Contract
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 Xxxxxx X. Xxxxxx (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 control to, deposit any Subject Shares in a voting trust. Notwithstanding any other provision of this Agreement, the Shareholder may Transfer all or a portion of the Shareholder’s Subject Shares to any other person if such person expressly agrees in writing with US BioEnergy to be bound by all of the provisions of this Agreement.
(d) The 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 US BioEnergy, appearing at any meeting of the shareholders of VeraSun or at any adjournment or postponement thereof. The 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, the Shareholder shall not, and shall not authorize or permit any of its Subsidiaries or affiliates (other than VeraSun) 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 VeraSun Takeover Proposal, (ii) enter into any agreement with respect to any VeraSun Takeover Proposal or (iii) participate in any discussions or negotiations regarding an VeraSun Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of Shareholder shall be a breach of this Section 3(e) by the Shareholder. The Shareholder shall immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any VeraSun Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished.
(f) The Shareholder shall not issue any press release or make any other public statement, and shall not authorize or permit any of its Subsidiaries or affiliates (other than VeraSun) or any of its or their Representatives to issue any press release or make any other public statement, with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement without the prior written consent of US BioEnergy, except as may be required by applicable law, including any filings required under the Exchange Act.
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(g) The Shareholder hereby covenants and agrees that for a period of 180 days following the Effective Time (the “Lock-Up Period”), the Shareholder shall not 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 VeraSun); provided that the foregoing restriction shall not prohibit the Transfer of an aggregate of up to 200,000 of the Subject Shares by the Shareholder to a charitable foundation, a charity or a not-for-profit organization. The Shareholder shall not commit or agree to take any action inconsistent with the foregoing. Notwithstanding the provisions set forth in this Section 3(g), after the Effective Time and during the Lock-Up Period, the Shareholder may Transfer shares of VeraSun Common Stock:
| (1) | to any member of the Shareholder’s immediate family, to a trust the beneficiaries of which are exclusively the Shareholder or members of the Shareholder’s immediate family if, in any such case, such transfer is a bona fide gift, or by will or intestate succession; and |
| (2) | pursuant to any order of, or settlement agreement not involving any public sale of such shares or securities, approved by, any court of competent jurisdiction; |
provided, however, that in any case referred to in clauses (1) and (2) above, it shall be a condition to the Transfer that the transferee agrees in writing with VeraSun to be bound by this Agreement (it being understood that any references to “immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate family of the Shareholder and not to the immediate family of the transferee). For purposes of this paragraph, “immediate family” shall mean a spouse, lineal descendent, father, mother, brother or sister of the Shareholder, including any lineal descendent, brother or sister by adoption. In addition, nothing herein shall prohibit the Shareholder from establishing a trading plan pursuant to Rule 10b5-1 under the Exchange Act during the Lock-Up Period, provided that no sales or other Transfers occur under such plan during the Lock-Up Period, and no public announcement of any such plan occurs during the Lock-Up Period.
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, US BioEnergy and Xxxxxxx Xxxxxxxx, its General Counsel, and Xxxx Xxxxxxxx, its Chief Financial Officer, in their respective capacities as designees of US BioEnergy, and any individual who shall hereafter succeed to any such office of US BioEnergy, and each of them individually, the Shareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholder, to vote all of the Shareholder’s Subject Shares (owned of record or beneficially), or grant a consent or approval or consent in writing in respect of such Subject Shares, (i) in favor of the approval of the Merger Agreement and of the Merger and each of the other transactions contemplated by the Merger Agreement, (ii) against any Alternative Transaction or any Frustrating Transaction and (iii) otherwise in accordance with Section 3 of this Agreement.
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(b) The Shareholder represents that any proxies heretofore given in respect of the Shareholder’s Subject Shares are not irrevocable and that all such proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth in this Section 4 is given in connection with the execution of the Merger Agreement and that such irrevocable proxy is given to secure the performance of the duties of the Shareholder under this Agreement. The Shareholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. The Shareholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Each such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 47-1A-722.2 of the SDBCA.
SECTION 5. Further Assurances. The Shareholder will, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as US BioEnergy may reasonably request for the purpose of effectuating the matters covered by this Agreement.
SECTION 6. Certain Events. The Shareholder agrees that this Agreement and the obligations hereunder shall attach to the Shareholder’s Subject Shares and shall be binding upon any person or entity to which legal or beneficial ownership of such Subject Shares shall pass, whether by operation of law or otherwise, including the Shareholder’s heirs, guardians, administrators or successors. To the extent necessary to ensure that the aggregate amount of Subject Shares hereunder equals 19.9 percent of the Total Voting Power from time to time, the Shareholder agrees that (i) each certificate representing the Subject Shares shall be inscribed with a legend to such effect, (ii) in the event of any stock split, stock dividend, merger, share exchange, reorganization, recapitalization or other change in the capital structure of VeraSun affecting the VeraSun Common Stock, or the acquisition of additional shares of VeraSun Common Stock or other voting securities of VeraSun by the Shareholder, the number of Subject Shares listed on Schedule A hereto shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of VeraSun Common Stock or other voting securities of VeraSun issued to or acquired by the Shareholder and (iii) in the event of any other acquisition of additional shares of capital stock of VeraSun or other voting securities of VeraSun by the Shareholder (including through the exercise of any warrants, stock options or similar instruments), the number of Subject Shares listed on Schedule A hereto beside the name of the Shareholder shall be adjusted appropriately. Subject to the limitations set forth in the second “WHEREAS” clause of the preamble hereto, this Agreement and the representations, warranties, covenants, agreements and obligations hereunder shall attach to any additional shares of VeraSun Common Stock or other voting securities of VeraSun issued to or acquired by the Shareholder (including through the exercise of any warrants, stock options or similar instruments).
