Iowa
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84-1652107
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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Michelle S. Mapes, Esq.
Green Plains Inc.
1811 Aksarben Drive
Omaha, NE 68106
(402) 884-8700
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Rebecca C. Taylor, Esq.
Husch Blackwell LLP
736 Georgia Avenue, Suite 300
Chattanooga, TN 37402 Phone: (423) 266-5500 |
Large accelerated filer ☑
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company ☐
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Proposed maximum
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Proposed maximum
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Title of each class of
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Amount to be
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offering price
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aggregate offering
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Amount of
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securities to be registered
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registered
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per security
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price
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registration fee(2)
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Common stock, par value $0.001 per share
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(1)(2)
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(1)
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(1)
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(1)(3)
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Debt securities
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(1)(2)
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(1)
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(1)
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(1)(3)
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Warrants
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(1)(2)
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(1)
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(1)
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(1)(3)
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Units
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(1)(2)
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(1)
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(1)
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(1)(3)
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TOTAL
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$250,000,000
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(1)
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$250,000,000
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$32,450(3)
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(1)
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There is being registered hereunder an indeterminate number of common units representing limited partner interests, preferred units, debt securities and warrants that may be issued by the registrant at various
times and at indeterminate prices, with a total offering price not to exceed $250,000,000. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the securities being registered hereunder include such
indeterminate number of common or preferred units as may be issuable by the registrant with respect to the units being registered hereunder as a result of splits, dividends or similar transactions. The proposed maximum aggregate offering
price per class of security will be determined from time to time by the registrant in connection with the issuance of securities and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3.
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(2)
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Pursuant to Rule 457(i) under the Securities Act, the securities being registered hereunder also include:
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(a)
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such indeterminate number of shares of common stock as may be issuable by the registrant upon conversion or exchange of any common stock, debt securities or warrants issued under this Registration Statement;
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(b)
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such indeterminate principal amount of debt securities as may be issuable by the registrant upon conversion or exchange of any warrants issued under this Registration Statement. If any debt securities are issued at an original issue
discount, then the offering price shall be in such greater principal amount at maturity as shall result in aggregate gross proceeds to the registrant not to exceed $250,000,000, less the gross proceeds attributable to any securities
previously issued pursuant to this Registration Statement; and
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(c)
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such indeterminate number of warrants as may be issuable by the registrant upon conversion or exchange of any common stock or debt securities issued by the registrant under this Registration Statement.
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In no event will the aggregate offering price of all securities issued by the registrant from time to time pursuant to this Registration Statement exceed $250,000,000, excluding accrued interest, if any, on any debt securities issued under this Registration Statement. The securities registered by the registrant hereunder may be sold separately or with other securities registered hereunder. |
(3)
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Calculated pursuant to Rule 457(o) under the Securities Act. Pursuant to 457(o) and General Instruction II D. to Form S-3, the table does not specify by each class information as to the amounts to be registered, proposed maximum offering
price per unit or proposed maximum aggregate offering price. Pusuant 457(p), Pursuant to Rule 457(p) under the Securities Act, the registrant is offsetting the registration fee due under this registration statement by $30,300.00, which
represents the portion of the registration fee previously paid with respect to $250,000,000.00 of unsold securities previously registered on the registration statement on Form S-3ASR (File No. 333-215281), initially filed on December 22, 2016
and amended by post-effective amendment no. 1 filed on February 20, 2019.
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shares of common stock, par value $0.001 per share;
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warrants for the purchase of shares of common stock;
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debt securities; and
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units consisting of two or more of the above classes or series of securities.
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Page
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Ethanol Production. Our ethanol production segment includes the production of ethanol, distillers grains and corn oil at 13 ethanol
plants in Illinois, Indiana, Iowa, Minnesota, Nebraska, Tennessee and Texas. At capacity, our facilities are capable of processing approximately 387 million bushels of corn per year and producing approximately 1.1 billion gallons of
ethanol, 2.9 million tons of distillers grains and 292 million pounds of industrial grade corn oil, making us one of the largest ethanol producers in North America. On November 15, 2018, we completed the sale of three ethanol plants
located in Bluffton, Indiana, Lakota, Iowa and Riga, Michigan and announced the permanent closure of our ethanol plant located in Hopewell, Virginia.
