EXHIBIT 2.1
EXECUTION COPY
SITE ACQUISITION AGREEMENT
BETWEEN
VERASUN ENERGY CORPORATION
AND
AMERICAN MILLING, LP
DATED: MAY 22, 2006
TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASE AND SALE OF SITE ACQUISITION RIGHTS...............................................1
1.01 Designated Sites...........................................................................1
1.02 Criteria...................................................................................1
1.03 Submission of Designated Site..............................................................2
1.04 Acceptance.................................................................................2
ARTICLE II PURCHASE PRICE FOR ACCEPTED SITES..........................................................3
2.01 Purchase Price.............................................................................3
2.02 Sales and Transfer Taxes...................................................................3
2.03 Instruments of Conveyance and Transfer.....................................................3
2.04 Further Assurances.........................................................................4
2.05 Closing....................................................................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF VERASUN..................................................4
3.01 Corporate Existence........................................................................4
3.02 Authority..................................................................................4
3.03 Consents...................................................................................4
3.04 Valid Issuance.............................................................................4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF AMERICAN.................................................5
4.01 Corporate Existence........................................................................5
4.02 Authority..................................................................................5
4.03 Consents...................................................................................5
4.04 Title and Condition of Designated Sites....................................................5
4.05 Environmental Conditions...................................................................6
4.06 Entirely for Own Account...................................................................7
4.07 Disclosure of Information..................................................................7
4.08 Investment Experience......................................................................7
4.09 Accredited Investor........................................................................7
4.10 Restricted Securities......................................................................7
4.11 Further Limitations on Disposition.........................................................8
4.12 Legends....................................................................................8
ARTICLE V COVENANTS OF AMERICAN......................................................................8
5.01 Due Diligence Access.......................................................................8
5.02 Employees..................................................................................8
ARTICLE VI CONDITIONS TO OBLIGATIONS OF VERASUN.......................................................9
6.01 Representation and Warranties..............................................................9
6.02 Performance by American....................................................................9
6.03 Certificate of American....................................................................9
6.04 Closing Deliveries.........................................................................9
6.05 Governmental Approvals.....................................................................9
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6.06 Consents...................................................................................9
ARTICLE VII CONDITIONS TO OBLIGATIONS OF AMERICAN......................................................9
7.01 Representations and Warranties.............................................................9
7.02 Performance by VeraSun....................................................................10
7.03 Officer's Certificate of VeraSun..........................................................10
7.04 Closing Deliveries........................................................................10
7.05 Completion of IPO.........................................................................10
ARTICLE VIII TERMINATION...............................................................................10
8.01 Term; Right of Parties to Terminate.......................................................10
8.02 Effect of Termination.....................................................................10
ARTICLE IX SURVIVAL; INDEMNIFICATION.................................................................11
9.01 Survival..................................................................................11
9.02 Indemnification by American...............................................................11
9.03 Indemnification by VeraSun................................................................11
9.04 Indemnification Procedure.................................................................11
ARTICLE X PRESS RELEASES............................................................................12
10.01 Press Releases............................................................................12
ARTICLE XI OTHER PROVISIONS..........................................................................12
11.01 Benefit and Assignment....................................................................12
11.02 Entire Agreement..........................................................................12
11.03 Fees and Expenses.........................................................................12
11.04 Amendment, Waiver, Etc....................................................................12
11.05 Governing Law.............................................................................12
11.06 Notices...................................................................................12
11.07 Attorneys' Fees...........................................................................13
11.08 Counterparts..............................................................................13
11.09 Adjustments to VeraSun Shares.............................................................13
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LIST OF EXHIBITS
Exhibit Item First Reference
------- ---- ---------------
A Xxxx of Sale 2.03
LIST OF SCHEDULES
Schedule Content
-------- -------
1 List of Sites
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SITE ACQUISITION AGREEMENT
DATED: May 22, 2006
BETWEEN: VERASUN ENERGY CORPORATION
Attn: President
000 00xx Xxx.
