SUBSCRIPTION AGREEMENT
Exhibit 4.2
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THIS SUBSCRIPTION AGREEMENT is made effective this 17th day of November, 2005, by and between
US BioEnergy Corporation, a South Dakota corporation (the “Company”) and CHS Inc., a Minnesota
corporation (“CHS”).
WITNESSETH:
In consideration of the mutual promises contained here, and other good and valuable
consideration, the Company and CHS hereby agree as follows:
1. Purchase and Delivery. Subject to the terms and conditions of this Agreement, the
Company sells to CHS and CHS purchases from the Company as of the Closing Date (as defined below)
35,000,000 shares of Class A Common Stock, $.01 par value of the Company (the “Class A Stock”) at a
purchase price of $1.00 per share for an aggregate purchase price of $35,000,000.
2. Closing.
(a) Closing Date. The closing of the transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of Xxxxxxxxx & Xxxxxx, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxxx, Xxxxxxxxx 00000 or at such other place as may be mutually acceptable to the
parties. The Closing shall occur as of 12:01 a.m. on the date of this Agreement or such other
different time or day as may be mutually acceptable to CHS and the Company (the “Closing Date”).
(b) Closing Procedures. At the Closing, the Company will deliver to CHS a certificate
representing the Class A Stock purchased by CHS dated the Closing Date and registered in the name
of CHS. At the Closing, CHS shall deliver the aggregate price for the Class A Stock stated in
Section 1 by wire transfer on the Closing Date to an account designated by the Company.
3. Certain Representations of CHS. In order to induce the Company to sell the Class A
Stock to CHS, CHS hereby represents and warrants to the Company as of the Closing Date as follows:
(a) Securities Representations.
(i) Information About the Company. CHS has received and fully reviewed the Amended
and Restated Confidential Private Placement Memorandum dated May 31, 2005, including all appendices
or exhibits thereto (the “Memorandum”). CHS acknowledges and understands that the Memorandum
speaks only as of May 31, 2005 and does not contain all of the information that the Company would
be obligated to include in a registration statement filed with the Securities and Exchange
Commission (the “Commission”). CHS has had an opportunity to obtain, and has received, from the
Company such additional information regarding the terms and conditions of the sale of securities by
this Agreement as it deemed necessary. CHS has had an opportunity to ask such questions of, and
receive answers from, the Company regarding the terms and conditions of the sale of securities by
this Agreement to the extent deemed necessary by CHS. CHS believes it has sufficient knowledge
about the business, management and financial affairs of the Company and the terms and conditions of
the purchase of the Class A Stock contemplated hereby. Without limiting the generality of the
foregoing, CHS understands that the Company is a recently formed development stage company with
virtually no operating history, has incurred a substantial loss since its inception and may
continue to lose money and will be required to obtain substantial additional debt financing before
it can begin construction on and operation of any of its proposed ethanol plants.
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(ii) High Degree of Risk. CHS acknowledges that an investment in the Class A Stock
involves a high degree of risk, including, but not limited to, the risk that CHS may receive no
return on its investment in the Class A Stock and the risk that CHS may of lose its entire
investment in the Company. CHS is able to bear the economic risk of investment in the Class A
Stock, including the total loss of such investment.
(iii) No Market for Class A Stock; Restrictions on Transfer. CHS acknowledges that
(A) there are substantial restrictions on the transfer of the Class A Stock, both under the
Securities Act of 1933, as amended (the “Act”) and applicable state securities laws (the “State
Laws”); (B) there is not currently, and it is unlikely that in the future there will exist, a
public market for the Class A Stock; and (C) accordingly, for the above and other reasons, CHS may
not be able to liquidate an investment in the Class A Stock for an indefinite period. CHS realizes
that the Class A Stock has not been registered for sale under the Act or State Laws. CHS
acknowledges and agrees that the Class A Stock may be resold only pursuant to registration under
the Act and the State Laws, or an opinion of counsel acceptable to the Company that such
registration is not required.
(iv) Suitability. CHS believes that an investment in the Class A Stock is suitable
for CHS based upon CHS’s investment objectives and financial needs, and CHS has adequate means for
providing for its current financial needs and particular contingencies and has no need for
liquidity of investment with respect to the Class A Stock. CHS has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits and risks of an
investment in the Class A Stock and CHS has obtained, to the extent CHS deems necessary, its own
professional advice with respect to the risks inherent in an investment in the Class A Stock, and
the suitability of an investment in the Class A Stock in light of CHS’s financial condition and
investment needs.
