REGISTRATION RIGHTS AGREEMENT Dated as of May 16, 2007, by and among VeraSun Energy Corporation as Issuer each of the Guarantors party hereto and Lehman Brothers Inc., Morgan Stanley & Co. Incorporated and UBS Securities LLC as the Initial Purchasers
Exhibit 4.3
EXECUTION VERSION
Dated as of May 16, 2007,
by and among
VeraSun Energy Corporation
as Issuer
each of the Guarantors party hereto
and
▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
and UBS Securities LLC
and UBS Securities LLC
as the Initial Purchasers
This Registration Rights Agreement (this “Agreement”) is made and entered into as of May 16,
2007, by and among VeraSun Energy Corporation, a South Dakota corporation (together with any
successor entity, herein referred to as the “Company”), VeraSun Aurora Corporation, a South Dakota
corporation, VeraSun Fort Dodge, LLC, a Delaware limited liability company, VeraSun ▇▇▇▇▇▇▇ City,
LLC, a Delaware limited liability company, VeraSun Marketing LLC, a Delaware limited liability
company, VeraSun ▇▇▇▇▇▇▇, LLC, a Delaware limited liability company, VeraSun Biodiesel, LLC, a
Delaware limited liability company, VeraSun Welcome, LLC, a Delaware limited liability company,
VeraSun Granite City, LLC, a Delaware limited liability company and VeraSun ▇▇▇▇▇▇▇▇, LLC, a
Delaware limited liability company (each a “Guarantor” and, collectively the “Guarantors”), and
▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and UBS Securities LLC (each an “Initial
Purchaser” and, collectively, the “Initial Purchasers”), each of whom has agreed to purchase the
Company’s $450,000,000 aggregate principal amount of 9 3/8% Senior Notes due 2017 (the “Notes”)
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May 11, 2007, (the “Purchase
Agreement”), by and among the Company, the Guarantors and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Notes, the Company and the Guarantors have agreed to
provide the registration rights set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Initial Purchasers set forth in Section 7(l) of
the Purchase Agreement. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Indenture, dated the date hereof (the “Indenture”) among the
Company, the Guarantors and ▇▇▇▇▇ Fargo Bank, N.A., as Trustee, relating to the Notes and the
Exchange Notes (as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Applicable Period: As defined in Section 3(c) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: A day other than a Saturday or Sunday or any day on which banking
institutions in The City of New York are authorized or obligated by law to close.
Certificated Securities: Definitive Notes, as defined in the Indenture.
Closing Date: The date of this Agreement.
Commission: The U.S. Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (a) the filing and effectiveness under the Act of the Exchange
Offer Registration Statement relating to the Exchange Notes to be issued in the Exchange Offer, (b)
the maintenance of such Exchange Offer Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the period required pursuant to
Section 3(b) hereof and (c) the delivery by the Company to the registrar under the Indenture of
Exchange Notes in the same aggregate principal amount as the aggregate principal amount of Notes
tendered by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 4(a) hereof.
Exchange Act: The U.S. Securities Exchange Act of 1934, as amended.
Exchange Notes: The $450,000,000 aggregate principal amount of the Company’s 9 3/8%
Senior Notes due 2017, registered under the Act, to be issued pursuant to the Indenture: (i) in the
Exchange Offer or (ii) as contemplated by Section 4 hereof.
Exchange Offer: The exchange and issuance by the Company of a principal amount of
Exchange Notes (which shall be registered pursuant to the Exchange Offer Registration Statement)
equal to the outstanding principal amount of Notes that are tendered by such Holders in connection
with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating to the
Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to sell the
Notes to certain “qualified institutional buyers,” as such term is defined in Rule 144A under the
Act and pursuant to Regulation S under the Act.
Filing Deadline: As defined in Section 4(a) hereof.
Holders: As defined in Section 2 hereof.
Interest Payment Date: As defined in the Notes and the Exchange Notes.
Person: As defined in the Indenture.
Prospectus: The prospectus included in a Registration Statement at the time such
Registration Statement is declared effective, as amended or supplemented by any prospectus
supplement and by all other amendments to and all material incorporated by reference into such
Prospectus.
Recommencement Date: As defined in Section 6(e) hereof.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Company and the Guarantors
relating to (a) an offering of Exchange Notes and related Subsidiary Guarantees pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement, in each case (i) that is filed pursuant to the provisions of this
Agreement and (ii) including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Security Agreement: as defined in Section 11(b) hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Subsidiary Guarantees: The guarantees of the Notes and of the Exchange Notes of the
Guarantors under the Indenture, as amended from time to time.
