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EXHIBIT 4.4
VERASUN ENERGY CORPORATION
(ORGANIZATION ID # DB050019)
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER
AGREEMENT (this "AGREEMENT") is made as of November 30,
2005, by and among VeraSun Energy Corporation, a South Dakota
corporation (the
"COMPANY"), the parties named in Exhibit A, each of whom owns
Common Stock of
the Company (collectively, the "SHAREHOLDERS"), and Teachers
Insurance and
Annuity Association of America ("TIAA"), as a Shareholder and
holder of the TIAA
Warrants (as defined below).
Recitals
A.
Pursuant
to a merger transaction effective as of October 14, 2005
(the "Aurora Merger"), the Company issued shares of its Common
Stock
to certain of the Shareholders and VeraSun Aurora Corporation,
a
South Dakota corporation formerly known as VeraSun Energy
Corporation (Organizational ID # DB044362, referred to herein
as
"Aurora"), became a wholly owned subsidiary of the Company.
B.
In
connection with the Aurora Merger, it was agreed that the
Second
Amended and Restated Shareholder Agreement, dated as of December
16,
2002, as amended, by and among Aurora, its shareholders and
certain
other parties would be adopted as the Company's agreement.
C.
Thereafter, the Company entered into a Stock Purchase
Agreement,
dated as of November 21, 2005, with certain investors.
D.
To
document the Company's agreement with the new investors, the
Company, the Shareholders and TIAA have prepared and executed
this
Agreement as a complete replacement of the agreement adopted in
connection with the Aurora Merger.
In
consideration of the mutual promises, covenants and agreements
contained herein, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings indicated below:
"AFFILIATE" (including the term "AFFILIATED") shall have the
meaning assigned to such term in Rule 144 promulgated under the
Securities Act
of 1933, as amended (the "ACT").
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"BLUESTEM" shall mean Bluestem Capital Company, L.L.C., a
South Dakota limited liability company.
"BOARD" shall mean the Board of Directors of the Company.
"COMMON STOCK" shall mean the Common Stock of the Company, par
value $0.01 per share.
"COMMON STOCK EQUIVALENTS" shall mean, with respect to
options, warrants or convertible securities, the number of shares
of Common
Stock of the Company issuable upon exercise or conversion
thereof.
"EOS CAPITAL" shall mean Eos Capital Partners III, L.P., a
Delaware limited partnership.
"EOS INVESTORS" shall mean Eos Partners and Eos Capital.
"EOS PARTNERS" shall mean Eos Partners SBIC III, L.P., a
Delaware limited partnership.
"EXISTING WARRANTS" shall mean the warrants listed on Exhibit
B hereto.
"FUNDAMENTAL CORPORATE EVENT" shall mean any consolidation,
merger or a statutory share exchange (other than a merger with a
wholly-owned
subsidiary of the Company or a consolidation, merger, share
exchange or other
business combination in which the outstanding voting stock of the
Company
immediately prior to such consolidation, merger, share exchange or
business
combination constitutes a majority of the voting stock of the
surviving entity)
in which the outstanding shares of capital stock of the Company are
exchanged
for securities or other consideration of or from another
corporation, or a sale
of all or substantially all the assets or stock of the Company.
"INITIAL PUBLIC OFFERING" shall mean the public offering
pursuant to a firm commitment underwriting of capital stock of the
Company
registered in compliance with the Act which shall have resulted in
gross
proceeds to the Company of at least $10,000,000 and had a price to
the public of
at least $4.00 per share.
"INVOLUNTARY TRANSFER" shall mean that (i) involuntary
proceedings, which remain unstayed and undismissed after 90 days,
have been
commenced against any Shareholder, or voluntary proceedings are
commenced by any
Shareholder, in each case under any provision of any federal or
state law
relating to bankruptcy or insolvency, whether legal or equitable,
(ii) any
Shares (as defined below) of a Shareholder are attached or
garnished, (iii) any
judgment (including, without limitation, a divorce decree) is
obtained in any
legal or equitable proceeding against any Shareholder and the
transfer of his,
her or its Shares are contemplated or threatened under legal
process as the
result of such judgment, or (iv) any execution is issued against
any Shareholder
or his, her or its Shares.