(v) Investment Intent. CHS has been advised that the Class A Stock is not being
registered under the Act or the State Laws and is being offered and sold pursuant to exemptions
from such laws and that the Company’s reliance upon such exemptions is predicated in part on CHS’s
representations as contained herein. CHS is purchasing the Class A Stock for its own account for
investment and without the intention of reselling or redistributing the same. CHS has made no
agreement with any other party regarding the sale, transfer, assignment, pledge or hypothecation of
the Class A Stock and CHS’s financial condition is such that it is not likely that it will be
necessary to dispose of any of the Class A Stock in the foreseeable future. CHS is aware that, in
the view of the Commission, the purchase of the Class A Stock with an intent to resell by reason of
any foreseeable specific contingency or anticipated change in market values, or any change in the
condition of the Company, or in connection with a contemplated liquidation or settlement of any
loan obtained for the acquisition of the Class A Stock and for which the Class A Stock was pledged
as security, would represent an intent inconsistent with the representations set forth above. CHS
further represents and agrees that if, contrary to the foregoing stated intentions, CHS should
later desire to dispose of or transfer any of the Class A Stock in any it will not do so without
first obtaining (A) the opinion of counsel satisfactory to the Company that such proposed
disposition or transfer lawfully may be made without the registration of the Class A Stock pursuant
to the Act and the State Laws, or (B) such registration (it being expressly understood that the
Company shall not have any obligation to register such Class A Stock for such purpose).
(vi) No General Solicitation. CHS has not received any general solicitation or
general advertising (including communications published in any newspaper, magazine or other
broadcast) in connection with its purchase of the Class A Stock. CHS has not engaged in any public
solicitation or advertisement with respect to the Class A Stock. To the extent that CHS received
information from Xxxxxx “Xxx” X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, O. Xxxxx Xxxxxxxx, Xxxxx
Xxxxx, Xxxx X. Xxxxx, Xxxx X. Xxxxx or Xxxxxxxx X. Xxxxxxx acting as officers of the Company, CHS
acknowledges that such individuals are acting strictly in their capacity as officers of the
Company, and not as employees or
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agents of Capitaline Advisors, LLC, Global Ethanol, Inc., Xxxxx, Inc., US Bio Resource Group,
LLC or any other entity.
(vii) Domicile. CHS is duly organized under the laws of, and is in good standing in,
the state of Minnesota. CHS has its principal office within the state of Minnesota.
(viii) Qualification as an Accredited Investor. CHS is an “accredited investor” as
that term is defined by Rule 501 under the Act. CHS was not organized for the specific purpose of
acquiring the Class A Stock.
(b) Brokers or Finders. The Company has not, and will not, incur, directly or
indirectly, as a result of any action taken by CHS, any liability for brokerage or finders’ fees or
agents’ commissions or any similar charges in connection with this Agreement.
(c) Tax Liability. CHS has reviewed with CHS’s own tax advisors the tax consequences
of an investment in the Class A Stock and the transactions contemplated by this Agreement, and has
and will rely solely on such advisors and not on any statements or representations of the Company
or any of its agents. CHS understands that CHS (and not the Company) shall be responsible for
CHS’s own tax liability that may arise as a result of its investment in the Class A Stock or the
transactions contemplated by this Agreement.
(d) Dilution. CHS acknowledges that the offering price per share materially exceeds
amounts paid by some prior purchasers of the Company’s securities and that CHS will experience
substantial dilution in the per share book net tangible book value of the Class A Stock.
(e) Counsel. CHS acknowledges that Xxxxxxxxx & Xxxxxx P.L.L.P. is legal counsel to
the Company, whose interests are in conflict with those of CHS, and that Xxxxxxxxx & Xxxxxx
P.L.L.P., as counsel for the Company, does not represent CHS or CHS’s interests in connection with
the purchase of the Class A Stock, and that CHS has had timely opportunity to have CHS’s own legal
counsel advise CHS regarding the purchase of the Class A Stock.
(f) Due Authorization. This Agreement has been duly authorized by all necessary
action on the part of CHS, has been duly executed by an authorized officer or representative of
CHS, and is a legal, valid, and binding obligation of CHS enforceable in accordance with its terms.
The execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby do not and will not violate or conflict with the articles of incorporation or by-laws of CHS
or violate any legal requirement or order applicable to CHS.
