EXHIBIT B
EXHIBIT B
SHAREHOLDERS’ AGREEMENT
This SHAREHOLDERS’ AGREEMENT (as amended from time to time, this “Agreement”), dated as of December 20, 2006, by and between US BioEnergy Corporation, a South Dakota corporation (the “Company”), and each of the shareholders of the Company listed on the signature page hereto (together with any shareholder of the Company who subsequently becomes a party to this Agreement in accordance with the terms hereof, the “Shareholders” and each a “Shareholder”).
W I T N E S S E T H:
WHEREAS, the parties hereto wish to enter into this Agreement to memorialize certain agreements relating to their ownership of equity securities of the Company and their relationship with the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
1.1 The following terms when used in this Agreement shall have the following meanings (such definitions to be equally applicable to the singular and plural forms thereof):
“Affiliate” of any Person means any other Person which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) as used with respect to any Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“beneficial ownership” or “beneficially own” means ownership of securities as determined pursuant to Rule 13d-3 under the Exchange Act.
“Board” means the Board of Directors of the Company.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the Company’s Common Stock, par value $0.01 per share.
“Demand Registration” means a Registration for use in connection with an underwritten public offering or block trade.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Independent Director” means a member of the Board who is independent within the meaning of the rules of the NASDAQ Global Market or, if the shares of Common Stock are not listed on the NASDAQ Global Market, the principal securities market or exchange on which shares of the Common Stock of the Company are then traded or listed.
“IPO” means the initial public offering of the Common Stock.
“Person” means any natural person, corporation, firm, limited liability company, partnership, association, government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.
“Prospectus” means the prospectus included in any registration statement, as amended or supplemented by any prospectus supplement with respect of the terms of the offering of any security of the Company covered by such registration statement and all other amendments or supplements to the prospectus, including post effective amendments, and all material incorporated, or deemed to be incorporated, by reference in such prospectus.
“Registrable Securities” means any shares of Common Stock held by a Shareholder on the effective date of the registration statement with respect to the IPO and any equity securities of the Company issued or issuable with respect to any such Common Stock by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (a) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (b) they shall have been distributed to the public pursuant to Rule 144 (or any successor provision) under the Securities Act, (c) they shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent disposition of them shall not require registration or qualification of them under the Securities Act or any similar state law then in force, (d) they become eligible for resale pursuant to Rule 144(k) (or any successor provision) under the Securities Act, or (e) they shall have ceased to be outstanding.
“Registration” means the registration under the Securities Act of Registrable Securities.
“Restricted Period” means a one-year period following the effective date of the registration statement with respect to the IPO.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Company. The Company represents and warrants to the Shareholders as follows:
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of South Dakota.
(b) The Company has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement.
(c) This Agreement has been duly and validly executed and delivered by the Company.
(d) The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby will not conflict with, result in the breach of any of the terms or conditions of, constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party under, the articles of incorporation or by-laws of the Company, any law, rule or regulation or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking, to which the Company is a party or by which the Company or its properties may be bound, nor will such execution, delivery and consummation violate any order, writ, injunction or decree of any federal, state, local or foreign court, administrative agency or governmental or regulatory authority or body to which the Company or any of its properties is subject, the effect of any of which, either individually or in the aggregate, would impair the ability of the Company to perform its obligations hereunder.
2.2 Representations and Warranties of the Shareholders. Each Shareholder, severally and not jointly, represents and warrants to the Company as follows:
(a) Such Shareholder, if not a natural person, is a corporation, limited partnership, limited liability company or other entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation.
(b) Such Shareholder (i) is competent, if he is a natural person, and (ii) has the full power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(c) This Agreement has been duly and validly executed and delivered by such Shareholder.
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(d) The execution and delivery of this Agreement by such Shareholder and the consummation of the transactions contemplated hereby by such Shareholder will not conflict with, result in the breach of any of the terms or conditions of, constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party under, the organizational documents of such Shareholder, if it is not a natural person, any law, rule or regulation or any agreement, lease, mortgage, note, bond, indenture, license or other document or undertaking, to which such Shareholder is party or by which such Shareholder or its properties may be bound, nor will such execution, delivery and consummation violate any order, writ, injunction or decree of any federal, state, local or foreign court, administrative agency or governmental or regulatory authority or body to which the Shareholder or any of his or its properties are subject, the effect of any of which, either individually or in the aggregate, would impair the ability of such Shareholder to perform its obligations hereunder.
