EXHIBIT 3.3
EXECUTION COPY
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
VERASUN ENERGY CORPORATION
The following amendments to and restatement of the corporation's Articles
of Incorporation, as amended, were adopted by the corporation in the manner
prescribed by SDCL 47-2-20 to 47-2-22 as of November 5, 2002.
FIRST
The name of the corporation shall be:
VERASUN ENERGY CORPORATION
SECOND
The period of existence shall be perpetual.
THIRD
The nature of the business of this corporation and the objects and purposes
proposed to be transacted, promoted and carried on by it are as follows:
A. To conduct all activities authorized by law and specifically to develop
and thereafter own and operate sources of energy production and development and
to conduct such other activities as may be connected therewith, and such other
business or activities as shall be considered desirable by the Board of
Directors;
B. To own and dispose of real and personal property necessary or
appropriate for the carrying on of the business of this corporation;
C. To borrow money within such limitations as shall be determined by the
Board of Directors and to mortgage or pledge real or personal property of the
corporation in order to secure such loans or obligations; and
D. To do each and every other act necessary to carry out the purposes and
objectives as stated herein and exercise all powers conferred by the laws of the
State of South Dakota on corporations as provided by the South Dakota Business
Corporation Act or any amendments thereto.
FOURTH
A. This corporation is authorized to issue shares of two classes of stock:
35,000,000 shares of Common Stock with a par value of $0.01 per share, and
30,000,000 shares of Preferred Stock with a par value of $0.01 per share.
B. Holders of Common Stock are entitled to one vote per share on any matter
submitted to the shareholders. When dividends or other distributions are
declared by the Board of Directors of the corporation, after any preferential
amount with respect to the Preferred Stock has been paid or set aside, the
holders of the Common Stock and the holders of any series of Preferred Stock
entitled to participate in the dividend or other distribution are entitled to
receive the remainder of the declared dividends or other distributions. Upon
liquidation, dissolution or winding up of the corporation, after any
preferential amount with respect to the Preferred Stock has been paid or set
aside, the holders of Common Stock are entitled to receive the net assets of the
corporation in the manner provided in Section D.2(b) of this Article.
C. The Board of Directors is authorized, subject to limitations prescribed
by the South Dakota Codified Laws, as amended from time to time (the "SDCL"),
and by the provisions of this Article, to provide for the issuance of shares of
Preferred Stock in series, to establish from time to time the number of shares
to be included in each series and to determine the designations, relative
rights, preferences and limitations of the shares of each series. The authority
of the Board of Directors with respect to each series includes determination of
the following:
1. The number of shares in and the distinguishing designation of that
series;
2. Whether shares of that series shall have full, special,
conditional, limited or no voting rights, except to the extent otherwise
provided by the SDCL;
3. Whether shares of that series shall be convertible and the terms
and conditions of the conversion, including provision for adjustment of the
conversion rate in circumstances determined by the Board of Directors;
4. Whether shares of that series shall be redeemable and the terms and
conditions of redemption, including the date or dates upon or after which they
shall be redeemable and the amount per share payable in case of redemption,
which amount may vary under different conditions or at different redemption
dates;
5. The dividend rate, if any, on shares of that series, the manner of
calculating any dividends and the preferences of any dividends;
6. The rights of shares of that series in the event of voluntary or
involuntary dissolution of the corporation and the rights of priority of that
series relative to the Common Stock and any other series of Preferred Stock on
the distribution of assets on dissolution; and
7. Any other rights, preferences and limitations of that series that
are permitted by law to vary.
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D. The first series of Preferred Stock shall be designated "Series A
Convertible Preferred Stock" ("Series A Preferred") and shall consist of
17,315,000 shares. The rights, preferences, privileges, and limitations of the
Series A Preferred are as set forth below in this Section D. Numbered section
references are to sections of this Section D.
1. Dividends. The Series A Preferred shall not be entitled to any
dividends; provided, however, that if the Board of Directors declares any
dividend or other distribution with respect to the Common Stock, the holders of
the Series A Preferred shall be entitled to participate in any such declared
dividend or other distribution pro rata with the Common Stock on the basis of
the number of shares of Common Stock into which such Series A Preferred could
then be converted.
