EXHIBIT 3.4
VERASUN AURORA CORPORATION
BYLAWS
SECTION 1
OFFICES
SECTION 1.1 PRINCIPAL OFFICE: The principal office of the VeraSun Energy
Corporation (the "corporation") in the State of South Dakota shall be located in
the City of Brookings, State of South Dakota. The corporation may have such
other offices, either within or without the State of South Dakota, as the Board
of Directors may designate or as the business of the corporation may require
from time to time.
SECTION 1.2 REGISTERED OFFICE: The registered office of the corporation
required by the South Dakota Business Corporation Act to be maintained in the
State of South Dakota may be, but need not be, identical with the principal
office in the State of South Dakota and the address of the registered office may
be changed from time to time by the Board of Directors.
SECTION 1.3 REGISTERED AGENT: The registered agent of the corporation
required by the South Dakota Business Corporation Act to be maintained in the
State of South Dakota shall be the registered agent of the corporation appointed
by the Amended and Restated Articles of Incorporation of the corporation (as
amended from time to time, the "Articles of Incorporation"). The registered
agent may be changed from time to time by the Board of Directors.
SECTION 2
SHAREHOLDERS
SECTION 2.1 ANNUAL MEETING: The annual meeting of the shareholders shall be
held on the third Wednesday in the month of January in each year, beginning with
the year 2003 at the hour designated in the notice of said meeting, for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting. If the day fixed for the annual meeting shall be a
legal holiday in the State of South Dakota, such meeting shall be held on the
next succeeding business day. If the election of directors shall not be held on
the day designated herein for any annual meeting of shareholders, or at any
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the shareholders as soon thereafter as conveniently may
be.
SECTION 2.2 SPECIAL MEETINGS: Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the Chairman of the Board, the President or by the Board of Directors, and shall
be called by the Chairman of the Board or the President at the request of the
holders of not less than one-tenth of all the outstanding shares of the
corporation entitled to vote at the meeting.
SECTION 2.3 PLACE OF MEETING: The Board of Directors may designate any
place, either within or without the State of South Dakota, as the place of
meeting for any annual meeting or for any special meeting called by the Board of
Directors. A waiver of notice signed by all shareholders entitled to vote at a
meeting may designate any place, either within or without the State of South
Dakota, as the place for the holding of such meeting. If no designation is made,
or if a special meeting be otherwise called, the place of meeting shall be the
registered office of the corporation in the State of South Dakota.
SECTION 2.4 NOTICE OF MEETING: Except for the increase of stock and
indebtedness of the corporation when sixty (60) days' notice is required by
Article XVII, Section 8, of the South Dakota Constitution, written or printed
notice stating the place, day and hour of the meeting and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) nor more than fifty (50) days before the date
of the meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, the President, or the Secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at the
shareholder's address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid.
SECTION 2.5 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE: For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, fifty (50) days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books shall
be closed for at least ten (10) days immediately preceding such meeting. In lieu
of closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of shareholders, such date in
any case to be not more than fifty (50) days and, in case of a meeting of
shareholders, not less than ten (10) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken.
If the stock transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to receive notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the close of business on the day on which notice of the meeting is
mailed or the date on which the resolution of the Board of Directors declaring
such dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as provided in this Section,
such determination shall apply to any adjournment thereof.
SECTION 2.6 VOTING LISTS: The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten (10) days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such a meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten (10) days prior to such meeting, shall be kept
on file at the registered office of the corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time
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and place and for the whole of the meeting and shall be prima facie evidence as
to who are the shareholders entitled to examine such list or transfer books or
to vote at any meeting of shareholders. Failure to comply with the requirements
of this Section shall not affect the validity of any action taken at such
meeting.
SECTION 2.7 QUORUM: A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of shareholders. If less than a majority of the outstanding shares
are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. The shareholders present at a duly organized meeting may continue to
transact business until adjournment notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
SECTION 2.8 PROXIES: At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or by the shareholder's
duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary
of the corporation before or at the time of the meeting. No proxy shall be valid
after eleven (11) months from the date of its execution, unless otherwise
provided in the proxy.
SECTION 2.9 VOTING OF SHARES: Subject to the provisions of Section 2.11,
and except to the extent that voting rights of the shares of any class or
classes are limited or denied by the Articles of Incorporation, each outstanding
share entitled to vote shall be entitled to one vote upon each matter submitted
to a vote at a meeting of shareholders.