ARTICLE III
STANDSTILL AND VOTING PROVISIONS
Each Shareholder, severally and not jointly, covenants and agrees with the Company as follows:
3.1 Restrictions on Acquisition of Securities and Other Activities. Without the prior approval of the Board, during the term of this Agreement, such Shareholder will not, directly or indirectly, acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person or otherwise, beneficial ownership of any shares of Common Stock or any other equity securities of the Company (or any securities convertible into or exchangeable or exercisable for such securities); provided that
(a) such Shareholder may acquire beneficial ownership of additional shares of Common Stock in an amount not to exceed 2% of the Common Stock outstanding on the closing of the IPO;
(b) such Shareholder may acquire beneficial ownership of additional shares of Common Stock or any other equity securities of the Company (or any securities convertible into or exchangeable or exercisable for such securities) (i) under an “employee benefit plan” (as defined in Rule 405 promulgated under the Securities Act) of the Company or any of its subsidiaries or (ii) pursuant to a stock split, stock dividend, rights offering, recapitalization, reclassification or similar transaction made available by the Company to holders of Common Stock generally;
(c) for a period commencing with the date of an increase in the number of shares of outstanding Common Stock and ending 90 days after the filing of Form 10-K or 10-Q by the Company that reflects such increase (excluding shares of Common Stock issued in the IPO, including any shares of Common Stock issued pursuant to the over-allotment option), such Shareholder may acquire beneficial ownership of shares of Common Stock in an amount not to exceed the number of shares
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of Common Stock required to maintain such Shareholder’s percentage beneficial ownership of Common Stock, as measured immediately prior to such issuance of Common Stock by the Company; and
(d) for the period commencing with the date of the effectiveness of the Company’s registration statement with respect to the IPO and ending 90 days thereafter, any Shareholder that beneficially owns at least 21% of the outstanding Common Stock as of the date of this Agreement may acquire beneficial ownership of shares of Common Stock in an amount not to exceed the number of shares of Common Stock required to maintain such Shareholder’s percentage beneficial ownership of Common Stock at 21% of the outstanding Common Stock.
For the avoidance of doubt, the restrictions contained in this Section 3.1 apply to direct as well as indirect (through another Shareholder or otherwise) acquisitions of beneficial ownership, and no acquisition of beneficial ownership by a Shareholder shall be permitted under this Section 3.1 unless such acquisition would also be permitted to be made by any other Shareholder or Shareholders who beneficially own shares held by such first Shareholder.
3.2 Restrictions on Transfer. Without the prior approval of the Board, during the term of this Agreement, such Shareholder shall not directly or indirectly sell, transfer, give, pledge, encumber or otherwise dispose of, or permit to be sold, transferred, given, pledged, encumbered or otherwise disposed of, any equity securities of the Company (or any securities convertible into or exchangeable or exercisable for such securities) beneficially owned by it to any Person if, following such sale, transfer, gift, pledge, encumbrance or other disposition, such Person would beneficially own in excess of 5% of the outstanding shares of Common Stock, except:
(a) to an Affiliate of such Shareholder; provided, that such Affiliate of the Shareholder agrees in writing to be bound by this Agreement;
(b) to equityholders of such Shareholder; provided, that such equityholders of the Shareholder agree in writing to be bound by this Agreement; or
(c) among Shareholders but only to the extent that the acquisition of such equity securities is permitted under Section 3.1.
3.3 Voting. During the term of this Agreement, whenever such Shareholder has the right to vote any shares of Common Stock beneficially owned by it for the election of directors of the Company, such Shareholder shall (a) be present, or cause to be present, in person or by proxy, at the shareholder meeting of the Company relating to such election so that all shares beneficially owned by it shall be counted for the purpose of determining the presence of a quorum at such meeting and (b) vote, or cause to be voted, all shares beneficially owned by it such that at all times a majority of the members of the Board are Independent Directors who were nominated by a committee of the Board comprised solely of Independent Directors. This Section 3.3
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shall be deemed to be a voting agreement within the meaning of and created pursuant to section 731 of the South Dakota Business Corporation Act, SDCL § 47-14A-731.
