Exhibit 2.3*
Execution Copy
AMENDMENT NUMBER TWO
TO
ASSET PURCHASE
AGREEMENT
This Amendment Number Two to Asset
Purchase Agreement (this “ Amendment ”), dated
as of March 31, 2009, by and among Valero Renewable Fuels
Company, LLC, a Texas limited liability company (“
Buyer ”), Valero Energy Corporation, a Delaware
corporation (“ Parent ”), VeraSun Energy
Corporation, a South Dakota corporation (the “ Company
”), and each of the following entities (such entities,
together with the Company, collectively, “ Sellers
”): VeraSun Aurora Corporation, a South Dakota corporation;
VeraSun Charles City, LLC, a Delaware limited liability company;
VeraSun Fort Dodge, LLC, a Delaware limited liability company;
VeraSun Hartley, LLC, a Delaware limited liability company; VeraSun
Marketing, LLC, a Delaware limited liability company; VeraSun
Welcome, LLC, a Delaware limited liability company; and VeraSun
Reynolds, LLC, a Delaware limited liability company. Buyer, Parent
and Sellers are sometimes herein referred to as the “
Parties ”.
RECITALS
A. The Parties are parties to that
certain Asset Purchase Agreement dated as of February 6, 2009
(the “Initial Agreement”), as amended by that certain
Amendment Number One to Asset Purchase Agreement dated as of
March 12, 2009 (the Initial Agreement, as so amended, the
“ Purchase Agreement ”).
B. The Parties desire to amend the
Purchase Agreement in certain respects, as hereinafter set
forth.
AGREEMENTS
NOW, THEREFORE, in consideration of
the premises and the mutual covenants, undertakings and agreements
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the Parties,
intending to be legally bound, hereby agree as follows:
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1.
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Incorporation of Recitals; Defined Terms;
Section and Schedule References . The foregoing recitals are incorporated herein
for all purposes. Capitalized terms which are used but not
otherwise defined in this Amendment shall have the meanings
ascribed to such terms in the Purchase Agreement. References herein
to a “Section” shall mean the corresponding section of
the Purchase Agreement, and references herein to a
“Schedule” shall mean the corresponding schedule to the
Purchase Agreement.
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2.
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Amendments . The Purchase Agreement is hereby amended as
follows:
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(i)
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The exhibit
list shall include the following:
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Exhibit Q
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Form of Declaration
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*
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In accordance
with Item 601(b)(2) of Regulation S-K, the schedules and
similar attachments to the Amendment Number Two to Asset Purchase
Agreement (“Amendment 2”) in this exhibit, have not
been filed. The registrant agrees to furnish a copy of any omitted
schedule or similar attachment to the SEC upon request. See
sections 2(a)(i) and 2(z) of Amendment 2 and the list of schedules
and exhibits immediately following the table of contents of the
Asset Purchase Agreement filed as Exhibit 2.1 to this
report.
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(ii)
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The declaration
set forth on Exhibit A to this Amendment is hereby added as Exhibit
Q to the Agreement.
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(i)
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The reference
to “$280,000,000” in the definition of “Cash
Consideration” in Section 1.1 is hereby deleted in its
entirety and replaced with “$350,000,000”.
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(ii)
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The reference
to “$280,000,000” in the definition of “Estimated
Cash Consideration” in Section 1.1 is hereby deleted in
its entirety and replaced with
“$350,000,000”.
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(iii)
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The definition
of “Cure Cost Account” in Section 1.1 is hereby
deleted in its entirety.
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(iv)
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The definition
of “Cure Cost Escrow Amount” in Section 1.1 is
hereby deleted in its entirety.
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(v)
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The definition
of “Cure Cost Escrow Deposit” in Section 1.1 is
hereby deleted in its entirety.
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(vi)
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The definition
of “Cure Costs” in Section 1.1 is hereby deleted
in its entirety and replaced with the following:
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“ Cure Costs ”
means amounts that must be paid, including pursuant to Sections
365(b)(1)(A) and (B) of the Bankruptcy Code, in connection
with the assumption and/or assignment of the Assigned Contracts and
the Assigned Leases in respect of any Liabilities that arose
thereunder prior to the filing of the Filings.
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(vii)
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The definition
of “Cure Costs Deadline” in Section 1.1 is hereby
deleted in its entirety.
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(viii)
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A new
definition of “Declaration” is hereby added to
Section 1.1 in alphabetical order, which definition shall read
as follows:
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“ Declaration ”
has the meaning set forth in Section 7.16 .
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(ix)
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A new
definition of “Facilities Software” is hereby added to
Section 1.1 in alphabetical order, which definition shall read
as follows:
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“ Facilities Software
” has the meaning set forth in Section 2.1
.
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(x)
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A new
definition of “Inventory Adjustment Account” is hereby
added to Section 1.1 in alphabetical order, which definition
shall read as follows:
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“Inventory Adjustment
Account” has the meaning set forth in
Section 3.3(e).
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(xi)
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A new
definition of “Post-Petition Cure Costs” is hereby
added to Section 1.1 in alphabetical order, which definition
shall read as follows:
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“ Post-Petition Cure
Costs ” means amounts that must be paid, including
pursuant to Sections 365(b)(1)(A) and (B) of the Bankruptcy
Code, in connection with the assumption and/or assignment of the
Assigned Contracts and the Assigned Leases in respect of any
Liabilities that arise thereunder after the filing of the
Filings.