4. Lock-Up. CHS agrees that, if requested by the Company or the managing underwriter
of any initial public offering by the Company of the Class A Stock or other securities of the
Company pursuant to a registration statement filed with the Commission under the Act (an “IPO”),
CHS shall not sell publicly or otherwise transfer or dispose of any securities of the Company held
by CHS for a specified period of time (not to exceed 180 days) following the effective date of such
registration statement (the “IPO Date”). CHS shall execute such lock-up agreements as the Company
or the managing underwriter may reasonably require in connection with this Section 4.
5. Restrictive Legend. CHS also acknowledges and agrees that the Company shall place
a restrictive legend on any certificate representing any of the Class A Stock containing
substantially the following language:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND HAVE NOT
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BEEN REGISTERED UNDER ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, OR
TRANSFERRED IN THE ABSENCE OF EITHER AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND UNDER APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND UNDER APPLICABLE STATE SECURITIES LAWS.
CHS agrees that, to enforce the above legend, the Company may place a stop transfer order with
its registrar and transfer agent covering all certificates representing any of the Class A Stock.
6. Non-Solicitation. Notwithstanding Section 8(b), as long as CHS (a) has the right
to appoint at least one director to the Board of Directors of the Company (the “Board”) and (b) CHS
beneficially owns less than 30% of the outstanding voting securities of the Company, CHS will not,
without the prior approval of the Board, directly or indirectly, initiate, propose, make or
participate in any solicitation of proxies (other than granting its proxy) to vote, or seek to
influence any person with respect to for any candidate for election to the Board; provided
that CHS shall not be prohibited from voting any Class A Stock owned by it for any candidate
for election to the Board.
7. Certain Representations of the Company. In order to induce CHS to purchase the
Class A Stock from the Company, the Company hereby represents and warrants to CHS as of the Closing
Date follows:
(a) Capitalization. The authorized shares of capital stock of the Company consist of
475,000,000 shares, of which there are authorized 400,000,000 shares Class A Stock, 25,000,000
shares of Class B Common Stock, $0.01 par value per share (the “Class B Stock”) and 50,000,000
shares of Preferred Stock, $0.01 par value per share (the “Preferred Stock”). There are 88,360,500
shares of Class A Stock, no shares of Class B Stock and no shares of Preferred Stock issued and
outstanding. Attached to this Agreement at Schedule 7(a) is a true and accurate list of all
of the owners of shares of capital stock, or rights to acquire shares of capital stock, of the
Company and the number of shares owned or which each person may acquire. Except as stated above or
in Schedule 7(a), there is no capital stock, nor rights to acquire capital stock of the
Company authorized or issued and outstanding.
(b) Status of Capital Stock. All of the issued and outstanding Class A Stock of the
Company has been duly and validly authorized and issued and is fully paid and non-assessable, and
has not been issued in violation of any preemptive or similar rights of any stockholder or any
applicable securities law. There are no preemptive or similar rights in respect of any capital
stock of the Company.
(c) Organization and Authority. The Company is a corporation duly organized, validly
existing and in good standing under the laws of South Dakota and has all requisite corporate power
and authority to own, lease and operate its properties and to conduct its business as currently
conducted. The Company and of its subsidiaries is in good standing in each jurisdiction shown in
Schedule 7(c), and neither the Company nor any subsidiary is required to qualify to do
business as a foreign corporation in any other jurisdiction in which the failure to so qualify
would have a material adverse effect. For purposes of this Agreement, “subsidiary” includes any
corporation, partnership, limited liability company, joint venture, association or other
unincorporated organization or entity, in which the Company owns, directly or indirectly, 50% of
the outstanding voting power or equity interest therein.
(d) Due Authorization. The Company has all requisite power and authority under
applicable law to execute and deliver this Agreement and to perform the transactions contemplated
hereby. Other than the approval of the Company’s Board of Directors, which approval has been
obtained, no other approval of any kind is necessary under applicable law for the execution,
delivery and performance of this
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Agreement. This Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to general limitations on the availability of
equitable remedies and the effect of bankruptcy, insolvency, reorganization and other laws of
general application affecting the enforcement of creditors’ rights.
