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Exhibit
10.1
EXECUTION COPY
SHAREHOLDERS AGREEMENT dated
as of November 29, 2007 (this “ Agreement
”), among VeraSun Energy Corporation, a South Dakota
corporation (“ VeraSun ”), and the individuals
and other parties listed on Schedule A attached hereto (each, a
“ Shareholder ” and, collectively, the “
Shareholders ”).
WHEREAS VeraSun, Host
Acquisition Corporation, a South Dakota corporation and a wholly
owned subsidiary of VeraSun (“ Sub ”), and US
BioEnergy Corporation, a South Dakota corporation (“ US
BioEnergy ”), propose to enter into an Agreement and Plan
of Merger dated as of the date of this Agreement (as the same may
be amended or supplemented, the “ Merger Agreement
”; terms used but not defined herein shall have the meanings
set forth in the Merger Agreement) providing for the merger of Sub
with and into US BioEnergy (the “ Merger ”) upon
the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS each Shareholder owns
the number of shares of US BioEnergy Common Stock set forth
opposite such Shareholder’s name on Schedule A hereto (such
shares of US BioEnergy Common Stock, together with any shares of US
BioEnergy Common Stock and other voting securities of US BioEnergy
acquired or held of record or beneficially owned by such
Shareholder after the date of this Agreement being collectively
referred to herein as the “ Subject Shares ” of
such Shareholder; provided , that if at any time the
aggregate total voting power of the securities that are Subject
Shares of all the Shareholders shall not equal 33 percent of the
Total Voting Power at such time, the number of Subject Shares in
the aggregate will be deemed to be reduced or increased (as
applicable) to a number representing 33 percent of the Total Voting
Power at such time, and to effect such aggregate reduction or
increase, the Subject Shares of each Shareholder shall be reduced
or increased (as applicable) on a pro rata basis among all
Shareholders (based on their relative beneficial ownership of
shares of US BioEnergy Common Stock and other US BioEnergy voting
securities that would be Subject Shares before giving effect to any
reduction or increase pursuant to this proviso), in each case only
so long as necessary to ensure that the total voting power
represented by the Subject Shares is equal to 33 percent of the
Total Voting Power. As used herein “ Total Voting
Power ” at a given time shall mean the total voting power
of all shares of US BioEnergy Common Stock and other voting
securities of US BioEnergy outstanding at such time);
and
WHEREAS as a condition to its
willingness to enter into the Merger Agreement, VeraSun has
requested that each Shareholder enter into this
Agreement.
NOW, THEREFORE, to induce
VeraSun to enter into, and in consideration of its entering into,
the Merger Agreement, and in consideration of the promises and the
representations, warranties and agreements contained herein, the
parties hereto agree as follows:
SECTION 1. Representations
and Warranties of Each Shareholder. Except as specifically set
forth in the disclosure schedule delivered to VeraSun by such
Shareholder on the date of this Agreement, each Shareholder hereby,
severally and not jointly, represents and warrants to VeraSun as
follows:
(a) Organization;
Authority; Execution and Delivery; Enforceability. Such
Shareholder has all requisite power and authority to enter into
this Agreement and to consummate the transactions contemplated by
this Agreement. To the extent that such Shareholder is an entity
other than an individual, such Shareholder is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization. The execution and delivery of this
Agreement by such Shareholder and the consummation by such
Shareholder of the transactions contemplated by this Agreement have
been duly authorized by all necessary action on the part of such
Shareholder. This Agreement has been duly executed and delivered by
such Shareholder and, assuming due authorization, execution and
delivery by VeraSun, constitutes a legal, valid and binding
obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization or
similar laws affecting the rights of creditors generally and the
availability of equitable remedies (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
The execution and delivery by such Shareholder of this Agreement do
not, and the consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this Agreement,
will not, conflict with, or result in any violation or breach of,
or default (with or without notice or lapse of time or both) under,
or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a benefit under, or
result in the creation of any Lien (other than Liens created
pursuant to this Agreement) on any properties or other assets of
such Shareholder under, (i) any provision of any certificate
of incorporation or by-laws or partnership agreement or the
comparable organizational documents applicable to such Shareholder,
(ii) any Contract applicable to such Shareholder or any of its
properties or other assets or (iii) subject to the filings and
other matters referred to in the following sentence of this
Section 1(a), any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to such Shareholder or its
properties or other assets, except in the case of each of clauses
(ii) and (iii), as is not, individually or in the aggregate,
reasonably likely to (x) impair the ability of such