2. Liquidation.
(a) Preference. In the event of any liquidation, dissolution or
winding up of the corporation, either voluntary or involuntary, and subject to
the rights of any series of Preferred Stock which may from time to time come
into existence, the holders of Series A Preferred shall be entitled to receive,
prior and in preference to any distribution of any of the assets of the
corporation to the holders of Common Stock by reason of their ownership thereof,
an amount (the "Liquidation Preference") equal to $1.25 (as such amount may be
adjusted to account for stock splits, stock dividends, combinations or other
recapitalizations of the Series A Preferred) for each share of Series A
Preferred then held by them. If upon the occurrence of such event, the assets
and funds thus distributed among the holders of the Series A Preferred shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then the entire assets and funds of the corporation
legally available for distribution shall be distributed ratably among the
holders of the Series A Preferred in proportion to the Liquidation Preference
each such holder is otherwise entitled to receive.
(b) Upon the completion of the distribution required by Section
2(a) above, and subject to the rights of any series of Preferred Stock which may
from time to time come into existence, all of the remaining assets of this
corporation legally available for distribution shall be distributed ratably
among the holders of the Common Stock and the Series A Preferred in proportion
to the number of shares of Common Stock then held by them and the number of
shares of Common Stock which they then have the right to acquire upon conversion
of the shares of Series A Preferred then held by them.
(c) Deemed Liquidation.
(i) Deemed Liquidation. For purposes of Section 2(a), a
liquidation, dissolution or winding up of this corporation shall be deemed to
include any consolidation, merger or a statutory share exchange (other than a
merger with a wholly-owned subsidiary of the corporation or a consolidation,
merger, share exchange or other business combination in which the outstanding
voting stock of the corporation immediately prior to such consolidation, merger,
share exchange or business combination constitutes a majority of the voting
stock of the surviving entity) in which the outstanding shares of capital stock
of the corporation are exchanged for securities or other consideration of or
from another corporation, or a sale of all or substantially all the assets or
stock of the corporation; provided, however, that this Section 2(c) shall not
apply to (x) a merger effected solely for the purpose of changing the
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domicile of this corporation or (y) any transaction if at least two thirds (66
2/3%) of the outstanding shares of Series A Preferred agree not to give effect
to this Section 2(c).
(ii) Valuation of Consideration. In the event of a deemed
liquidation as described in Section 2(c)(i) above, if the consideration received
by the corporation is other than cash, its value will be deemed its fair market
value as determined in good faith by the Board of Directors.
(iii) Notice of Transaction. The corporation shall give each
holder of record of Series A Preferred written notice of any transaction
described in Section 2(c)(i) not later than twenty (20) days prior to the
shareholders' meeting called to approve such transaction, or twenty (20) days
prior to the closing of such transaction, whichever is earlier, and shall also
notify such holders in writing of the final approval of such transaction. The
first of such notices shall describe the material terms and conditions of the
transaction as they are known to management of the corporation and the
provisions of this Section 2, and the corporation shall thereafter give such
holders prompt notice of any material changes. The transaction shall in no event
take place sooner than twenty (20) days after the corporation has given the
first notice provided for herein or sooner than ten (10) days after the
corporation has given notice of any material changes provided for herein;
provided, however, that such periods may be shortened upon the written consent
of the holders of Series A Preferred that are entitled to such notice rights or
similar notice rights and that represent at least a majority of the voting power
of all then outstanding shares of such Series A Preferred.
3. Conversion. The holders of the Series A Preferred shall have
conversion rights and shall be subject to conversion obligations as follows (the
"Series A Conversion Rights"):
(a) Right to Convert. Subject to Section 3(b), each share of
Series A Preferred shall be convertible, at the option of the holder thereof, at
any time after the date of issuance of such share, at the office of the
corporation or any transfer agent for such stock, into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing the Series
A Original Issue Price (as defined below) by the Series A Conversion Price (as
defined below) applicable to such share, determined as hereafter provided, in
effect on the date the applicable Series A Preferred certificate is surrendered
for conversion. The initial Series A Conversion Price per share for shares of
Series A Preferred shall be $1.00 (as such amount may be adjusted to account for
stock splits, stock dividends, combinations or other recapitalizations of the
Series A Preferred, the "Series A Original Issue Price"); provided, however,
that the Series A Conversion Price for the Series A Preferred shall be subject
to adjustment as set forth in Section 3(d).