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(xii)
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Except as the
context requires otherwise, the term “Agreement” shall
be deemed to refer to the Purchase Agreement as amended
hereby.
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(c)
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Section 2.1 . The following new paragraph is hereby added to
the end of Section 2.1 immediately following
Section 2.1(ii)(o):
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The Intellectual Property
transferred pursuant to Section 2.1(ii)(g) specifically
includes “seat/concurrent user licenses” related to the
Microsoft Great Plains software and the Intellego Cinch software in
each case in a number reasonably necessary for use at the
Facilities as licensed to Sellers for the Facilities and otherwise
consistent with Sellers’ past practices (the “
Facilities Software ”); provided ,
however , such transfer (A) shall not include
Sellers’ corporate server licenses related to the Microsoft
Great Plains software and the Intellego Cinch software and
(B) shall occur only if such transfer is consented to in
writing by Microsoft and Intellego Cinch (and any other necessary
third-party licensor), as applicable, on terms that will not
interfere in any material respect with Sellers’ use of their
corporate server licenses related to the Microsoft Great Plains
software and the Intellego Cinch software or Sellers’
remaining “seat/concurrent user licenses” related to
the Microsoft Great Plains software and the Intellego Cinch
software or impose costs upon Sellers not reimbursed by Buyer.
Sellers shall have no liability to Buyer in the event that
Microsoft or Intellego Cinch (or any other necessary third-party
licensor) does not consent to such transfer. To the extent the
transfer of the Facilities Software is permitted as provided in
this paragraph, Sellers agree to, at Buyer’s reasonable
request, provide Buyer such instruments of transfer as shall be
reasonably necessary or appropriate to effect the transfer of the
Facilities Software to Buyer.
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(d)
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Section 2.2(n) . The reference to “ Section 2.1(n)
” in Section 2.2(n) is hereby deleted in its entirety
and replaced with “ Section 2.1(ii)(n)
”.
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(e)
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Section 2.3(c) . Section 2.3(c) is hereby deleted in its
entirety and replaced with the following:
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Cure Costs
. All Cure Costs.
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(f)
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Section 2.4(f) . The reference to “ Section 8.4(b)
” in Section 2.4(f) is hereby deleted in its entirety
and replaced “ Section 8.4(b) and
Section 8.4(d) ”.
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(g)
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Section 2.4 . The clauses of Section 2.4 lettered (j),
(k) and (l) shall be re-lettered as clauses (k),
(l) and (m), respectively, and a new clause (j) is hereby
added to Section 2.4, which clause (j) shall read as
follows:
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(j)
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all
Post-Petition Cure Costs;
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(h)
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Section 2.5(d) . Section 2.5(d) is hereby deleted in its
entirety and replaced with the following:
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With respect to each Assigned
Contract and Assigned Lease, (i) Buyer shall pay, satisfy or
otherwise discharge all Cure Costs related thereto, and such Cure
Costs shall be an Assumed Liability for which Buyer is solely
responsible and for which none of Sellers shall have any liability
whatsoever, and (ii) Sellers shall pay, satisfy or otherwise
discharge all Post-Petition Cure Costs related thereto, and such
Post-Petition Cure Costs shall be an Excluded Liability for which
Sellers are solely responsible and for which Buyer shall have any
liability whatsoever.
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(i)
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Section 2.6 . The reference in the first sentence of
Section 2.6 to “assumed by and assigned to” is
hereby deleted in its entirety and replaced with “assumed and
assigned to”.
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(j)
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Section 3.3(a) . The second sentence of Section 3.3(a) is
hereby deleted in its entirety and replaced with the
following:
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Not later than three
(3) Business Days prior to the Closing Date, Buyer shall
deliver to Sellers a written statement, reasonably satisfactory to
Sellers (the “ Buyer Statement ”),
(i) setting forth the dollar amount of real and personal
property Taxes allocated to Sellers pursuant to
Section 8.1(b) , together with reasonable supporting
documentation regarding the determination and calculation of such
amount, (ii) setting forth the dollar amount of Transfer Taxes
allocated to Sellers pursuant to Section 8.1(a) ,
together with reasonable supporting documentation regarding the
determination and calculation of such amount, (iii) setting
forth all Restoration Costs relating to any Acquired Assets
purchased pursuant to Section 8.10(c) , together with
reasonable supporting documentation regarding the determination and
calculation of such amounts, and (iv) setting forth any
amounts mutually agreed pursuant to Section 8.10(b)
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(k)
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Section 3.3(c) . Section 3.3(c) is hereby deleted in its
entirety and replaced with the following:
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Prior to the Closing, U.S. Bank
National Association, or such other Person as may be mutually
agreed upon by Sellers and Buyer (the “ Expense Fund
Agent ”), shall establish an expense fund (the “
Expense Fund ”) consisting of the following two
segregated accounts: a Trade Payables Account (the “ Trade
Payables Account ”) and an Administrative Expenses
Account (the “ Administrative Expenses Account
”). The Expense Fund shall be maintained pursuant to an
Expense Fund Escrow Agreement subst