Suspension Notice: As defined in Section 6(e) hereof.
TIA: The U.S. Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder, in each case, as in effect on the date the Indenture is qualified
under the TIA.
Transfer Restricted Securities: (i) Each Note and the related Subsidiary Guarantees,
until the earliest to occur of (a) the date on which such Note has been exchanged by a Person other
than a Broker-Dealer for an Exchange Note in the Exchange Offer and is entitled to be resold to the
public by such Person without complying with the prospectus delivery requirements of the Act, (b)
the date on which such Note has been effectively registered under the Act and sold or otherwise
disposed of in accordance with a Shelf Registration Statement, (c) the date on which such Note is
eligible to be distributed to the public pursuant to Rule 144(k) under the Act or otherwise may be
resold without restriction under federal securities laws, or (d) the date on which such Note ceases
to be outstanding, and (ii) each Exchange Note and the related Subsidiary Guarantees acquired by a
Broker-Dealer in the Exchange Offer of a Note for an Exchange Note, until the date on which such
Exchange Note is sold to a purchaser who received from such Broker-Dealer on or prior to the date
of such sale a copy of the Prospectus contained in the Exchange Offer Registration Statement.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal law (after the
procedures set forth in Section 6(a)(i) hereof have been complied with), the
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Company and the Guarantors shall (i) use its reasonable best efforts to cause the Exchange
Offer Registration Statement to be filed with the Commission as soon as practicable, (ii) use its
reasonable best efforts to cause such Exchange Offer Registration Statement to become effective at
the earliest possible time, (iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C) cause all necessary filings, if
any, in connection with the registration and qualification of the Exchange Notes to be made under
the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, subject to the proviso set forth in Section 6(d)(x) hereof, and (iv) upon the effectiveness
of such Exchange Offer Registration Statement, commence and Consummate the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate form permitting (i) registration
of Exchange Notes to be offered in exchange for the Notes that are Transfer Restricted Securities
and (ii) resales of Exchange Notes by Broker-Dealers that tendered into the Exchange Offer Notes
that such Broker-Dealer acquired for its own account as a result of market making activities or
other trading activities (other than Notes acquired directly from the Company or any of its
Affiliates) as contemplated by Section 3(c) hereof.
(b) The Company and the Guarantors shall use their respective reasonable best efforts to cause
the Exchange Offer Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under applicable federal and
state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 20 Business Days. The Company and the Guarantors shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No securities other than
the Exchange Notes and the related Subsidiary Guarantees shall be included in the Exchange Offer
Registration Statement. The Company and the Guarantors shall use their respective reasonable best
efforts to cause the Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event later than 365 days
after the Closing Date (such 365th day being the “Consummation Deadline”).
(c) The Company and the Guarantors shall include a “Plan of Distribution” section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate therein that any
Broker-Dealer who holds Transfer Restricted Securities that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading activities (other than Notes
acquired directly from the Company or any Affiliate of the Company), may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such “Plan of Distribution” section shall
also contain all other information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such “Plan of
Distribution” shall not name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the Commission as a
result of a change in policy, rules or regulations after the date of this Agreement.
Because such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with
its initial sale of any Exchange Notes received by such Broker-Dealer in the
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Exchange Offer, the Company and the Guarantors shall permit the use of the Prospectus
contained in the Exchange Offer Registration Statement by such Broker-Dealer to satisfy such
prospectus delivery requirement. To the extent necessary to ensure that the Prospectus contained
in the Exchange Offer Registration Statement is available for sales of Exchange Notes by
Broker-Dealers, the Company and the Guarantors agree to use their respective reasonable best
efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the provisions of Section 6(a) and (c) hereof and
in conformity with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period beginning on the date on
which the Exchange Offer is Consummated and ending on the date such Broker-Dealers are no longer
required to comply with the prospectus delivery requirements in connection with offers and sales of
the Exchange Notes (the “Applicable Period”), or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been sold pursuant
thereto. The Company shall provide sufficient copies of the latest version of such Prospectus to
such Broker-Dealers, promptly upon request, and in no event later than one day after such request,
at any time during the Applicable Period (or such shorter period as provided in the foregoing
sentence) in order to facilitate resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) (A) the Company and the Guarantors are not required to
file the Exchange Offer Registration Statement or (B) the Consummation of the Exchange Offer is not
permitted by applicable law or Commission policy (after the Company and the Guarantors have
complied with the procedures set forth in Section 6(a)(i) hereof) or (ii) any Holder of Transfer
Restricted Securities notifies the Company on or prior to the 20th Business Day
following the Consummation of the Exchange Offer that (A) such Holder was prohibited by applicable
law or Commission policy from participating in the Exchange Offer or (B) such Holder may not resell
the Exchange Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is a Broker-Dealer and
holds Notes acquired directly from the Company or any of its Affiliates, and in the case of each of
clauses (ii) (A) or (B) such Holder provides a reasonable basis for its conclusions, then the
Company and the Guarantors shall:
(x) use their respective reasonable best efforts to cause to be filed after the earlier of (I)
the date on which the Company determines that the Exchange Offer Registration Statement cannot be
filed as a result of clause (a)(i) above and (II) the date on which the Company receives the notice
specified in clause (a)(ii) above (such earlier date, the “Filing Deadline”), a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment to the Exchange Offer
Registration Statement (together with any amendments thereto, and including any documents
incorporated by reference therein, the “Shelf Registration Statement”)), relating to all Transfer
Restricted Securities; and
(y) use their respective reasonable best efforts to cause such Shelf Registration Statement to
become effective at the earliest possible time, but in no event later than on or prior to 365 days
after the Closing Date (the “Effectiveness Deadline”).