SECTION 2.10 VOTING OF SHARES BY CERTAIN HOLDERS: Shares standing in the
name of another corporation may be voted by such officer, agent or proxy as the
bylaws of such corporation may prescribe, or, in the absence of such provision,
as the board of directors of such other corporation may determine.
Shares held by an administrator, executor, guardian or conservator may be
voted by him, her or it, either in person or by proxy, without a transfer of
such shares into his, her or its name. Shares standing in the name of a trustee
may be voted by such trustee, either in person or by proxy, but no trustee shall
be entitled to vote shares held by such trustee without a transfer of such
shares into such trustee's name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into such receiver's name if authority so
to do be contained in an appropriate order of the court by which such receiver
was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
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Shares of its own stock belonging to the corporation or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting
and shall not be counted in determining the total number of outstanding shares
at any given time.
SECTION 2.11 CUMULATIVE VOTING: At each election for directors every
shareholder entitled to vote at such election shall have the right to vote, in
person or by proxy, the number of shares owned by such shareholder for as many
persons as there are directors to be elected and for whose election such
shareholder has a right to vote, or to cumulate such shareholder's votes by
giving one candidate as many votes as the number of such directors multiplied by
the number of shares owned by such shareholder shall equal, or by distributing
such votes on the same principle among any number of candidates.
SECTION 2.12 WAIVER OF NOTICE: Whenever any notice is required to be given
to any shareholder under the Articles of Incorporation, these Bylaws or any
provision of law, a waiver thereof, signed by the person entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice.
SECTION 2.13 INFORMAL ACTION BY SHAREHOLDERS: Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
SECTION 3
BOARD OF DIRECTORS
SECTION 3.1 GENERAL POWERS: The business and affairs of the corporation
shall be managed by its Board of Directors.
SECTION 3.2 NUMBER, TENURE AND QUALIFICATIONS: The exact number of
directors of the corporation may, within the limits of not less than one (1) nor
more than five (5), be fixed and increased or decreased from time to time by
resolution of the Board of Directors. Each director shall hold office until the
next annual meeting of shareholders and until his or her successor shall have
been elected and qualified. Directors need not be shareholders of the
corporation, but shall have knowledge and experience in the ethanol industry. A
director may resign at any time by filing his or her resignation with the
Secretary of the corporation.
SECTION 3.3 REGULAR MEETINGS: A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw immediately after, and at the
same place as, the annual meeting of shareholders. The Board of Directors may
provide, by resolution, the time and place, either within or without the State
of South Dakota, for the holding of additional regular meetings without other
notice than such resolution.
SECTION 3.4 SPECIAL MEETINGS: Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Board, the President
or any two directors. The person or persons authorized to call special meetings
of the Board of Directors may fix any
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place, either within or without the State of South Dakota, as the place for
holding any special meeting of the Board of Directors called by them.
SECTION 3.5 NOTICE: Notice of any special meeting shall be given at least
forty-eight (48) hours prior to the meeting by notice communicated in person, by
telephone, telegraph, facsimile transmission or other form of wire or wireless
communication, or by mail or private courier. If mailed, such notice shall be
deemed effective when deposited in the United States mail addressed to the
director at the director's business address, with postage thereon prepaid.
Whenever any notice is required to be given to any director of the corporation
under the Articles of Incorporation, these Bylaws, or any provision of law, a
waiver thereof in writing signed at any time, whether before or after the time
of the meeting by the director entitled to notice, shall be deemed the
equivalent of the giving of such notice. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. Unless otherwise required by the Articles of Incorporation, these
Bylaws, or any provision of law, neither the business to be transacted at, nor
the purpose of, any regular meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting.
SECTION 3.6 QUORUM: A majority of the number of directors elected and who
have qualified for their position shall constitute a quorum for the transaction
of business at any meeting of the Board of Directors, but if less than a
majority is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
SECTION 3.7 MANNER OF ACTING: The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, unless the act of a greater number is required by law, or by the
Articles of Incorporation or these Bylaws.
SECTION 3.8 ACTION WITHOUT A MEETING: Any action required or permitted by
the Articles of Incorporation, these Bylaws or any provision of law to be taken
by the Board of Directors at a meeting may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the directors then in office.