(e) No Violation. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby do not and will not violate or conflict with the articles
of incorporation or by-laws of the Company or any subsidiary, or violate any legal requirement or
order applicable to the Company or any subsidiary. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby do not and will not require any
third-party action with respect to the Company or any subsidiary under, or conflict with or
constitute a default under, or result in the acceleration or right of acceleration of any
obligations, or any termination or right of termination under, as of the date hereof or as of the
Closing Date, any contract. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby do not and will not result in the creation or imposition of
any material lien, claim, charge, restriction, equity or encumbrance of any kind upon or give any
person any interest or right in or with respect to any of the properties, assets, business or
contracts of the Company or any subsidiary, or to any of the Class A Stock.
8. Covenants of the Company.
(a) Financial Information. The Company shall deliver to CHS: (i) on or before 30 days
following the end of each month, unaudited financial statements for the month then-ended and (ii)
on or before 120 days following the Company’s fiscal year end, audited financial statements of the
Company and its subsidiaries for the fiscal year then-ended, including a consolidated balance
sheet, consolidated statement of earnings, consolidated statement of capital and consolidated
statement of cash flow. The obligations of the Company pursuant to this paragraph will terminate
immediately upon the IPO Date.
(b) Appointments.
(i) Appointment of Directors; Committee Members and Managers. For so long as
CHS beneficially owns (A) at least 15% but less than 25% of the outstanding Class A Stock,
CHS shall have the right to appoint one director to serve on the Board of Directors of the
Company (the “Board”); (B) at least 25% of the outstanding Class A Stock, CHS shall have the
right to appoint two directors to serve on the Board; and (C) at least 15% of the
outstanding Class A Stock, CHS shall have the right to appoint one person CHS has also
appointed to serve as a director of the Board to serve as a member on the Executive
Committee to the Board (the “Executive Committee”) and as a member of the Board of Managers
of each of US Bio Xxxxxx City, LLC, Superior Corn Products, LLC and United Bio Energy, LLC
(collectively, the “Boards of Managers”).
(ii) Termination of Right. The appointment rights granted by Section 8(b)(i)
shall terminate upon, and all persons appointed by CHS pursuant to Section 8(b)(i) shall
serve until, the first meeting of stockholders of the Company following the IPO Date;
provided that the Company shall have no obligation to nominate a person appointed by
CHS for election as a director of the Company at the first meeting of stockholders of the
Company following the IPO Date.
(iii) Rights With Respect to Appointments; Cooperation. So long as CHS is
entitled to appoint a director, committee member or manager pursuant to Section 8(b)(i), (A)
any vacancy on the Board, Executive Committee or Boards of Managers created by the
resignation, removal, incapacity or death of any person appointed by CHS shall be filled by
CHS; (B) the Company shall promptly take any and all actions in its power necessary to cause
the election, appointment
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or removal, as directed by CHS, of any person appointed by CHS to the Board, the
Executive Committee or the Boards of Managers, as the case may be; and (C) the Company shall
use its best efforts to cause the person(s) appointed by CHS to be elected as a director of
the Company at any and all meetings of stockholders at which directors are required to be
elected under South Dakota law and shall use its best efforts to cause the person appointed
by CHS to be elected as a member of the Executive Committee and the Boards of Managers.
(iv) Status of Appointees. The persons appointed by CHS pursuant to Section
8(b)(i) shall have the same powers, privileges, rights and immunities as other members of
the Board, the Executive Committee or the Boards of Managers, as the case may be.
(v) Initial Board Appointees. The parties agree that CHS beneficially owns
28.37% of the outstanding Class A Stock immediately as of the Closing Date after giving
effect to the transactions contemplated by this Agreement. As of the Closing Date and
pursuant to its rights under Section 8(b)(i), the two directors appointed by CHS to the
Board shall initially be Xxxxxx Xxxxxxxx and Xxxxxx Xxxxx and, of these two directors,
Xxxxxx Xxxxxxxx shall initially be appointed to the Executive Committee and the Boards of
Managers.
(c) Delivery of Proxies. The Company shall cause a proxy in the form attached hereto
as Schedule 8(c) to be delivered as of the Closing Date by the following stockholders of
the Company: US Bio Resource Group, LLC and Xxxxx Management, LLC. In addition, the Company shall
cause a proxy in the form attached hereto as Schedule 8(c) to be delivered as of the
Closing Date by the following holders of options to purchase Class A stock of the Company:
Capitaline Advisors, LLC and Global Ethanol, Inc.
9. Miscellaneous.
(a) Survival of Representations and Warranties; Indemnification. The parties agree
that the agreements, representations and warranties of each party shall survive and remain in full
force and effect after the execution of this Agreement and after payment for and delivery of the
Class A Stock. Each party agrees to indemnify and hold harmless the other party from and against
any and all loss, damage or liability due to, or arising out of, a breach of any agreement,
representation or warranty of this Agreement by such party.