3.4 Related Party Transactions. During the term of this Agreement, any material transaction between the Company or any of its subsidiaries, on the one hand, and a Shareholder or its Affiliates, on the other hand, must be approved by a majority of the Independent Directors of the Board (or by a committee comprised solely of Independent Directors); provided, that if any such transaction between the Company and such Shareholder or its Affiliates requires the approval of the shareholders of the Company under the South Dakota Business Corporation Act, in addition to the voting requirement under the South Dakota Business Corporation Act, such transaction must also be approved by holders of a majority of the Common Stock not beneficially owned by the Shareholder who is (or whose Affiliate is) party to the transaction.
3.5 Other Restrictions. Except as otherwise specifically authorized in advance by the Board, during the term of this Agreement, each Shareholder agrees that it will not, for the purpose of proposing or acting upon a proposal regarding acquisition of control of the Company, directly or indirectly:
(a) initiate, or in any way participate in, any “solicitation” of “proxies” to vote (as such terms are defined in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek to advise or influence any Person with respect to the voting of any equity securities of the Company or become a “participant” in any “election contest” with respect to the Company;
(b) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company;
(c) seek election to, nominate a candidate for, or seek the removal of any member of, the Board;
(d) call or seek to have called any meeting of the shareholders of the Company;
(e) form, join or in any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates;
(f) deposit any equity securities of the Company into a voting trust or subject any equity securities to any arrangement or agreement with respect to the voting thereof (other than this Agreement); provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates;
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(g) make any public statement or proposal whatsoever with respect to any business combination transaction involving the Company, including, without limitation, a merger, exchange offer or liquidation of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Company; or
(h) propose to amend or modify, or otherwise act, alone or in concert with others, in a manner designed or having the deliberate effect of circumventing, the foregoing restrictions;
provided that nothing in this Section 3.5 shall prohibit any individual who is serving as a director of the Company, solely in his or her capacity as such director, from taking any action or making any statement which, in such director’s best judgment, is in the best interests of the Company’s shareholders.
3.6 Legend. Each Shareholder hereby acknowledges and agrees that each of the certificates representing the shares of Common Stock held by such Shareholder shall be subject to stop transfer instructions and shall include the following legend (in addition to any other legend currently included or required to be included on such certificate):
THESE SHARES ARE SUBJECT TO CERTAIN LIMITATIONS ON TRANSFER SET FORTH IN A SHAREHOLDERS’ AGREEMENT, DATED AS OF DECEMBER 20, 2006, INCLUDING, BUT NOT LIMITED TO, RESTRICTIONS ON THE SALE, GIFT, TRANSFER, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION TO ANY PERSON THAT WOULD BENEFICIALLY OWN MORE THAN 5% OF THE OUTSTANDING COMMON STOCK OF THE COMPANY AFTER SUCH TRANSACTION. A COPY OF SUCH AGREEMENT IS ON FILE WITH THE SECRETARY OF THE COMPANY
ARTICLE IV
REGISTRATION RIGHTS
4.1 Demand Registrations. Subject to the terms and conditions hereof, at any time after the expiration of the Restricted Period, if any Shareholder or Shareholders who beneficially own in the aggregate Registrable Securities representing not less than 20% of the then outstanding Common Stock request in writing a Demand Registration, which request specifies the number of Registrable Securities requested to be registered, then within ten (10) days after receipt of any such request, the Company shall give written notice of such requested Demand Registration to all other Shareholders who are record holders of Registrable Securities and shall include in the Demand Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the date of mailing of the Company’s notice.
(a) Shareholders shall be entitled to not more than three (3) Demand Registrations, in the aggregate. Subject to the limitations set forth in this
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Section 4.1(a) and in Section 4.1(c), no more than one Demand Registration may be requested in any six-month period. The Company shall pay all Registration Expenses (as defined in Section 4.5) in connection with each Demand Registration. No request for a Demand Registration shall be permitted unless the Registrable Securities sought to be included in such Demand Registration have an expected market value of at least $50 million. A Registration shall not count as a Demand Registration until it has become effective, and any Registration shall not count as a Demand Registration unless the initiating Shareholder or Shareholders and other Shareholders are able to register and sell at least 50% of the Registrable Securities requested to be included in such Registration.