(b) Mechanics of Voluntary Conversion. Before any holder of
Series A Preferred shall be entitled to convert the same into shares of Common
Stock, such holder shall surrender the certificate or certificates therefor,
duly endorsed, at the office of the corporation or of any transfer agent for the
Series A Preferred, and shall give written notice to the corporation at its
principal corporate office, of the election to convert the same and shall state
therein the name or names in which the certificate or certificates for shares of
Common Stock are to be issued. The corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Series A
Preferred, or to the nominee or nominees of such holder, a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled as
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aforesaid. Such conversion shall be deemed to have been made immediately prior
to the close of business on the date of such surrender of the shares of Series A
Preferred to be converted, and the person or persons entitled to receive the
shares of Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock as of
such date. If the conversion is in connection with an underwritten offering of
securities registered pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), the conversion may, at the option of any holder tendering
Series A Preferred for conversion, be conditioned upon the closing with the
underwriters of the sale of securities pursuant to such offering, in which event
the person(s) entitled to receive the Common Stock upon conversion of the Series
A Preferred shall not be deemed to have converted such Series A Preferred until
immediately prior to the closing of such sale of securities.
(c) Automatic Conversion.
(i) Each share of Series A Preferred shall be converted
automatically into shares of Common Stock immediately upon the earlier of (A)
the conversion date specified by written consent or agreement to convert of the
holders of at least two thirds (66 2/3%) of the then outstanding shares of
Series A Preferred, or (B) the closing of the corporation's sale of its capital
stock in an initial public offering pursuant to an effective registration
statement under the Securities Act which resulted in aggregate gross proceeds to
the corporation of at least $10,000,000 and had a price to the public of at
least $4.00 per share (an "IPO"). Such conversion shall be deemed to have been
made immediately prior to the effective date of such written consent or
agreement or the closing of the sale and issuance of securities pursuant to the
IPO, and the person or persons entitled to receive the shares of Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such shares of Common Stock on such date.
(ii) In connection with any conversion of shares of Series A
Preferred pursuant to Section 3(c)(i)(A), each holder of Series A Preferred
shall receive a number of shares of Common Stock equal to (A) the aggregate
Liquidation Preference of such holder's shares of Series A Preferred (the
"Aggregate Liquidation Preference"), divided by the Series A Conversion Price at
the time in effect, plus (B) the number of shares determined by dividing (x) the
Aggregate Liquidation Preference by (y) the per share value of the Common Stock
as determined in good faith by the Board of Directors. In connection with any
conversion of shares of Series A Preferred pursuant to Section 3(c)(i)(B), each
holder of Series A Preferred shall receive a number of shares of Common Stock
equal to (A) the number of shares determined in accordance with clause (A) of
the first sentence of this Section 3(c)(ii), plus (B) the number of shares
determined by dividing (x) the Aggregate Liquidation Preference by (y) the
public offering price per share of capital stock issued and sold in the IPO.
(d) Series A Conversion Price Adjustments for Certain Dilutive
Issuances, Splits and Combinations. The Series A Conversion Price shall be
subject to adjustment from time to time as follows:
(i) Stock Issuances.
(A) Adjustment Formula. If the corporation shall issue,
after the date upon which any shares of Series A Preferred were first issued
(the "Series A
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Purchase Date"), any Additional Stock (as defined below) without consideration
or for a consideration per share less than the Series A Conversion Price in
effect immediately prior to the issuance of such Additional Stock, the Series A
Conversion Price in effect immediately prior to each such issuance shall
concurrently with such issue (except as otherwise provided in this Section
3(d)(i)) be adjusted by multiplying such Series A Conversion Price by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance (the "Outstanding Common") plus
the number of shares of Common Stock that the aggregate consideration received
by the corporation for such issuance would purchase at the Series A Conversion
Price in effect immediately prior to such issuance; and the denominator of which
shall be the number of shares of Outstanding Common plus the number of shares of
such Additional Stock. For purposes of the foregoing calculation, the term
"Outstanding Common" shall include shares of Common Stock deemed issued pursuant
to Section 3(d)(i)(E) below, but shall not include shares owned or held by or
for the account of the corporation.
