Exhibit 10.2
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of June 16, 2026 (the “Closing Date”), by and among Green Plains Inc., an Iowa corporation (the “Company”), BlackRock Global Allocation Fund, Inc., BlackRock Global Allocation Collective Fund, Strategic Income Opportunities Bond Fund and BlackRock Total Return Bond Fund (collectively, the “Investors”).
BACKGROUND:
Each Investor holds, of record and beneficially, a number of limited liability company interests in Green Plains Investments LLC, a Delaware limited liability company (“GP Investments”), set out next to such Investor’s name on Appendix II (the aggregate of all such limited liability company interests, the “GP Investments Interests”).
Pursuant to a side letter between the Company, the Investors, and others dated August 10, 2025 (the “Side Letter”), the Investors have the right (the “Exchange Right”) to exchange the GP Investments Interests for such Investors' pro rata share of 500,000 warrants to purchase common stock of the Company (the “Common Stock”) on the same terms and rights (including for avoidance of doubt, the registration rights described in that certain Subscription Agreement, dated as of August 10, 2025, by and between the Company and the Investors) as the common stock warrants of the Company issued pursuant to those certain Warrant Agreements, dated as of August 10, 2025, between the Company and each Investor named therein.
The Investors have exercised the Exchange Right and the parties hereto have entered into this agreement to memorialize the Investors’ exercise of the Exchange Right and for the Company to purchase from the Investors the GP Investments Interests in exchange for the issuance by the Company to the Investors of the Warrants (as defined below).
NOW, THEREFORE, in consideration of the representations, warranties, covenants, agreements and understandings contained herein and intending to be legally bound, the parties hereto hereby agree as follows:
Article I
PURCHASE AND SALE OF THE INTERESTS
1.1 Transaction. On the terms and subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing, (i) the Company shall purchase from the Investors, and the Investors shall sell, convey, assign, transfer and deliver to the Company, all of the GP Investments Interests, free and clear of all Encumbrances and (ii) the Company will issue to the Investors the Warrants, free and clear of all Encumbrances in accordance with the terms of this Agreement.
1.2 Closing.
(a) The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place simultaneously with the execution of this Agreement on the Closing Date.
(b) Deliveries by the Investors. At the Closing, the Investors shall deliver, or cause to be delivered, to the Company the following:
(i) the Assignment Agreement executed by each Investor in the form attached hereto as Exhibit A (the “Assignment Agreement”);
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(ii) a duly executed IRS Form W-9 with respect to each Investor dated no later than 20 days prior to the Closing Date; and
(iii) such other agreements, documents, instruments or certificates as may be reasonably required to effectuate the transactions contemplated by this Agreement.
(c) Deliveries by the Company. At the Closing, the Company shall deliver, or cause to be delivered, the following:
(i) the Assignment Agreement executed by the Company;
(ii) warrants to purchase 500,000 shares of Common Stock, on the form attached hereto as Exhibit B (the “Warrants”), to the Investors, in proportion to their respective Pro Rata Shares; and
(iii) such other agreements, documents, instruments or certificates as may be reasonably required to effectuate the transactions contemplated by this Agreement.
1.3Exchange Right. The Investors hereby acknowledge and agree that the transaction contemplated by this agreement fulfills and complies with the Exchange Right and that the Investors will have no further right pursuant to the Side Letter with respect to the Exchange Right or the GP Investments Interests.
1.4 Subscription Agreement. The Company hereby acknowledges and agrees that the Investors do not owe any further amounts pursuant to section 2.01 (Pro Rata Payment of GPRE Implementation Earn-out) of that certain Purchase and Subscription Agreement, dated as of February 9, 2021, by and among the Company, GP Investments and the Investors (the “Subscription Agreement”), and the parties hereto acknowledge that such section 2.01 is terminated in connection with the Investors' sale of the GP Investments Interests to the Company pursuant to this Agreement. The Parties hereto hereby further acknowledge and agree that the covenants, obligations and acknowledgements of GP Investments and the Company in section 2.02 of the Subscription Agreement are hereby terminated and of no further force and effect.