(b) If the investment banker(s) or manager(s) of an offering pursuant to a Demand Registration advise the Company in writing that in their opinion the number of Registrable Securities and other securities requested to be included in such offering, exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering and/or that the number of shares of Registrable Securities proposed to be included in such offering would adversely affect the price per share of the Common Stock, the Company shall include in the Registration, prior to the inclusion of any securities which are not Registrable Securities, the number of Registrable Securities requested to be included which, in the opinion of the underwriters, can be so sold, pro rata (or as may have otherwise been agreed among the Shareholders of Registrable Securities to be included in such Registration) among the respective Shareholders thereof on the basis of the amount of Registrable Securities requested to be registered by each such Shareholder; provided that if the number of Registrable Securities to be included in the Registration is less than 75% of the aggregate number requested to be so included, the Shareholders of Registrable Securities covered by such Demand Registration shall be entitled to withdraw such request, upon the affirmative vote of Shareholders holding at least 66% of such Registrable Securities, and, if such request is withdrawn, the Demand Registration shall not count as a permitted Demand Registration hereunder, and the Company shall pay all Registration Expenses in connection with the withdrawn Registration. Any Persons who participate in Demand Registrations not at the Company’s expense must pay their share of the Registration Expenses as provided in Section 4.5.
(c) The Company shall not be obligated to effect any Demand Registration within six months after the effective date of a Registration in which the Shareholders were given Piggyback Registration (as defined in Section 4.2) rights pursuant to Section 4.2. The Company may, not more than twice in any 12-month period, postpone for up to 90 days the filing or the effectiveness of a registration statement for a Demand Registration if the Board determines in good faith that (i) such postponement is necessary in order to avoid premature disclosure of a matter the Board has determined would not be in the best interest of the Company to be disclosed at such time, (ii) the Demand Registration would materially and adversely impact the Company or (iii) the Demand Registration would adversely affect the price per share of the Common Stock; provided, that in such event, the Shareholders of Registrable Securities covered by the Demand Registration shall be entitled, upon the affirmative vote of holders holding at least 66% of such Registrable Securities, to withdraw such request and, if such request is withdrawn, the Demand Registration shall not count as a permitted
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Demand Registration hereunder, and the Company shall pay all Registration Expenses in connection with the withdrawn Registration; provided further, that upon the election of the Company and upon notice to the Shareholders of Registrable Securities to be included in such Registration, one such postponement may be extended to not more than 120 days at the sole discretion of the Company. In addition, if any request for a Demand Registration is delivered at a time when the Company is planning to file a registration statement with respect to an underwritten primary offering of Common Stock, the Company may require the Shareholders to postpone a request for Demand Registration until the expiration of the 180-day period following the effective date of such registration.
(d) In connection with a Demand Registration, the Company shall select the investment banker(s) and manager(s) to administer the offering.
4.2 Piggyback Registrations. Subject to the terms and conditions hereof, at any time after the Restricted Period whenever the Company proposes to register (including for this purpose a Registration effected by the Company for shareholders other than Shareholders) any of its securities under the Securities Act (other than (i) a Registration under Section 4.1 hereof, (ii) a Registration of securities solely relating to an offering and sale pursuant to any employee stock plan or other employee benefit plan arrangement, including any registration on Form S-8 (or any successor form thereto), or (iii) a Registration of securities issued in an acquisition or business combination including any Registration on Form S-4 (or any successor form thereto) (a “Piggyback Registration”), the Company shall give at least 20 days’ written notice of the Company’s intention to effect such a Registration to all Shareholders of record of Registrable Securities and shall include in the Registration, subject to any agreement among the Shareholders to be included in such Registration, all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 10 days after the receipt of the Company’s notice.
(a) The Registration Expenses of the Shareholders shall be paid by the Company in all Piggyback Registrations.