(b) No Assignment; Binding Effect. Neither this Agreement, nor any interest herein,
shall be assignable by either party without prior written consent of the other. The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their
respective successors and assigns.
(c) Choice of Law. This Agreement shall be construed and interpreted in accordance
with South Dakota law, without regard to its choice of law or conflicts of law provisions.
(d) Notices. All notices, requests, consents and other communications required or
permitted hereunder shall be in writing and shall be delivered, personally, by facsimile, by
overnight courier or mailed first-class postage prepaid, registered or certified mail,
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if to CHS:
|
CHS Inc. | with copy to: | Xxxx X. Xxxx, Esq. | |||
| 0000 Xxxxx Xxxxx | CHS Inc. | |||||
| Xxxxx Xxxxx Xxxxxxx, XX 00000 | 0000 Xxxxx Xxxxx | |||||
| Facsimile: 000-000-0000 | Xxxxx Xxxxx Xxxxxxx, XX 00000 | |||||
| Attn: Xxx Xxxxxxxx | Facsimile: (000) 000-0000 | |||||
if to the Company:
|
US BioEnergy Corporation | with copy to: | Xxxxx Xxxxxx, Esq. | |||
| 000 Xxxx Xxxxxx Xxxxx 000 | Xxxxxxxxx & Xxxxxx P.L.L.P. | |||||
| Xxxxxxxxx, XX 00000 | 4200 IDS Center | |||||
| Facsimile: (000) 000-0000 | 00 Xxxxx 0xx Xxxxxx | |||||
| Attn: Xxxxxx Xxxxx | Xxxxxxxxxxx, XX 00000 | |||||
| Facsimile: (000) 000-0000 |
and such notices and other communications shall for all purposes of this Agreement be treated as
being effective or having been given (i) upon personal delivery to the party to be notified, (ii)
when sent by confirmed telex or facsimile if sent during normal business hours of the recipient, if
not, then on the next business day; (iii) five days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with written verification of
receipt.
(e) Counterparts. This Agreement may be executed concurrently in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| US BIOENERGY CORPORATION |
||||
| By: | /s/ XXXXXX XXXXX | |||
| Its: President | ||||
| CHS INC. |
||||
| By: | /s/ XXX X. XXXXXXXX | |||
| Its: Executive V.P. and C.O.O. | ||||
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Schedule 7(a) – Capitalization
US BioEnergy Corporation Class A Common Stock Ledger
| Cert. | ||||||||
| No. | Name of Shareholders | Number of Shares | ||||||
| 26 | Xxxxxxx or Xxxxx Xxxxxxxxxx |
50,000 | ||||||
| 27 | X. Xxxxxxxx Bane |
50,000 | ||||||
| 28 | Xxxx X. or Xxxx X. Xxxxx |
50,000 | ||||||
| 29 | Xxxxx X. Xxxxxxxx |
50,000 | ||||||
| 30 | Xxxxx X. Xxxxxxxx or Xxxxx X. Xxxxxxxx |
50,000 | ||||||
| 31 | Xxx or Xxxxx Xxxxxxxx |
50,000 | ||||||
| 32 | Car Farms |
50,000 | ||||||
| 33 | Xxxxxx and
Xxxxxxxx Xxxxx |
50,000 | ||||||
| 35 | Xxxx X. or Xxxxx X. Xxxxxxxx |
50,000 | ||||||
| 36 | Xxxxx and Xxxxx Xxxxxx |
100,000 | ||||||
| 37 | Xxxxxx X. Xxxx |
50,000 | ||||||
| 38 | Main Crop Ins. |
50,000 | ||||||
| 39 | Phil and Xxxx XxXxxxxxxx |
100,000 | ||||||
| 40 | MCM Holding Co., LLC |
100,000 | ||||||
| 41 | Xxxxxxxx Farms |
50,000 | ||||||
| 42 | Trustee of the Living Trust of Xxxxxxx X. Xxxxxxxx dated April 16, 1997 |