Article II
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
The Investors, jointly and severally, represent and warrant to the Company, as of the Closing Date as follows:
2.1Authority and Authorization of the Investors. Each Investor has full right, power, capacity and authority to execute and deliver this Agreement and any other agreements, instruments and documents contemplated hereby to which such Investor is a party and to perform such Investor’s obligations hereunder and thereunder. Such Investor has duly executed and delivered this Agreement and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes the legal, valid and binding obligation of such Investor and is enforceable in accordance with its terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general equitable principles. Such Investor possesses all requisite power and authority necessary to own the GP Investments Interests and to carry out the transactions contemplated by this Agreement.
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2.2No Conflict; No Consents. Neither the execution, delivery nor performance by each Investor of this and any other agreements, instruments and documents contemplated hereby to which each Investor is a party, nor the consummation of the transactions contemplated hereby and thereby: (a) conflict with or violate any Investor’s Organizational Documents, as applicable; (b) conflict with or violate any applicable Law; or (c) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or materially impair their respective rights or alter the rights or obligations of any third party under, or give to any third party any rights of consent, termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on any of the contracts, properties or assets of any Investor. The execution and delivery by each Investor of this Agreement does not, and the performance of its obligations hereunder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, prevent the consummation of the transactions contemplated hereby.
2.3Ownership of Interests. Each Investor owns beneficially and of record all of the GP Investments Interests ascribed to such Investor on Appendix II. All of such GP Investments Interests are, and when transferred to the Company hereunder will be, free and clear of any and all restrictions on transfer, Taxes, equities and Encumbrances (other than any transfer restrictions arising under applicable securities Laws and pursuant to the express terms of the GP Investment’s Organizational Documents). Such Investor is not a party to any (a) option, warrant, purchase right, or other contract or commitment that could require any Person to sell, transfer or otherwise dispose of any of such GP Investments Interests, other than this Agreement, or (b) voting trust, proxy or other agreement or understanding with respect to the voting of any of such GP Investments Interests except as expressly stated in the Organizational Documents of GP Investments.
2.4No Litigation . There is no pending or, to the knowledge of such Investor, threatened action against such Investor (a) that challenges the validity of this Agreement or any action taken or to be taken by such Investor in connection with, or which seek to enjoin or obtain monetary damages in respect of, this Agreement; or (b) that, individually or in the aggregate, would reasonably be expected to adversely affect the ability of such Investor to perform its obligations under, and consummate the transactions contemplated by, this Agreement.
2.5Brokerage. No Person is entitled to any brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement.
2.6Investment Intent. Each Investor represents that (i) the Warrants are being acquired for the account of such Investor, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of Securities Act, which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) such Investor is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) such Investor has such knowledge and experience in financial and business matters that such Investor is capable of evaluating the merits and risks of this investment; (iv) such Investor understands that neither the Warrants nor the shares of Common Stock issuable upon exercise of the Warrants (the “Warrant Shares”) have been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) such Investor is aware that neither the Warrants nor the Warrant Shares, may be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until such Investor has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of Rule 144 is the availability of current information to the public about the Company and (vi) such Investor agrees not to make any disposition of all or any part of the Warrants or the Warrant Shares, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or such Investor has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
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Article III
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
As an inducement to the Investors to enter into this Agreement and consummate the transactions contemplated hereby, the Company hereby represents and warrants to the Investors as of the date hereof and as of the Closing Date that:
3.1Organization and Power; Authorization. The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Iowa. The Company has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, delivery and performance of this Agreement and all of the other agreements and instruments contemplated hereby to which the Company is a party have been duly authorized by the Company. This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms, in any case, except as enforceability may be limited or by applicable bankruptcy, insolvency, reorganization or other Laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of Law governing specific performance, injunctive relief or other equitable remedies.
3.2Warrants. The Warrants have been duly authorized by all necessary corporate action on the part of the Company. Following the transactions contemplated hereby, (i) the Warrants will be validly issued and will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforceability may be limited or by applicable bankruptcy, insolvency, reorganization or other Laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of Law governing specific performance, injunctive relief or other equitable remedies and (ii) Investors will have good and valid title to the Warrants in accordance with the terms thereof. The Warrant Shares have been duly authorized and reserved for issuance and, when issued upon exercise of the Warrants in accordance with their terms, will be validly issued, fully paid and non-assessable, and free of any Encumbrances other than restrictions on transfer under applicable securities Laws.