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To the extent necessary to ensure that the Shelf Registration Statement is available for sales
of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section
4(a) and the other securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their respective reasonable best efforts to keep
any Shelf Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the provisions of Sections 6(b) and
(c) hereof and in conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a period of at least
two years or, if Rule 144(k) under the Act is amended to permit unlimited resales by non-affiliates
within a lesser period, such lesser period (as extended pursuant to Section 6(c)(i) hereof)
following the Closing Date, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Company in writing, within 20 days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act
for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 5 hereof unless and until such Holder shall have provided all such
information. By its acceptance of Transfer Restricted Securities, each Holder agrees to promptly
furnish additional information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
(c) Underwritten Registrations. If any of the Transfer Restricted Securities covered
by any Shelf Registration Statement are to be sold in an underwritten offering, the investment
banker or investment bankers and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering.
No person may participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements.
SECTION 5. LIQUIDATED DAMAGES
If (i) the Exchange Offer has not been Consummated on or prior to the Consummation Deadline or
(ii) the Shelf Registration Statement is not declared effective on or prior to the Effectiveness
Deadline (a “Registration Default”), then the Company and the
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Guarantors hereby jointly and severally agree to pay to each Holder of Transfer Restricted
Securities affected thereby liquidated damages in an amount equal to 0.25% per annum per $1,000 in
principal amount of Transfer Restricted Securities held by such Holder for the first 90-day period
immediately following the occurrence of such Registration Default. The amount of the liquidated
damages shall increase by an additional 0.25% per annum per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period until the Registration Default
has been cured, up to a maximum amount of liquidated damages of 1.00% per annum per $1,000 in
principal amount of Transfer Restricted Securities; provided that the Company and the Guarantors
shall in no event be required to pay liquidated damages for more than one Registration Default at
any given time. Notwithstanding anything to the contrary set forth herein, upon filing of the
Exchange Offer Registration Statement and/or, if applicable, the Shelf Registration Statement, the
liquidated damages payable with respect to the Transfer Restricted Securities as a result of such
Registration Default shall cease.
All accrued liquidated damages shall be paid to the Holders entitled thereto, in the manner
provided for the payment of interest in the Indenture, on each Interest Payment Date, as more fully
set forth in the Indenture, the Notes and the Exchange Notes. Notwithstanding the fact that any
securities for which liquidated damages are due cease to be Transfer Restricted Securities, all
obligations of the Company and the Guarantors to pay liquidated damages with respect to securities
shall survive until such time as such obligations with respect to such securities shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Company and the Guarantors shall (x) comply with all applicable provisions of Section 6(c) hereof,
(y) use their respective reasonable best efforts to effect such exchange and to permit the resale
of Exchange Notes by any Broker-Dealer that tendered Notes in the Exchange Offer that such
Broker-Dealer acquired for its own account as a result of its market making activities or other
trading activities (other than Notes acquired directly from the Company or any of its Affiliates)
being sold in accordance with the intended method or methods of distribution thereof, and (z)
comply with all of the following provisions:
(i) If, following the Closing Date there has been announced a change in Commission
policy with respect to exchange offers such as the Exchange Offer, that in the reasonable
opinion of counsel to the Company raises a question as to whether the Exchange Offer is
permitted by applicable federal law, the Company and the Guarantors hereby agree to seek a
no-action letter or other favorable decision from the Commission allowing the Company and
the Guarantors to Consummate an Exchange Offer for such Transfer Restricted Securities. The
Company and the Guarantors hereby agree to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the Company and the Guarantors
hereby agree to take all such other actions as may be reasonably requested by the Commission
or otherwise required in connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the Commission staff, (B)
delivering to the Commission staff an analysis prepared by counsel to the Company setting
forth the legal basis, if any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and
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(C) diligently pursuing a resolution (which need not be favorable) by the Commission
staff.