SECTION 3.9 REMOVAL: A director may be removed from office by affirmative
vote taken at a special meeting of the shareholders called for that purpose. If
less than the entire Board is to be removed, no one of the directors may be
removed if the votes cast against his or her removal would be sufficient to
elect him or her if then cumulatively voted at an election of the entire Board
of Directors.
SECTION 3.10 VACANCIES: Any vacancy occurring in the Board of Directors may
be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors. A director elected to fill
a vacancy shall be elected for the unexpired term of his or her predecessor in
office. Any directorship to be filled by reason of an increase in the number of
directors shall be filled by the Board of Directors for a term of office
continuing only until the next election of directors by the shareholders.
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SECTION 3.11 COMPENSATION: The Board of Directors by affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, may provide for the payment of the expenses of
the directors, if any, of attendance at each meeting at the Board of Directors,
and may establish reasonable compensation of all directors for services to the
corporation as directors, officers or otherwise. The Board of Directors also
shall have authority to provide for reasonable pensions, disability or death
benefits, and other benefits or payments, to directors, officers and employees
and to their estates, families, dependents or beneficiaries on account of prior
service rendered by such directors, officers and employees to the corporation.
No such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
SECTION 3.12 PRESUMPTION OF ASSENT: A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his or her dissent shall be entered in the minutes of the meeting or unless he
or she shall file his or her written dissent to such action with the person
acting as the secretary of the meeting before the adjournment therefor or shall
forward such dissent by registered mail to the Secretary of the corporation
immediately after adjournment of the meeting. Such right to dissent shall not
apply to a director who voted in favor of such action.
SECTION 3.13 COMMITTEES: The Board of Directors by resolution adopted by
the affirmative vote of a majority of the number of directors fixed pursuant to
Section 3.2 hereof may designate an Executive Committee and one or more other
committees, each committee to consist of two (2) or more directors elected by
the Board of Directors. The Executive Committee shall have and may exercise,
when the Board of Directors is not in session, the powers of the Board of
Directors in the management of the business and affairs of the corporation,
except action in respect to dividends to shareholders, election of officers,
amending the Articles of Incorporation, amending these Bylaws, adopting a plan
of merger or consolidation, recommending to the shareholders the sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the corporation otherwise than in the usual or regular course of its
business, recommending to the shareholders a voluntary dissolution of the
corporation or a revocation thereof, or the filling of vacancies in the Board of
Directors or committees created pursuant to this Section 3.13. The other
committees, if any, shall have and may exercise such powers as may be provided
in the resolution of the Board of Directors designating such committee, as such
resolution may from time to time be amended and supplemented. The Board of
Directors may elect one or more of its members as alternate members of any such
committee who may take the place of any absent member or members at any meeting
of such committee, upon request by the Chairman of the Board, the President or
upon request by the chairman of such meeting. Each such committee shall fix its
own rules governing the conduct of its activities and shall make such reports to
the Board of Directors of its activities as the Board of Directors may request.
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SECTION 4
OFFICERS
SECTION 4.1 NUMBER: The officers of the corporation shall be a Chairman of
the Board, a President, a Secretary and a Treasurer, each of whom shall be
elected by the Board of Directors. Such other officers and assistant officers as
may be deemed necessary may be elected or appointed by the Board of Directors.
Any two or more offices may be held by the same person.
SECTION 4.2 ELECTION AND TERM OF OFFICE: The officers of the corporation to
be elected by the Board of Directors shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each annual
meeting of the shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently may
be. Each officer shall hold office until his or her successor shall have been
duly elected and shall have qualified or until his or her death or until he or
she shall resign or shall have been removed in the manner hereinafter stated.
SECTION 4.3 REMOVAL: Any officer or agent elected or appointed by the Board
of Directors may be removed by the Board of Directors whenever in its judgment
the best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
SECTION 4.4 VACANCIES: A vacancy in any office because of death,
resignation, removal, disqualification or otherwise may be filled by the Board
of Directors for the unexpired portion of the term.