Xxxxxxxxx, XX 00000
Fax no.: (000) 000-0000 "VERASUN"
AND: AMERICAN MILLING, LP
Attn: President
X.X. Xxx 0000
Xxx Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Fax no.: (000) 000-0000 "AMERICAN"
RECITAL
VeraSun desires to acquire the right to purchase or lease greenfield sites
designated by American for the construction of fuel-grade ethanol production
facilities, on the terms and conditions set forth in this Agreement. In
consideration of the mutual promises and covenants contained in this Agreement,
the parties agree as follows:
AGREEMENT
ARTICLE I
PURCHASE AND SALE OF SITE ACQUISITION RIGHTS
1.01 DESIGNATED SITES. American may designate sites for purchase or lease
from among the five sites listed on Schedule 1 hereto (the "PRIMARY SITES") or
other additional sites after American has obtained options or other rights
("PROPERTY RIGHTS") that would enable VeraSun or its designee, as an assignee of
American, to purchase or lease the sites (each, a "DESIGNATED SITE"); provided
that American shall submit one of the Primary Sites to VeraSun for purchase or
lease within three months after the date of this Agreement. The Property Rights
must not expire earlier than 120 days after submission of a Designated Site for
approval pursuant to Section 1.03 unless VeraSun otherwise agrees in writing.
1.02 CRITERIA. The parties acknowledge and agree that VeraSun is seeking
sites that are suitable for the construction and operation of a 110 million
gallon per year ("MGY") nameplate ethanol production facility and for expansion
to a 220 mgy nameplate ethanol production facility. Prior to submission of a
Designated Site for acceptance by VeraSun,
American shall conduct an evaluation of the Designated Site, including
consideration of each of the following criteria:
(a) Grain availability and origination;
(b) Topographical characteristics, including soil stability;
(c) Water quality and available quantity;
(d) Sources and cost of electrical power;
(e) Availability of natural gas or other energy sources;
(f) Land title and zoning;
(g) Transportation and logistics; and
(h) Environmental assessments and permitting requirements.
1.03 SUBMISSION OF DESIGNATED SITE. After American has identified a
Designated Site, conducted an evaluation and obtained the associated Property
Rights, American may submit such Designated Site to VeraSun for acceptance. In
its submission of a Designated Site to VeraSun for acceptance, American shall:
(a) Include appropriate documentation for transfer of the Property
Rights to VeraSun or its designee;
(b) Provide a report addressing each of the criteria set forth in
Section 1.02 in relation to the Designated Site and including all
supporting documentation with respect to its conclusions;
(c) Disclose and make available to VeraSun or its representatives
true, complete and correct copies of any reports, studies, investigations,
audits, analyses, tests or monitoring in the possession or control of
American or any of its consultants or agents and pertaining to any
environmental matter relating to the Designated Site, including, without
limitation, compliance with Environmental Laws or Contamination (as those
terms are defined below); and
(d) Confirm that the representations and warranties in Sections 4.04
and 4.05 are true as to the Designated Site.
1.04 ACCEPTANCE. VeraSun shall decide whether or not any Designated Site
will be an acceptable site for construction (an "ACCEPTED SITE") within 90 days
after its submission to VeraSun, but no site will be accepted before six months
after completion of a sale of shares of VeraSun Stock (as defined below),
including any shares subject to an over allotment option, in a firm commitment,
underwritten public offering (the "IPO") registered under the Securities Act of
1933 (the "ACT"). VeraSun will immediately notify American in writing of its
decision to accept or reject a site. The parties acknowledge and agree that
VeraSun has complete and
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absolute discretion to accept or reject a Designated Site and to elect not to
construct a facility on any Accepted Site.