(B) Definition of "Additional Stock." For purposes of
this Section 3(d)(i), "Additional Stock" shall mean any shares of Common Stock
issued (or deemed to have been issued pursuant to Section 3(d)(i)(E)) by this
corporation after the Series A Purchase Date other than:
(1) shares of Common Stock issued pursuant to a
transaction described in Section 3(d)(ii) hereof;
(2) shares of Common Stock issued or issuable to
employees, consultants or directors of this corporation pursuant to a stock
option plan, stock purchase plan or other equity incentive plan or agreement, in
each case as approved by the Board of Directors of the corporation;
(3) shares of Common Stock issued or issuable in
an initial public offering in connection with which all outstanding shares of
Preferred Stock will be converted to Common Stock;
(4) shares of Common Stock issued or issuable upon
conversion of the Series A Preferred or as dividends or distributions on the
Preferred Stock;
(5) shares of capital stock, or options or
warrants to purchase capital stock, issued to financial institutions or
equipment lessors in connection with commercial credit arrangements, equipment
financings or similar transactions in each case as approved by the Board of
Directors of the corporation;
(6) shares of capital stock, or options or
warrants to purchase capital stock, issued in connection with acquisitions,
business combinations, licensing transactions or other strategic alliances,
including corporate partnering agreements, in each case as approved by the Board
of Directors of the corporation;
(7) shares of capital stock, or options or
warrants to purchase capital stock, the issuance of which has been approved in
writing by the holders of at least two thirds (66 2/3%) of the then outstanding
shares of Series A Preferred;
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(8) shares of Common Stock issued or issuable upon
exercise of the warrants outstanding on the effective date of these Second
Amended and Restated Articles of Incorporation and covering an aggregate of
2,150,315 shares (subject to adjustment as provided therein);
(9) an aggregate of 1,180,000 shares of Common
Stock (subject to adjustment as provided in the instrument relating to the
issuance of such shares) issued or issuable as payment of interest on the
corporation's subordinated notes or pursuant to warrants issued to the holders
of the subordinated notes;
(10) the issuance of shares of Common Stock to the
general contractor for the corporation's plant in an amount equal to any excess
over the guaranteed maximum price provided for in the corporation's agreements
with such general contractor; and
(11) the resale of up to 3,000,000 shares of
Series A Preferred reacquired by the corporation.
(C) Fractional Adjustments. No adjustment of the Series
A Conversion Price shall be made in an amount less than one cent per share,
provided that any adjustments that are not required to be made by reason of this
sentence shall be carried forward and shall be either taken into account in any
subsequent adjustment made prior to three years from the date of the event
giving rise to the adjustment being carried forward, or shall be made at the end
of three years from the date of the event giving rise to the adjustment being
carried forward.
(D) Determination of Consideration. In the case of the
issuance of Common Stock for cash, the consideration shall be deemed to be the
amount of cash paid therefor before deducting any reasonable discounts,
commissions or other expenses allowed, paid or incurred by the corporation for
any underwriting or otherwise in connection with the issuance and sale thereof.
In the case of the issuance of the Common Stock for a consideration in whole or
in part other than cash, the consideration other than cash shall be deemed to be
the fair value thereof as determined by the Board of Directors irrespective of
any accounting treatment.
(E) Deemed Issuance of Common Stock. In the case of the
issuance (whether before, on or after the Series A Purchase Date) of options to
purchase or rights to subscribe for Common Stock, securities by their terms
convertible into or exchangeable for Common Stock or options to purchase or
rights to subscribe for such convertible or exchangeable securities, the
following provisions shall apply for all purposes of this Section 3(d)(i):
(1) The aggregate maximum determinable number of
shares of Common Stock deliverable upon exercise (assuming the satisfaction of
any conditions to exercisability, including, without limitation, the passage of
time, but without taking into account potential antidilution adjustments) of
such options to purchase or rights to subscribe for Common Stock shall be deemed
to have been issued at the time such options or rights were issued and for a
consideration equal to the consideration (determined in the manner provided in
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Section 3(d)(i)(D)), if any, received by the corporation upon the issuance of
such options or rights plus the minimum exercise price provided in such options
or rights (without taking into account potential antidilution adjustments) for
the Common Stock covered thereby.
(2) The aggregate maximum number of shares of
Common Stock deliverable upon conversion of, or in exchange (assuming the
satisfaction of any conditions to convertibility or exchangeability, including,
without limitation, the passage of time, but without taking into account
potential antidilution adjustments) for, any such convertible or exchangeable
securities or upon the exercise of options to purchase or rights to subscribe
for such convertible or exchangeable securities and subsequent conversion or
exchange thereof shall be deemed to have been issued at the time such securities
were issued or such options or rights were issued and for a consideration equal
to the consideration, if any, received by the corporation for any such
securities and related options or rights (excluding any cash received on account
of accrued interest or accrued dividends), plus the minimum additional
consideration, if any, to be received by the corporation (without taking into
account potential antidilution adjustments) upon the conversion or exchange of
such securities or the exercise of any related options or rights (the
consideration in each case to be determined in the manner provided in Section
3(d)(i)(D)).
(3) In the event of any change in the number of
shares of Common Stock deliverable or in the consideration payable to the
corporation upon exercise of such options or rights or upon conversion of or in
exchange for such convertible or exchangeable securities, including, but not
limited to, a change resulting from the antidilution provisions thereof, the
Series A Conversion Price, to the extent in any way affected by or computed
using such options, rights or securities, shall be recomputed to reflect such
change, but no further adjustment shall be made for the actual issuance of
Common Stock or any payment of such consideration upon the exercise of any such
options or rights or the conversion or exchange of such securities.