(b) If a Piggyback Registration is a primary Registration on behalf of the Company and the investment banker(s) or manager(s) of such offering advise the Company in writing that in their opinion the number of securities requested to be included in such Registration exceeds the number which can be sold in an orderly manner in such offering and/or that the number of securities proposed to be included in such offering would adversely affect the price per share of the Common Stock, the Company shall include in the Registration (i) first, the securities the Company proposes to sell, and (ii) second, the Registrable Securities requested to be included in the Registration pro rata among the Shareholders on the basis of the number of shares proposed to be registered by each or as such Shareholders may otherwise agree, and (iii) third, other securities requested to be included in the Registration pro rata among the holders of such other securities on the basis of the number of shares requested to be registered by each such holder or as such holders may otherwise agree.
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(c) If a Piggyback Registration is a secondary Registration on behalf of holders of the Company’s securities other than Registrable Securities and the investment banker(s) or manager(s) of such offering advise the Company in writing that, in their opinion, the number of securities requested to be included in the Registration exceeds the number which can be sold in an orderly manner in such offering and/or that the number of securities proposed to be included in such offering would adversely affect the price per share of the Common Stock, the Company shall include in the Registration (i) first, the securities requested to be included therein by the holders requesting such Registration pro rata among the holders of such other securities on the basis of the number of shares requested to be registered by each such holder or as such holders may otherwise agree, (ii) second, the Registrable Securities requested to be included in such Registration pro rata among the Shareholders on the basis of the number of shares proposed to be registered by each or as such Shareholders may otherwise agree, and (iii) third, other securities requested to be included in the Registration pro rata among the holders of such other securities on the basis of the number of shares requested to be registered by each such holder or as such holders may otherwise agree.
(d) In connection with a Piggyback Registration, the Company shall select the investment banker(s) and manager(s) to administer the offering, if applicable.
4.3 Lock-up Agreement. Each Shareholder agrees not to effect any sale, distribution or other transfer (including sales pursuant to Rule 144) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during a period of up to 180 days (as may be requested by the Company or the managing underwriters) following any underwritten, registered public offering of Common Stock, beginning on the effective date of such underwritten, registered offering (except for sales of such securities as part of such underwritten, registered offering) whether or not the Shareholder sold shares in such offering, unless the managing underwriters otherwise agree; provided, that all directors and executive officers of the Company likewise agree not to effect any sale, distribution or other transfer (including sales pursuant to Rule 144) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during the same period.
4.4 Registration Procedures. Whenever the Shareholders have requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its best efforts to effect the Registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) Prepare and, in the case of a Demand Registration, no later than 60 days after a request for a Demand Registration, file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause the registration statement to become effective and remain effective until the earlier of (i) the date when all Registrable Securities covered by the registration statement have been sold or (ii) 120 days from the effective date of the registration statement;
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provided, that before filing a registration statement or Prospectus or any amendments or supplements thereto, furnish to the Shareholders of Registrable Securities covered by such registration statement and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by such Shareholders, the exhibits incorporated by reference, and such Shareholders shall have the opportunity to object to any information pertaining to such Shareholders that is contained therein and the Company will make the corrections reasonably requested by such Shareholders with respect to such information prior to filing any registration statement or amendment thereto or any Prospectus or any supplement thereto; provided further, that the period for the preparation and filing of a Demand Registration shall be 120 days if a request for a Demand Registration is made in the first 45 days of any year;
(b) Prepare and file with the Commission such amendments and supplements to the registration statement and the Prospectus used in connection therewith as may be necessary to keep the registration statement effective for the period referred to in Section 4.4(a) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the registration statement during such period in accordance with the intended methods of disposition by the sellers thereof as set forth in the registration statement;
(c) Furnish to each seller of Registrable Securities such number of copies of the registration statement, each amendment and supplement thereto, the Prospectus included in the registration statement (including each preliminary prospectus) and such other documents as such Shareholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Shareholder;
(d) Use commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any Shareholder thereof reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such Shareholder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Shareholder; provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction;
(e) Notify each such Shareholder, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such Shareholder, the Company shall prepare a supplement or amendment to the Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
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(f) Promptly notify each seller of Registrable Securities and the underwriter or underwriters, if any: (i) when the registration statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the registration statement has been filed and, with respect to the registration statement or any post-effective amendment, when the same has become effective, (ii) of any written request by the Commission for amendments or supplements to the registration statement or Prospectus, (iii) of the notification to the Company by the Commission of its initiation of any proceeding with respect to the issuance by the Commission of any stop order suspending the effectiveness of the registration statement, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction and (v) of any other material written communication from the Commission relating to the registration statement or the Prospectus.