ARTICLE II
PURCHASE PRICE FOR ACCEPTED SITES
2.01 PURCHASE PRICE. Subject to Section 11.09, the purchase price for each
Accepted Site shall be determined as follows:
(a) For each Accepted Site, $(**) in cash, or, at the election
of American made at the time of acceptance, (**) shares of VeraSun
common stock ("VERASUN STOCK"), payable as follows:
(1) 50% of such cash or shares at Closing; and
(2) 50% of such cash or shares within five days of VeraSun
receiving the applicable air permits necessary to construct and
operate a 110 mgy fuel-grade ethanol facility on the Accepted Site;
provided, however, that such payment must be made within one year of
VeraSun's acceptance of the Accepted Site;
(b) Within 15 days of VeraSun's acceptance of an Accepted Site,
VeraSun will reimburse American for its reasonable, documented
out-of-pocket expenses, without xxxx-up, incurred in connection with the
identification and evaluation of the Accepted Site and the purchase price
thereof, if applicable. The parties agree that such expenses include costs
and expenses of acquiring a site, but shall not include salaries or wages
of American employees; and
(c) Notwithstanding the foregoing, the aggregate market value of the
VeraSun Stock issued to American for any Accepted Site shall not exceed
$(**). If the aggregate market value exceeds $(**), the number
of shares of VeraSun Stock otherwise issuable pursuant to this Agreement
for such site shall be reduced to a number of shares having an aggregate
market value of $(**). For this purpose, "market value' shall mean
the average closing sale price for VeraSun Stock on the New York Stock
Exchange, or if the VeraSun Stock is not listed on the New York Stock
Exchange, any other national securities exchange on which the VeraSun
Stock is listed for trading, for the ten trading days immediately prior to
the date shares are issued for the site under clause (a)(1) above.
2.02 SALES AND TRANSFER TAXES. American shall be responsible for any sales
or transfer taxes due in connection with the transfer of the Property Rights to
VeraSun or its designee.
2.03 INSTRUMENTS OF CONVEYANCE AND TRANSFER. The sale, conveyance,
assignment, transfer and delivery of the Property Rights with respect to an
Accepted Site shall be effected by American's execution and delivery to VeraSun
or its designee, on the Closing Date (as defined below), of a xxxx of sale in
substantially the form of the Xxxx of Sale attached hereto as EXHIBIT A,
together with such other instruments of transfer and conveyance, in form and
substance sufficient
______________
1) This confidential information has been omitted pursuant to a request for
confidential treatment.
2) The material has been filed separately with the SEC.
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to vest in VeraSun or its designee all right, title and interest in and to the
Property Rights, as reasonably requested by VeraSun or its counsel.
2.04 FURTHER ASSURANCES. American agrees that, at any time and from time
to time on or after the Closing Date, it will, upon the request of VeraSun and
without further consideration, take all steps reasonably necessary to place
VeraSun or its designee in possession of the Property Rights with respect to an
Accepted Site, and American will do or will cause to be done all further acts or
things reasonably required to sell and transfer to VeraSun or its designee all
of the Property Rights and the Accepted Sites, or to vest in VeraSun or its
designee good, valid and marketable title to the Property Rights and the
Accepted Sites.
2.05 CLOSING. The consummation of the transactions contemplated by this
Agreement with respect to each Accepted Site (each, a "CLOSING") shall take
place at VeraSun's corporate offices at such date and time agreed upon in
writing by the parties but not later than 15 days following VeraSun's acceptance
of the applicable Accepted Site (the "CLOSING DATE").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF VERASUN
VeraSun represents and warrants to American as follows:
3.01 CORPORATE EXISTENCE. VeraSun is a corporation duly organized, validly
existing and in good standing under the laws of the state of South Dakota, and
VeraSun has all necessary corporate power and authority to own, lease and
operate its properties and assets and to carry on its business as now conducted
and as proposed to be conducted.
3.02 AUTHORITY. VeraSun has the full corporate power and authority to
enter into this Agreement and carry out its terms. VeraSun has taken all
corporate action necessary to authorize the execution, delivery and performance
of this Agreement. This Agreement has been duly and validly executed and
delivered by VeraSun and is binding upon and enforceable against VeraSun in
accordance with its terms, except as enforceability may be limited or affected
by applicable bankruptcy, insolvency, reorganization or other laws of general
application relating to or affecting the rights of creditors and except as
enforceability may be limited by rules of law governing specific performance,
injunctive relief or other equitable remedies.