(ii) As a condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is a Broker Dealer)
shall furnish, upon the request of the Company, prior to the Consummation of the Exchange
Offer, a written representation to the Company and the Guarantors (which may be contained in
the letter of transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an Affiliate of the Company, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Notes to be issued in the Exchange Offer, (C)
it is acquiring the Exchange Notes in its ordinary course of business and (D) if such Holder
is a Broker-Dealer, that it will receive Exchange Notes for its own account in exchange for
Notes that were acquired as a result of market-making activities or other trading activities
and that it will deliver a Prospectus in connection with any resale of such Exchange Notes.
Each Holder shall be required to make such other representations as may be reasonably
necessary under applicable Commission rules, regulations or interpretations to render the
use of Form S-4 or another appropriate form under the Act available and will be required to
agree to comply with their agreements and covenants set forth in this Agreement. Each
Holder using the Exchange Offer to participate in a distribution of the Exchange Notes will
be required to acknowledge and agree that, if the resales are of Exchange Notes obtained by
such Holder in exchange for Notes acquired directly from the Company or an Affiliate
thereof, it (1) could not, under Commission policy as in effect on the date of this
Agreement, rely on the position of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (including, if applicable, any no-action
letter obtained pursuant to clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be covered by an effective
Registration Statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration Statement, the Company
and the Guarantors shall provide a supplemental letter to the Commission (A) stating that
the Company and the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) as
interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993,
and, if applicable, any no-action letter obtained pursuant to clause (i) above, (B)
including a representation that neither the Company nor any Guarantor has entered into any
arrangement or understanding with any Person to distribute the Exchange Notes to be received
in the Exchange Offer and that, to the best of the Company’s and each Guarantor’s
information and belief, each Holder participating in the Exchange Offer is acquiring the
Exchange Notes in its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange Notes
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received in the Exchange Offer and (C) any other undertaking or representation required
by the Commission as set forth in any no-action letter obtained pursuant to clause (A)
above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf Registration
Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Sections 6(c) and 6(d) hereof and use their
respective reasonable best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method or methods
of distribution thereof (as indicated in the information furnished to the Company pursuant
to Section 4(b) hereof), and pursuant thereto the Company and the Guarantors will prepare
and file with the Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of distribution
thereof within the time periods and otherwise in accordance with the provisions hereof; and
(ii) issue, upon the request of any Holder or purchaser of Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Exchange Notes having an aggregate
principal amount equal to the aggregate principal amount of Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for cancellation; the Company and the
Guarantors shall register Exchange Notes and the related Subsidiary Guarantees on the Shelf
Registration Statement for this purpose and issue the Exchange Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the names as such purchaser(s)
shall designate.
(c) General Provisions. In connection with any Registration Statement and any related
Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration Statement and the related Prospectus
required to permit resales of Notes and Exchange Notes by Broker-Dealers), the Company and the
Guarantors shall:
(i) use their respective reasonable best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the period
specified in Section 3 or 4 hereof, as applicable. Upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of material fact or omit to state any material fact necessary to
make the statements therein not misleading or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this Agreement, the Company
and the Guarantors shall file promptly an appropriate amendment to such Registration
Statement curing such defect, and, if Commission review is required, use their respective
reasonable best efforts to cause such amendment to be declared effective as soon as
practicable; if at any time the Commission shall issue any stop order suspending the
effectiveness of any Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
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state securities or Blue Sky laws, the Company and the Guarantors shall use their
respective reasonable best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(ii) use their respective reasonable best efforts to (A) prepare and file with the
Commission such amendments and post-effective amendments to the applicable Registration
Statement as may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be; (B) cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and (C) to comply fully with Rules 424, 430A
and 462, as applicable, under the Act in a timely manner; and comply with the provisions of
the Act with respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) in connection with any sale of Transfer Restricted Securities that will result in
such securities no longer being Transfer Restricted Securities, cooperate with the Holders
to facilitate the timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations and such names as the selling
Holders may request at least two Business Days prior to such sale of Transfer Restricted
Securities;
(iv) use their respective reasonable best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to be registered with
or approved by such other U.S. governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such Transfer
Restricted Securities; provided, however, that neither the Company nor any Guarantor shall
be required to register or qualify as a foreign corporation where it is not now so qualified
or to take any action that would subject it to general service of process in suits or to
taxation in any jurisdiction where it is not now so subject;
(v) provide CUSIP numbers for all Transfer Restricted Securities or Exchange Notes, as
the case may be, not later than the effective date of such Registration Statement covering
such Transfer Restricted Securities or Exchange Notes, as the case may be, and provide the
Trustee under the Indenture with certificates for the Transfer Restricted Securities or
Exchange Notes, as the case may be, which are in a form eligible for deposit with The
Depository Trust Company;
(vi) otherwise use their respective reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available to its
Holders with regard to any applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule 158 under the
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Act) no later than 45 days after the end of the twelve-month period (or 90 days after
the end of the twelve-month period if such period is a fiscal year); and
(vii) cause the Indenture to be qualified under the TIA not later than the effective
date of the first Registration Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use their respective reasonable best efforts to cause the
Trustee thereunder to execute, all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner.