(4) Upon the expiration of any such options or
rights, the termination of any such rights to convert or exchange or the
expiration of any options or rights related to such convertible or exchangeable
securities, the Series A Conversion Price, to the extent in any way affected by
or computed using such options, rights or securities or options or rights
related to such securities, shall be recomputed to reflect the issuance of only
the number of shares of Common Stock (and convertible or exchangeable securities
that remain in effect) actually issued upon the exercise of such options or
rights, upon the conversion or exchange of such securities or upon the exercise
of the options or rights related to such securities.
(5) The number of shares of Common Stock deemed
issued and the consideration deemed paid therefor pursuant to Sections
3(d)(i)(E)(1) and 3(d)(i)(E)(2) shall be appropriately adjusted to reflect any
change, termination or expiration of the type described in either Section
3(d)(i)(E)(3) or 3(d)(i)(E)(4).
(F) No Increased Conversion Price. Notwithstanding any
other provisions of this Section 3(d)(i), except to the limited extent provided
for in Sections 3(d)(i)(E)(3) and (3)(d)(i)(E)(4), no adjustment of the Series A
Conversion Price pursuant to this Section 3(d)(i) shall have the effect of
increasing the Series A Conversion Price above the Series A Conversion Price in
effect immediately prior to such adjustment.
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(ii) Stock Splits and Dividends. In the event the
corporation should at any time or from time to time after the Series A Purchase
Date, fix a record date for the effectuation of a split or subdivision of the
outstanding shares of Common Stock or the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in additional
shares of Common Stock or other securities or rights convertible into, or
entitling the holder thereof to receive directly or indirectly, additional
shares of Common Stock (hereinafter referred to as "Common Stock Equivalents")
without payment of any consideration by such holder for the additional shares of
Common Stock or the Common Stock Equivalents (including the additional shares of
Common Stock issuable upon conversion or exercise thereof), then, as of such
record date (or the date of such dividend distribution, split or subdivision if
no record date is fixed), the Series A Conversion Price shall be appropriately
decreased so that the number of shares of Common Stock issuable on conversion of
each share of Series A Preferred shall be increased in proportion to such
increase of the aggregate of shares of Common Stock outstanding and those
issuable with respect to such Common Stock Equivalents determined from time to
time in the manner provided for deemed issuances in Section 3(d)(i)(E).
(iii) Reverse Stock Splits. If the number of shares of
Common Stock outstanding at any time after the Series A Purchase Date is
decreased by a combination of the outstanding shares of Common Stock, then, as
of the record date of such combination, the Series A Conversion Price shall be
appropriately increased so that the number of shares of Common Stock issuable on
conversion of each share of such series shall be decreased in proportion to such
decrease in outstanding shares.
(e) Adjustments for Other Distributions. If the corporation shall
declare a distribution payable in securities of other persons, evidences of
indebtedness issued by the corporation or other persons, assets (excluding cash
dividends) or options or rights not referred to in Section 3(d)(ii), then, and
in each such event, the holders of Series A Preferred shall be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of shares of Common Stock of the corporation into which their shares
of Series A Preferred are convertible as of the record date fixed for the
determination of the holders of Common Stock of the corporation entitled to
receive such distribution.
(f) Recapitalizations. If at any time or from time to time the
Common Stock issuable upon conversion of the Series A Preferred shall be changed
into the same or a different number of shares of any other class or classes of
stock, whether by a recapitalization, reclassification, or otherwise (other than
a subdivision, combination or merger or sale of assets transaction provided for
elsewhere in this Section 3 or in Section 2) provision shall be made so that the
holders of the Series A Preferred shall thereafter be entitled to receive upon
conversion of the Series A Preferred the number of shares of stock or other
securities or property of the corporation or otherwise, to which a holder of
Common Stock deliverable upon conversion would have been entitled on such
recapitalization or reclassification. In any such case, appropriate adjustment
shall be made in the application of the provisions of this Section 3 with
respect to the rights of the holders of the Series A Preferred after the
recapitalization or reclassification to the end that the provisions of this
Section 3 (including adjustment of the Series A Conversion Price then in effect
and the number of shares purchasable upon conversion of the Series A Preferred)
shall be applicable after that event as nearly equivalent as may be practicable.
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(g) Reorganization, Mergers, Consolidations, or Sales of Assets.
