemnification provisions in the Operating Agreement.
Agreement
In order to induce the Director to serve and continue to serve in the capacity as a director,
in consideration of the Director’s valuable and effective services for the Company, the Company and
the Director agree as follows:
1. Service. Director will serve as a director of the Company at the will of the
Company so long as the Director is duly elected and qualified in accordance with the Operating
Agreement or until the Director resigns or is removed in accordance with applicable law and the
Operating Agreement.
2. Indemnity of Director. Subject to such standards and restrictions, if any as are
set forth in the Operating Agreement, the Company shall hold harmless and indemnify Director to the full extent authorized or permitted by the provisions of the Act or
by any amendment thereof or other statutory provisions authorizing or permitting such
indemnification which is adopted after the date hereof. To the extent that a change in the Act (or
other applicable law), whether by statute or judicial decision, permits greater indemnification or
advancement of expenses than would be afforded currently under Act, it is the intent of the parties
hereto that Director enjoy by this Agreement the greater benefits so afforded by such change to the
extent not restricted by the Operating Agreement. No amendment, alteration or repeal of this
Agreement or of any provision hereof or of the Operating Agreement or any provision thereof shall
limit or restrict any right of Director under this Agreement or such other documents in respect of
any action taken or omitted by Director in Director’s capacity as a director of the Company prior
to such amendment, alteration or repeal.
3. Maintenance of Insurance and Self Insurance.
a. Subject only to the provisions of Section 3(b) hereof, so long as Director
shall continue to serve as a director of the Company (or shall continue at the request of
the Company to serve as a director of another corporation, limited liability company,
partnership, joint venture, trust or other enterprise), and thereafter so long as Director
shall be subject to any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason of the fact
that Director was a director of the Company or served in any of said other capacities, the
Company will purchase and maintain in effect for the benefit of Director one or more valid,
binding and enforceable policies of D & O Insurance.
b. The Company shall not be required to maintain said policies of D & O Insurance in
effect if said insurance is not reasonably available or if, in the reasonable business
judgment of the then directors of the Company, either (i) the premium cost for such
insurance is substantially disproportionate to the amount of coverage or (ii) the coverage
provided by such insurance is so limited by exclusions that there is insufficient benefit
from such insurance.
c. In the event the Company does not purchase and maintain in effect said policies of
D & O Insurance pursuant to the provisions of Section 3(b) hereof, the Company
shall hold harmless and indemnify Director to the full extent of the coverage which would
otherwise have been provided for the benefit of Director pursuant to such D & O Insurance.
4. Additional Indemnity. Subject only to the exclusions set forth in Section 5
hereof, and without limiting any right which Director may have now or in the future pursuant to
the Act, the Operating Agreement, any other agreement, any resolution, any policy of insurance or
otherwise, the Company hereby further agrees (in addition to its obligations in, and not limited
by, Section 2) to hold harmless and indemnify Director against any and all expenses (including
attorneys’ fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by Director (including all
interest, assessments and other charges paid or payable in connection therewith) in
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connection with
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, whether by third parties or by or in the right of the Company to
which Director at any time becomes a party, or is threatened to be made a party, by reason of the
fact that Director is or was a director of the Company, or is or was serving or at any time serves
at the request of the Company as a director of another corporation, limited liability company,
partnership, joint venture, trust or other enterprise.
5. Limitations on Additional Indemnity. No indemnity pursuant to Section 4
hereof shall be paid by the Company:
a. for which and to the extent that payment is actually made to Director under a valid
and collectible insurance policy maintained by the Company;
b. for which and to the extent that Director is indemnified by the Company or receives
a recovery from the Company otherwise than pursuant to Section 4;
c. on account of any suit in which judgment is rendered against Director for an
accounting of profits made from the purchase and sale by Director of securities of the
Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934
and amendments thereto or similar provisions of any federal, state or local statutory law;
d. with respect to acts or omissions which are not in good faith or which constitute
intentional misconduct or a knowing violation of law;
e. in respect of any proceeding initiated by Director against the Company or any
director or officer unless (1) the Company has joined in or consented to the initiation of
such proceedings or (2) the proceeding is for recovery of expenses related to the
indemnification obligations set forth herein;
f. with respect to any transaction from which Director derived an improper personal
benefit; or
g. if a final decision by a Court of competent jurisdiction in the matter shall
determine that such indemnification is not lawful.