3.03 CONSENTS. No consent, approval or authorization of any court,
regulatory authority or governmental body or third person is required to be
obtained by VeraSun nor is any filing or registration required to be made
therewith by VeraSun for the consummation of the transactions described in this
Agreement (assuming the accuracy of American's representations and warranties in
Article IV).
3.04 VALID ISSUANCE. All of the VeraSun Stock purchased under Section
2.01, when issued, sold and delivered in accordance with the terms of this
Agreement and for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable, and will be free of restrictions and
encumbrances other than restrictions on transfer under applicable state and
federal securities laws and other than as may be separately agreed by American.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AMERICAN
American represents and warrants to VeraSun that, except with respect to
Sections 4.04 and 4.05 as set forth in the report to be provided by American
addressing the criteria set forth in Section 1.02 in relation to a Designated
Site:
4.01 CORPORATE EXISTENCE. American is a limited partnership duly
organized, validly existing and in good standing under the laws of the state of
Illinois, and American has all necessary power and authority to own, lease and
operate its properties and assets and to carry on its business as now conducted
and as proposed to be conducted.
4.02 AUTHORITY. American has the full power and authority to enter into
this Agreement and carry out its terms. American has taken all action necessary
to authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly and validly executed and delivered by American and is
binding upon and enforceable against American in accordance with its terms,
except as enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the rights of creditors and except as enforceability may be limited by
rules of law governing specific performance, injunctive relief or other
equitable remedies.
4.03 CONSENTS. No consent, approval or authorization of any court,
regulatory authority or governmental body or third person is required to be
obtained by American nor is any filing or registration required to be made
therewith by American for the consummation of the transactions described in this
Agreement.
4.04 TITLE AND CONDITION OF DESIGNATED SITES. To the best knowledge of
American, after due inquiry, at the time of submission of a Designated Site to
VeraSun for acceptance and at the Closing with respect to such site:
4.04-1 Each Designated Site is free and clear of all mortgages,
pledges, security interests, claims, charges, easements, covenants or other
encumbrances or restrictions of any kind ("ENCUMBRANCES"), except:
(a) mortgages to be discharged upon VeraSun's exercise of the
Property Rights with respect to such Designated Site;
(b) liens for taxes not yet due; or
(c) other Encumbrances accepted by VeraSun in writing;
4.04-2 The owner of each Designated Site has good and absolute fee
simple title to such site;
4.04-3 Neither the operations of VeraSun contemplated on any
Designated Site, nor any contemplated improvements on any Designated Site, will
violate any applicable building code, zoning requirement or other statute or
ordinances. American has not received any notice of any pending or contemplated
special assessments against any Designated Site;
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4.04-4 There are no developments affecting any Designated Site
pending or threatened which might materially detract from the value of such
property, materially interfere with any present or intended use of any such
property or assets or materially adversely affect the current use, occupancy,
value or marketability of such properties or assets; and
4.04-5 The Property Rights will include all rights necessary to
purchase or lease the Designated Site, and upon exercise of the Property Rights
VeraSun or its designee will acquire good title to, or a valid leasehold
interest in, the Designated Site, free and clear of all Encumbrances, other than
those listed on Schedule 4 or accepted in writing by VeraSun.
4.05 ENVIRONMENTAL CONDITIONS.
4.05-1 DEFINITIONS.
(a) "ENVIRONMENTAL LAW" means any federal, state or local
statute, regulation or ordinance pertaining to the protection of
human health or the environment and any orders, judgments, decrees,
permits, licenses agreements or other authorizations or mandates
under such laws.
(b) "HAZARDOUS SUBSTANCE" means any hazardous, toxic,
radioactive or infectious substance, pollutant, material or waste as
defined, listed or regulated under any Environmental Law, and
includes, without limitation, petroleum oil and its fractions.