"SUPERMAJORITY VOTE" shall mean a vote of directors
constituting at least 80% of the directors in office at the time in
question.
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"TIAA WARRANTS" shall mean the warrants issued to TIAA and
listed on Exhibit C hereto.
"TIAA WARRANT AGREEMENT" shall mean the Warrant Agreement,
dated as of October 14, 2005, between the Company and TIAA pursuant
to which the
TIAA Warrants have been issued.
"TRANSFER" shall mean any sale, exchange, execution on a
pledge, assignment, gift, sale by legal process under execution or
attachment,
or change in ownership, voluntary or involuntary (including,
without limitation,
pursuant to an Involuntary Transfer), because of any other act or
occurrence,
but shall not include (i) a repurchase by the Company pursuant to a
vesting or
similar agreement between the Company and a Shareholder, (ii) an
exchange of
securities effected in connection with any merger or
recapitalization of the
Company, (iii) a transfer by a Shareholder on death, by will or
intestacy, (iv)
a transfer pursuant to Section 4 of this Agreement, (v) a transfer
without
consideration by a Shareholder to such Shareholder's spouse or
children or to
any trust all the beneficiaries of which are such Shareholder's
spouse or
children, provided that the Shareholder retains an irrevocable
proxy (upon terms
reasonably satisfactory to the Company) to vote the Shares so
transferred and
that such transfer has been approved in advance by the Board, or
(vi) a transfer
by a Shareholder to its Affiliates, partners or members.
SECTION 2.
RESTRICTIONS ON TRANSFER.
2.1 CONSENT REQUIRED. No Shareholder may Transfer by sale or
otherwise, any shares of the Company's capital stock now or
subsequently held by
such Shareholder ("SHARES"), except with the consent of holders of
at least
two-thirds (66 2/3 percent) of the aggregate voting power of the
issued and
outstanding shares of voting capital stock of the Company, which
consent shall
not be unreasonably withheld or delayed; provided, however, that in
no event
shall TIAA be subject to this Section 2.1. The Shareholders
acknowledge and
agree that the foregoing restrictions on Transfers are necessary
and appropriate
in light of the proposed business of the Company and that no
Transfer shall be
permitted to be made to a competitor of the Company.
2.2 EFFECT OF TRANSFER. All Transfers shall be subject to the
requirements and limitations set forth in Section 10.
SECTION 3.
BOARD OF DIRECTORS.
3.1 ELECTION AND REMOVAL OF DIRECTORS.
(a) The number of directors initially shall be seven. Donald L.
Endres shall have the right to nominate four directors including
himself as the
Chairman of the Board. Bluestem shall have the right to nominate
one director,
and Eos Capital shall have the right to nominate one director if
the Eos
Investors collectively have invested an aggregate of at least
$25,000,000 in the
Company. The seventh director shall be nominated by a Supermajority
Vote of the
Board; provided that such nominee shall be an individual with
ethanol industry
experience. If the Eos Investors fail to invest at least
$25,000,000 in the
Company, the number
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of directors shall be reduced to five and Mr. Endres shall be
entitled to
nominate only three directors.
(b) The names of the persons so nominated shall be submitted to
the
Company, and the Shareholders and TIAA agree to take all action
necessary or
appropriate to cause the nomination of such nominees as candidates
for directors
of the Company and the Company shall take all actions necessary or
appropriate
to present the nominees to the Company's shareholders for election
as directors.
In the election of the Company's directors, each Shareholder and
TIAA agree to
vote his, her or its shares for election of such nominees.
(c) If one of the directors so elected resigns or is removed by
a
vote of the Company's shareholders, or if his or her Board seat is
otherwise
vacated for any reason, then the holders or group who nominated
such director
shall have the right to nominate his or her replacement and the
Shareholders and
TIAA agree to vote their shares for the election of such
replacement. The
Shareholders and TIAA further agree that they shall not vote their
Shares for
the removal of any representative nominated pursuant to this
Section 3, except
for cause, without the consent of the holders or group nominating
such
representative. Solely for purposes of the preceding sentence,
"CAUSE" means
willful misconduct or bad faith.
(d) Should the provisions of this Section 3.1 be construed to
constitute the granting of proxies, such proxies shall be deemed
coupled with an
interest.