6. Notification and Defense of Claim. Promptly after receipt by Director of notice of
the commencement of any action, suit or proceeding, Director will, if a claim in respect thereof is
to be made against the Company under this Agreement, notify the Company of the commencement
thereof; but the omission so to notify the Company will
not relieve it from any liability that it may have to Director otherwise than under this
Agreement or from any liability that is not directly related to the failure of Director
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promptly to
so notify the Company. With respect to any such action, suit or proceeding as to which Director
notifies the Company of the commencement thereof:
a. The Company will be entitled to participate therein at its own expense;
b. Except as otherwise provided below, to the extent that it may wish, the Company
jointly with any other indemnifying party similarly notified will be entitled to assume the
defense thereof, with counsel satisfactory to Director. After notice from the Company to
Director of its election so to assume the defense thereof, the Company will not be liable
to Director under this Agreement for any legal or other expenses subsequently incurred by
Director in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Director shall have the right to employ the
Director’s counsel in such action, suit or 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 Director unless (i) the employment of counsel by Director has
been authorized by the Company, (ii) Director shall have reasonably concluded that there
may be a conflict of interest between the Company and Director in the conduct of the
defense of such action, or (iii) the Company shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses of counsel
shall be at the expense of the Company. The Company shall not be entitled to continue the
defense of any action, suit or proceeding properly brought by or on behalf of the Company
or as to which Director shall have made the conclusion provided for in (ii) above; and
c. The Company shall not be required to indemnify Director under this Agreement for
any amounts paid in settlement of any action or claim effected without its written consent.
The Company shall not settle any action or claim in any manner which would impose any
penalty or limitation on Director without Director’s written consent. Neither the Company
nor Director will unreasonably withhold its consent to any proposed settlement.
7. Advance Payments.
a. Director shall be entitled to receive advance payments in the amount of all costs,
charges, and expenses, including attorney and other fees and expenses, actually and
reasonably incurred or reasonably to be incurred by Director in defense of any action, suit
or proceeding as described in Section 4 hereof (collectively, “Expenses”).
b. Director agrees that Director will reimburse the Company for all reasonable
Expenses paid or advanced by the Company in defending any civil,
criminal, administrative or investigative action, suit or proceeding against Director
in the event and only to the extent that it ultimately shall be determined
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in a final
non-appealable determination by a court of competent jurisdiction that Director is not
entitled to be indemnified by the Company for such costs, charges and expenses under the
provisions of this Agreement.
c. The Company hereby acknowledges that Director may have certain rights to
indemnification, advancement of expenses and insurance provided by other persons or
entities with which Director is associated (collectively, the “Additional
Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort
(i.e., its obligations to Director are primary and any obligation of the Additional
Indemnitors to advance expenses or to provide indemnification for the same expenses or
liabilities incurred by Director are secondary), (ii) that it shall be required to advance
the full amount of expenses incurred by Director and shall be liable for the full amount of
all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent
legally permitted and as required by the terms of this Agreement and the Operating
Agreement (or any other agreement between the Company and Director), without regard to any
rights Director may have against the Additional Indemnitors, and, (iii) that it irrevocably
waives, relinquishes and releases the Additional Indemnitors from any and all claims
against the Additional Indemnitors for contribution, subrogation or any other recovery of
any kind in respect thereof. The Company further agrees that no advancement or payment by
the Additional Indemnitors on behalf of Director with respect to any claim for which
Director has sought indemnification from the Company shall affect the foregoing and the
Additional Indemnitors shall have a right of contribution and/or be subrogated to the
extent of such advancement or payment to all of the rights of recovery of Director against
the Company. The Company and Director agree that the Additional Indemnitors are express
third party beneficiaries of the terms of this Section 7(c).
8. Indemnification Request.
a. Advancement.
(i) Director shall, in order to request advanced payments according to
Section 7 hereof, submit to the Board of Directors a sworn statement of
request for advancement of expenses (the “Advancement Request”), stating
that (i) the Director has incurred or will incur actual expenses in defending an
action, suit, or proceeding as described in Section 4 hereof and (ii) the
Director undertakes to repay such amount if it shall ultimately be determined in a
final non-appealable determination by a court of competent jurisdiction that the
Director is not entitled to be indemnified by the Company under this Agreement.
(ii) Upon receipt of the Advancement Request, the Chairman of the Board, the
President or any Vice President shall authorize
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immediate payment of the expenses
stated in the Advancement Request within 10 calendar days, whereupon such payments
shall immediately be made by the Company. No security shall be required in
connection with any Advancement Request and it shall be accepted without reference
to Director’s ability to make repayment.
b. Indemnification.