3.3 Litigation. There are no Proceedings pending or, to the Company’s knowledge, threatened against or affecting the Company, at law or in equity, or before or by any Governmental Authority which would adversely affect the Company’s performance under this Agreement or any of the other agreements and instruments contemplated hereby to which the Company is a party (if any) or the consummation of the transactions contemplated hereby or thereby.
3.4Brokerage. There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated hereby based on any arrangement or agreement binding upon the Company.
Article IV
Covenants AFTER CLOSING
4.1Survival of Representations, Warranties and Covenants. All representations and warranties in this Agreement, and all covenants and agreements to be performed at or prior to Closing, shall survive the Closing for a period of 1 year following the Closing Date. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.
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4.2Registration Rights.
(a) Within three business days after the Closing Date (the “Filing Date”), the Company will file with the Securities and Exchange Commission (the “Commission”) (at the Company’s sole cost and expense) a registration statement (the “Registration Statement”) registering the resale of the Warrants and the Warrant Shares held by any of the Investors as of the date hereof (the “Registrable Securities”), and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 30th calendar day (or 75th calendar day if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing Date and (ii) the 2nd business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided, the Company’s obligations to include the Registrable Securities in the Registration Statement are contingent upon Investor furnishing a completed and executed selling shareholders questionnaire in customary form to the Company that contains the information required by Commission rules for a Registration Statement regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Registrable Securities to effect the registration of the Registrable Securities, and Investor shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder. Any failure by the Company to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effectiveness Date shall not otherwise relieve the Company of its obligations to file or effect the Registration Statement as set forth above in this Section 4.2.
(b) In the case of the registration effected by the Company pursuant to this Agreement, the Company shall, upon reasonable request, inform Investor as to the status of such registration. At its expense the Company shall:
(i) except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Company determines to obtain, continuously effective with respect to Investor, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of the following: (i) such Investor, together with its affiliates, ceases to hold any Warrants or any of the Company’s then outstanding shares of Common Stock and (ii) the date all Registrable Securities held by Investor may be sold without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable);
(ii) advise Investor within one (1) business day:
(A) when a Registration Statement or any post-effective amendment thereto has become effective;
(B) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
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(C) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(D) subject to the provisions in this Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.
Notwithstanding anything to the contrary set forth herein, the Company shall not, when so advising Investor of such events, provide Investor with any material, nonpublic information regarding the Company other than to the extent that providing notice to Investor of the occurrence of the events listed in (A) through (D) above constitutes material, nonpublic information regarding the Company;
(iii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
(iv) upon the occurrence of any event contemplated in Section 4.2(b)(ii)(D), except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Company shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, such prospectus will not include any 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; and
(v) use its commercially reasonable efforts to cause all Warrant Shares to be listed on each securities exchange or market, if any, on which the Company’s Common Stock is then listed.
(c) Notwithstanding anything to the contrary in this Agreement, the Company shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require Investor not to sell under the Registration Statement or to suspend the effectiveness thereof, if the filing, effectiveness or continued use of any Registration Statement would require the Company to make any public disclosure of material non-public information, which disclosure, in the good faith determination of the board of directors of the Company, after consultation with counsel to the Company, (a) would be required to be made in any Registration Statement in order for the applicable Registration Statement not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, (b) would not be required to be made at such time if the Registration Statement were not being filed, and (c) the Company has a bona fide business purpose for not making such information public (each such circumstance, a “Suspension Event”); provided, the Company may not delay or suspend the Registration Statement on more than two occasions or for more than thirty (30) consecutive calendar days, or more than ninety (90) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the Company of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, Investor agrees that (i) it will immediately discontinue offers and sales of the Registrable Securities under the Registration Statement until Investor receives copies of a supplemental or amended prospectus (which the Company agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Company that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by the Company except (A) for disclosure to the Investor’s employees, agents and professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners who have agreed to keep such information confidential and (C) as required by law. If so directed by the Company, Investor will deliver to the Company or, in Investor’s sole discretion destroy, all copies of the prospectus covering Registrable Securities in Investor’s possession; provided, this obligation to deliver or destroy all copies of the prospectus covering the shares of Common Stock underlying the Warrants shall not apply (i) to the extent Investor is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.