(c) "CONTAMINATION" (or "CONTAMINATED") means the presence
(actual or reasonably suspected) of Hazardous Substances in, on or
under the soil, groundwater, surface water or other environmental
media or any structure or improvement, if any investigatory,
remedial, removal reporting or other response action is required or
legally could be required by a governmental authority under any
Environmental Law with respect to such presence or suspected
presence of Hazardous Substances, or if such response action
otherwise is reasonable or appropriate under the circumstances.
4.05-2 ENVIRONMENTAL CONDITIONS. To the best knowledge of American,
after due inquiry, at the time of submission of a Designated Site to VeraSun for
acceptance and at the Closing with respect to such site:
(a) Each of the owner and operator of each Designated Site is
and has been in compliance with all applicable Environmental Laws
with respect to such site, including, without limitation, in
possession of all permits, licenses and authorizations required
under applicable Environmental Laws (collectively "ENVIRONMENTAL
PERMITS"), and in compliance with the terms and conditions of such
Environmental Permits.
(b) No civil, criminal or administrative suit, claim, action,
or investigation proceeding is pending under any Environmental Law
relating to any Designated Site; and there are no outstanding
orders, judgments or decrees of any court or of any governmental
agency or instrumentality under any Environmental Law which
specifically apply to any Designated Site;
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(c) No portion of any Designated Site is Contaminated; and
(d) None of the following are located on any Designated Site:
(A) underground storage tank (whether or not in use or
decommissioned and whether not regulated or exempt from regulation);
(B) underground injection well as defined under any Environmental
Law; (C) surface impoundment or lagoon; (D) landfill or any other
land-based treatment, storage or disposal unit for any type of waste
(whether or not closed or currently active); (E) hazardous waste
treatment, storage or disposal facility regulated under the Resource
Conservation and Recovery Act, as amended ("RCRA") or any comparable
Environmental Law; (F) any waste management or process unit that
would be, or might reasonably be construed as, a hazardous waste
treatment, storage or disposal facility but for an exception or
exclusion under RCRA or any comparable Environmental Law; or (H) any
radioactive material for which a license or permit (including
general permits and permits by rule) is required under any
Environmental Law.
4.06 ENTIRELY FOR OWN ACCOUNT. This Agreement is made with American in
reliance upon American's representation to VeraSun, which by American's
execution of this Agreement American hereby confirms, that any VeraSun Stock to
be received by American pursuant to Section 2.01 (the "PAYMENT SHARES") will be
acquired for investment for American's own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and that
American has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, American further
represents that American does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Payment Shares.
4.07 DISCLOSURE OF INFORMATION. American believes that, as of the date of
each Closing, it has received all the information it considers necessary or
appropriate for deciding whether to purchase the Payment Shares. American
further represents that, as of the date of each Closing, it has had an
opportunity to ask questions and receive answers from VeraSun regarding the
terms and conditions of the offering of the Payment Shares and the business,
properties, prospects and financial condition of VeraSun. The foregoing,
however, does not limit or modify the representations and warranties of VeraSun
in Article III of this Agreement or the right of American to rely thereon.
4.08 INVESTMENT EXPERIENCE. American acknowledges that it alone is able to
fend for itself, can bear the economic risk of its investment, and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Payment Shares.
American also represents it has not been organized for the purpose of acquiring
any Payment Shares.
4.09 ACCREDITED INVESTOR. American is an "accredited investor" within the
meaning of Securities and Exchange Commission Rule 501 of Regulation D.
4.10 RESTRICTED SECURITIES. American understands that any Payment Shares
would be characterized as "restricted securities" under the federal securities
laws inasmuch as they would
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be acquired from VeraSun in a transaction not involving a public offering and
that under such laws and applicable regulations such securities could be resold
without registration under the Act only in certain limited circumstances. In
this connection, American represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act.