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Agribusiness and Energy Services. Our agribusiness and energy services segment includes grain procurement, with approximately 47.2
million bushels of grain storage capacity, and our commodity marketing business, which markets, sells and distributes ethanol, distillers grains and corn oil produced at our ethanol plants. We also market ethanol for a third-party
producer as well as buy and sell ethanol, distillers grains, corn oil, crude oil, grain, natural gas and other commodities in various markets.
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Food and Ingredients. Our food and ingredients segment currently includes our food-grade corn oil operations. In September, 2019, we
formed a joint venture and sold 50% of our cattle feeding operations with the capacity to support approximately 355,000 head of cattle and grain storage capacity of approximately 11.7 million bushels. Fleischmann’s Vinegar, one of the
world’s largest producers of food-grade industrial vinegar, was also included in the food and ingredients segment until its sale on November 27, 2018.
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Partnership. Our master limited partnership provides fuel storage and transportation services by owning, operating, developing and
acquiring ethanol and fuel storage tanks, terminals, transportation assets and other related assets and businesses. The partnership’s assets include 32 ethanol storage facilities, seven fuel terminal facilities and approximately 2,840
leased railcars.
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common stock;
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warrants to purchase common stock or debt securities of one or more series;
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debt securities; and/or
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units.
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designation or classification;
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aggregate offering price;
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rates and times of payment of dividends or interest, if any;
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redemption, conversion, exercise, exchange or sinking fund terms, if any;
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ranking;
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liquidation rights;
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restrictive covenants, if any;
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voting or other rights, if any;
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conversion prices, if any; and
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important United States federal income tax considerations.
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase common stock, the number of shares of common stock purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon
such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreement and warrants may be modified;
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federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
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the title;
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the principal amount being offered, and, if a series, the total amount authorized and the total amount outstanding;
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any limit on the amount that may be issued;
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whether or not we will issue the series of debt securities in global form, the terms and who the depository will be;
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the maturity date;
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the principal amount due at maturity, and whether the debt securities will be issued with any original issue discount;
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whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such
additional amounts;
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the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the
method for determining such dates;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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the aggregate amount of indebtedness that would be senior to the subordinated debt and a description of any limitation on the issuance of such additional senior indebtedness (or a statement that there is no such limitation);
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the place where payments will be made;
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restrictions on transfer, sale or other assignment, if any;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional redemption provisions;
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provisions for a sinking fund, purchase or other analogous fund, if any;
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities;
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whether the indenture will restrict our ability to: incur additional indebtedness, issue additional securities, create liens, pay dividends and make distributions with respect to our capital stock, redeem capital stock, make investments or
other restricted payments, sell or otherwise dispose of assets, engage in transactions with shareholders and affiliates, or effect a consolidation or merger;
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whether the indenture will require us to maintain any asset ratios or reserves;
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a discussion of any material or special United States federal income tax considerations applicable to the debt securities;
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the procedures for any auction and remarketing, if any;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
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if other than dollars, the currency in which the series of debt securities will be denominated;
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities; and
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the name of any trustee(s) and the nature of any material relationships with the trustee, the percentage of securities of the class necessary to require the trustee to take action and what indemnification the trustee may require before
proceeding to enforce any liens.
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if we fail to pay interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred;
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if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended or delayed;
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if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we
receive notice from the debenture trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur as to us.
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that might involve personal liability or be unduly prejudicial to the holders not involved in the proceeding.
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the holder has given written notice to the debenture trustee of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity, to the debenture trustee to institute the proceeding
as trustee; and
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the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority-in-aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 60 days after
the notice, request and offer.