Subject to Section 2(c), if at any time or from time to time there shall be a
capital reorganization of the Common Stock (other than a subdivision,
combination, reclassification, or exchange of shares provided for elsewhere in
this Section 3) or a merger or consolidation of the corporation with or into
another corporation or entity, or the sale of the business of the corporation
represented by all or substantially all of the corporation's properties and
assets to any other person, then, as a part of such reorganization, merger,
consolidation, or sale, provision shall be made so that the holders of the
Series A Preferred shall thereafter be entitled to receive upon conversion of
the Series A Preferred, the number of shares of stock or other securities or
property of the corporation (including cash), or of the successor or acquiring
corporation or entity resulting from such merger or consolidation or sale, to
which a holder of Common Stock deliverable upon conversion would have been
entitled on such capital reorganization, merger, consolidation, or sale. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this Section 3 with respect to the rights of the holders of the
Series A Preferred after the reorganization, merger, consolidation, or sale to
the end that the provisions of this Section 3 (including adjustment of the
Series A Conversion Price and the number of shares purchasable upon conversion
of the Series A Preferred) shall be applicable after that event as nearly
equivalent as may be practicable.
(h) No Impairment. The corporation shall not, by amendment of its
articles of incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
corporation, but will at all times in good faith assist in the carrying out of
all the provisions of this Section 3 and in the taking of all such action as may
be necessary or appropriate in order to protect the Series A Conversion Rights
of the holders of the Series A Preferred against impairment.
(i) No Fractional Shares and Certificate as to Adjustments.
(A) No fractional shares shall be issued upon the conversion
of any share or shares of the Series A Preferred, and the number of shares of
Common Stock to be issued shall be rounded to the nearest whole share (with
one-half being rounded upward). Whether or not fractional shares are issuable
upon such conversion shall be determined on the basis of the total number of
shares of Series A Preferred the holder is at the time converting into Common
Stock and the number of shares of Common Stock issuable upon such aggregate
conversion.
(B) Upon the occurrence of each adjustment or readjustment
of the Series A Conversion Price pursuant to this Section 3, the corporation, at
its expense, shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each holder of
Series A Preferred a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment is
based. The corporation shall, upon the written request at any time of any holder
of Series A Preferred, furnish or cause to be furnished to such holder a like
certificate setting forth (A) such adjustment and readjustment, (B) the Series A
Conversion Price at the time in effect, and (C) the number of shares of Common
Stock and the amount, if any, of other property that at the time would be
received upon the conversion of a share of Series A Preferred.
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(j) Notices of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, the corporation
shall mail to each holder of Series A Preferred, at least ten (10) days prior to
the date specified therein, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and the amount and character of such dividend, distribution or right.
(k) Reservation of Stock Issuable Upon Conversion. The
corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of the Series A Preferred, such number of its shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of the Series A Preferred; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series A
Preferred, in addition to such other remedies as shall be available to the
holder of such Preferred Stock, the corporation will take such corporate action
as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes, including, without limitation, engaging in best
efforts to obtain the requisite shareholder approval of any necessary amendment
to these Second Amended and Restated Articles of Incorporation.
(l) Notices. Any notice required by the provisions of this
Section 3 to be given to the holders of shares of Series A Preferred shall be
given in writing and shall be deemed effectively given upon personal delivery to
the party to be notified or upon delivery by confirmed facsimile transmission or
nationally recognized overnight courier service or three days after deposit with
the United States Post Office, by registered or certified mail, postage prepaid,
to the holders of the Series A Preferred at the address for each such holder as
shown on the books of the corporation.
4. Voting Rights. The holder of each share of Series A Preferred shall
have the right to one vote for each share of Common Stock into which such Series
A Preferred could then be converted, and with respect to such vote, such holder
shall have full voting rights and powers equal to the voting rights and powers
of the holders of Common Stock, and shall be entitled, notwithstanding any
provision hereof, to notice of any shareholders' meeting in accordance with the
bylaws of the corporation, and shall be entitled to vote, together with holders
of Common Stock, with respect to any question upon which holders of Common Stock
have the right to vote. Fractional votes shall not, however, be permitted and
any fractional voting rights available on an as-converted basis (after
aggregating all shares into which shares of Series A Preferred held by each
holder could be converted) shall be rounded to the nearest whole number (with
one-half being rounded upward).
5. Status of Converted Stock. If any shares of Series A Preferred
shall be converted pursuant to Section 3, the shares so converted shall be
canceled and shall not be issuable by the corporation. These Second Amended and
Restated Articles of Incorporation shall be appropriately amended to effect the
corresponding reduction in the corporation's authorized capital stock.
