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Exhibit 10.12
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ANY SALE,
TRANSFER, PLEDGE OR OTHER DISPOSITION THEREOF MAY BE MADE ONLY
(i) IN A REGISTRATION OR QUALIFICATION OR (ii) IF AN
EXEMPTION FROM REGISTRATION OR QUALIFICATION IS AVAILABLE AND THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL TO THAT EFFECT
REASONABLY SATISFACTORY TO THE COMPANY.
Void After 5:00 p.m. Minneapolis, Minnesota time on
, 2012.
AGASSIZ ENERGY, LLC
MEMBERSHIP UNITS PURCHASE WARRANT
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Warrant No. CD-00___
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Units:
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THIS CERTIFIES
that, subject to the terms and conditions herein set forth,
or his/her/its registered assigns (the "Holder") is entitled to
purchase from Agassiz Energy, LLC, a Minnesota limited liability
company (the "Company"), in full or in part commencing on the date
that is six months following the date of the termination of the
Company’s final sale of its membership units sold pursuant to
its duly-authorized registered offering under the Company’s
Securities Act of 1933, as amended, Form SB-2 which has been
registered with the Securities and Exchange Commission and no later
than the time and date set forth above,
(
) fully paid and non-assessable Membership Units of the Company
(referred to as the "Units").
This Warrant is subject to the
following terms and conditions:
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1.
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Purchase Price . Subject to adjustment
as hereinafter provided, the purchase price of one Unit shall be
One Dollar and 00/100 ($1.00). The purchase price of one Unit is
referred to herein as the "Warrant Price."
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2.
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Adjustment of Warrant Price and Number of
Units . The number and kind of securities issuable upon the
exercise of this Warrant shall be subject to adjustment from time
to time upon the happening of certain events as follows:
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a.
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Adjustment for Unit Dividends, Splits and
Consolidations . In case the Company shall at any time
subdivide the outstanding Membership Units into a greater number of
Units or declare a dividend payable in Membership Units, the
Warrant Price in effect immediately prior to such subdivision shall
be proportionately reduced, and conversely, in case the outstanding
Membership Units shall be
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combined into a smaller number of Units, the
Warrant exercise price in effect immediately prior to such
combination shall be proportionately increased.
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b.
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Adjustment for Reorganizations or
Consolidations . If any capital reorganization or
reclassification of the Membership Units of the Company, or
consolidation or merger of the Company with another company, or the
sale of all or substantially all of its assets to another company
shall be effected in such a way that holders of Membership Units
shall be entitled to receive stock, securities or assets
("substituted property") with respect to or in exchange for such
Membership Units, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, the Holder shall
have the right to purchase and receive upon the basis and upon the
terms and conditions specified in this Warrant and in lieu of the
Membership Units of the Company immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby,
such substituted property as would have been issued or delivered to
the Holder if it had exercised this Warrant and had received upon
exercise of this Warrant the Units prior to such reorganization,
reclassification, consolidation, merger or sale, less the amount of
the aggregate Warrant Price.
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3.
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No Unitholder Rights . This Warrant
shall not entitle its Holder to any of the rights of a member of
the Company prior to exercise of this Warrant. If the Holder is not
already a member of the Company, the Holder shall be required to
execute the Member Control Agreement of the Company upon exercise
of this Warrant prior to being entitled to any of the rights of a
member of the Company.
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4.
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Covenants of the Company . The Company
covenants that during the period this Warrant is exercisable, the
Company will reserve from its authorized and unissued Membership
Units a sufficient number of Membership Units to provide for the
issuance of Units upon the exercise of this Warrant. The Company
further covenants that all Units that may be issued upon the
exercise of this Warrant will, upon payment and issuance, be duly
authorized and issued, fully paid and nonassessable Membership
Units.
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5.
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Exercise of Warrant . This Warrant may
be exercised by the registered Holder, in whole or in part, by the
surrender of this Warrant at the principal office of the Company,
together with the form of exercise hereof duly executed,
accompanied by payment in full of the amount of the aggregate
Warrant Price in cash, cashier’s check or bank draft. Upon
partial exercise hereof, a new warrant or warrants containing the
same date and provisions as this Warrant shall be issued by the
Company to the registered Holder for the number of Units of
Membership Units with respect to which this Warrant shall not have
been exercised. Upon each exercise of this Warrant the Holder shall
exercise this Warrant and purchase the lesser of 500 Units and the
balance of Units available for issuance under the Warrant. A
Warrant shall be deemed to have been exercised immediately prior to
the close of business on the date the Company is in receipt of this
Warrant, written notice of exercise, and payment for the number of
Units being acquired upon exercise of this Warrant. The person
entitled to receive the Units issuable upon
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such exercise shall be treated for all purposes
as the Holder of such Units of record as of the close of business
on such date.
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6.
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Compliance with Securities Laws and Other
Transfer Restrictions . The Holder of this Warrant, by
acceptance hereof, agrees, represents and warrants that this
Warrant and the Units which may be issued upon exercise hereof are
being acquired for investment, that the Holder has no present
intention to resell or otherwise dispose of all or any part of this
Warrant or any Units, and that the Holder will not offer, sell or
otherwise dispose of all or any part of this Warrant or any Units
except under circumstances which will not result in a violation of
the Securities Act of 1933, as amended (the "Act") or applicable
state securities laws. The Company may condition any transfer,
sale, pledge, assignment or other disposition on the receipt from
the party to whom this Warrant is to be so transferred or to whom
Units are to be issued or so transferred, on any representations
and agreements requested by the Company in order to permit such
issuance or transfer to be made pursuant to exemptions from
registration under federal and applicable state securities laws.
Upon exercise of this Warrant, the Holder hereof shall, if
requested by the Company, confirm in writing its investment purpose
and acceptance of the restrictions on transfer of the
Units.
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7.
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Restrictive Legend . The Holder agrees
that the Company may place one or more restrictive legends on any
certificates evidencing the Units, if certificated, containing
substantially the following language:
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The securities represented by this certificate
have not been registered under the Securities Act of 1933, as
amended and have not been registered under any state securities
law. They may not be sold, offered for sale, or transferred in the
absence of either an effective registration under the Securities
Act of 1933, as amended, and under the applicable state securities
laws, or an opinion of counsel for the Company that such
transaction is exempt from registration under the Securities Act of
1933, as amended, and under the applicable state securities
laws.
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8.
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Six Month Holding Period . The Holder
agrees that the exercise of this Warrant i
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