(g) Cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(h) Make available, for inspection by any seller of Registrable Securities and any attorney, accountant or other agent retained by any such seller all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, attorney, accountant or agent in connection with such registration statement;
(i) Make available to its security holders, as soon as reasonably practicable, an earning statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earning statement shall satisfy the provisions of Section 1l(a) of the Securities Act and Rule 158 thereunder;
(j) In connection with an underwritten offering, cause to be delivered to each underwriter immediately prior to the effectiveness of the registration statement and at the time of delivery of any Registrable Securities sold pursuant thereto, letters from the Company’s independent certified public accountants addressed to each underwriter in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with primary or secondary underwritten public offerings, as the case may be; and
(k) In connection with an underwritten offering, (i) make such representations and warranties to the underwriters with respect to the Registrable Securities and the registration statement as are customarily made by issuers to underwriters in primary or secondary underwritten offerings, (ii) obtain opinions of counsel to the Company and updates thereof addressed to the underwriters covering the matters customarily covered in opinions requested in primary or secondary underwritten offerings and (iii) make available, on a reasonable basis, senior management personnel of the Company to participate in, and cause them to cooperate with the selling Shareholders
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or the managing underwriter in any underwritten offering in connection with a “road show” and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in the underwritten offering.
4.5 Registration Expenses. All expenses incident to the Company’s performance of or compliance with this Agreement, including without limitation, all Registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for the Company and all independent certified public accountants, underwriters (excluding discounts and commissions and transfer taxes, if any, attributable to the sale of Registrable Securities) and other Persons retained by the Company (all such expenses being herein called “Registration Expenses”), shall be borne by the Company, and the Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed.
(a) In connection with each Registration, the Company shall reimburse the Shareholders covered by such Registration for the reasonable fees and expenses of one legal counsel chosen by the Shareholders of a majority of the Registrable Securities covered by such Registration.
(b) To the extent registration expenses are not required to be paid by the Company, each Shareholder of securities included in any Registration hereunder shall pay those registration expenses allocable to the registration of such Shareholder’s securities so included, and any registration expenses not so allocable shall be borne by all sellers of securities included in the Registration in proportion to the aggregate selling price of the securities to be so registered.
4.6 Indemnification. The Company shall indemnify, to the fullest extent permitted by law, each Shareholder, its officers, directors and Affiliates and each Person who controls such Shareholder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in any registration statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or any violation or alleged violation by the Company of the Securities Act, the Exchange Act or applicable blue sky laws, except insofar as the same are made in reliance and in conformity with information relating to such Shareholder furnished in writing to the Company by such Shareholder expressly for use therein or caused by such Shareholder’s failure to deliver to such Shareholder’s immediate purchaser a copy of the registration statement or Prospectus or any amendments or supplements thereto (if the same was required by applicable law to be so delivered) after the Company has furnished such Shareholder with a sufficient number of copies of the same. In connection with an underwritten offering, the Company shall
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indemnify such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Shareholders.
(a) In connection with any registration statement in which a Shareholder is participating, each such Shareholder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or Prospectus and shall indemnify, to the fullest extent permitted by law, the Company, its officers, directors and Affiliates, and each Person who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in the registration statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to such Shareholder furnished in writing to the Company by such Shareholder expressly for use therein or caused by such Shareholder’s failure to deliver to such Shareholder’s immediate purchaser a copy of the registration statement or Prospectus or any amendments or supplements thereto (if the same was required by applicable law to be so delivered) after the Company has furnished such Shareholder with a sufficient number of copies of the same; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Shareholders and the liability of each such Shareholder shall be in proportion to and limited to the net amount received by such Shareholder from the sale of Registrable Securities pursuant to such registration statement.