SECTION 4.5 CHAIRMAN OF THE BOARD: The Chairman of the Board shall be the
chief executive officer of the corporation unless the Board of Directors shall
designate another officer as the chief executive officer. The Chairman shall,
when present, preside at all meetings of the shareholders and of the Board of
Directors. The Chairman may sign, with the Secretary or any other proper officer
of the corporation thereunto authorized by the Board of Directors, certificates
for shares of the corporation, any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be executed, except
in cases where the signing and execution thereof shall be expressly delegated by
the Board of Directors or by these Bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of Chairman of the
Board and such other duties as may be prescribed by the Board of Directors from
time to time. The Chairman of the Board shall be chosen from the members of the
Board of Directors.
SECTION 4.6 PRESIDENT: The President shall have general powers and duties
of day-to-day supervision of the business of the corporation. In the absence of
the Chairman of the Board, the President shall, when present, preside at all
meetings of the shareholders and of the Board of Directors. The President shall
have the authority, subject to such rules as may be prescribed by the Board of
Directors, to appoint such agents and employees of the corporation as he or she
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shall deem necessary, to prescribe their powers, duties and compensation, and to
delegate authority to them. The President shall have authority to sign, execute
and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds,
stock certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by resolution of
the Board of Directors, and except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed. Except as otherwise provided by law
or the Board of Directors, the President may authorize any other officer or
agent of the corporation to sign, execute and acknowledge such documents or
instrument in his or her place and stead. In general, the President shall
perform all duties incident to the office of President and general manager of
the corporation and such other duties as may be prescribed by the Board of
Directors from time to time. The President shall be chosen from the members of
the Board of Directors.
SECTION 4.7 SECRETARY: The Secretary shall: (a) keep the minutes of the
shareholders' and of the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law; (c) be custodian of
the corporate records of the corporation; (d) keep a register of the post office
address of each shareholder which shall be furnished to the Secretary by such
shareholder; (e) sign with the Chairman of the Board or the President,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the Board of Directors; (f) have general charge
of the stock transfer books of the corporation; and (g) in general perform all
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him or her by the Chairman of the Board, the President
or the Board of Directors.
SECTION 4.8 TREASURER: If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board of Directors shall determine. The
Treasurer shall: (a) have charge and custody of and be responsible for all funds
and securities of the corporation; (b) receive and give receipts for moneys due
and payable to the corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of Section 6
of these Bylaws, and (c) in general perform all of the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him or her by the Chairman of the Board, the President or the Board of
Directors.
SECTION 4.9 SALARIES: The salaries of the officers shall be fixed from time
to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that such person is also a director
of the corporation.
SECTION 4.10 REPAYMENT: Any payments made to an officer of the corporation
such as salary, commission, bonus, interest, or rent, which shall be disallowed
in whole or in part as a deductible expense by the Internal Revenue Service,
shall be reimbursed by such officer to the corporation to the full extent of
such disallowance. It shall be the duty of the directors, as a Board, to enforce
payment of each such amount disallowed. In lieu of payment by the officer,
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subject to the determination of the directors, proportionate amounts may be
withheld from his or her future compensation payments until the amount owed to
the corporation has been recovered.
SECTION 4.11 ASSISTANTS AND ACTING OFFICERS: There shall be such number of
Assistant Secretaries and Assistant Treasurers as the Board of Directors may
from time to time authorize. The Assistant Secretaries may sign with the
Chairman of the Board or the President certificates for shares of the
corporation, the issuance of which shall have been authorized by a resolution of
the Board of Directors. The Assistant Treasurers shall, if required by the Board
of Directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board of Directors shall determine. The Assistant
Secretaries and Assistant Treasurers in general shall perform such duties and
have such authority as shall from time to time be delegated or assigned to them
by the Secretary or the Treasurer, respectively, or by the Chairman of the
Board, the President or the Board of Directors. The Board of Directors shall
have the power to appoint any person to act as assistant to any officer, or to
perform the duties of such officer whenever for any reason it is impracticable
for such officer to act personally, and such assistant or acting officer
appointed by the Board of Directors shall have the power to perform all the
duties of the office to which such person is so appointed to be assistant, or as
to which such person is so appointed to act, except as such power may be
otherwise defined or restricted by the Board of Directors.
