EXHIBIT 2.1
PARTNERSHIP INTEREST PURCHASE
AGREEMENT
THIS PARTNERSHIP INTEREST PURCHASE
AGREEMENT, dated as of November 7, 2006 (this “
Agreement ”), is entered into by and among Advanced
BioEnergy, LLC, a Delaware limited liability company (“
ABE ”), HGF Acquisition, LLC, a Delaware limited
liability company and a wholly owned subsidiary of ABE (“
Acquisition Sub ”), Aventine Renewable Energy, Inc., a
Delaware corporation and a limited partner of HGF (“
Aventine ”), Heartland Grain Fuels, L.P., a Delaware
limited partnership (“ HGF ”), Heartland
Producers, LLC, a South Dakota limited liability company and a
limited partner of HGF (“ HP ”), South Dakota
Wheat Growers Association, a South Dakota cooperative and a limited
partner of HGF (“ SDWG ”), and Dakota Fuels,
Inc., a Delaware corporation and the general partner of HGF
(“ DF ”).
RECITALS
A.
Aventine is a limited partner of HGF with a 5% percentage interest
in HGF.
B.
HP is a limited partner of HGF with a 46.284% percentage interest
in HGF and the holder of 49% of the outstanding shares of DF
.
C.
SDWG is a limited partner of HGF with a 47.898% percentage interest
in HGF and the holder of 51% of the outstanding shares of DF
.
D.
DF is the sole general partner of HGF with a .818% percentage
interest in HGF.
E.
ABE, Acquisition Sub, HGF, HP, SDWG and DF are each a party to that
certain Partnership Interest Purchase Agreement, dated as of the
date hereof (the “ Purchase Agreement ”),
pursuant to which Acquisition Sub is acquiring all of the limited
partnership interests in HGF (a “ HGF Partnership
Interest ”), and all of the shares of DF, owned by HP and
SDWG.
F.
Each of Aventine, HP, SDWG and DF desires to consent to the
transfer of the HGF Partnership Interests pursuant to this
Agreement and the Purchase Agreement and to waive its right of
first refusal under the Agreement of Limited Partnership of South
Dakota Grain Fuels, L.P., (n/k/a Heartland Grain Fuels, L.P.), as
amended up through the date of this Agreement (the “
Agreement of Limited Partnership ”).
G.
Aventine desires to sell, and Acquisition Sub desires to purchase,
all of the HGF Partnership Interest owned by Aventine subject to
and on the terms and conditions set forth herein.
In consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth below, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF HGF
PARTNERSHIP INTEREST
Section
1.1
Purchase and Sale of HGF Partnership Interest .
Subject to the provisions of this Agreement, Aventine shall sell,
transfer, assign, convey and deliver to Acquisition Sub, and
Acquisition Sub shall purchase, all of the HGF Partnership Interest
owned by Aventine, free and clear of all liens, claims or
encumbrances of any kind.
ARTICLE II
CLOSING; PURCHASE
PRICE
Section
2.1
Closing . The closing of the acquisition of the HGF
Partnership Interest owned by Aventine (the “ Closing
”) will take place concurrently with, and at the place of,
the closing under the Purchase Agreement (the “ Closing
Date ”).
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Section
2.2
Purchase Price; Deliveries . At the Closing, (a)
Acquisition Sub shall pay Aventine $842,105 in cash and issue to
Aventine 131,579 newly issued membership units in ABE (the “
ABE Units ”), and (b) Aventine shall execute and
deliver to ABE a counterpart signature page to the Third Amended
and Restated Operating Agreement of Advanced BioEnergy, LLC,
effective as of February 1, 2006, and shall become a
“member” as defined in such agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
AVENTINE
As of the date of this Agreement and
as of the Closing Date, Aventine represents and warrants to ABE and
Acquisition Sub that the statements contained in this Article III
are true and correct.
Section
3.1
Organization . Aventine is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware.
Section
3.2
Authority; No Conflict; Required Filings and Consents
. Aventine has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of Aventine. This
Agreement has been duly executed and delivered by Aventine.
This Agreement constitutes, assuming the due authorization,
execution and delivery by ABE and Acquisition Sub, the valid and
binding obligation of Aventine, enforceable by ABE and Acquisition
Sub against Aventine in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding at law or in equity.
Section
3.3
Purchase for Investment . Aventine is an accredited
investor, as defined in Rule 501(a) of the Securities Act of 1933,
as amended (the “ Securities Act ”).
Aventine is acquiring the ABE Units for its own account and not
with a view to the distribution or resale thereof within the
meaning of Section 2(11) of the Securities Act. Aventine has such
knowledge and experience in financial and business matters that it
is capable of evaluating the merits and the risks of the
transactions contemplated hereby.
Section
3.4
Ownership of HGF Partnership Interests . Except as set forth
on Schedule 3.4, Aventine owns its HGF Partnership Interest free
and clear of all liens, claims or encumbrances of any
kind.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
ABE AND ACQUISITION SUB
As of the date of this Agreement and
as of the Closing Date, ABE and Acquisition Sub jointly and
severally represent and warrant to Aventine that the statements
contained in this Article IV are true and correct.
Section
4.1
Organization of ABE and Acquisition Sub . ABE is a
limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware.
Acquisition Sub is a limited liability company duly organized,
validly existing and in good standing under the laws of the State
of Delaware.
Section
4.2
Authority; No Conflict; Required Filings and Consents
. Each of ABE and Acquisition Sub has all requisite limited
liability company power and authority to enter into this
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Agreement and to consummate the
transactions contemplated by this Agreement. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly
authorized by all necessary limited liability company action on the
part of ABE and Acquisition Sub. This Agreement has been duly
executed and delivered by ABE and Acquisition Sub. This
Agreement constitutes, assuming the due authorization, execution
and delivery by Aventine, the valid and binding obligation of ABE
and Acquisition Sub, enforceable by Aventine against ABE and
Acquisition Sub in accordance with its terms, except to the extent
that enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding at law or in equity.
Section
4.3
Valid Issuance of ABE Units . The ABE Units to be
issued pursuant to the terms of this Agreement, when issued in
accordance with the terms of this Agreement, (a) will be duly
authorized and validly issued, (b) will not be subject to any
capital calls or any preemptive rights created by statute, the
Certificate of Organization of ABE or any contract or obligation to
which ABE is a party or by which it is bound, and (c) will be
issued in compliance with all applicable federal and state
laws.
Section
4.4
SEC Filings . Each report, registration
statement and definitive proxy statement (the “ ABE SEC
Documents