4.11 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above and subject to the restrictions set forth in
this Agreement, American further agrees not to make any disposition of all or
any portion of any Payment Shares unless and until:
(a) There is then in effect a registration statement under the Act
covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) American shall have notified VeraSun of the proposed disposition
and shall have furnished VeraSun with a detailed statement of the
circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by VeraSun, American shall have furnished VeraSun with an
opinion of Husch & Eppenberger, LLC, Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx, LLP
or Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, LLP that such disposition will not
require registration of such shares under the Act.
4.12 LEGENDS. It is understood that the certificates evidencing any
Payment Shares shall bear the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO VERASUN THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT."
ARTICLE V
COVENANTS OF AMERICAN
5.01 DUE DILIGENCE ACCESS. American will permit VeraSun's employees and
representatives to have reasonable access to the sites listed on Schedule 1 and
to all information relating to the sites in the control of American or its
consultants or agents. American will also make available its officers and
employees as required to respond to questions of VeraSun and its representatives
with regard to such sites.
5.02 EMPLOYEES. American acknowledges that VeraSun may wish to hire one or
more of the employees, officers or directors of American as an employee or
consultant, but no commitments in that regard are being made by VeraSun.
American agrees that VeraSun may from time to time during the Consulting Term
solicit the employees, officers and directors of
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American for this purpose, provided that VeraSun first informs the President of
American of such proposed solicitation. American further agrees to provide
introductions to other persons engaged in the grain distribution business that
may be interested in employment with VeraSun.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF VERASUN
All obligations of VeraSun hereunder with respect to any Closing are
subject to the fulfillment, prior to or at the Closing, of each of the following
conditions, any of which may be waived by VeraSun:
6.01 REPRESENTATION AND WARRANTIES. The representations and warranties
made by American in this Agreement shall be true when made and at and as of the
time of the Closing as though such representations and warranties were made at
and as of the Closing (except for those representations and warranties made as
of a specific date (including Sections 4.04 and 4.05 which must be true and
correct as of the dates provided therein), which need only be true and correct
as of such date).
6.02 PERFORMANCE BY AMERICAN. American shall have performed and complied
with all covenants, agreements, obligations and conditions required by this
Agreement to be so complied with or performed.
6.03 CERTIFICATE OF AMERICAN. American shall have delivered to VeraSun a
certificate, dated the applicable Closing Date, certifying as to the fulfillment
of the conditions specified in Sections 6.01 and 6.02 hereof.
6.04 CLOSING DELIVERIES. All other documents and items specified in this
Agreement to be delivered by American at the Closing shall be so delivered, and
shall be in form and substance reasonably satisfactory to VeraSun and its
counsel.
6.05 GOVERNMENTAL APPROVALS. All authorizations, consents and approvals of
all governmental agencies and authorities required to be obtained in order to
permit consummation of the transactions contemplated by this Agreement with
respect to any Accepted Site shall have been obtained and be satisfactory in
form and content to VeraSun.
6.06 CONSENTS. American shall have obtained the third-party consents
required for VeraSun to exercise the Property Rights with respect to the
Accepted Site subject to the Closing.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF AMERICAN
All obligations of American under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
any of which may be waived by American:
7.01 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the VeraSun in this Agreement shall be true when made and at and as of
the time of the Closing as though such representations and warranties were made
at and as of such date (except for those
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representations and warranties made as of a specific date, which need only be
true and correct as of such date).
7.02 PERFORMANCE BY VERASUN. VeraSun shall have performed and complied
with all agreements, obligations and conditions required by this Agreement to be
so complied with or performed.
7.03 OFFICER'S CERTIFICATE OF VERASUN. VeraSun shall have delivered to
American a certificate, dated the Closing Date, certifying as to the fulfillment
of the conditions specified in Sections 7.01 and 7.02 hereof.
7.04 CLOSING DELIVERIES. All other documents and items specified in this
Agreement to be delivered by VeraSun at the Closing shall be so delivered, and
shall be in form and substance reasonably satisfactory to American and its
counsel.