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to fix any ambiguity, defect or inconsistency in the indenture;
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to comply with the provisions described above under “Consolidation, Merger or Sale”;
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to provide for uncertificated debt securities and to make all appropriate changes for such purpose;
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to add to, delete from, or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issuance, authorization and delivery of debt securities of any series;
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to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the security holders, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an event of default, or to surrender any of our rights or powers under the indenture; or
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to change anything that does not materially adversely affect the interests of any holder of debt securities of any series.
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extending the fixed maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption of any debt securities; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment.
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected
for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
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the title of any series of units;
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the date, if any, on and after which the securities comprising such units may be transferable separately, and any other terms and conditions applicable to such transfers;
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any material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units, including information with respect to any applicable book-entry procedures;
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whether we will apply to have such units traded on any securities exchange or securities quotation system;
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any material United States federal income tax consequences applicable to such units, including how, for United States federal income tax purposes, the purchase price paid for the units is to be allocated among the component securities;
and
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any other material terms and conditions relating to the units or to the securities included in each unit.]
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through dealers or agents to the public or to investors;
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to underwriters for resale to the public or to investors;
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directly to investors; or
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through a combination of such methods.
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the name or names of any agents, dealers or underwriters;
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the purchase price of the securities being offered and the proceeds we or they will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges on which the securities may be listed.
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inspect a copy of the Registration Statement, including the exhibits and schedules, without charge at the public reference room;
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obtain a copy from the SEC upon payment of the fees prescribed by the SEC; or
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obtain a copy from the SEC’s website or our website.
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1.
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Our Annual Report on Form 10-K, filed on February 20, 2019, for the year ended December 31, 2018, including
the information specifically incorporated in our Annual Report on Form 10-K for the year ended December 31, 2017 from our Definitive Proxy
Statement on Schedule 14A, filed on March 29, 2018.
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2.
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Our Form 10-Q, filed on May 9, 2019 for the three months ended March 31, 2019.
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3.
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Our Form 10-Q, filed on August 6, 2019, for the six months ended June 30, 2019.
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4.
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Our Form 10-Q, filed on November 7, 2019, for the nine months ended September 30, 2019.
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5.
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Our Current Reports on Form 8-K, filed on February 7, 2019, May 8, 2019 (the first and third filing on such date), June 18, 2019, June 19, 2019, June 21,2019, July 1, 2019, July 19, 2019, September 9, 2019 (as
amended by the Form 8-K/A on September 12, 2019), November 22, 2019 and December 12, 2019.
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6.
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The description of the registrant’s common stock set forth in the registrant’s registration statement on Form 8-A filed pursuant to Section 12 of the Exchange Act on December 16, 2005, including any amendment or report filed with the Commission for the purpose of updating this description.
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Item
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Amount
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SEC registration fee
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$
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32,450
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Legal fees and expenses
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50,000
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Accounting fees and expenses
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25,000
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Printing fees