(d) Additional Provisions Applicable to Shelf Registration Statements and Certain Exchange
Offer Prospectuses. In connection with (1) each Shelf Registration Statement, and (2) each
Exchange Offer Registration Statement, if and to the extent that (x) an Initial Purchaser has
notified the Company in accordance with Section 3(a) that it is a Holder of Exchange Notes that are
Transfer Restricted Securities (for so long as such Exchange Notes are Transfer Restricted
Securities or for the period provided in Section 3 hereof, whichever is shorter), the Company and
the Guarantors shall:
(i) advise each Holder promptly (but in any event within three Business Days) and, if
requested by such Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with respect to any
applicable Registration Statement or any post-effective amendment thereto, when the same has
become effective, (B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, or (D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which it was made, not misleading; and if
at any time the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the Company and the
Guarantors shall use their reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time and will provide to the Initial Purchasers and each
Holder who is named in the Registration Statement prompt notice of the withdrawal of any
such order;
12
(ii) if any fact or event contemplated by Section 6(d)(i)(D) above shall exist or have
occurred, use their reasonable best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter delivered to
the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading;
(iii) furnish to each Holder in connection with such exchange or sale, if any (or, in
connection with any Exchange Offer Registration Statement, furnish to counsel for the
Initial Purchasers), before filing with the Commission, copies of any Registration Statement
or any Prospectus included therein (except the Prospectus included in the Exchange Offer
Registration Statement at the time it was declared effective) or any amendments or
supplements to any such Registration Statement or Prospectus (but excluding all documents
incorporated by reference after the initial filing of such Registration Statement as a
result of the Company’s periodic reporting requirements under the Exchange Act), which
documents will be subject to the review and comment of such Holders (and counsel, as the
case may be) in connection with such sale, if any, for a period of at least five Business
Days, and the Company will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus (excluding all such
documents incorporated by reference as a result of the Company’s periodic reporting
requirements under the Exchange Act) to which such Holders (or counsel, as the case may be)
shall reasonably object within five Business Days after the receipt thereof; a Holder shall
be deemed to have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains an
untrue statement of a material fact or omits to state any material fact necessary to make
the statements therein not misleading or fails to comply with the applicable requirements of
the Act;
(iv) promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such document to
each Holder (or in connection with any Exchange Offer Registration Statement, furnish to
counsel for the Initial Purchasers) in connection with such exchange or sale, if any, make
the Company’s and the Guarantors’ representatives available for discussion of such document
and other customary due diligence matters, and include such information in such document
prior to the filing thereof as such Holders (and counsel, as the case may be) may reasonably
request;
(v) make available, at reasonable times, for inspection by each Holder in connection
with any Shelf Registration Statement an Exchange Offer Registration Statement and any
attorney or accountant retained by such Holders in connection with such Registration
Statement, all financial and other records, pertinent corporate documents of the Company and
the Guarantors and cause the Company’s and the Guarantors’ officers, directors and employees
to supply all information reasonably requested by any such Holder, attorney or accountant in
connection with such Registration Statement or any post-effective amendment thereto
subsequent to the filing
13
thereof and prior to its effectiveness; provided, however, that the foregoing
inspection and information gathering (A) shall be coordinated on behalf of the selling
Holders, underwriters or any representative thereof by one counsel, who shall be Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP or such other counsel as may be chosen by the Holders of a
majority in principal amount of Transfer Restricted Securities, and (B) shall not be
available to any such Holder who does not agree to hold such information in confidence;
(vi) if requested by any Holders (or, in connection with any Exchange Offer
Registration Statement, the Initial Purchasers and their counsel) in connection with such
exchange or sale, and use their respective reasonable best efforts to promptly include in
any Registration Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such Holders may reasonably request to have
included therein, including, without limitation, information relating to the “Plan of
Distribution” of the Transfer Restricted Securities; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be included in such Prospectus supplement or post-effective
amendment;
(vii) furnish to each Holder (or, in connection with any Exchange Offer Registration
Statement, counsel for the Initial Purchasers) in connection with such exchange or sale
without charge, at least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including, if requested, all documents
incorporated by reference therein and all exhibits (including exhibits incorporated therein
by reference);
(viii) deliver to each Holder (or, in connection with any Exchange Offer Registration
Statement, the Initial Purchasers and their counsel) without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or supplement thereto
as such Holder (or, in connection with any Exchange Offer Registration Statement, the
Initial Purchasers and their counsel) reasonably may request; the Company and the Guarantors
hereby consent to the use (in accordance with law) of the Prospectus and any amendment or
supplement thereto by each selling Holder in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement
thereto;
(ix) upon the reasonable request of any Holder in connection with a Shelf Registration
