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| Item 1.02 | Termination of a Material Definitive Agreement |
On March 31, 2008, US BioEnergy terminated its services agreement with Capitaline Advisors, LLC effective immediately. Capitaline Advisors, LLC is an entity that is owned and controlled by Gordon W. Ommen, US BioEnergy’s former President and Chief Executive Officer.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
On March 31, 2008, US BioEnergy completed the closing of the merger (the “Merger”) with VeraSun Energy Corporation (“VeraSun”), pursuant to the Agreement and Plan of Merger, dated as of November 29, 2007, by and among VeraSun, Host Acquisition Corporation (a direct, wholly-owned subsidiary of VeraSun) (“Merger Sub”) and US BioEnergy (the “Merger Agreement”), with the Merger becoming effective on April 1, 2008.
In the Merger, each outstanding share of US BioEnergy common stock was converted into 0.810 shares of VeraSun common stock (plus cash in lieu of fractional shares) and each outstanding US BioEnergy stock option and restricted stock award issued under a US BioEnergy equity-based compensation plan was converted into a VeraSun stock option or restricted stock award, as applicable, in each case on the same terms and conditions as were applicable under such US BioEnergy equity-based compensation plan. As a result of the Merger, former US BioEnergy shareholders own approximately 41.0% of the outstanding shares of VeraSun common stock.
This description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement filed as Exhibit 2.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
In addition, on March 31, 2008, US BioEnergy and CHS Inc. executed a Purchase Agreement, whereby US BioEnergy sold one-hundred percent of its fifty-percent membership interest in Provista to CHS as described in Item 1.01 of this Current Report on Form 8-K, which description is incorporated herein in its entirety by reference.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On March 31, 2008, in connection with the closing of the Merger, US BioEnergy notified the NASDAQ Stock Market LLC (“NASDAQ”) of its intent to remove its common stock from listing and requested that that NASDAQ file a delisting application on Form 25 with the Securities and Exchange Commission (the “Commission”) to delist and deregister its common stock. NASDAQ filed the Form 25 with the Commission after the close of business on March 31, 2008 and the filing became effective on April 1, 2008.
| Item 5.01 | Change in Control of the Registrant. |
Upon the closing of the Merger on March 31, 2008, a change in control of US BioEnergy occurred. Pursuant to the terms of the Merger Agreement, Merger Sub was merged with and into US BioEnergy, with US BioEnergy continuing as the surviving corporation. At the effective time of the Merger, each outstanding share of US BioEnergy common stock was converted into the right to receive 0.810 shares of VeraSun common stock (plus cash in lieu of fractional shares) and
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each outstanding US BioEnergy stock option and restricted stock award issued under a US BioEnergy equity-based compensation plan was converted into a VeraSun stock option or restricted stock award, as applicable, in each case on the same terms and conditions as were applicable under such US BioEnergy equity-based compensation plan. With the closing of the Merger, US BioEnergy became a direct, wholly-owned subsidiary of VeraSun.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Pursuant to the terms of the Merger Agreement, at the effective time of the Merger, all of the members of US BioEnergy’s board of directors resigned and were replaced by Donald L. Endres, the sole director of the Merger Sub at the effective time of the Merger. At the effective time of the Merger, Gordon Ommen, Richard Atkinson, Chad Hatch and Kim Regenhard resigned from their positions as executive officers of US BioEnergy. Gregory S. Schlicht, in his position as Senior Vice President, General Counsel and Secretary, remained as an executive officer of US BioEnergy. Following the effective time of the Merger, the following individuals were appointed as executive officers of US BioEnergy:
| Donald L. Endres |
- | Chief Executive Officer | ||
| Danny C. Herron |
- | President and Chief Financial Officer | ||
| Paul J. Caudill |
- | Senior Vice President, Operations | ||
| William L. Honnef |
- | Senior Vice President, Strategic Initiatives | ||
| Robert L. Antoine, Jr. |
- | Senior Vice President, Human Resources | ||
| Barry P. Schaps |
- | Senior Vice President, Sales and Logistics | ||
| Bryan D. Meier |
- | Vice President, Finance and Chief Accounting |
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Pursuant to the terms of the Merger Agreement, at the effective time of the Merger, (a) US BioEnergy amended and restated its articles of incorporation as in effect immediately prior to the Merger and (b) the bylaws of Merger Sub as in effect immediately prior to the Merger became the bylaws of US BioEnergy.
Copies of US BioEnergy’s amended and restated articles of incorporation and bylaws are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit |
Description | |
| 2.1 |
Agreement and Plan of Merger, dated as of November 29, 2007, by and among VeraSun Energy Corporation, Host Acquisition Corporation and US BioEnergy Corporation (incorporated by reference to Exhibit 2.1 to US BioEnergy Corporation’s Current Report on Form 8-K, filed with the SEC on December 5, 2007, File No. 001-33203) |
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| 3.1 |
Third Amended and Restated Articles of Incorporation of US BioEnergy Corporation | |
| 3.2 |
Bylaws of US BioEnergy Corporation | |
| 10.1 |
Purchase Agreement, dated as of March 31, 2008, by and between CHS Inc. and US BioEnergy Corporation* | |
| * | The schedules and exhibits hereto have been omitted. US BioEnergy hereby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| US BIOENERGY CORPORATION | ||||
| /s/ GREGORY S. SCHLICHT | ||||
| Date: April 4, 2008 |
By: | Gregory S. Schlicht | ||
| Its: | Senior Vice-President, General Counsel and Corporate Secretary | |||
Exhibit Index
| Exhibit |
Description | |
| 2.1 | Agreement and Plan of Merger, dated as of November 29, 2007, by and among VeraSun Energy Corporation, Host Acquisition Corporation and US BioEnergy Corporation (incorporated by reference to Exhibit 2.1 to US BioEnergy Corporation’s Current Report on Form 8-K, filed with the SEC on December 5, 2007, File No. 001-33203) | |
| 3.1 | Third Amended and Restated Articles of Incorporation of US BioEnergy Corporation | |
| 3.2 | Bylaws of US BioEnergy Corporation | |
| 10.1 | Purchase Agreement, dated as of March 31, 2008, by and between CHS Inc. and US BioEnergy Corporation* | |
| * | The schedules and exhibits hereto have been omitted. US BioEnergy hereby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request. |
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