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10,000
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Transfer agent fees and expenses
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5,000
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Miscellaneous fees and expenses
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10,000
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Total
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$
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132,450
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Exhibit
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Number
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Description of Document
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1.1*
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Form of Underwriting Agreement
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Asset Purchase Agreement by and among Ethanol Holding Company, LLC, Green Plains Renewable Energy, Inc., Green Plains Wood River LLC and Green Plains Fairmont LLC dated November 1, 2013 (Incorporated by
reference to Exhibit 2.1 of the company’s Current Report on Form 8-K filed November 25, 2013)
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Amendment to Asset Purchase Agreement by and among Ethanol Holding Company, LLC, Green Plains Renewable Energy, Inc., Green Plains Wood River LLC and Green Plains Fairmont LLC dated November 22, 2013
(Incorporated by reference to Exhibit 2.2 of the Company’s Current Report on Form 8-K filed November 25, 2013)
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Membership Interest Purchase Agreement between Murphy Oil USA, Inc. and Green Plains Inc. dated October 28, 2015 (Incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed
November 12, 2015)
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Asset Purchase Agreement, dated June 12, 2016, by and among Green Plains Inc. and Abengoa Bioenergy of Illinois, LLC and Abengoa Bioenergy of
Indiana, LLC (Incorporated by reference to Exhibit 2.1 of the Company’s Current Report on Form 8-K filed June 13, 2016)
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Amended and Restated Asset Purchase Agreement, dated August 25, 2016, by and among Green Plains Inc. and Abengoa Bioenergy Company, LLC (incorporated herein by reference to Exhibit 2.1 to the company’s Current
Report on Form 8-K dated September 1, 2016)
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Asset Purchase Agreement, dated September 23, 2016, by and among Green Plains Inc., Green Plains Madison LLC, Green Plains Mount Vernon LLC, Green Plains York LLC, Green Plains Holdings LLC, Green Plains
Partners LP, Green Plains Operating Company LLC, Green Plains Ethanol Storage LLC and Green Plains Logistics LLC (incorporated herein by reference to Exhibit 2.1 to the company’s Current Report on Form 8-K dated September 26, 2016)
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Amended and Restated Asset Purchase Agreement, dated August 25, 2016, by and among Green Plains Inc., Abengoa BioEnergy of Illinois, LLC and Abengoa BioEnergy of Indiana, LLC (incorporated herein by reference to
Exhibit 2.2 to the company’s Current Report on Form 8-K dated September 26, 2016)
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Stock Purchase Agreement, dated as of October 3, 2016, by and among Green Plains Inc., Green Plains II LLC, SCI Ingredients Holdings, Inc., Stone Canyon Industries LLC and other selling shareholders
(incorporated herein by reference to Exhibit 2.1 to the company’s Current Report on Form 8-K dated October 3, 2016)
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Membership Interest Purchase Agreement, dated as of February 16, 2018, by and between AMID Merger LP and DKGP Energy Terminals LLC (incorporated herein by reference to Exhibit 2.1(a) of the company’s Current
Report on Form 8-K filed on February 20, 2018)
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Guaranty Agreement (Buyer), dated as of February 16, 2018, by and between Delek Logistics Partners, LP and Green Plains Partners LP (incorporated herein by reference to Exhibit 2.1(b) of the company’s Current
Report on Form 8-K filed on February 20, 2018)
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Guaranty Agreement (Seller), dated as of February 16, 2018, by and between American Midstream Partners, LP and DKGP Energy Terminals LLC (incorporated herein by reference to Exhibit 2.1(c) of the company’s
Current Report on Form 8-K filed on February 20, 2018)
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Limited Liability Agreement of DKGP Energy Terminals LLC (incorporated herein by reference to Exhibit 10.1 of the company’s Current Report on Form 8-K filed on February 20, 2018)
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Asset Purchase Agreement, dated as of July 27, 2018, by and among Green Plains Cattle Company LLC, and Bartlett Cattle Company, L.P. (incorporated herein by reference to Exhibit 2.1 of the company’s Current
Report on Form 8-K filed on August 1, 2018)
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Asset Purchase Agreement among Green Plains Bluffton LLC, Green Plains Holdings II LLC, Green Plains Inc. and Valero Renewable Fuels Company, LLC, dated October 8, 2018. (incorporated by reference to Exhibit 2.1
of our Current Report on Form 8-K filed on October 10, 2018). (The schedules to the Asset Purchase Agreement have been omitted. The Company will furnish such schedules to the SEC upon request.)
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Asset Purchase Agreement among Green Plains Partners LP, Green Plains Holdings LLC, Green Plains Operating Company LLC, Green Plains Ethanol Storage LLC, Green Plains Logistics LLC, Green Plains Inc., Green
Plains Trade Group LLC, Green Plains Bluffton LLC and Green Plains Holdings II LLC (incorporated by reference to Exhibit 2.2 of our Current Report on Form 8-K filed on October 10, 2018). (The schedules to the Asset Purchase Agreement have
been omitted. The Partnership will furnish such schedules to the SEC upon request).