(b) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party which are in addition to or may conflict with those available to another indemnified party with respect to such claim. Failure to give prompt written notice shall not release the indemnifying party from its obligations hereunder.
(c) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities.
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(d) If the indemnification provided for in or pursuant to this Section 4.6 is due in accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in respect of any losses, claims, damages, liabilities or expenses referred to herein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified Person as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions which result in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative fault of the indemnifying party on the one hand and of the indemnified Person on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, and by such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. In no event shall the liability of any selling Shareholder be greater in amount than the amount of net proceeds received by such Shareholder upon such sale or the amount for which such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for under this Section 4.6 had been available under the circumstances.
4.7 Participation in Underwritten Registrations. No Person may participate in any Registration hereunder which is underwritten or a block trade unless such Person (a) agrees to sell such Person’s securities on the basis provided in any arrangements approved by the Company and (b) completes and executes all customary questionnaires, powers of attorney, indemnities, underwriting agreements and other customary documents required under the terms of such arrangements.
4.8 Transfer of Registration Rights. Subject to the transfer restrictions set forth in Section 3.2 and provided that the Company is given prompt written notice thereof, the rights of a Shareholder under this Article IV may be transferred in whole or in part at any time to any transferee of Registrable Securities representing 5% or more of the outstanding Common Stock provided (a) such transferee agrees in writing to be bound by the terms and conditions of this Article IV and Article V (any such transferee to be a “Shareholder” for purposes of this Article IV and Article V upon execution and delivery of such written agreement) and (b) such transfer of securities is in accordance with all applicable state and federal securities laws and regulations. The Company shall be responsible for the Registration Expenses of any transferee or assignee pursuant to this Section 4.8 to the same extent as the original transferor.
4.9 Information. Each Shareholder shall report to the Company sales made pursuant to any Registration of such Registrable Securities.
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ARTICLE V
MISCELLANEOUS
5.1 Termination. Notwithstanding any other provision of this Agreement, this Agreement shall terminate with respect to a Shareholder on the date that such Shareholder and its Affiliates beneficially own less than 5% of the outstanding Common Stock of the Company; provided that the indemnification and contribution provisions set forth in Section 4.6 shall survive any termination of this Agreement.
5.2 Notices. Any notice required or permitted to be given pursuant to this Agreement shall be in writing signed by the party giving such notice and shall, to the extent reasonably practicable, be sent by telecopy (with confirmation of receipt), and if not reasonably practicable to send by telecopy, then by hand delivery, overnight courier or certified mail (return receipt requested), to the other parties at the addresses set forth below:
If to the Company:
US BioEnergy Corporation
0000 Xxxxx Xxxxx
Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
If to a Shareholder, to the address set forth on the signature page hereto (or any document evidencing the joinder of such Shareholder to this Agreement).
Each party may change the place to which notice shall be sent or delivered or specify one additional address to which copies of notices may be sent, in either case by similar notice sent or delivered in like manner to the other parties. Without limiting any other means by which a party may be able to prove that a notice has been received by the other party, a notice shall be deemed to be duly received: (a) if sent by hand or overnight courier, the date when duly delivered at the address of the recipient; (b) if sent by certified mail, the date of the return receipt; or (c) if sent by telecopy, upon receipt by the sender of an acknowledgment or transmission report generated by the machine from which the telecopy was sent indicating that the telecopy was sent in its entirety to the recipient’s telecopy number.
5.3 Captions. Titles or captions of Sections or Articles contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
5.4 Amendment. The provisions of this Agreement, including the provisions of this sentence, may not be amended or modified in a manner adverse to the rights, interests or obligations of the Shareholders hereunder without the written consent of Shareholders who beneficially own a majority of the Registrable Securities; provided, that without a Shareholder’s written consent no such amendment or modification shall affect adversely such Shareholder’s rights, interests or obligations hereunder in a discriminatory manner inconsistent with its adverse effects on other Shareholders (other
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than as reflected by the different number of shares held by such Shareholder); provided, further, that the written consent of the Company shall be required for any amendment or modification of this Agreement.