3.2 BOARD ACTION.
(a) The manner of convening and holding meetings of the Board
shall
be as set forth in the Bylaws of the Company, as amended from time
to time. The
Board shall hold one regular meeting during each calendar quarter.
The Company
will cause each non-employee director to be reimbursed for all
reasonable
out-of-pocket costs and expenses incurred by him or her in
connection with
serving as a director.
(b) The following matters shall require the approval by a
Supermajority Vote of the Board:
(i) approval or amendment, in any material respect, of the
Company's annual operating budget;
(ii) approval of contractual obligations and transactions
outside the scope of the relevant annual operating budget
previously
approved by the Board;
(iii) selection of an independent accounting firm to review
and report on the financial statements specified in Section
6(a)(i);
and
(iv) approval of any employment agreements between the Company
and any of its senior executives requiring the Company to pay
compensation in excess of $125,000 per annum.
3.3 Transactions with Affiliates.
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(a) No
director, officer or holder of five percent or more of the
Common
Stock of the Company shall, directly or indirectly through any
Affiliate, (i)
make any loan or advance to the Company or any of its Subsidiaries,
(ii)
transfer, sell, lease, assign or otherwise dispose of any assets to
the Company
or any of its Subsidiaries, or (iii) engage in any transaction with
the Company
or any of its Subsidiaries providing for the furnishing of services
by or to, or
rental of real or personal property from or to, or otherwise
requiring cash
payments to or by such person, other than (a) the payment of
salaries and
benefits to directors or officers in the ordinary course of
business, (b)
transactions in the ordinary course of business and on terms and
conditions at
least as favorable to the Company or its Subsidiaries as the terms
and
conditions that would apply in similar transactions with a person
not affiliated
with the Company, or (c) transactions approved by a Supermajority
Vote of the
Board.
(b) The
Company and its Subsidiaries shall not, directly or indirectly
through any Affiliate, (i) make any loan or advance to any
director, officer or
holder of five percent or more of the Common Stock of the Company,
(ii)
transfer, sell, lease, assign or otherwise dispose of any assets to
any
director, officer or holder of five percent or more of the Common
Stock of the
Company, or (iii) engage in any transaction with any director,
officer or holder
of five percent or more of the Common Stock of the Company
providing for the
furnishing of services by or to, or rental of real or personal
property from or
to, or otherwise requiring cash payments to or by such person,
other than (a)
the payment of salaries and benefits to directors or officers in
the ordinary
course of business, (b) transactions in the ordinary course of
business and on
terms and conditions at least as favorable to the Company or its
Subsidiaries as
the terms and conditions that would apply in similar transactions
with a person
not affiliated with the Company, or (c) transactions approved by a
Supermajority
Vote of the Board.
3.4 NON-VOTING OBSERVERS.
(a) In addition to their other rights under this Agreement, Eos
Capital and Bluestem shall each be entitled to have one (1)
non-voting observer
(the "Observer") who shall be designated by Eos Capital and
Bluestem, in their
sole discretion, by notice to the Company from time to time (and
who shall also
be subject to removal for no reason or any reason whatsoever by Eos
Capital and
Bluestem, respectively, by notice to the Company from time to
time).
(b) Each Observer shall be entitled to be present at all meetings
of
the Board. The Company shall notify the Observer of each meeting of
the Board,
including the time and place of such meeting, in the same manner
and at the same
times as the members of the Board, as the case may be, are
notified.
SECTION 4.
TAKE-ALONG AND TAG-ALONG RIGHTS.
4.1 TAKE-ALONG RIGHTS
(a) In the event that holders of at least two-thirds (66 2/3
percent) of the fully diluted Common Stock (such party and
Affiliates, whether
one or more, the "SELLER") propose to sell all (but not less than
all) of the
shares of Common Stock and Common Stock Equivalents held by such
Seller ("SALE
Shares") to a third party or parties in which the Seller does not
own,
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have any right to acquire, or propose to own or acquire, any
interest (a "THIRD
Party") pursuant to a Bona Fide Offer (as defined below), then the
Seller shall
have the right to require all (but not less than all) other
Shareholders and
TIAA (collectively, the "CO-SELLER"), to include in such sale (a
"REQUIRED
SALE") all (but not less than all) of the shares of Common Stock
and Common
Stock Equivalents held by the Co-Seller (the "CO-SELLER SHARES") by
delivering
notice (the "REQUIRED SALE NOTICE") to such Shareholders and
TIAA.
