Exhibit 2.2*
Execution Copy
Amendment Number One
to
Asset Purchase
Agreement
This Amendment Number One to Asset
Purchase Agreement (this “ Amendment ”), dated
as of March 12, 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 “ 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:
1. 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.
2. Amendments . The Purchase
Agreement is hereby amended as follows:
(a) Definitions .
(i) The definition of
“Auction” in Section 1.1 is hereby deleted in its
entirety and replaced with the following:
“ Auction ” has
the meaning set forth in the Bidding Procedures.
(ii) The definition of
“Bidding Procedures” in Section 1.1 is hereby
deleted in its entirety and replaced with the following:
“ Bidding Procedures
” means the bid procedures approved by the Bankruptcy Court
pursuant to the Bidding Procedures Order.
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In accordance
with Item 601(b)(2) of Regulation S-K, the schedules and
similar attachments to the Amendment Number One to Asset Purchase
Agreement (“Amendment 1”) 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 section
2(i) of Amendment 1 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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(iii) The definition of
“Bidding Procedures Order” in Section 1.1 is
hereby deleted in its entirety and replaced with the
following:
“ Bidding Procedures
Order ” means the Order of the Bankruptcy Court styled
“Order Pursuant to 11 U.S.C. §§ 105(A), 363,
365 and Fed. R. Bankr. P. 2002, 6004, 6006 (A) Establishing
Bidding and Auction Procedures Related to the Sale of Some or All
of the Debtors’ Assets; (B) Approving Bid Protections
for Sale of VSE Assets; (C) Establishing Procedures for the
Debtors to Enter into Additional Stalking Horse Agreements with Bid
Protections in Connection with Sale of Assets; (D) Scheduling
an Auction and Sale Hearing for the Sale of the Debtors’
Assets; (E) Permitting Credit Bidding Pursuant to Bankruptcy
Code Section 363(K); (F) Establishing Certain Notice
Procedures for Determining Cure Amounts; (G) Approving Form
and Manner of Notice of All Procedures, Protections, Schedules and
Agreements; and (H) Granting Certain Related Relief” and
entered on February 20, 2009 (Docket No. 699 in the
Bankruptcy Case).
(iv) The definition of “Sale
Motion” in Section 1.1 is hereby deleted in its entirety
and replaced with the following:
“ Sale Motion ”
means the motion styled “Motion Pursuant to 11 U.S.C.
§§ 105(a), 363, 365 and Fed. R. Bankr. P. 2002,
6004, 6006 for (I) Entry of an Order (A) Establishing
Bidding and Auction Procedures Related to the Sale of Some or All
of the Debtors’ Assets; (B) Approving Bid Protections
for Sale of VSE Assets; (C) Establishing Procedures for the
Debtors to Enter into Additional Stalking Horse Agreements with Bid
Protections in Connection with Sale of Assets; (D) Scheduling
an Auction and Sale Hearing for the Sale of the Debtors’
Assets; (E) Permitting Credit Bidding Pursuant to Bankruptcy
Code Section 363(K); (F) Establishing Certain Notice
Procedures for Determining Cure Amounts; (G) Approving Form
and Manner of Notice of All Procedures, Protections, Schedules and
Agreements; and (H) Granting Certain Related Relief; and (II)
Entry of an Order (A) Approving the Sale of Debtors’
Assets Free and Clear of All Liens, Claims, Encumbrances and
Interests; (B) Authorizing the Assumption and Assignment of
Certain Executory Contracts and Unexpired Leases; and
(C) Granting Certain Related Relief” and filed with the
Bankruptcy Court on February 6, 2009 (Docket No. 622 in
the Bankruptcy Case).
(v) Section 1.1 is hereby
amended to incorporate therein the following new defined
term:
“ Sale Hearing ”
has the meaning set forth in the Bidding Procedures
Order.
(vi) Except as the context requires
otherwise, the term “Agreement” shall be deemed to
refer to the Purchase Agreement as amended hereby.
(b) Deposit .
Section 3.2 is hereby amended to delete the words
“interest bearing” therefrom, it being agreed by the
Parties that the Deposit need not accrue interest.
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(c) Expense Fund .
Section 3.3(c) is hereby amended to delete the words
“interest bearing” therefrom, it being agreed by the
Parties that the accounts comprising the Expense Fund need not
accrue interest.
(d) Bidding Procedures .
Section 7.8(b) is hereby deleted in its entirety and replaced
with the following:
As further provided in the Bidding
Procedures Order, Sellers shall promptly segregate all bid deposits
received from other bidders (if any) in the Auction into the BUFER
Account, until the aggregate amount of such deposits equals
$11,000,000. Monies held in the BUFER Account shall be maintained
free and clear of all Encumbrances whatsoever and such monies shall
not be subject to any claims by creditors of Sellers’
respective estates unless and solely to the extent such monies are
disbursed to the Sellers pursuant to the terms of this Agreement.
Upon the termination of this Agreement under any circumstance
resulting in Buyer being entitled to receive the Break-Up Fee
and/or the Expense Reimbursement in accordance with the applicable
provisions of Section 11.2 , the Break-Up Fee and/or
Expense Reimbursement (as applicable) shall be disbursed to Buyer
from the BUFER Account and, thereafter, any remaining moneys held
in the BUFER Account shall be released to Sellers or as the
Bankruptcy Court may otherwise direct. The Break-Up Fee and Expense
Reimbursement (i) shall be funded from the VSE Bid Deposit of
the Successful Bidder for the Acquired Assets, or, to the extent
necessary, from Sellers’ other assets, (ii) shall be
secured by a first priority, unprimable security interest in the
VSE Bid Deposit of the Successful Bidder for the Acquired Assets
(except that such security interest shall be subordinate to the
interest of such Successful Bidder in its VSE Bid Deposit in the
event a sale transaction with such Successful Bidder is not
ultimately consummated) and perfected by language in the Bidding
Procedures Order, without need for further action to perfect such
security interest, (iii) shall be approved and payment
authorized by the Bankruptcy Court in the Bidding Procedures Order
and (iv) shall automatically be deemed an allowed super
priority administrative expense under Sections 503(b)(1) and
364(c)(1) of the Bankruptcy Code in the Bidding Procedures Order.
The VSE Bid Deposit of the Successful Bidder for the Acquired
Assets shall not be the sole source for payment to Buyer of the
Break-Up Fee and/or Expense Reimbursement to which Buyer is
entitled pursuant to the applicable provisions of
Section 11.2 and, in the event that the VSE Bid Deposit
of the Successful Bidder for the Acquired Assets shall be
unavailable, or to the extent that the VSE Bid Deposit of the
Successful Bidder for the Acquired Assets shall be insufficient, to
pay to Buyer the full amount of the Break-Up Fee and/or Expense
Reimbursement to which Buyer