5.5 Waiver. Any waiver of any term or condition must be in writing and shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or as a waiver of any other term or condition, of this Agreement. The failure of any party to assert any of its rights hereunder shall not constitute a waiver of any of such rights.
5.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument.
5.7 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns; provided that except as otherwise specifically provided for in Section 4.8, no Shareholder may assign any of its rights or interests hereunder without the prior written consent of the Company; provided further that no such assignment shall relieve such Shareholder from its obligations hereunder.
5.8 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, arrangements or understandings, whether oral or written, with respect to such subject matter, except that the Subscription Agreement, dated as of November 17, 2005, by and between CHS Inc. and the Company (including that certain waiver letter, dated as of July 26, 2006, related thereto, which shall continue until such agreement terminates in accordance with its terms). To the extent the terms of such agreement are or are deemed to be inconsistent with the terms of this Agreement, the terms of this Agreement shall apply. Without limiting the generality of the foregoing, this Agreement supersedes that certain Registration Rights Agreement, dated as of April 28, 2006, by and between Platte Valley Energy, LLC and the Company, which is hereby terminated as of the date hereof.
5.9 Third Parties. Except as specifically set forth herein, nothing herein expressed or implied is intended or shall be construed to confer upon or give to any Person other than the parties hereto and their permitted successors or assigns, any rights or remedies under or by reason of this Agreement.
5.10 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law or rule in any jurisdiction, in any respect, such invalidity shall not affect the validity, legality and enforceability of any other provision or any other jurisdiction and, the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby, all of which shall remain in full force and effect, and the affected term
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or provision shall be modified to the minimum extent permitted by law so as to achieve most fully the intention of this Agreement.
5.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
5.12 Consent to Jurisdiction. Without limiting the provisions of Section 4.6, each of the parties hereto hereby agrees that any proceeding relating to this Agreement shall be brought in a federal or state court in South Dakota. Each of the parties further consents to personal jurisdiction in any such action brought in any such court, consents to service of process by registered mail made upon such party and such party’s agent and waives any objection to venue in any such court or to any claim that any such court is an inconvenient forum.
5.13 Specific Performance. Each Shareholder recognizes and acknowledges that a breach by such Shareholder of any covenants or agreements contained in this Agreement will cause the Company to sustain injury for which it would not have an adequate remedy at law for money damages. Therefore, each Shareholder agrees that in the event of any such breach, the Company shall be entitled to the remedy of specific performance of such covenants and agreements and preliminary and permanent injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity, and each Shareholder further agrees to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief.
5.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES (TO THE FULLEST EXTENT PERMITTED BY LAW) ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
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US BIOENERGY CORPORATION |
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/s/ Xxxxxxx X. Xxxxxxxx |
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Title: Vice Presient, General Counsel |
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CHS INC. |
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/s/ Xxx X. Xxxxxxxx |
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Title: Executive Vice President/COO |
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Address: |
0000 Xxxxx Xxxxx |
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XXXXXX “XXX” XXXXX |
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/s/ Xxxxxx “Xxx” Xxxxx |
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Xxxxxx “Xxx” Xxxxx |
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XXXXXX VALLEY ENERGY, LLC |
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By: |
/s/ Xxxxxx “Xxx” Xxxxx |
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Title: President |
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Address:
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GLOBAL ETHANOL, INC. |
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By: |
/s/ Xxxxxx “Xxx” Xxxxx |
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Title: President |
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Address:
X.X. Xxx 000 |
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CAPITALINE RENEWABLE |
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ENERGY II, LP |
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its general partner |
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By: |
/s/ Xxxx X. Xxxxx |
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Title: Vice President |
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Address:
000 Xxxx Xxx. |
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CAPITALINE RENEWABLE |
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ENERGY III, LP |
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Capitaline General Partner, LLC, |
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its general partner |
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By: |
/s/ Xxxx X. Xxxxx |
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Title: Vice President |
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Address:
000 Xxxx Xxx. |
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BIRDDOG CAPITAL, LLC |
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Xxxxxx X. Xxxxx, its sole member |
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/s/ Xxxxxx X. Xxxxx |
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(Signature Page to Shareholders' Agreement)