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Asset Purchase Agreement, dated as of April 25, 2017, by and among Green Plains Cattle Company LLC, and Cargill Cattle Feeders, LLC. (incorporated herein by reference to Exhibit 2.1 to the company’s Current
Report on Form 8-K dated April 26, 2017)
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Stock Purchase Agreement among Green Plains Inc., Green Plains II LLC and Kerry Holding Co. dated October 23, 2018. (The schedules to the Stock Purchase Agreement have been omitted. The Company will furnish such
schedules to the SEC upon request.) (incorporated herein by reference to Exhibit 2.1 of the company’s Current Report on Form 8-K filed October 25, 2018)
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Securities Purchase Agreement, dated as of September 6, 2019, by and among Green Plains Inc., Green Plains Cattle Company LLC, TGAM Agribusiness Fund Holdings-B LP, and StepStone Atlantic Fund, L.P. (Certain
schedules to the Securities Purchase Agreement have been omitted. The company will furnish such schedules to the SEC upon request.) (incorporated herein by reference to Exhibit 2.1 of the company’s Current Report on Form 8-K filed September
9, 2019)
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Second Amended and Restated Articles of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed October 15, 2008)
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Articles of Amendment to Second Amended and Restated Articles of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed May 9, 2011)
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Second Articles of Amendment to Second Amended and Restated Articles of Incorporation of Green Plains Renewable Energy, Inc. (Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K
filed May 16, 2014)
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Second Amended and Restated Bylaws of the Company dated August 14, 2012 (Incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed August 15, 2012)
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Shareholders’ Agreement by and among Green Plains Renewable Energy, Inc., each of the investors listed on Schedule A, and each of the existing shareholders and affiliates identified on Schedule B, dated May 7,
2008 (Incorporated by reference to Appendix F of the Company’s Registration Statement on Form S-4/A filed September 4, 2008)
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4.2*
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Form of Common Stock Warrant Agreement and Warrant Certificate
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4.3*
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Form of Senior Note
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4.4*
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Form of Subordinated Note
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Form of Senior Indenture (Incorporated by reference to Exhibit 4.5 to the Company’s Registration Statement on Form S-3/A filed December 30, 2009, Registration No. 333-163203)
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Form of Subordinated Indenture (Incorporated by reference to Exhibit 4.6 to the Company’s Registration Statement on Form S-3/A filed December 30, 2009, Registration No. 333-163203)
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4.7*
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Form of Warrant Agreement for Debt Securities and Warrant Certificate
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Indenture relating to the 3.25% Convertible Senior Notes due 2018, dated as of September 20, 2013, between the Company and Wilmington Trust, National Association, including the form of Global Note attached as
Exhibit A thereto (Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed September 20, 2013)
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Indenture relating to the 4.125% Convertible Senior Notes due 2022, dated as of August 15, 2016, between the Company and Wilmington Trust, National Association, including the form of Global Note attached as
Exhibit A thereto (Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed August 15, 2016)
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Indenture relating to the 3.25% Convertible Senior Notes due 2019, dated as of August 14, 2018, between the Company and Wilmington Trust, National Association, including the form of Global Note attached as
Exhibit A thereto (Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed August 14, 2018)
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Indenture relating to the 4.00% Convertible Senior Notes due 2024, dated as of June 21, 2019, between Green Plains Inc. and Wilmington Trust, National Association, including the form of Global Note attached as
Exhibit A thereto (incorporated herein by reference to Exhibit 4.1 of the company’s Current Report on Form 8-K filed on June 21, 2019)
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Opinion of Husch Blackwell LLP regarding legality of the securities being registered
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Consent of KPMG LLP
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Consent of Husch Blackwell LLP (Incorporated herein by reference to Exhibit 5.1)
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Power of Attorney (included on the signature page)
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25.1**
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Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended
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*
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To be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act and incorporated herein by reference.
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**
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To be filed separately under the electronic form type “305B2” pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
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GREEN PLAINS INC.
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By:
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/s/ Todd A. Becker
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Todd A. Becker
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President and Chief Executive Officer
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(Principal Executive Officer)
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Signature
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Title
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Date
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/s/ Todd A. Becker
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President and Chief Executive Officer
(Principal Executive Officer) and Director
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December 27, 2019
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Todd A. Becker | ||||
/s/ G. Patrich Simpkins Jr.