11
6. Acquisition and Resale of Stock. In addition to acquisitions
otherwise authorized under the laws and statutes of the State of South Dakota,
the corporation is authorized to repurchase or otherwise acquire up to 3,000,000
of the outstanding shares of Series A Preferred to the extent of the unreserved
and unrestricted capital surplus of the corporation, and such shares shall not
be required to be cancelled and may be disposed of by the corporation for such
consideration expressed in dollars as may be fixed from time to time by the
Board of Directors.
FIFTH
The corporation shall not, without the consent of the holders of at least
two-thirds (66 2/3%) of the total number of votes entitled to be cast by the
shares of the Common Stock and Preferred Stock then outstanding:
(1) amend, alter, change or repeal any of the rights, preferences or
privileges of the Series A Preferred so as to affect adversely such shares; or
(2) enter into any transaction for the merger or consolidation of the
corporation with or into any other entity, or for the sale of all or
substantially all of the assets of the corporation.
SIXTH
Except as may otherwise be expressly agreed by the corporation, holders of
Common Stock and Preferred Stock of the corporation shall have no preemptive
rights to purchase stock of the corporation or securities convertible into or
carrying a right to subscribe for or acquire stock of the corporation.
SEVENTH
The Board of Directors of this corporation shall have five (5) members; and
the names and addresses of the persons who shall serve as the initial Board of
Directors of this corporation are as follows:
Name Address
---- -------
Donald L. Endres 100 22nd Avenue, Suite 103
Brookings, SD 57006
Matthew K. R. Janes 100 22nd Avenue, Suite 103
Brookings, SD 57006
William L. Honnef 1595 Calle Aurora
Camarillo, CA 93010
T. Jack Huggins 1101 Fondulac Drive
East Peoria, IL 61611
Paul Schock 122 South Phillips Avenue, Suite 300
Sioux Falls, SD 57104
12
EIGHTH
The corporation shall not commence business until consideration of at least
$1,000.00 has been received for the issuance of shares.
NINTH
No shareholder or legal representative of a shareholder shall sell,
transfer, or otherwise dispose of all or any part of the shareholder's stock in
the corporation except as permitted under the Amended and Restated Shareholder
Agreement, dated as of November 5, 2002, by and among the corporation and its
shareholders (the "Shareholder Agreement"); provided, however, that the
foregoing transfer restrictions shall terminate upon the termination of such
Shareholder Agreement.
TENTH
To the extent permitted by the laws and statutes of the State of South
Dakota as the same exist or may hereafter be amended, a director of this
corporation shall not be held liable to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director.
ELEVENTH
The corporation shall indemnify to the fullest extent not prohibited by law
any person who is made, or threatened to be made, a party to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
all appeals (including but not limited to an action, suit, or proceeding by or
in right of the corporation) by reason of the fact that he or she is or was a
director or officer of the corporation, or a fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to any employee
benefit plan of the corporation, or is or was serving at the request of the
corporation as a director or officer, or as a fiduciary of an employee benefit
plan, of another corporation, limited liability company, partnership, joint
venture, trust or other enterprise. The corporation shall pay for or reimburse
the reasonable expenses incurred by any such person in any such proceeding in
advance of the final disposition of the proceeding to the fullest not prohibited
by law. This Article shall not be deemed exclusive of any other provisions for
indemnification or advancement of expenses of directors, officers, employees,
agents and fiduciaries that may be included in any statute, bylaw, agreement,
general or specific action of the Board of Directors, vote of shareholders or
otherwise.
TWELFTH
The name of the initial registered agent shall be Donald L. Endres, at the
address of the initial registered office as set forth herein.
THIRTEENTH
The address of the registered office of this corporation shall be: 100 22nd
Avenue, Suite #103, Brookings, SD 57006.
13
FOURTEENTH
These Second Amended and Restated Articles of Incorporation correctly set
forth without change the corresponding provisions of the Articles of
Incorporation as heretofore amended, and supersede the original Articles of
Incorporation and all amendments thereto. These Second Amended and Restated
Articles of Incorporation may be amended in the manner authorized by the laws
and statutes of the State of South Dakota and acts amendatory thereof which are
effective and controlling at the time of such proposed amendment.