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(d) Right to Demand an Underwritten Registered Offering.
(i) Upon the written demand of the Investors made at any time (an “Offering Demand Notice”), the Company will facilitate in the manner described in this Agreement an underwritten registered offering (either through filing of a new registration statement or through a take-down from an already existing shelf registration statement) of the Registrable Securities requested by the Investors to be included in such offering, provided, the Company shall not be obligated to effect more than one such underwritten registered offering demand on behalf of all Investors (a “Demand Offering”). The Investors will be entitled to determine the plan of distribution and select the managing underwriters and any provider of advisory services for such Demand Offering.
(ii) Any Demand Offering will also include Registrable Securities to be sold by the Investors that exercise their related piggyback rights pursuant to Section 4.2(e) hereof, to the extent exercising such rights on a timely basis. In order to be valid, the Offering Demand Notice must provide (if applicable): (i) the number of Registrable Securities sought to be registered, (ii) the proposed plan of distribution by such holder of such Registrable Securities, (iii) the ownership of Registrable Securities by such holder and (iv) such information regarding the Investors as is required to be included in the registration statement or is otherwise required by FINRA or the SEC in connection with such registration statement.
(iii) Without limiting any other obligations of the Company hereunder, in the event a shelf registration statement covering all of the Registrable Securities covered by such Offering Demand Notice is not effective at the time of the Offering Demand Notice, as soon as reasonably practicable, but in no event later than 30 days after receiving a valid Offering Demand Notice satisfying the criteria set forth in this Section 4.2(d), the Company shall use its commercially reasonable efforts to file with the SEC a registration statement covering all of the Registrable Securities covered by such Offering Demand Notice as well as any other Registrable Securities as to which registration is properly requested in accordance with Section 4.2(e) hereof (which other Registrable Securities may be included by means of a pre-effective amendment) and any other registrable securities properly requested in accordance with other registration rights agreements with the Company. The Investors wishing to engage in the Demand Offering shall, to the extent practicable, use commercially reasonable efforts to work with the Company and any underwriters in order to facilitate preparation of any registration statement, prospectus and other offering documentation related to the Demand Offering.
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(iv) If, in connection with a Demand Offering, the lead managing underwriter(s) advise(s) the Company in writing that, in its opinion, the inclusion of all the securities sought to be included in such Demand Offering by (w) the Company, (x) the Investors and (y) any other Person who has sought to have shares of Common Stock included in such Demand Offering pursuant to rights granted by the Company to demand such inclusion (such persons, being “Other Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such Demand Offering only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority: (A) first, Registrable Securities of the Investors, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Investors, (B) second, shares of Common Stock to be sold by the Company and (C) third, such number of shares of Common Stock (or other securities, as applicable) sought to be registered by each Other Seller pro rata in proportion to the number of securities sought to be registered by all such Other Sellers.
(e) Right to Piggyback on a Registered Offering.
(i) In connection with any registered offering of Common Stock covered by a registration statement (whether pursuant to the exercise of demand rights or at the initiative of the Company), the Investors may exercise piggyback rights to have included in such offering Registrable Securities held by them. The Company will facilitate in the manner described in this Agreement any such registered offering. The Investors’ exercise of such piggyback rights will not constitute a Demand Offering.