7.05 COMPLETION OF IPO. VeraSun shall have completed the IPO no later than
August 15, 2006, except that this condition shall not apply to sites accepted by
VeraSun prior to such date.
ARTICLE VIII
TERMINATION
8.01 TERM; RIGHT OF PARTIES TO TERMINATE. This Agreement will terminate
two years after the date hereof (the "TERM OF THIS AGREEMENT") and may be
terminated earlier as follows:
8.01-1 by mutual written agreement of VeraSun and American;
8.01-2 by VeraSun, if American shall have breached any of its
obligations or representations hereunder in any material respect;
8.01-3 by American, if VeraSun shall have breached any of its
obligations or representations hereunder in any material respect; or
8.01-4 by either American or VeraSun, by written notice to the other
party, if the IPO has not been completed by August 15, 2006.
8.02 EFFECT OF TERMINATION. If either VeraSun or American decides to
terminate this Agreement pursuant to Section 8.01 (other than Section 8.01-1),
such party shall promptly give written notice of such decision to the other
party to this Agreement. In the event of a termination pursuant to Section 8.01,
this Agreement will terminate and the transactions contemplated hereby will be
abandoned, without further action by either party or their directors, officers,
shareholders, employees, representatives or agents, except for Sections 9.01,
9.02, 9.03, 10.01, 11.03, 11.07, 11.09 and this Section 8.02, which sections
will continue indefinitely to bind the parties as necessary to effectuate their
purpose. Notwithstanding anything to the contrary contained in this Agreement,
if this Agreement is terminated by a party because of the breach of this
Agreement by the other party or because one or more of the conditions to the
terminating party's obligations under this Agreement is not satisfied as a
result of the other party's failure to comply with its
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obligations under this Agreement, the terminating party's right to pursue all
legal remedies shall survive such termination unimpaired.
ARTICLE IX
SURVIVAL; INDEMNIFICATION
9.01 SURVIVAL. All representations, warranties, covenants and agreements
made in this Agreement or in any exhibit, schedule, certificate or agreement
delivered in accordance with this Agreement (collectively, the "RELATED
DOCUMENTS") shall survive any investigation by or on behalf of any party, the
execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby; provided, however, that the representations
and warranties of American under Sections 4.04 and 4.05 shall terminate on the
third anniversary of the Closing Date for the applicable Accepted Site.
9.02 INDEMNIFICATION BY AMERICAN. From and after any Closing, American
shall indemnify, hold harmless and defend VeraSun and its directors, officers
and employees from and against any claims, liabilities and expenses incurred by
reason of:
(a) any breach or inaccuracy of a representation or warranty of
American in this Agreement or a Related Document, or
(b) any failure by American to perform any covenant required to be
performed by it pursuant to this Agreement or a Related Document.
9.03 INDEMNIFICATION BY VERASUN. From and after any Closing, VeraSun shall
indemnify, hold harmless and defend American from and against any claims,
liabilities and expenses incurred by reason of:
(a) any breach or inaccuracy of a representation or warranty of
VeraSun in this Agreement or a Related Document, or
(b) any failure by VeraSun to perform any covenant required to be
performed by it pursuant to this Agreement or a Related Document.
9.04 INDEMNIFICATION PROCEDURE. Each indemnified party shall give notice
to the other promptly after such indemnified party has actual knowledge of any
claim as to which indemnity may be sought and shall permit the indemnifying
party to assume the defense of any resulting claim or litigation. If, within 15
days after receipt of such notice from an indemnified party, the indemnifying
party does not notify the indemnified party that it will assume defense of such
claim, the indemnified party may elect to control the conduct and settlement of
such action and all reasonable costs of defending such action shall be
indemnified under this Section 9.04. The indemnified party shall not consent to
entry of any judgment or settle any claim or litigation without the prior
written consent of the indemnifying party, unless the indemnifying party has
failed to assume control of the conduct of the claim as described in the
foregoing sentence.