Shareholder to perform its obligations under this Agreement or
(y) prevent or materially impede or delay the consummation of
the transactions contemplated by this Agreement. No consent,
approval, order or authorization of, action by or in respect of, or
registration, declaration or filing with, any Governmental Entity
is required by or with respect to such Shareholder in connection
with the execution and delivery of this Agreement by such
Shareholder or the consummation by such Shareholder of the
transactions contemplated by this Agreement or the compliance by
such Shareholder with the provisions of this Agreement, except for
such filings under the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated by
this Agreement and except those which are not, individually or in
the aggregate, reasonably likely to (x) impair the ability of
such Shareholder to perform its obligations under this Agreement or
(y) prevent or materially impede or delay the consummation of
the transactions contemplated by this Agreement. No trust of which
such Shareholder is a trustee requires the consent of any
beneficiary to the execution and
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delivery of this Agreement or to the
consummation of the transactions contemplated by this Agreement,
except for such consents which have been obtained prior to the date
of this Agreement. If the Shareholder is an individual and is
married and the Subject Shares of the Shareholder constitute
community property or if spousal or other approval is required for
this Agreement to be legal, valid and binding, this Agreement has
been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, the Shareholder’s spouse,
enforceable against such spouse in accordance with its
terms.
(b) The Subject
Shares. Such Shareholder is the record and beneficial owner of
(or is the trustee of a trust that is the record holder of, and
whose beneficiaries are the beneficial owners of), and has good and
marketable title to, the Subject Shares set forth opposite its name
on Schedule A hereto, free and clear of any Liens (other than Liens
created pursuant to the terms of this Agreement or arising under
federal or state securities laws). Such Shareholder has the sole
right to vote and Transfer (as defined below) the Subject Shares,
and none of such Subject Shares is subject to any voting trust or
other agreement, arrangement or restriction with respect to the
voting or the Transfer of such Subject Shares, except as set forth
in Section 3 of this Agreement.
SECTION 2. Representations
and Warranties of VeraSun. VeraSun hereby represents and
warrants to each Shareholder as follows: VeraSun 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 by VeraSun and the
consummation of the transactions contemplated by this Agreement
have been duly authorized by all necessary corporate action on the
part of VeraSun. This Agreement has been duly executed and
delivered by VeraSun and, assuming due authorization, execution and
delivery by each Shareholder, constitutes a legal, valid and
binding obligation of VeraSun, enforceable against VeraSun in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization or similar laws
affecting the rights of creditors generally and the availability of
equitable remedies (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The execution and
delivery by VeraSun of this Agreement do not, and the consummation
of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement, will not, conflict with, or
result in any violation of, or default (with or without notice or
lapse of time or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss
of a benefit under, or result in the creation of any Lien on any
properties or other assets of VeraSun under, (i) any provision
of the Articles of Incorporation or Bylaws of VeraSun (in each case
as amended to the date of this Agreement), (ii) any Contract
applicable to VeraSun or any of its Subsidiaries or their
respective properties or other assets or (iii) subject to the
filings and other matters referred to in the last sentence of this
Section 2, any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to VeraSun or any of its
properties or other assets, except in the case of each of clauses
(ii) and (iii), as are not, individually or in the aggregate,
reasonably likely to (x) have a Material Adverse Effect on
VeraSun, (y) impair the ability of VeraSun to perform its
obligations under this Agreement or (z) prevent or materially
impede or delay the consummation of the transactions contemplated
by this Agreement. No consent, approval, order or authorization of,
action by or in respect of, or registration, declaration
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or filing with, any Governmental Entity
is required by or with respect to VeraSun in connection with the
execution and delivery of this Agreement by VeraSun or the
consummation by VeraSun of the transactions contemplated by this
Agreement except for such filings under the Exchange Act as may be
required in connection with this Agreement and the transactions
contemplated by this Agreement and except those which are not,
individually or in the aggregate, reasonably likely to
(x) have a Material Adverse Effect on VeraSun, (y) impair
the ability of VeraSun to perform its obligations under this
Agreement or (z) prevent or materially impede or delay the
consummation of the transactions contemplated by this
Agreement.