(ii) If, in connection with a piggyback registration that involves an underwritten offering, the lead managing underwriter(s) advise(s) the Company in writing that, in its opinion, the inclusion of all the securities sought to be included in such piggyback registration by (w) the Company, (x) other persons who have sought to have shares of Common Stock registered in such registration pursuant to rights granted by the Company to demand such registration (such persons, being “Other Demanding Sellers”), (y) the Investors and (z) any other proposed sellers of shares of Common Stock (such Persons being “Other Proposed Sellers”), as the case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement applicable to such piggyback registration only such securities as the Company is so advised by such lead managing underwriter(s) can be sold without such an effect, as follows and in the following order of priority:
(A) if the piggyback registration relates to an offering for the Company’s own account, then (i) first, such number of shares of Common Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined, (ii) second, a pro rata number of shares of Common Stock to consist of (a) Registrable Securities of the Investors, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Investors, and (y) shares of Common Stock held by Other Demanding Sellers having rights of registration on parity with the Investors with respect to such offering (in each case, based on the number of shares of Common Stock properly requested to be included in such offering), (iii) third, shares of Common Stock sought to be registered by Other Demanding Sellers not otherwise encompassed by clause (A) of this Section 4.2(e)(ii) pro rata on the basis of the number of shares of Common Stock proposed to be sold by such Other Demanding Sellers, and (iv) fourth, other shares of Common Stock proposed to be sold by any Other Proposed Sellers; or
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(B) if the piggyback registration relates to an offering other than for the Company’s own account, then (i) first, such number of shares of Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to the number of securities sought to be registered by all such Other Demanding Sellers, (ii) second, Registrable Securities of the Investors, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Investors, (iii) third, shares of Common Stock to be sold by the Company, and (iv) fourth, other shares of Common Stock proposed to be sold by any Other Proposed Sellers.
(iii) For clarity, in connection with any underwritten offering under this Section 4.2(e) for the Company’s account, the Company shall not be required to include the Registrable Securities of an Investor in the Underwritten Offering unless such Investor accepts the reasonable and customary terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s), which shall be selected by the Company (subject to such lead managing underwriter(s) being reasonably acceptable to the Investors, such acceptance not to be unreasonably withheld, delayed or conditioned).
4.3Tax Matters.
(a) For U.S. federal (and applicable state and local) income tax purposes, the parties hereto acknowledge and agree that (collectively, the “Intended Tax Treatment”):
(i) the transactions contemplated by Section 1.1 of this Agreement shall be treated as (I) with respect to the Investors, a taxable exchange governed by Code Section 1001 pursuant to which gain or loss is recognized and (II) with respect to the Company, the issuance of common stock of the Company in a transaction governed by Code Section 1032 pursuant to which the Company realizes no gain or loss; and
(ii) the Warrants shall be treated as issued and outstanding common stock of the Company and, accordingly, the holders of the Warrants shall be treated as current holders of common stock of the Company following the consummation of the transactions contemplated by Section 1.1.
(b) Each of the Company and each Investor shall (and shall cause any affiliate thereof to) prepare and file all tax returns in a manner consistent with the Intended Tax Treatment unless otherwise required by a final “determination” within the meaning of Section 1313(a) of the Code.
(c) The Company (and any agent or affiliate thereof) shall be entitled to deduct or withhold from any consideration otherwise payable or deliverable to any Investor pursuant to this Agreement or with respect to the Warrants (and the Investors shall indemnify, defend and hold harmless the Company against) such amounts as may be required to be deducted or withheld therefrom under applicable Law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes as having been paid to the Person to whom such amounts would otherwise have been paid absent such deduction or withholding.
Article V
MISCELLANEOUS
5.1Amendment and Waiver. This Agreement may be amended, and any provision of this Agreement may be waived only if such amendment or waiver is signed by each of the parties hereto (or in the case of a waiver, by the party making such waiver). No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver.
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5.2Notices. All notices or other communications to be given or delivered under or in connection with this Agreement shall be in writing and sent to the following addresses:
Notices to Investors:
with a copy to (which shall not constitute notice):
BlackRock Financial Management, Inc.
50 Hudson Yards
New York, New York 10001
Attention: Steven Karpel
Email: Steven.Karpel@blackrock.com
BlackRock, Inc.
Office of the General Counsel
50 Hudson Yards
New York, New York 10001
Attention: Lucy Liu
Email: lucy.liu1@blackrock.com;
legaltransactions@blackrock.com
Notices to the Company:
with a copy to (which shall not constitute notice):
Green Plains Inc.
1811 Aksarben Drive
Omaha, Nebraska 68106
Attention: Ryan Loneman
Email: ryan.loneman@gpreinc.com
Vinson & Elkins LLP
1114 Avenue of the Americas
32nd Floor
New York, NY 10036
Attention: Benjamin Heriaud; Sarah Morgan.
Email: bheriaud@velaw.com; smorgan@velaw.com.