Statement, enter into customary agreements (including an underwriting agreement) and make
such representations and warranties and take all such other actions in connection therewith
in order to expedite or facilitate the disposition of the Transfer Restricted Securities as
may be reasonably requested by any Holder in connection with any sale or resale pursuant to
a Shelf Registration Statement. In such connection with an underwritten offering, the
Company and the Guarantors shall:
(A) upon request of any Holder, furnish (or in the case of clauses (2) and (3)
below, use their respective reasonable best efforts to cause to be furnished) to
each Holder, upon Consummation of the Exchange Offer or upon the effectiveness of
the Shelf Registration Statement, as the case may be:
14
(1) a certificate, dated such date, signed on behalf of the Company and
each Guarantor by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the Company and such Guarantor,
confirming, as of the date thereof, the matters set forth in Sections 7(h)
of the Purchase Agreement and such other similar matters as such Holders may
reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case
may be, of counsel for the Company and the Guarantors covering matters
similar to those set forth in Sections 7(c) and (d) of the Purchase
Agreement and such other matters as such Holder may reasonably request, and
in any event including a statement to the effect that such counsel has
participated in conferences with officers and other representatives of the
Company and the Guarantors, representatives of the independent public
accountants for the Company and the Guarantors and has considered the
matters required to be stated therein and the statements contained therein,
although such counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that such counsel advises
that, on the basis of the foregoing, no facts came to such counsel’s
attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective and, in the case of the
Exchange Offer Registration Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus contained in
such Registration Statement as of its date and, in the case of the opinion
dated the date of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial statements, notes
and schedules and other financial data included in any Registration
Statement contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter(s), dated as of the date of Consummation
of the Exchange Offer, or as of the date of effectiveness of the Shelf
Registration Statement, as the case may be, from the Company’s independent
accountants, in the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 7(f) and (g) of the Purchase
Agreement; and
15
(B) deliver such other documents and certificates as may be reasonably
requested by the selling Holders to evidence compliance with the matters covered in
clause (A) above and with any customary conditions contained in any agreement
entered into by the Company and the Guarantors pursuant to this clause (ix);
(x) prior to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may reasonably request and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the applicable Registration Statement; provided,
however, that neither the Company nor any Guarantor shall be required to register or qualify
as a foreign corporation where it is not now so qualified or to take any action that would
subject it to general service of process in suits or to taxation in any jurisdiction where
it is not now so subject; and
(xi) provide promptly to each Holder, upon request, each document filed with the
Commission pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act.
(e) Restrictions on Holders. Each Holder’s acquisition of a Transfer Restricted
Security constitutes such Holder’s agreement that, upon receipt of the notice referred to in
Section 6(d)(i)(C) or any notice from the Company of the existence of any fact of the kind
described in Section 6(d)(i)(D) hereof (in each case, a “Suspension Notice”), such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(d)(ii) hereof, or (ii) such Holder is advised in writing by
the Company that the use of the Prospectus may be resumed and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus (in each case, the
“Recommencement Date”). Each Holder receiving a Suspension Notice shall be required to either (i)
destroy any Prospectuses, other than permanent file copies, then in such Holder’s possession which
have been replaced by the Company with more recently dated Prospectuses or (ii) deliver to the
Company (at the Company’s expense) all copies, other than permanent file copies, then in such
Holder’s possession of the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of the Suspension Notice. The time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by
a number of days equal to the number of days in the period from and including the date of delivery
of the Suspension Notice to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company’s and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and filing fees and
expenses; (ii) all fees and expenses of compliance with federal securities and state
16
Blue Sky or securities laws; (iii) all expenses of printing (including, without limitation,
certificates for the Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all reasonable fees and
disbursements of counsel for the Company, the Guarantors and one counsel for the Holders of
Transfer Restricted Securities (which shall be Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP or such other
counsel as may be selected by a majority of such Holders); (v) all application and filing fees in
connection with listing the Exchange Notes on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors’ internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration Statement,
including any amendment or supplement thereto, and any other documents delivered to any Holders),
the Company and the Guarantors will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities who are tendering Notes into in the Exchange Offer and/or selling or
reselling Notes or Exchange Notes pursuant to the “Plan of Distribution” section contained in the
Exchange Offer Registration Statement or the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel (who shall be Milbank, Tweed, ▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP unless another firm shall be chosen by the Holders of a majority in principal amount
of the Transfer Restricted Securities for whose benefit such Registration Statement is being
prepared).