50,000 | ||||||
| 43 | Xxxxxxx X. Xxxxxxxx or Emmy Xx Xxxxxxxx |
50,000 | ||||||
| 44 | Xxxxx Xxxxxx |
50,000 | ||||||
| 45 | Xxxxxx X. Xxxx |
50,000 | ||||||
| 46 | Xxxxx X. Xxxx Living Trust |
50,000 | ||||||
| 47 | Xxxxx X. Xxxxxxxx |
100,000 | ||||||
| 48 | Xxxxxxx X. Xxxxxxxx |
100,000 | ||||||
| 49 | Xxxxx X. Xxxx Living Trust |
100,000 | ||||||
| 50 | Xxxxx Management, LLC |
2,000,000 | ||||||
| 51 | Xxxxx X. Xxxxxx Griend |
1,650,000 | ||||||
| 52 | Xxxxxxx Xxxxxx |
1,050,000 | ||||||
| 53 | Xxxxxxx Xxxx |
300,000 | ||||||
| 54 | Xxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx |
94,000 | ||||||
| 55 | Xxx X. Xxxxxxxx and Xxxxxxx Xx Xxxxxxxx |
100,000 | ||||||
| 56 | Xxxxx X. Xxxxxxxx |
100,000 | ||||||
| 57 | US Bio Resource Group, LLC |
14,537,877 | ||||||
| 60 | US Bio Resource Group, LLC |
4,462,123 | ||||||
| 61 | US Bio Resource Group, LLC |
6,000,000 | ||||||
| 62 | Xxxxx and Xxxxx Xxxxxxxx |
50,000 | ||||||
| 63 | Xxxxxx X. Xxxxxxxx |
100,000 | ||||||
| 64 | Xxxxx X. Xxxxxxxxxxx |
7,500 | ||||||
| 65 | Xxxxx X. Xxxxxxxx |
50,000 | ||||||
| 66 | Xxxxxxxx Xxxxx |
5,000 | ||||||
| 67 | Xxxxxxxxxxx Xxxxxxxx |
5,000 | ||||||
| 68 | Xxxxx X. Xxxxxxx |
50,000 | ||||||
| 69 | Xxxx Xxxxxxxxxx |
32,500 | ||||||
| 70 | Xxxxxxx Xxxxxxx |
15,000 | ||||||
| 71 | Xxxxxxx X. Xxxxxxx |
5,000 | ||||||
| 72 | Xxxxxx Xxx |
15,000 | ||||||
| 73 | Xxxxxxx X. Xxxxxxx |
5,000 | ||||||
| 74 | Xxxxx X. Xxxx |
5,000 | ||||||
| 75 | Xxxxxx X. Xxxxxxx |
21,500 | ||||||
| 76 | W. Xxxxx Xxxxxx |
10,000 | ||||||
| 77 | Xxxx X. Van Meter |
5,000 | ||||||
Xxxxxx City Elevator |
2,000,000 | |||||||
Xxxx Xxxxxxxxxxx |
100,000 | |||||||
Xxxx X. Hop |
50,000 | |||||||
Xxxx and Xxxxxx Xxxxx |
75,000 | |||||||
Xxxxxx X. Xxxxxxxxxx and Xxxx X. Xxxxxxxxxx |
400,000 | |||||||
Xxxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx |
75,000 | |||||||
Xxxxxx X. Xxxxxx |
50,000 | |||||||
Xxxx X. or Xxxx X. Xxxxx |
100,000 | |||||||
Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxx |
50,000 | |||||||
Xxxxxx X. Xxxxxxxx |
50,000 | |||||||
Xxxxx X. Xxxxxxxx or Xxxxxxxx X. Xxxxxxxx |
50,000 | |||||||
Xxxxxx Xxxxxx |
100,000 | |||||||
Xxxxx Xxxxx and Xxxxx Xxxxx |
50,000 | |||||||
Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx |
50,000 | |||||||
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx |
50,000 | |||||||
Xxx Xxxxxxxx and Xxxxx Xxxxxxxx |
50,000 | |||||||
Xxxx X. Xxxxxxxx |
100,000 | |||||||
MCM Holding Co., LLC |
400,000 | |||||||
Xxxxx X. Xxxxxxxx |
50,000 | |||||||
Xxxx X.Xxxxxxxx |
100,000 | |||||||
Xxxxxx X. Xxxxx and Xxxxxxxxx X. Xxxxx |
100,000 | |||||||
Xxxx X. Xxxxx and Xxxx X. Xxxxx |
100,000 | |||||||
Xxxxxxx Xxxxxx |
500,000 | |||||||
Xxxxxxx X. and Xxxxx X. Xxxxxxxx |
50,000 | |||||||
Xxxxx Xxxx Farms, LLC |
50,000 | |||||||
Xxxxxxx X. and Xxxxxxx X. Xxxxxxx |
50,000 | |||||||
Xxxxxx XxXxxx |
100,000 | |||||||
Xxxx Xxxxxxxxx |
125,000 | |||||||
Xxxx or Xxxxx Xxxxx |
125,000 | |||||||
Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxx |
50,000 | |||||||
Xxxxxxx X. Xxxxxxxx and Emmy Xx Xxxxxxxx |
50,000 | |||||||
Xxxxxx Xxxxxx and Xxxxxx Xxxxxx |