5.3Successors and Assigns. This Agreement and all of the covenants and agreements contained herein and rights, interests or obligations hereunder, by or on behalf of any of the parties hereto, shall bind and inure to the benefit of the respective heirs, successors and assigns of the parties hereto whether so expressed or not, except that neither this Agreement nor any of the covenants and agreements herein or rights, interests or obligations hereunder may be assigned or delegated by the Investors without the prior written consent of the Company.
5.4Press Releases and Announcements. No party may make any press release or other public releases of information related to this Agreement or the transactions contemplated hereby without the prior consent of the other parties hereto. Notwithstanding the foregoing, either party may make any public filings or disclosures that are required to comply with their respective obligations under applicable Law.
5.5Specific Performance. Each party agrees that irreparable damage may occur if the obligations under this Agreement are not performed as specified, and monetary damages may not be an adequate remedy. Therefore, each party is entitled to seek an injunction, specific performance, or other equitable relief to enforce or prevent a breach of this Agreement in any court with jurisdiction. These rights are integral to the Agreement, and without them, the parties would not have entered into this Agreement. No party will oppose such relief on the basis that monetary damages are adequate, and no bond or security will be required for such relief.
5.6Further Assurances. In the event that at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement or the transactions contemplated hereby, each of the parties hereto will take such further action as any other party hereto reasonably may request.
5.7Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable Law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
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5.8Interpretation. The headings in this Agreement are for convenience only and do not affect its interpretation. Capitalized terms used in this Agreement shall have the meaning set forth in Appendix I hereto. The appendices, exhibits and schedules referred to in this Agreement are incorporated herein by reference and constitute a part of this Agreement for all purposes. Capitalized terms used in any Schedule or Exhibit and not defined therein have the meanings set forth in this Agreement. Each defined term used in this Agreement shall have a comparable meaning when used in its plural or singular form. The term “including” means “including without limitation.” Each representation, warranty, and covenant in this Agreement has independent significance, and the breach of one does not mitigate the breach of another. This Agreement is the result of joint drafting, and no presumption or burden of proof arises favoring or disfavoring any party based on authorship. References to statutes or Laws include all related rules and regulations, unless the context requires otherwise. References to “dollars” or “$” mean U.S. dollars. If the last day for taking any action falls on a non-business day, the period is extended to the next business day.
5.9No Third-Party Beneficiaries. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any Person other than the parties hereto and their respective permitted successors and assigns, any rights or remedies under or by reason of this Agreement.
5.10Complete Agreement. This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings.
5.11Governing Law; Venue. This Agreement and any disputes arising out of or relating to it shall be governed by the Laws of the State of New York, without regard to its conflict of law principles. Any disputes arising out of or relating to this Agreement shall be resolved exclusively in the Supreme Court of the State of New York sitting in New York County, or if it lacks jurisdiction, the United States District Court of the Southern District of New York. Each party consents to the jurisdiction and venue of these courts and waives any objection to them as inconvenient forums. Each party hereby, knowingly and voluntarily waives the right to a jury trial in any litigation arising out of or relating to this Agreement.
5.12Electronic Delivery; Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. .Pdf or other electronic transmission of copies of signatures shall constitute original signatures for all purposes of this Agreement and any enforcement hereof.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have executed this Membership Interest Purchase Agreement as of the date first written above.
Company:
GREEN PLAINS INC.
By:
/s/ Ryan Loneman
Name:
Ryan Loneman
Title:
General Counsel & Secretary
[Signature Page to Membership Interest Purchase Agreement]
Investors:
BLACKROCK GLOBAL ALLOCATION FUND, INC.
By: BlackRock Advisors, LLC, in its capacity as adviser
By:
/s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
[Signature Page to Membership Interest Purchase Agreement]
Investors:
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE BLACKROCK GLOBAL ALLOCATION COLLECTIVE FUND
By:
/s/ Henry Brennan
Name: Henry Brennan
Title: Authorized Signatory
[Signature Page to Membership Interest Purchase Agreement]
Investors:
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE STRATEGIC INCOME OPPORTUNITIES BOND FUND
By:
/s/ Henry Brennan
Name: Henry Brennan
Title: Authorized Signatory
[Signature Page to Membership Interest Purchase Agreement]
Investors:
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE BLACKROCK TOTAL RETURN BOND FUND
By:
/s/ Henry Brennan
Name: Henry Brennan
Title: Authorized Signatory
[Signature Page to Membership Interest Purchase Agreement]
APPENDIX I
DEFINITIONS
For the purposes of this Agreement, the following terms have the following meanings:
“Agreement” is defined in the Preamble.