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to indemnify and hold
harmless each Holder, its directors, officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act), to the fullest
extent lawful from and against any and all losses, claims, damages, liabilities or judgments,
(including without limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, preliminary prospectus or
Prospectus (or any amendment or supplement thereto) provided by the Company to any Holder or any
prospective purchaser of Exchange Notes or registered Notes, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue statement or omission
that is based upon information relating to any of the Holders furnished in writing to the Company
by any of the Holders; provided, however, that the foregoing indemnity with respect to any
Registration Statement, preliminary prospectus, or Prospectus shall not inure
17
to the benefit of any Holder, or such director, officer or controlling person, from whom the
person asserting any losses, claims, damages, liabilities or judgments otherwise covered by this
paragraph purchased Exchange Notes or registered Notes, if a copy of the preliminary prospectus or
Prospectus (as then amended and supplemented) shall have been furnished to the Holder, such
preliminary prospectus or Prospectus (as then amended and supplemented) was not sent or given by or
on behalf of such Holder to such person prior to the time such person made the decision to purchase
the Exchange Notes or registered Notes, and the preliminary prospectus or Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or
action. In connection with any underwritten registration permitted by Section 3 hereof, the
Company and the Guarantors agree, jointly and severally, to indemnify and hold harmless each
investment bank or investment banks and manager or managers that will administer the offering,
their respective affiliates and each person who controls such persons (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) to substantially the same extent as
provided above with respect to the indemnification of the Holders.
(b) By its acquisition of Transfer Restricted Securities, each Holder of Transfer Restricted
Securities agrees, severally and not jointly, to indemnify and hold harmless the Company and the
Guarantors, and their respective directors and officers, and each Person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company or the
Guarantors to the same extent as the foregoing indemnity from the Company and the Guarantors set
forth in Section 8(a) above, but only with reference to information relating to such Holder
furnished in writing to the Company by such Holder expressly for use in any Registration Statement
or in any amendment or supplement thereto. In no event shall any Holder, its directors, officers
or any Person who controls such Holder be liable or responsible for any amount in excess of the
amount by which the total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the amount paid by such
Holder for such Transfer Restricted Securities and (ii) the amount of any damages that such Holder,
its directors, officers or any Person who controls such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any Person in respect of which indemnity
may be sought pursuant to Section 8(a) or (b) hereof (the “indemnified party”), the indemnified
party shall promptly notify the Person against whom such indemnity may be sought (the “indemnifying
person”) in writing and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred (except that in the case of any action in respect of
which indemnity may be sought pursuant to both Sections 8(a) and (b) hereof, a Holder shall not be
required to assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and expenses of such counsel,
except as provided below, shall be at the expense of the Holder). Any indemnified party shall have
the right to employ separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified party unless (i)
the employment of such counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to assume the defense of such
action or employ counsel reasonably satisfactory to the indemnified party or (iii) the named
parties to any such action
18
(including any impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that there may be one or
more legal defenses available to it which are different from or additional to those available to
the indemnifying party (in which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the Holders, in the
case of the parties indemnified pursuant to Section 8(a) hereof, and by the Company and the
Guarantors, in the case of parties indemnified pursuant to Section 8(b) hereof. The indemnifying
party shall indemnify and hold harmless the indemnified party from and against any and all losses,
claims, damages, liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if the settlement is entered
into more than 20 Business Days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in any case where such
fees and expenses are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the indemnified party,
unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been the subject matter of
such action and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section 8 is unavailable to an
indemnified party in respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one hand, and the Holders, on
the other hand, from their initial sale of Transfer Restricted Securities (or in the case of
Exchange Notes that are Transfer Restricted Securities, the sale of the Notes for which such
Exchange Notes were exchanged) or (ii) if the allocation provided by such clause 8(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in such clause 8(d)(i) above but also the relative fault of the Company and
the Guarantors, on the one hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages, liabilities or judgments,
as well as any other relevant equitable considerations. The relative fault of the Company and the
Guarantors, on the one hand, and of the Holder, on the other hand, 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
Company or such Guarantor, on the one hand, or by the Holder, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity
19
to correct or prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and judgments referred to above shall be deemed
to include, subject to the limitations set forth in Section 8(c) hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or defending any action
or claim.