(i) Director, in order to request indemnification pursuant to Section 4
hereof, shall submit to the Board of Directors a sworn statement of request for
indemnification (the “Indemnification Request”), stating that Director is
entitled to indemnification under this Agreement. Such Indemnification Request
shall contain a summary of the action, suit or proceeding and an itemized list of
all payments made or to be made with respect to which indemnification is requested.
(ii) The Board of Directors shall be deemed to have determined that Director
is entitled to such indemnification unless, within 30 days after submission of the
Indemnification Request, the Board of Directors shall have notified Director in
writing that it has determined, by a majority vote of directors who were not
parties to such action, suit or proceeding based upon clear and convincing
evidence, that Director is not entitled to indemnification under this Agreement.
The evidence shall be disclosed to Director in such notice which shall be sworn to
by all directors who participated in the determination and voted to deny
indemnification.
(iii) In the event that (1) a majority vote according to Section
8(b)(ii) cannot be obtained or (2) there is a change in control of the Company
(other than a change in control which has been approved by members of the Board of
Directors who were directors prior to such change in control), the following
procedure shall take place:
| (A) | Director shall choose, subject to Company approval (which approval shall not be unreasonably withheld), counsel who has not performed any services for the Company or Director within the last five years and who is in good standing (“Independent Legal Counsel”). | ||
| (B) | Independent Legal Counsel shall then determine within (i) 30 days after submission of the Indemnification Request, or (ii) the Director’s acceptance to act as an Independent Legal Counsel, or (iii) such reasonable time as is required under the circumstances, whichever comes later, whether Director is entitled to indemnification under this Agreement. Indemnification may only be denied according to Section 5 hereof and only based upon clear |
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| and convincing evidence. In the case of a denial, Independent Legal Counsel shall submit to the Board of Directors and to Director within 10 days after the decision a written opinion disclosing the grounds and the evidence upon which such decision was based. The decision of Independent Legal Counsel shall be final. |
(iv) The termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or its equivalent, shall
not, of itself, create a presumption that Director’s conduct was such that
indemnity is not available pursuant to Section 5.
9. Continuation of Indemnity. All agreements and obligations of the Company contained
herein shall continue during the period Director is a director of the Company (including service at
the request of the Company as a director of another corporation, partnership, joint venture, trust
or other enterprise) and shall continue thereafter even though Director may have terminated his
services as a director of the Company, so long as Director shall be subject to any possible claim
or threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that Director was a director of the Company
or serving in any other capacity referred to herein.
10. Enforcement.
a. The Company expressly confirms and agrees that it has entered into this Agreement
and assumes the obligations imposed on the Company hereby in order to induce Director to
serve or continue to serve as a director of the Company and acknowledges that Director is
relying upon this Agreement in continuing in such capacities.
b. In the event Director is required to bring any action to enforce rights or to
collect moneys due under this Agreement and is successful in such action, the Company shall
reimburse Director for all of Director’s reasonable fees and expenses in bringing and
pursuing such action.
11. Severability. If any provision of this Agreement or the application of any
provision hereof to any person or circumstance is held invalid, unenforceable or otherwise illegal,
the remainder of this Agreement and the application of such provision to other persons or
circumstances shall not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal.
12. Governing Law; Binding Effect; Amendment and Termination.
a. This Agreement shall be interpreted and enforced in accordance with the laws of the
State of Delaware.
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b. This Agreement shall be binding upon Director and upon the Company, its successors
and assigns, and shall inure to the benefit of Director, the Director’s heirs, personal
representatives and assigns and to the benefit of the Company, its successors and assigns.
c. No amendment, modification, termination or cancellation of this Agreement shall be
effective unless in writing signed by both parties hereto.
13. Miscellaneous. This Agreement shall supersede any other similar agreement with
directors of the Company previously adopted by the Board of Directors and entered into by the
Company; provided, however, that this Agreement shall be in addition to (and shall not supersede or
replace) Section 1.5 of that certain Voting Agreement, dated as of August 28, 2009 by and among the
Company, Hawkeye Energy Holdings, LLC, Ethanol Investment Partners, LLC and the directors of the
Company signatory thereto.
[Remainder of Page Intentionally Left Blank — Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
| ADVANCED BIOENERGY, LLC |
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| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Chief Executive Officer and President | |||
| DIRECTOR |
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| By: | ||||
| Name: | ||||
[Signature Page to ABE Indemnification Agreement]