SECTION 5
INDEMNIFICATION
SECTION 5.1 THIRD PARTY ACTIONS: The corporation may indemnify 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
the right of the corporation) by reason of the fact that he or she (hereinafter
an "Indemnitee") is or was a director, officer, employee or agent 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, officer, employee or agent, or as a fiduciary of an employee benefit
plan, of another corporation, limited liability company, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys' fees,
judgments, decrees, fines, penalties, and amounts paid in settlement actually
and reasonably incurred by the Indemnitee in connection with such action, suit
or proceeding, if the Indemnitee acted in good faith and in a manner which the
Indemnitee reasonably believed to be in, or not opposed to, the best interests
of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, or conviction,
or upon a plea of nolo contendere or its equivalent shall not, of itself, create
either a presumption that the Indemnitee did not act in good faith and in a
manner which the Indemnitee believed to be in or not opposed to the best
interests of the corporation or, with respect to any criminal action or
proceeding, a presumption that the Indemnitee had reasonable cause to believe
that his or her conduct was unlawful.
SECTION 5.2 DERIVATIVE ACTIONS: The corporation may indemnify any person
who is a party to any threatened, pending, or completed action or suit,
including all appeals, by or in the
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right of the corporation to procure a judgment in its favor by reason of the
fact that the Indemnitee is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, limited liability
company, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by the Indemnitee
in connection with the defense or settlement of such action or suit if the
Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the corporation;
provided, however, that no indemnification shall be made in respect of any
claim, issue or matter as to which the Indemnitee shall have been finally
adjudged to be liable for negligence or misconduct in the performance of his or
her duty to the corporation unless, and only to the extent that the court in
which such action or suit was brought shall determine upon application that, in
view of all of the circumstances of the case, and despite the adjudication of
liability, the Indemnitee is fairly and reasonably entitled to indemnity for
such expenses as such court shall deem proper.
SECTION 5.3 RIGHTS AFTER SUCCESSFUL DEFENSE: To the extent that a director,
officer, employee or agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 5.1 or 5.2, or in defense of any claim, issue or matter therein, the
Indemnitee shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by the Indemnitee in connection therewith.
SECTION 5.4 OTHER DETERMINATION OF RIGHTS: Except in a situation governed
by Section 5.3, any indemnification under Sections 5.1 or 5.2 (unless ordered by
a court) shall be made by the corporation only as authorized in a specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in Sections 5.1 and 5.2. Such
determination shall be made (a) by a majority vote of directors acting at a
meeting at which a quorum consisting of directors who are not parties to such
action, suit or proceeding is present; (b) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or (c) by the shareholders by a
majority vote of a quorum consisting of shareholders who are not parties to such
action, suit or proceeding.
SECTION 5.5 ADVANCES OF EXPENSES: Expenses of each person indemnified
hereunder (including attorneys' fees) incurred in defending a civil, criminal,
administrative, or investigative action, suit, or proceeding (including all
appeals) may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon a preliminary determination following one
of the procedures set forth in Section 5.4 that the director, officer, employee
or agent meets the applicable standard of conduct set forth in Section 5.1 or
5.2 and upon receipt of an undertaking by or on behalf of the director, officer,
employee, or agent to repay such amount unless it shall ultimately be determined
that he or she is entitled to be indemnified by the corporation.
SECTION 5.6 NONEXCLUSIVENESS: The indemnification provided by this Section
5 shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled as a matter of law or under the Articles of
Incorporation, these Bylaws, any agreement, vote of shareholders, any insurance
purchased by the corporation, or otherwise, both as to action
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in the Indemnitee's official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person; provided, however, the
corporation may not provide for indemnification against gross negligence or
willful misconduct, under any by-law, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in the Indemnitee's
official capacity and as to action in another capacity while holding such
office.
SECTION 5.7 PURCHASE OF INSURANCE: The corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, or other
enterprise against any liability asserted against him or her and incurred by him
or her in such capacity, or arising out of his or her status as such, whether or
not the corporation would have the power to indemnify him or her against such
liability under the provisions of this Section 5 or of South Dakota's general
corporation law.
SECTION 6
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 6.1 CONTRACTS: The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
SECTION 6.2 LOANS: No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 6.3 CHECKS, DRAFTS ETC.: All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 6.4 DEPOSITS: All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositaries as the Board of Directors may
select.
SECTION 6.5 VOTING STOCK IN OTHER CORPORATIONS: Stock held by this
corporation in any other corporation shall be voted by the Chairman of the Board
unless the Board of Directors shall, by resolution, direct how such stock shall
be voted. The Chairman of the Board or other designated officer shall vote such
stock in his or her discretion in the best interests of this corporation.