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SECTION 7. Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by any of the parties hereto without the prior written consent of the other parties hereto, except that US BioEnergy may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to any direct or indirect wholly owned subsidiary of US BioEnergy, but no such assignment shall relieve US BioEnergy of its obligations under this Agreement. Any purported assignment in violation of this Section 7 shall be void. Subject to the preceding sentences of this Section 7, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
SECTION 8. Termination. Except as set forth below, this Agreement shall terminate upon the earliest of (i) the Effective Time; provided that, in the case of this clause (i), Section 3(g), together with this Section 8, Section 9, Section 11, Section 12, Section 13, and Section 14, shall survive such termination and continue in full force and effect, (ii) twelve months following the termination of the Merger Agreement (A) if terminated pursuant to Section 7.01(b)(i) or 7.01(b)(ii) thereof in circumstances in which US BioEnergy is or may become entitled to receive the VeraSun Termination Fee, (B) if terminated pursuant to Section 7.01(d) in the event of a willful breach of any covenant or agreement in the Merger Agreement, or (C) if terminated pursuant to Section 7.01(f) or Section 7.01(h) thereof; provided that, in the case of this clause (ii), Section 3(d) shall terminate concurrently with such termination of the Merger Agreement, and (iii) the termination of the Merger Agreement if terminated pursuant to Section 7.01(a), 7.01(b)(iii), 7.01(b)(iv), 7.01(c), 7.01(e) or 7.01(g) thereof. No such termination of this Agreement shall relieve any party hereto from any liability for any breach of any provision of this Agreement prior to termination.
SECTION 9. General Provisions. (a) Amendments. This Agreement may not be amended except by an instrument in writing signed by each of the parties hereto.
(b) Notices. All notices, requests, clauses, demands and other communications under this Agreement shall be in writing and shall be deemed given if delivered personally, via facsimile (with confirmation) or sent by overnight or same-day courier (providing proof of delivery) to US BioEnergy in accordance with Section 8.02 of the Merger Agreement and to the Shareholder at his addresses set forth on Schedule A hereto (or at such other address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to an Article, Section or Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereby”, “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The
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words “date hereof” shall refer to the date of this Agreement. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The term “or” shall not be deemed to be exclusive. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other party. The effectiveness of this Agreement shall be conditioned upon the execution and delivery of the Merger Agreement by each of the parties thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the documents and instruments referred to herein) (i) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter of this Agreement and (ii) is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder; provided that the parties agree that VeraSun shall be an express third party beneficiary of the provisions of Section 3(g) of this Agreement.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF EXCEPT TO THE EXTENT THAT THE LAWS OF THE STATE OF SOUTH DAKOTA ARE MANDATORILY APPLICABLE TO THE MERGER; PROVIDED, HOWEVER, THAT THE LAWS OF THE STATE OF SOUTH DAKOTA SHALL GOVERN THE RELATIVE RIGHTS, OBLIGATIONS, POWERS, DUTIES AND OTHER INTERNAL AFFAIRS OF US BIOENERGY, VERASUN AND THEIR RESPECTIVE BOARDS OF DIRECTORS.
SECTION 10. Shareholder Capacity. No person executing this Agreement who is or becomes during the term of this Agreement a director or officer of VeraSun makes any agreement or understanding herein in his or her capacity as such director or officer. The Shareholder signs solely in his or her capacity as the record holder and beneficial owner of, or the trustee of a trust whose beneficiaries are the
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beneficial owners of, the Shareholder’s Subject Shares and nothing herein shall limit or affect any actions taken by a Shareholder in its capacity as an officer or director of VeraSun.
SECTION 11. Specific Enforcement; Consent to Jurisdiction. The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the United States District Court for the Southern District of New York, or, if such court does not have subject matter jurisdiction, the state courts of New York located in New York County, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties irrevocably agrees that any legal action or proceeding arising out of or related to this Agreement or for recognition and enforcement of any judgment in respect hereof brought by any other party hereto or its successors or assigns may be brought and determined in the United States District Court for the Southern District of New York, or, if such court does not have subject matter jurisdiction, the state courts of New York located in New York County, and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such courts). Each of the parties agrees further to accept service of process in any manner permitted by such court. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or related to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the above-named court for any reason other than the failure lawfully to serve process, (b) that it or its property is exempt or immune from jurisdiction of such court or from any legal process commenced in such court (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by law, that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper, or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such court. Notwithstanding the foregoing, each of the parties hereto agrees that each of the other parties shall have the right to bring any action or proceeding for enforcement of a judgment entered by the United States District Court for the Southern District of New York or, if such court does not have subject matter jurisdiction, the state courts of New York located in New York County, or in any other court or jurisdiction.
SECTION 12. Waiver of Jury Trial. Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement or the transactions contemplated hereby. Each party hereto (a) certifies that no representative, agent or attorney of any other party has represented, expressly or
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otherwise, that such party would not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced to enter into this Agreement, by, among other things, the mutual waiver and certifications in this Section 12.
SECTION 13. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
SECTION 14. Absence of Presumption. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event of ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by such parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, US BioEnergy has caused this Agreement to be signed by its officer thereunto duly authorized and the Shareholder has signed this Agreement, all as of the date first written above.
| US BIOENERGY CORPORATION, | ||
| by | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxx | |
| Title: | Vice President, General Counsel and Corporate Secretary | |
| XXXXXX X. XXXXXX | ||
| /s/ Xxxxxx X. Xxxxxx | ||
Schedule A
| Shareholder |
Number of Outstanding Shares of VeraSun Common |
Percentage of Total Voting Power |
|||
| Xxxxxx X. Xxxxxx |
18,421,009 | 19.9 | % |
A-1