“Assignment Agreement” is defined in Section 1.2(b)(i).
“Closing” is defined in Section 1.2(a).
“Closing Date” is defined in Section 1.2(a).
“Code” means the Internal Revenue Code of 1986, as amended, and any reference to any particular Code section shall be interpreted to include any revision of or successor to that section regardless of how numbered or classified.
“Commission” is defined in Section 4.2(a).
“Company” is defined in the Preamble.
“Demand Offering” is defined in Section 4.2(d).
“Effectiveness Date” is defined in Section 4.2(a).
“Encumbrance” means any lien, charge or security interest.
“Exchange Right” is defined in the Recitals.
“Filing Date” is defined in Section 4.2(a).
“Governmental Authority” means any court, tribunal, arbitrator, commission, government or governmental, quasi-governmental, regulatory, self-regulatory or administrative authority, agency, or body.
“GP Investments” is defined in the Recitals.
“GP Investments Interests” is defined in the Recitals.
“Investors” is defined in the Preamble.
“Law” means any federal, state, provincial, local, municipal or foreign statute, law, by-law, constitution, treaty, ordinance, regulation, rule, determination, award, decree, judgment, code, injunction, order, requirement, rule of law or other similar requirement enacted, issued, adopted, promulgated, entered into or applied by a Governmental Authority.
“Liability” means any liability or obligation (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated, unliquidated or otherwise, and whether due or to become due, and regardless of when or by whom asserted).
“Loss” means any loss, Liability, demand, judgment, claim, action, cause of action, cost, damage, Tax, penalty, fine or expense, whether or not arising out of third-party claims (including interest, penalties, reasonable legal, consulting and other professional fees and expenses and all amounts paid in prosecution, investigation, defense or settlement of any of the foregoing); provided, however, that “Losses” shall not include any compensatory, punitive, incidental, consequential, special, or indirect damages, as applicable, except to the extent the same are paid or payable to a third party in connection with a third-party claim.
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“Offering Demand Notice” is defined in Section 4.2(d).
“Organizational Documents” means (a) any certificate or articles of incorporation, bylaws, certificate or articles of formation, operating agreement, partnership agreement, shareholder agreement or trust agreement; (b) any documents comparable to those described in clause (a) as may be applicable pursuant to any applicable Law; and (c) any amendment or modification to any of the foregoing.
“Other Demanding Sellers” is defined in Section 4.2(e).
“Other Proposed Sellers” is defined in Section 4.2(e).
“Other Sellers” is defined in Section 4.2(d).
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or Governmental Authority.
“Pro Rata Share” means, as to each Investor, the percentage set forth opposite such Investor’s name on Appendix II.
“Proceeding” means any claim, action, cause of action, charge, grievance, citation, lawsuit, litigation or other legal proceeding (whether at law or in equity and whether civil, criminal or administrative), formal investigation, inquiry, assessment, audit, arbitration, administrative enforcement proceeding or other proceeding by or before a Governmental Authority.
“Registrable Securities” is defined in Section 4.2(a).
“Registration Statement” is defined in Section 4.2(a).
“Securities Act” means the Securities Act of 1933, as amended from time to time, and all rules and regulations promulgated thereunder, or any similar federal Law then in force.
“Subscription Agreement” is defined in Section 1.4.
“Suspension Event” is defined in Section 4.2(c).
“Side Letter” is defined in the Recitals.
“Tax” means any U.S. federal, state, or local or non-U.S. taxes, charges, fees, imposts, levies or other assessments or assessments by any Governmental Authority, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing, whether disputed or not, and any Liability in respect of any of the foregoing payable by reason of contract, assumption, transferee or successor liability, operation of Law, Treasury Regulation Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar provision of U.S. federal, state, or local or non-U.S. applicable Law) or otherwise.
“Warrants” is defined in Section 1.2(c)(ii).
