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Exhibit
99.1
EXECUTION COPY
SHAREHOLDERS AGREEMENT dated
as of November 29, 2007 (this “ Agreement
”), among US BioEnergy Corporation, a South Dakota
corporation (“ US BioEnergy ”), and Donald L.
Endres (the “ Shareholder ”).
WHEREAS US BioEnergy, VeraSun
Energy Corporation, a South Dakota corporation (“
VeraSun ”), and VeraSun Acquisition Corporation, a
South Dakota corporation and a wholly owned subsidiary of VeraSun
(“ Sub ”), and 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 the Shareholder owns
the number of shares of VeraSun Common Stock set forth opposite his
name on Schedule A hereto (such shares of VeraSun Common Stock,
together with any shares of VeraSun Common Stock and other voting
securities of VeraSun acquired or held of record or beneficially
owned by the Shareholder after the date of this Agreement being
collectively referred to herein as the “ Subject
Shares ” of the Shareholder; provided , that if at
any time the aggregate total voting power of the securities that
are Subject Shares of the Shareholder shall not equal 19.9 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 19.9 percent of the Total
Voting Power at such time, and to effect such aggregate reduction
or increase, the Subject Shares of the Shareholder shall be reduced
or increased (as applicable) only so long as necessary to ensure
that the total voting power represented by the Subject Shares is
equal to 19.9 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 VeraSun Common Stock
and other voting securities of VeraSun outstanding at such time);
and
WHEREAS as a condition to its
willingness to enter into the Merger Agreement, US BioEnergy has
requested that the Shareholder enter into this
Agreement.
NOW, THEREFORE, to induce US
BioEnergy 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 the Shareholder. Except as specifically set
forth in the disclosure schedule delivered to US BioEnergy by the
Shareholder on the date of this Agreement, the Shareholder hereby
represents and warrants to US BioEnergy as follows:
(a) Organization;
Authority; Execution and Delivery; Enforceability. The
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 the Shareholder is an entity
other than an individual, the 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 the Shareholder and the consummation by the
Shareholder of the transactions contemplated by this Agreement have
been duly authorized by all necessary action on the part of the
Shareholder. This Agreement has been duly executed and delivered by
the Shareholder and, assuming due authorization, execution and
delivery by US BioEnergy, constitutes a legal, valid and binding
obligation of the Shareholder, enforceable against the 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 the 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 the Shareholder under,
(i) any provision of any certificate of incorporation or
by-laws or partnership agreement or the comparable organizational
documents applicable to the Shareholder, (ii) any Contract
applicable to the 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 the 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 the 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 the
Shareholder in connection with the execution and delivery of this
Agreement by the Shareholder or the consummation by the Shareholder
of the transactions contemplated by this Agreement or the
compliance by the 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 the 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 the Shareholder is a trustee
requires the consent of any beneficiary to the execution and
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
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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. The 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 his 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). The 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 US BioEnergy. US BioEnergy hereby represents
and warrants to the Shareholder as follows: US BioEnergy 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 US
BioEnergy and the consummation of the transactions contemplated by
this Agreement have been duly authorized by all necessary corporate
action on the part of US BioEnergy. This Agreement has been duly
executed and delivered by US BioEnergy and, assuming due
authorization, execution and delivery by the Shareholder,
constitutes a legal, valid and binding obligation of US BioEnergy,
enforceable against US BioEnergy 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 US BioEnergy 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 US BioEnergy under, (i) any provision of the
Second Amended and Restated Articles of Incorporation or the Second
Amended and Restated Bylaws of US BioEnergy (in each case as
amended to the date of this Agreement), (ii) any Contract
applicable to US BioEnergy 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 US BioEnergy 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 US BioEnergy, (y) impair the ability of US BioEnergy
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 or filing with, any Governmental Entity is required by
or with respect to US BioEnergy in connection with the execution
and delivery of this Agreement by US BioEnergy or the consummation
by
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US BioEnergy 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 US BioEnergy,
(y) impair the ability of US BioEnergy 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
The Shareholder. The Shareholder covenants and agrees during
the term of this Agreement as follows:
(a) At any meeting of the
shareholders of VeraSun called to vote upon the issuance of shares
of VeraSun Common Stock pursuant to the Merger (the “
Share Issuance ”) 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 Share Issuance or the Merger or any of the other
transactions contemplated by the Merger Agreement is sought, the
Shareholder shall, including by executing a written consent
solicitation if requested by US BioEnergy, vote (or cause to be
voted) all the Subject Shares of the Shareholder in favor of the
approval of the Share Issuance and of the Merger and each of the
other transactions contemplated by the Merger Agreement. The
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 VeraSun 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), the
Shareholder shall vote (or cause to be voted) all the Subject
Shares of the Shareholder against any of the following (or any
agreement to enter into, effect, facilitate or support any of the
following): (i) any VeraSun Takeover Proposal, (ii) any
reorganization, recapitalization, dissolution, liquidation or
winding up of or by VeraSun, or (iii) any amendment of
VeraSun’s Articles of Incorporation or By-laws or other
proposal, action or transaction involving VeraSun 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
US BioEnergy 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 VeraSun
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.
(c) Other than in accordance
with the terms of this Agreement, the Shareholder shall not
(i) sell, transfer, pledge, assign or otherwise dispose of
(including
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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 VeraSun Takeover
Proposal or otherwise with respect to the Subject Shares. The
Shareholder shall not commit or agree to take any action
inconsistent with the foregoing. The Shareholder shall not, nor
shall the Shareholder permit any entity under its co
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