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SECTION 7
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 7.1 CERTIFICATES FOR SHARES: Certificates representing shares of
the corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or the Chairman of
the Board and by the Secretary. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation for transfer shall
be canceled and no new certificates shall be issued until the former certificate
for a like number of shares shall have been surrendered or canceled, except that
in case of a lost, destroyed or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to the corporation as the Board of
Directors may prescribe.
SECTION 7.2 TRANSFER OF SHARES: Transfer of shares of the corporation shall
be made only on the stock transfer books of the corporation by the holder of
record thereof or by the holder's legal representative, who shall furnish proper
evidence of authority to transfer, or by the holder's attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the corporation, and on surrender for cancellation of the certificate for such
shares. The person in whose name shares stand on the books of the corporation
shall be deemed by the corporation to be the owner thereof for all purposes.
SECTION 7.3 LOSS OR DESTRUCTION OF CERTIFICATES: In case of loss or
destruction of any certificate representing shares, another certificate may be
issued in its place upon proof of such loss or destruction, and upon giving a
satisfactory bond of indemnity to the corporation and to the transfer agent and
registrar, if any, of such stock, in such sum as the Board of Directors may
provide.
SECTION 7.4 STOCK REGULATIONS: The Board of Directors shall have the power
and authority to make all such further rules and regulations not inconsistent
with the statutes of the State of South Dakota as it may deem expedient
concerning the issue, transfer, conversion and registration of certificates
representing shares of the corporation, including the appointment or designation
of one or more stock transfer agents and one or more stock registrars.
SECTION 7.5 RESTRICTIONS ON TRANSFER: 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 without first
giving to the corporation and the other shareholders of the corporation written
notice of such proposed disposal, in the manner specified in the Shareholder
Agreement, dated as of June 21, 2002, by and among the corporation and its
shareholders, as it may be amended or restated from time to time, and otherwise
complying with the terms of such Shareholder Agreement and any legends on the
applicable share certificates.
SECTION 7.6 ENDORSEMENT ON CERTIFICATES: All stock certificates issued by
the corporation shall bear an endorsement at the top of the face thereof as
follows:
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Transfer of this stock is subject to restriction--see reverse side hereof,
and shall bear an endorsement on the reverse side thereof as follows:
NOTICE
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND TRANSFERABLE
ONLY UPON COMPLIANCE WITH THE TERMS AND CONDITIONS OF A SHAREHOLDER
AGREEMENT (WHICH INCLUDES PROVISIONS RELATING TO A VOTING AGREEMENT AMONG
SHAREHOLDERS WITH RESPECT TO THE ELECTION OF DIRECTORS) BETWEEN THE
CORPORATION AND THE HOLDER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
OFFICE OF THIS CORPORATION."
SECTION 8
MISCELLANEOUS PROVISIONS
SECTION 8.1 FISCAL YEAR: The fiscal year of the corporation shall begin on
the 1st day of January in each year and end on the 31st day of December in each
year, or such other twelve consecutive months as the Board of Directors may by
resolution designate.
SECTION 8.2 DIVIDENDS: The Board of Directors may, from time to time,
declare and the corporation may pay dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Articles of
Incorporation.
SECTION 8.3 SEAL: The seal of the corporation shall be circular in form and
shall bear an inscription containing the name of the corporation. The absence of
the corporation's seal shall not invalidate any certificate, instrument,
agreement or other document otherwise authorized by the corporation.
SECTION 8.4 AMENDMENTS: These Bylaws may be altered, amended, or repealed
and new Bylaws may be adopted by a majority of the Board of Directors at any
regular or special meeting of the Board of Directors, provided that these Bylaws
and any amendment thereof shall also be subject to amendment or repeal by the
holders of a majority of the voting Common Stock of this corporation.
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CERTIFICATION OF BYLAWS
The undersigned, being the Secretary of VeraSun Energy Corporation, a South
Dakota corporation, does hereby certify that the foregoing Bylaws of said
corporation were adopted by a Consent of the Incorporator and Board of Directors
effective as of December 20, 2001.
Dated at Brookings, South Dakota, this 21st day of June, 2002.
IN WITNESS WHEREOF, I have hereunto affixed my signature as Secretary of
the corporation on the above date.
/s/ Dorcas Sue Scalet
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Dorcas Sue Scalet, Secretary
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