150,000 | |||||||
Xxxxxx X. Xxxxxxx and Xxxx X. Xxxxx Xxxxxxx |
75,000 | |||||||
Xxxxx X. Xxxxxxxx |
175,000 | |||||||
Xxxxxxxxx Farms, LLC |
100,000 | |||||||
Xxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx |
100,000 | |||||||
Xxxxx X. Xxxx and Xxxxxxxxx X. Xxxx |
50,000 | |||||||
Xxxxxxx X. Xxxxxxxxxx |
50,000 | |||||||
Xxxx Xxxxxxxxx Read |
50,000 | |||||||
Xxxx X. Xxxxxx Irrevocable Trust |
500,000 | |||||||
Xxxxxx Xxxxxxxx |
100,000 | |||||||
Xxxxxx Xxxx |
200,000 | |||||||
Global Ethanol, Inc. |
7,950,000 | |||||||
Xxxxxx Xxxxxx Xxxxx |
50,000 | |||||||
Capitaline Renewable Energy II, LP |
27,500,000 | |||||||
Xxxxxxx Xxx |
50,000 | |||||||
Xxx or Xxxxxxx Xxxxxx |
5,000,000 | |||||||
Xxxx and
Xxxxx Xxxxxxxxx |
100,000 | |||||||
Xxxxxxxx & Co. FBO Xxxxx Xxxxxxxx XXX |
75,000 | |||||||
Xxxxx Xxxx Xxxxxxxxxxx |
50,000 | |||||||
Xxxxx X. Day |
50,000 | |||||||
Xxxxxxxx & Co. FBO Xxxxx X. Xxxx XXX |
100,000 | |||||||
Tri-Co Services, Incorporated |
50,000 | |||||||
US Agri-Energy, LLC |
8,410,000 | |||||||
Xxxxx X. and Xxxxxx X. Xxxxxx |
50,000 | |||||||
| Total: | 88,360,500 | |||||||
2
EXECUTION
Schedule 7(c) – Organization
| Entity Name | State(s) of Good Standing | |
US BioEnergy Corporation |
South Dakota | |
| Iowa | ||
US Bio Xxxxxx City, LLC |
Iowa | |
Superior Corn Products, LLC |
Michigan | |
United Bio Energy, LLC |
Kansas | |
UBE Fuels, LLC |
Kansas | |
| Arizona | ||
| California | ||
| Colorado | ||
| Connecticut | ||
| Florida | ||
| Georgia | ||
| Illinois | ||
| Indiana | ||
| Iowa | ||
| Kansas | ||
| Kentucky | ||
| Maryland | ||
| Michigan | ||
| Minnesota | ||
| Missouri | ||
| Montana | ||
| Nebraska | ||
| Nevada | ||
| New Jersey | ||
| New Mexico | ||
| New York | ||
| North Carolina | ||
| North Dakota | ||
| Ohio | ||
| Oklahoma | ||
| Oregon | ||
| Pennsylvania | ||
| South Dakota | ||
| Tennessee | ||
| Texas | ||
| Utah | ||
| Xxxxxxxx | ||
| Xxxxxxxxxx | ||
| West Virginia | ||
| Wisconsin | ||
UBE Grain, LLC |
Kansas |
1
EXECUTION
| Entity Name | State(s) of Good Standing | |
| Iowa | ||
| South Dakota | ||
UBE Ingredients, LLC |
Kansas | |
| Alabama | ||
| Arizona | ||
| Arkansas | ||
| California | ||
| Colorado | ||
| Connecticut | ||
| Delaware | ||
| Georgia | ||
| Idaho | ||
| Illinois | ||
| Indiana | ||
| Iowa | ||
| Maine | ||
| Massachusetts | ||
| Michigan | ||
| Minnesota | ||
| Mississippi | ||
| Missouri | ||
| Nebraska | ||
| New Hampshire | ||
| New Jersey | ||
| New Mexico | ||
| New York | ||
| North Carolina | ||
| North Dakota | ||
| Oklahoma | ||
| Oregon | ||
| Pennsylvania | ||
| South Carolina | ||
| South Dakota | ||
| Texas | ||
| Utah | ||
| Vermont | ||
| Xxxxxxxx | ||
| Xxxxxxxxxx | ||
| Wisconsin | ||
UBE Management, LLC |
Kansas | |
| Nebraska | ||
| Iowa | ||
| South Dakota | ||
UBE Trading, LLC |
Kansas |
2
Schedule 8(c) – Form of Proxy
IRREVOCABLE PROXY
WHEREAS, the undersigned is executing this Irrevocable Proxy in connection with that certain
Subscription Agreement dated as of the date below (the “Subscription Agreement”) between US
BioEnergy Corporation (the “Company”) and CHS Inc. (“CHS”).