VERASUN ENERGY CORPORATION
By: /s/ Donald L Endres
------------------------------------
Donald L. Endres, President
14
STATE OF SOUTH DAKOTA )
:ss
County of Brookings )
On this the 5th day of November, 2002, before me, the undersigned officer,
personally appeared DONALD L. ENDRES, who acknowledged himself to be the
President of VERASUN ENERGY CORPORATION, a South Dakota corporation, and that he
as such President, being authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
(SEAL)
/s/ Sheri R. Lanquill
----------------------------------------
Notary Public - South Dakota
My Commission Expires: 3-31-2004
15
ARTICLES OF AMENDMENT
TO
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
VERASUN ENERGY CORPORATION
Pursuant to the provisions of SDCL 47-2-9, the undersigned corporation
adopts the following Articles of Amendment to its Second Amended and Restated
Articles of Incorporation.
FIRST: The name of the corporation is VERASUN ENERGY CORPORATION.
SECOND: The following amendment to Article FOURTH of the Second Amended and
Restated Articles of Incorporation of the corporation, which adds Section E
thereto, was adopted by the unanimous written consent of all of the directors
and shareholders of the corporation in the manner prescribed SDCL 47-5-11 and
47-4-5:
FOURTH
.........
E. The corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the exercise of Warrants (as defined in the Warrant Agreement,
dated as of December 23, 2002, between the corporation and Teachers
Insurance and Annuity Association of America), such number of its shares of
Common Stock as shall from time to time be sufficient to effect the
exercise of such Warrants. The shares of Common Stock so issuable shall
when so issued be duly and validly issued, fully paid and nonassessable.
The reservation of shares of Common Stock pursuant to this Section E shall
be in addition to the reservation of shares of Common Stock for the purpose
of effecting the conversion of shares of Series A Preferred and for the
exercise of any other warrants issued from time to time by the corporation.
THIRD: The amendment to Article FOURTH of the Second Amended and Restated
Articles of Incorporation of the corporation was adopted by the unanimous
written consent of all of the directors and shareholders of the corporation
effective January 16, 2003.
FOURTH: The number of shares of Common Stock of the corporation outstanding
at the time of such adoption was 5,181,539 and the number of shares of Common
Stock entitled to vote thereon was 5,181,539. The number of shares of Preferred
Stock of the corporation outstanding at the time of such adoption was 8,657,500
and the number of shares of Preferred Stock entitled to vote thereon was
8,657,500.
16
FIFTH: The following number of shares voted for the amendment: 5,181,539
shares of Common Stock and 8,657,500 shares of Preferred Stock. No shares voted
against the amendment.
SIXTH: The amendment does not provide for any exchange, reclassification or
cancellation of issued shares.
SEVENTH: The amendment does not effect a change in the amount of stated
capital of the corporation.
DATED this 16th day of January 2003.
VERASUN ENERGY CORPORATION
By: /s/ Donald L. Endres
------------------------------------
Donald L. Endres, President
17
STATE OF SOUTH DAKOTA )
:ss
COUNTY OF BROOKINGS )
On this the 16th day of January, 2003, before me, the undersigned officer,
personally appeared DONALD L. ENDRES, who acknowledged himself to be the
President of VERASUN ENERGY CORPORATION, a South Dakota corporation, and that he
as such President, being authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by
himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
(SEAL)
/s/ Sheri R. Lanquill
----------------------------------------
Notary Public - South Dakota
My Commission Expires: 3-31-04.
18
ARTICLES OF AMENDMENT
TO
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
VERASUN ENERGY CORPORATION
(ID# DB044362)
Pursuant to the provisions of Section 47-1A-1003 of the South Dakota
Business Corporation Act, the undersigned corporation adopts the following
Articles of Amendment to its Second Amended and Restated Articles of
Incorporation, as amended.
FIRST: The name of the corporation is VERASUN ENERGY CORPORATION
(organizational ID# DB044362).
SECOND: Article FIRST of the Second Amended and Restated Articles of
Incorporation of the corporation was amended to read as follows:
The name of the corporation shall be:
VERASUN AURORA CORPORATION.
THIRD: The amendment does not provide for any exchange, reclassification or
cancellation of issued shares.
FOURTH: The amendment to Article FIRST of the Second Amended and Restated
Articles of Incorporation of the corporation was adopted on October 11, 2005.
FIFTH: The amendment required the approval of the holders of the
corporation's common stock. The amendment was duly approved by the shareholders
of the corporation in the manner required by the Act and the corporation's
articles of incorporation.
DATED this 11th day of October 2005.
VERASUN ENERGY CORPORATION
(ID# DB044362)
By: /s/ Bruce A. Jamerson
------------------------------------
Name: Bruce A. Jamerson
Title: President & CFO
19