(b) The Required Sale Notice shall set forth: (A) the date of
such
notice (the "NOTICE DATE"), (B) the name and address of the Third
Party, (C) the
proposed amount of consideration to be paid per share for the Sale
Shares, which
shall consist solely of cash (the "SALE PRICE"), and the terms and
conditions of
payment offered by the Third Party in reasonable detail, together
with written
proposals or agreements, if any, with respect thereto, (D) the
aggregate number
of Sale Shares, (E) confirmation that the Seller is selling 100% of
the
aggregate number of shares of Common Stock and Common Stock
Equivalents then
held by it to a Third Party, and (F) the proposed date of the
Required Sale (the
"REQUIRED SALE DATE"), which shall be not less than 60 nor more
than 120 days
after the date of the Notice Date.
(c) "BONA FIDE OFFER" shall mean an all-cash offer (whether in
the
form of a purchase of stock, merger, recapitalization, or
otherwise) for all
outstanding shares of Common Stock and Common Stock Equivalents,
provided that
the Aggregate Sale Price under such offer shall have been approved
by
Supermajority Vote of the Board.
(d) If the Seller or any Co-Sellers of a class of Sale Shares
are
given an option as to the form and amount of consideration to be
received with
respect to Sale Shares or Co-Seller Shares in a class, all
Co-Sellers of such
class will be given the same option.
(e) No Co-Seller shall be obligated to pay more than his or its
pro
rata amount of reasonable expenses incurred (based on the
proportion of the
aggregate transaction consideration received) in connection with a
Required Sale
to the extent such expenses are incurred for the benefit of all
Co-Sellers and
are not otherwise paid by the Company or the acquiring party
(expenses incurred
by or on behalf of a Co-Seller for its or his sole benefit not
being considered
expenses incurred for the benefit of all Co-Sellers).
(f) In the event that the Co-Sellers are required to provide
any
representations, warranties or indemnities in connection with a
Required Sale
(other than representations, warranties and indemnities on a
several basis that
are personal in nature to such Co-Seller), then each Co-Seller
shall not be
liable for more than his or its pro rata amount (based on the
proportion of the
aggregate transaction consideration received) of any liability
for
misrepresentation or indemnity (except in respect of such
several
representations and warranties) and such liability shall not exceed
the total
purchase price received by such Co-Seller (net of broker fees) from
such
purchaser for his or its Co-Seller Shares (including the exercise
price
thereof), and, to the extent that an indemnification escrow has
been
established, such liability shall be satisfied solely out of any
funds escrowed
for such purpose prior to recourse against such Co-Seller.
(g) Should the provisions of this Section 4 be construed to
constitute the granting of proxies, such proxies shall be deemed
coupled with an
interest.
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4.2 TAG-ALONG RIGHTS
(a) In the event that any holder or holders of at least ten
percent
(10%) of the outstanding Common Stock (the "TAG-ALONG TRANSFEROR")
proposes to
sell or otherwise dispose of Common Stock to any person or persons
(the
"PROPOSED PURCHASER"), the terms and conditions of such sale or
other
disposition to such Proposed Purchaser shall include an offer to
each other
Shareholder (the "TAG-ALONG OFFEREES") to include, at the option of
each
Tag-Along Offeree, in the sale or other disposition to the Proposed
Purchaser
such number of shares of Common Stock owned by each such Tag-Along
Offeree
determined in accordance with this Section 4.2. The Tag-Along
Transferor shall
send a written notice (the "TAG-ALONG NOTICE") to each Tag-Along
Offeree setting
forth the maximum number of shares of Common Stock the Proposed
Purchaser is
willing to purchase or otherwise acquire, the proposed price per
share and the
other material terms and conditions upon which the purchase is
proposed to be
made. At any time within 15 days after its receipt of the Tag-Along
Notice, each
Tag-Along Offeree may exercise its option to sell a number of
shares owned by
such Tag-Along Offeree determined in accordance with the provisions
of this
Section 4.2 by (i) furnishing written notice of such acceptance
(the "TAG-ALONG
ACCEPTANCE NOTICE") to the Tag-Along Transferor, which Tag-Along
Acceptance
Notice shall set forth the maximum number of shares that such
Tag-Along Offeree
wishes to sell or otherwise dispose of to the Proposed Purchaser,
and (ii)
delivering to the Tag-Along Transferor a power-of-attorney
authorizing the
Tag-Along Transferor to sell or otherwise dispose of such shares to
the Proposed
Purchaser as part of such proposed sale or other disposition.