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Chief Financial Officer (Principal Financial Officer)
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December 27, 2019
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G. Patrich Simpkins Jr. | ||||
/s/ Wayne B. Hoovestol
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Chairman of the Board
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December 27, 2019
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Wayne B. Hoovestol | ||||
/s/ Alain Treuer
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Vice Chairman of the Board
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December 27, 2019
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Alain Treuer | ||||
/s/ Jim Anderson
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Director
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December 27, 2019
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Jim Anderson | ||||
/s/ James F. Crowley
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Director
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December 27, 2019
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James F. Crowley | ||||
/s/ S. Eugene Edwards
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Director
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December 27, 2019
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S. Eugene Edwards |
/s/ Gordon F. Glade
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Director
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December 27, 2019
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Gordon F. Glade | ||||
/s/ Thomas L. Manuel
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Director
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December 27, 2019
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Thomas L. Manuel | ||||
/s/ Ejnar A. Knudsen III
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Director
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December 27, 2019
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Ejnar A. Knudsen III | ||||
/s/ Brian D. Peterson
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Director
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December 27, 2019
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||
Brian D. Peterson |
Re: |
Registration Statement on Form S-3
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1. |
With respect to the shares of Common Stock, upon (i) the Board or an authorized committee thereof having duly authorized a designated number of shares of Common Stock for issuance
at a minimum price or value of consideration to be set by the Board or an authorized committee thereof (such consideration to be not less than the par value per share), and (ii) such shares of Common Stock having been issued and
delivered against payment of the consideration therefor as set by the Board or an authorized committee thereof, such shares of Common Stock will be validly issued, fully paid and non-assessable.
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2. |
With respect to the Warrants, upon (i) the Board or an authorized committee thereof having taken the corporate action necessary to authorize the Warrants, (ii) the warrant agreement
relating to the Warrants has been duly authorized, executed and delivered, (iii) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the applicable warrant agreement and do not violate
any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the
Company, (iv) the Warrants have been duly executed and countersigned in accordance with the applicable warrant agreement and issued and sold as contemplated by the Registration Statement and (v) the Company has received the
consideration provided for by the Board or an authorized committee thereof, the Warrants will constitute valid and legally binding obligations of the Company.
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3. |
With respect to the Debt Securities, upon (i) the Board or an authorized committee thereof having taken the corporate action necessary to determine the rights and other terms of the
Debt Securities and duly authorizing the issuance and delivery of the Debt Securities (the “Debt Securities Authorization”), (ii) establishment by the relevant debt agreement (the “Debt Agreement”) if applicable, (iii)
such Debt Securities Authorization having been duly authenticated by the trustee, and (iv) such Debt Securities having been duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms of
the Debt Securities Authorization, any applicable underwriting agreement, an indenture and any applicable supplemental indenture, and as contemplated by the Registration Statement, the prospectus and the related prospectus
supplement(s), such Debt Securities will constitute binding obligations of the Company enforceable in accordance with their terms.
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4. |
With respect to the Units, upon (i) the Board or an authorized committee thereof having taken the corporate action necessary to determine the rights and other terms of the Units and
the Company Securities underlying the Units and duly authorizing the issuance and delivery of the Units, (ii) the unit agreement relating to the Units has been duly authorized, executed and delivered, (iii) the terms of the Units and of
their issuance and sale have been duly established in conformity with the applicable unit agreement and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and
comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (iv) the Units have been duly executed and countersigned in accordance with the applicable unit agreement and
issued and sold as contemplated by the Registration Statement and (v) the Company has received the consideration provided for by the Board or an authorized committee thereof, the Units will constitute valid and legally binding
obligations of the Company.
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(a) |
the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors;
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(b) |
the effects of general principles of equity, whether enforcement is considered in a proceeding in equity or at law (including the possible unavailability of specific performance or
injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which any proceeding therefore may be brought; and
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(c) |
the invalidity under certain circumstances under law or court decisions of provisions for the indemnification of or contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy.
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Very truly yours,
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Husch Blackwell LLP
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/s/ Husch Blackwell LLP
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