The Company, the Guarantors and, by its acquisition of Transfer Restricted Securities, each
Holder agree that it would not be just and equitable if contribution pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities or judgments referred
to in the immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any matter, including any action that could have given
rise to such losses, claims, damages, liabilities or judgments. Notwithstanding the provisions of
this Section 8, no Holder, its directors, its officers or any Person, if any, who controls such
Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer Restricted Securities
pursuant to a Registration Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this Section 8(d) are
several in proportion to the respective principal amount of Transfer Restricted Securities held by
each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company or such Guarantor (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request of any
Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof
and any prospective purchaser of such Transfer Restricted Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to
Section 13 or 15(d) of the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. FUTURE SUBSIDIARY GUARANTEES
If, prior to the Consummation of the Exchange Offer or prior to the effectiveness of the Shelf
Registration Statement, as the case may be, any subsidiary of the Company executes a Subsidiary
Guarantee in accordance with the terms and provisions of the Indenture, the Company shall cause
such subsidiary to execute and deliver to the parties hereto a counterpart
20
signature page to this Agreement and such subsidiary shall be bound by all the provisions of
this Agreement as a “Guarantor.”
SECTION 11. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that any failure
by the Company and/or the Guarantors to comply with their respective obligations under Sections 3
and 4 hereof may result in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Company’s and the Guarantor’s
obligations under Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and the Guarantors will not, on or after
the date of this Agreement, enter into any agreement with respect to their respective securities
that is inconsistent with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. Except for the Shareholder Agreement, dated as of November
30, 2005, and the Security Agreement, dated December 21, 2005, among the Company, the Guarantors
and ▇▇▇▇▇ Fargo Bank, N.A., as the collateral agent (the “Security Agreement”), the Company and the
Guarantors have not previously entered into any agreement granting any registration rights with
respect to their respective securities to any Person that would require such securities to be
included in any Registration Statement filed hereunder. Except for the Shareholder Agreement,
dated as of November 30, 2005, and the Security Agreement, the rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the rights granted to the
holders of the Company’s and the Guarantors’ securities under any agreement in effect on the date
hereof.
(c) Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless (i) in the case of Section 5 hereof and this Section 11(c)(i), the Company has obtained the
written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities (excluding Transfer
Restricted Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof that relates exclusively to the rights of
Holders whose Transfer Restricted Securities are being tendered pursuant to the Exchange Offer, and
that does not affect directly or indirectly the rights of other Holders whose Transfer Restricted
Securities are not being tendered pursuant to such Exchange Offer, may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities subject to such
Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements
21
directly to the extent they may deem such enforcement necessary or advisable to protect their
rights hereunder.
(e) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, facsimile transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the registrar under the
Indenture, with a copy to the registrar under the Indenture; and
(ii) if to the Company or any of the Guarantors:
VeraSun Energy Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Faegre & ▇▇▇▇▇▇ LLP
2200 ▇▇▇▇▇ Fargo Center
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
2200 ▇▇▇▇▇ Fargo Center
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been duly given at the time
delivered by hand, when receipt acknowledged, if sent by facsimile transmission; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Transfer Restricted Securities in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
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(g) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| VERASUN ENERGY CORPORATION | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN AURORA CORPORATION | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN FORT DODGE, LLC | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN ▇▇▇▇▇▇▇ CITY, LLC | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN MARKETING, LLC | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN ▇▇▇▇▇▇▇, LLC | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN BIODIESEL, LLC | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN WELCOME, LLC | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN GRANITE CITY, LLC | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
| VERASUN ▇▇▇▇▇▇▇▇, LLC | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
| Title: | President and Chief Executive Officer | |||||||||
Accepted and agreed by:
▇▇▇▇▇▇ BROTHERS INC.
By
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
Name:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
Title:
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Managing Director | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED | ||||
By
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
Name:
|
▇▇▇▇ ▇. ▇▇▇▇▇ | |||
Title:
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Executive Director | |||
| UBS SECURITIES LLC | ||||
By
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
Name:
|
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
Title:
|
Managing Director | |||
By
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
Name:
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
Title:
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Director | |||