SECTION 3. Covenants of
Each Shareholder. Each Shareholder, severally and not jointly,
covenants and agrees during the term of this Agreement as
follows:
(a) At any meeting of the
shareholders of US BioEnergy called to vote upon the Merger
Agreement or the Merger or any of the other transactions
contemplated by the Merger Agreement, or at any adjournment or
postponement thereof or in any other circumstances upon which a
vote, consent or other approval (including by written consent) with
respect to the Merger Agreement or the Merger or any of the other
transactions contemplated by the Merger Agreement is sought, such
Shareholder shall, including by executing a written consent
solicitation if requested by VeraSun, vote (or cause to be voted)
all the Subject Shares of such Shareholder in favor of the approval
of the Merger Agreement and of the Merger and each of the other
transactions contemplated by the Merger Agreement. Such Shareholder
hereby agrees not to take any action by written consent in any
circumstance other than in accordance with this Section 3(a).
This Section 3(a) shall be deemed to be a voting agreement
within the meaning of and created pursuant to
Section 47-1A-731 of the SDBCA.
(b) At any meeting of the
shareholders of US BioEnergy or at any adjournment or postponement
thereof or in any other circumstances upon which a vote, consent,
or other approval is sought (including by written consent), such
Shareholder shall vote (or cause to be voted) all the Subject
Shares of such Shareholder against any of the following (or any
agreement to enter into, effect, facilitate or support any of the
following): (i) any US BioEnergy Takeover Proposal,
(ii) any reorganization, recapitalization, dissolution,
liquidation or winding up of or by US BioEnergy, or (iii) any
amendment of US BioEnergy’s Second Amended and Restated
Articles of Incorporation or Second Amended and Restated By-laws or
other proposal, action or transaction involving US BioEnergy or any
of its Subsidiaries or any of its shareholders, which amendment or
other proposal, action or transaction could reasonably be expected
to prevent or materially impede or delay the consummation of the
Merger or the other transactions contemplated by the Merger
Agreement or the consummation of the transactions contemplated by
this Agreement or to dilute in any material respect the benefits to
VeraSun of the Merger and the other transactions contemplated by
the Merger Agreement or the transactions contemplated by this
Agreement, or change in any manner the voting rights of the US
BioEnergy Common Stock (collectively, “ Frustrating
Transactions ”). This Section 3(b) shall be deemed
to be a voting agreement within the meaning of and created pursuant
to Section 47-1A-731 of the SDBCA.
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(c) Other than in accordance
with the terms of this Agreement, such Shareholder shall not
(i) sell, transfer, pledge, assign or otherwise dispose of
(including by gift) (collectively, “ Transfer
”), or consent to any Transfer of, any Subject Shares or any
interest therein or enter into any Contract, option or other
arrangement (including any profit sharing or other derivative
arrangement) with respect to the Transfer of, any Subject Shares or
any interest therein to any person other than pursuant to the
Merger Agreement or (ii) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, in connection
with, directly or indirectly, any US BioEnergy Takeover Proposal or
otherwise with respect to the Subject Shares. Such Shareholder
shall not commit or agree to take any action inconsistent with the
foregoing. Such Shareholder shall not, nor shall such Shareholder
permit any entity under its control to, deposit any Subject Shares
in a voting trust. Notwithstanding any other provision of this
Agreement, each Shareholder may Transfer all or a portion of such
Shareholder’s Subject Shares to any other person if such
person expressly agrees in writing with VeraSun to be bound by all
of the provisions of this Agreement.
(d) Such Shareholder shall
use its reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary,
proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by
this Agreement and the Merger Agreement, including, if requested by
VeraSun, appearing at any meeting of the shareholders of US
BioEnergy or at any adjournment or postponement thereof. Such
Shareholder shall not commit or agree to take any action
inconsistent with the transactions contemplated by this Agreement
or the transactions contemplated by the Merger
Agreement.
(e) From and after the date
of this Agreement, such Shareholder shall not, and shall not
authorize or permit any of its Subsidiaries or affiliates (other
than US BioEnergy) or any of its or their Representatives to,
directly or indirectly, (i) solicit, initiate, encourage
(including by way of furnishing information), or take any other
action to facilitate, any inquiries or the making of any proposal
that constitutes, an US BioEnergy Takeover Proposal,
(ii) enter into any agreement with respect to any US BioEnergy
Takeover Proposal or (iii) participate in any discussions or
negotiations regarding an US BioEnergy Takeover Propo
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