(b) If the proposed sale or other disposition to the Proposed
Purchaser by the Tag-Along Transferor is consummated, each
Tag-Along Offeree
shall have the right to sell to the Proposed Purchaser as part of
such proposed
sale or other disposition the same percentage of the total number
of outstanding
shares then owned by such Tag-Along Offeree as the percentage of
the total
number of outstanding shares then owned by the Tag-Along Transferor
to be sold
by the Tag-Along Transferor. In the event that the total number of
shares
proposed to be sold or otherwise disposed of by the Tag-Along
Transferor and all
Tag-Along Offerees as set forth in the Tag-Along Acceptance Notices
exceeds the
maximum number of shares that the Proposed Purchaser is willing to
purchase or
otherwise acquire, then the number of shares to be sold by the
Tag-Along
Transferor and the Tag-Along Offerees who have given Tag-Along
Acceptance
Notices shall be allocated among the Tag-Along Transferor and such
Tag-Along
Offerees (with rounding to avoid fractional shares) in proportion
to the maximum
number of shares that each of them originally proposed to sell or
otherwise
dispose of to the Proposed Purchaser.
(c) Each Tag-Along Offeree who has given a Tag-Along Acceptance
Notice, unless such Tag-Along Offeree agrees otherwise, shall
receive as
consideration upon such sale or disposition for its shares the same
type of
consideration and the same amount of consideration per share and on
the same
terms and conditions as are applicable to the shares to be sold by
the Tag-Along
Transferor. Each Tag-Along Offeree who has given a Tag-Along
Acceptance Notice
shall agree to the same covenants, representations and warranties
as the
Tag-Along Transferor agrees to in connection with the proposed
sale. Each
Tag-Along Offeree who has given a Tag-Along Acceptance Notice shall
bear its pro
rata share of the fees and expenses incurred by the Company and the
Tag-Along
Transferor in the proposed sale. To the extent any Tag-Along
Offeree is required
to provide indemnification in connection with a Tag-Along
transaction, the
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monetary indemnification obligations of such Tag-Along Offeree
shall be (i) no
less favorable to such Tag-Along Offeree than that resulting from
pro rata
indemnification among all Tag-Along Offerees who have given
Tag-Along Acceptance
Notices and the Tag-Along Transferor based on the number of shares
to be sold in
the Tag-Along transaction and (ii) limited to the fair market value
of the cash,
property or other assets received by such Tag-Along Offeree in such
Tag-Along
transaction; provided, however, that the limitations contained in
the
immediately preceding clauses (i) and (ii) shall not apply in
respect of any
representations, warranties or covenants that are personal in
nature to such
Tag-Along Offeree (e.g.; title to shares being transferred).
(d) The Tag-Along Transferor and the Proposed Purchaser shall
each
have the right, in its sole discretion, at all times prior to
consummation of
the proposed sale or other disposition giving rise to the tag-along
right
granted by this Section 4.2, to abandon or otherwise terminate such
sale or
other disposition, whereupon all tag-along rights in respect of
such sale or
other disposition shall become null and void, and neither the
Tag-Along
Transferor nor the Proposed Purchaser shall have any liability or
obligation to
any Tag-Along Offeree with respect thereto by virtue of such
abandonment or
termination.
(e) If
within 15 days after the receipt of the Tag-Along Notice, any
Tag-Along Offeree has not delivered a Tag-Along Acceptance Notice,
such
Tag-Along Offeree shall be deemed to have waived any and all of
such Tag-Along
Offeree's rights with respect to the sale or other disposition of
shares
described in the Tag-Along Notice.
(f) The provisions of this Section 4.2 shall not apply to any
transfer of shares made pursuant to a registered offering under the
Act or in an
ordinary brokerage transaction pursuant to Rule 144 under the
Act.