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ARTICLE X
PRESS RELEASES
10.01 PRESS RELEASES. No press releases or other public announcements
concerning the transactions contemplated by this Agreement shall be made by
either party without the prior written consent of the other party; provided,
however, that nothing herein shall (a) prevent a party from supplying such
information or making statements as required by governmental authority (prompt
notice of which shall in any such case be given to the other party) or (b)
prevent VeraSun from making such disclosures as it reasonably determines are
necessary in connection with the IPO.
ARTICLE XI
OTHER PROVISIONS
11.01 BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. No party hereto may voluntarily or involuntarily assign such
party's interest under this Agreement without the prior written consent of the
other party; provided, however, that VeraSun may assign its purchase rights to
an Accepted Site to an affiliate of VeraSun.
11.02 ENTIRE AGREEMENT. This Agreement and the Schedules and Exhibits
referred to herein and the Confidentiality Agreement between VeraSun and
American dated March 14, 2006, embody the entire agreement and understanding of
the parties and supersede any and all prior agreements, arrangements and
understandings relating to matters provided for herein.
11.03 FEES AND EXPENSES. Each party shall be solely responsible for all
costs and expenses incurred by it in connection with the negotiation,
preparation and performance of and compliance with the terms of this Agreement
(except for the reimbursement obligations specifically required under this
Agreement).
11.04 AMENDMENT, WAIVER, ETC. The provisions of this Agreement may be
amended or waived only by an instrument in writing signed by the party against
which enforcement of such amendment or waiver is sought. Any waiver of any term
or condition of this Agreement or any breach hereof shall not operate as a
waiver of any other such term, condition or breach, and no failure to enforce
any provision hereof shall operate as a waiver of such provision or of any other
provision hereof.
11.05 GOVERNING LAW. The construction and performance of this Agreement
will be governed by the laws of the state of Delaware (except for the conflicts
of law provisions thereof).
11.06 NOTICES. All notices required or permitted to be given under this
Agreement shall be in writing. Notices may be delivered by certified or
registered mail, postage paid with return receipt requested; by private courier
prepaid; by facsimile or other telecommunication device capable of transmitting
or creating a written record; or personally. Mailed notices shall be deemed
received five days after mailing, properly addressed. Couriered notices shall be
deemed received on the date that the courier warrants that delivery will occur.
Telecommunicated notices shall be deemed received when receipt is either
confirmed by confirming transmission equipment or acknowledged by the addressee
or its office. Personal delivery shall be effective when
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accomplished. If a notice is provided under this Agreement, it shall be
delivered, mailed or sent to the address for the relevant party set forth on the
first page of this Agreement or to such other address for such party as shall be
furnished in accordance with this Section 11.06.
11.07 ATTORNEYS' FEES. If suit or action is filed by any party to enforce
the provisions of this Agreement or otherwise with respect to the subject matter
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees as fixed by the trial court and, if any appeal is taken from the
decision of the trial court, reasonable attorneys' fees as fixed by the
appellate court. For purposes of this Agreement, the term "PREVAILING PARTY"
shall be deemed to include a party that successfully opposes a petition for
review filed with an appellate court.
11.08 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
11.09 ADJUSTMENTS TO VERASUN SHARES. If the outstanding shares of the
VeraSun Stock are divided into a greater number of shares or a dividend in stock
is paid on the VeraSun Stock, the number of shares of VeraSun Stock issuable
under Section 2.01 will be proportionately increased; and, conversely, if the
outstanding shares of VeraSun Stock are combined into a smaller number of shares
of VeraSun Stock, the number of shares of VeraSun Stock issuable under Section
2.01 will be proportionately reduced.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
VERASUN: VERASUN ENERGY CORPORATION
By: /s/Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: CEO
AMERICAN: AMERICAN MILLING, LP
By: /s/Xxxx Jump
---------------------------------
Name: Xxxx Jump
Title: President
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The following Schedule and Exhibit to the Site Acquisition Agreement have been
omitted and will be provided to the Securities and Exchange Commission upon
request:
Exhibit A Xxxx of Sale
Schedule I List of Sites