The undersigned hereby irrevocably constitutes and appoints Xxx Xxxxxxxx or Xxxx Xxxxxxx, or
either of them, with full power of substitution and revocation, the undersigned’s true and lawful
agent, attorney and proxy, for the undersigned and in the undersigned’s name, place and stead, to
vote, or otherwise give consent with respect to, all voting securities of the Company held by the
undersigned at any and all meetings, regular or special, of holders of voting securities of the
Company or any adjournment(s) or postponements) thereof, giving and granting to each of said
attorney all the powers the undersigned would possess if personally present at such meeting:
| (a) | for the election to the Board of Directors of the Company of such persons as CHS is entitled to appoint pursuant to the terms of Section 8 of the Subscription Agreement (each, an “Appointee”) until the undersigned shall receive a notice from the Company and CHS that such appointment right has been terminated; | ||
| (b) | once elected, for the presence at all times on the Board of Directors of the Company of each Appointee until the undersigned shall receive a notice from the Company and CHS that such appointment right has been terminated. |
The undersigned agrees that the undersigned shall not transfer any voting securities held by
the undersigned unless such transferee agrees to be bound by the provisions of this proxy.
By executing mis proxy, the undersigned hereby revoke all proxies heretofore made by the
undersigned with respect to the subject matter contained herein. The undersigned acknowledge that
this proxy is coupled with an interest in the common stock of the Company and is irrevocable by the
undersigned until the undersigned shall receive a notice from the Company and CHS of termination of
this proxy.
Dated: November 17, 2005.
| Signature | ||||
| Print Name |
1
Exhibit 7(a)
US BioEnergy Corporation
Outstanding Options Granted to Purchase Class A Common Stock
| Shares of | ||||||||
| Class A | ||||||||
| Grant | Common | |||||||
| Holder | Date | Stock | ||||||
Xxxx X. Xxxxx |
1/28/2005 | 30,000 | ||||||
O. Xxxxx Xxxxxxxx |
1/28/2005 | 30,000 | ||||||
Xxxxxx X. Xxxxx |
1/28/2005 | 30,000 | ||||||
Xxxxxx “Xxx” X. Xxxxx |
1/28/2005 | 30,000 | ||||||
Xxxxxxxx X. Xxxxxxx |
1/28/2005 | 30,000 | ||||||
Xxxxxx X. Xxxxx |
1/28/2005 | 30,000 | ||||||
Xxxxx Xxxxx |
1/28/2005 | 30,000 | ||||||
Xxxx X. Xxxxx |
1/28/2005 | 30,000 | ||||||
Xxxx Xxxxxx |
5/10/2005 | 50,000 | ||||||
Xxxx Xxxxxxx |
5/10/2005 | 25,000 | ||||||
Xxxxx Xxxx |
5/10/2005 | 25,000 | ||||||
Xxxxx Xxxxxx |
5/10/2005 | 25,000 | ||||||
Xxxxx Xxxxxxx |
5/10/2005 | 20,000 | ||||||
Xxxx Xxxxxxx |
5/10/2005 | 20,000 | ||||||
Xxx Xxxxxx |
5/10/2005 | 10,000 | ||||||
Xxxxx Xxxx |
5/10/2005 | 10,000 | ||||||
Xxxxxx Xxx |
9/26/2005 | 15,000 | ||||||
Xxxx Xxxxxxx |
10/11/2005 | 15,000 | ||||||
Capitaline Advisors, LLC |
11/17/2005 | 3,250,000 | ||||||
Global Ethanol, Inc. |
11/17/2005 | 3,250,000 | ||||||
Total: |
6,955,000 | |||||||