SECTION 5.
RIGHT OF FIRST OFFER.
(a) Subject to the terms and conditions specified in this Section
5,
the Company hereby grants to each Shareholder (so long as such
Shareholder holds
at least 25 percent of the Shares held by such Shareholder as of
the date of
this Agreement) and to TIAA (such Shareholders and TIAA are
hereinafter referred
to individually as an "OFFEREE" and collectively as the
"OFFEREES"), a right of
first offer with respect to future issues or sales by the Company
of any shares
of, or securities convertible into or exercisable for, any class or
series of
its capital stock ("OFFERED SHARES").
(b) Each time the Company proposes to issue or sell any Offered
Shares, the Company shall first make an offering of such Shares to
the Offerees
in accordance with the following provisions:
(i) No later than 10 days prior to the consummation of such
transaction, the Company shall deliver a written notice (the
"OFFER
NOTICE")
to each Offeree stating (1) its bona fide intention to offer or
issue
Offered Shares, (2) the number of Offered Shares to be offered
or
issued,
(3) the price, if any, for which it proposes to offer or issue
such
Offered Shares, and (4) the names of proposed offerees, if
known.
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(ii) Within 10 days after receipt of the Offer Notice, each
Offeree
may elect to purchase or obtain, at the same price and on the
terms
specified in the Offer Notice, up to that portion of such
Offered
Shares
which equals the proportion that the number of Shares then held
by
the
Offeree bears to the total number of Shares then held by all
Offerees.
The number of
Shares held by the Offerees shall include Common Stock
Equivalents.
(iii) If all such Offered Shares referred to in the Offer
Notice are
not elected to be purchased as provided above, the Company may,
within 120
days from the date of the Offer Notice, offer the remaining
unsubscribed Offered Shares to any person or persons at a price not
less,
and upon
the same general terms no more favorable to such person or
persons,
than those specified in the Offer Notice. If the Company does
not
enter into
an agreement for the sale of the Offered Shares within such
period,
the right provided hereunder shall be deemed to be revived and
such
Offered Shares shall not be offered unless first reoffered to
the
Offerees
in accordance herewith.
(iv) The right of first offer in this Section 5 shall not be
applicable
to (1) any offering of up to 4,611,267 shares of Common Stock
issued or
issuable to founders, employees, directors or consultants of
the
Company in
connection with plans or arrangements approved by the Board,
(2) any
shares of Common Stock issued upon exercise of the Existing
Warrants,
(3) up to 1,180,000 shares of Common Stock (subject to
adjustment
as provided in the TIAA Warrants) issued or issuable pursuant
to the
TIAA Warrants, (4) any shares of the Company's capital stock
offered to
the public pursuant to an effective registration statement
filed
under the Act, (5) the issuance of capital stock on a pro rata
basis
to all of
the Company's shareholders in connection with any stock split,
reverse
split, stock dividend or recapitalization, (6) the issuance of
shares of
capital stock upon conversion of any capital stock at any time
outstanding, (7) the issuance of capital stock in connection with
the
Company's
acquisition of another entity by merger, share exchange or
purchase
of substantially all of the assets, or by any other
reorganization whereby the Company acquires ownership of not less
than 51
percent of
the voting power of such entity, or (8) the issuance of shares
of Common
Stock to the general contractor for the Company's plants in an
amount
equal to any excess over the guaranteed maximum price provided
for
in the
Company's agreements with such general contractor.
SECTION 6.
INFORMATION RIGHTS; CONFIDENTIALITY
(a) The Company shall provide to each Shareholder and to TIAA
the
following information within the respective time periods
specified:
(i) As soon as available and in any event within 120 days
after the
end of each fiscal year of the Company, a balance sheet of the
Company as
of the end of such fiscal year and the related statements of
income and
cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
reported on
by an
independent public accounting firm selected by a Supermajority
Vote
of the
Board or by a committee of the Board appointed by a
Supermajority
Vote.
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(ii) For review at the Company's principal executive office
(and
delivery to Bluestem, the Eos Investors and TIAA), as soon as
available
and in any event within 30 days after the end of each month, a
balance
sheet of the Company as of the end of such month, the related
statement
of income for such month and for the portion o