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APPENDIX II
GP Investments Interests
Investor
GP Investments Interests
Pro Rata Share
BlackRock Global Allocation Fund, Inc.
9.156% Percentage Interest
73.248%
BlackRock Global Allocation Collective Fund
0.928% Percentage Interest
7.424%
Strategic Income Opportunities Bond Fund
0.259% Percentage Interest
2.072%
BlackRock Total Return Bond Fund
2.157% Percentage Interest
17.256%
EXHIBIT A
ASSIGNMENT AGREEMENT
[See attached.]
Execution Version
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of June 16, 2026 (this “Agreement”), between BlackRock Global Allocation Fund, Inc., BlackRock Global Allocation Collective Fund, Strategic Income Opportunities Bond Fund and BlackRock Total Return Bond Fund (collectively the “Investors”) and Green Plains Inc., an Iowa corporation (the “Company”).
WHEREAS, the Investors and the Company have entered into that certain Membership Interest Purchase Agreement, dated as of June 16, 2026 (the “Purchase Agreement”).
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, in the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Capitalized, undefined terms used herein shall have the respective meanings ascribed to them in the Purchase Agreement.
Section 2. Assignment. Each of the Investors hereby irrevocably, absolutely and unconditionally assigns, transfers, conveys and delivers to the Company all of the Investors’ right, title and interest of every kind, nature and description in, to and under the Investors’ GP Investments Interests, effective as of the Closing. The Company hereby accepts the sale, assignment, transfer, conveyance and delivery of the GP Investments Interests as of the Closing.
Section 3. No Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the Investors and the Company and their respective subsidiaries, successors and permitted assigns, and nothing herein is intended or shall be construed to confer upon any Person other than the Investors and the Company and their respective subsidiaries, successors and permitted assigns any right, remedy or claim under or by reason of this Agreement or any terms hereof.
Section 4. Subject to Purchase Agreement. Nothing contained in this Agreement shall itself change, amend, extend or alter (nor shall it be deemed or construed as changing, amending, extending or altering) the terms or conditions of the Purchase Agreement in any manner whatsoever. This Agreement does not create or establish rights, liabilities or obligations not otherwise created or existing under or pursuant to the Purchase Agreement. In the event of any conflict between the Purchase Agreement and this Agreement, the provisions of the Purchase Agreement shall govern and control. For the avoidance of doubt, any controversy or claim arising under this Agreement shall be governed solely by, and subject to the terms of, the Purchase Agreement.
Section 5. Miscellaneous. The provisions set forth in Sections 5.1 (Amendment and Waiver), 5.2 (Notices), 5.3 (Successors and Assigns), 5.5 (Specific Performance), 5.7 (Severability), 5.8 (Interpretation), 5.11 (Governing Law; Venue), and 5.12 (Electronic Delivery; Counterparts) of the Purchase Agreement are hereby incorporated by reference into, and shall be deemed to apply to, this Agreement, mutatis mutandis.
[Signature page follows.]
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Each of the parties hereto has duly executed this Agreement as of the date first above written.
INVESTORS:
BLACKROCK GLOBAL ALLOCATION FUND, INC.
By:
BlackRock Advisors, LLC, in its capacity as adviser
By:
Name:
Henry Brennan
Title:
Managing Director
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE BLACKROCK GLOBAL ALLOCATION COLLECTIVE FUND
By:
Name:
Henry Brennan
Title:
Managing Director
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE STRATEGIC INCOME OPPORTUNITIES BOND FUND
By:
Name:
Henry Brennan
Title:
Managing Director
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE BLACKROCK TOTAL RETURN BOND FUND
By:
Name:
Henry Brennan
Title:
Managing Director
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COMPANY:
GREEN PLAINS INC.
By:
Name:
Ryan Loneman
Title:
General Counsel & Secretary
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EXHIBIT B
FORM OF WARRANTS
[See attached.]
Execution Version
FORM OF WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No.
Number of Warrants:
, 2026
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to _________________ (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of warrants set forth above (such warrants, the “Warrants”, and this Warrant Agreement to Purchase Common Stock of Green Plains Inc., “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of $0.01 per share (as same may be adjusted pursuant to Section 1, the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is the Per Share Exercise Price multiplied by the number of Warrants evidenced by this certificate ( “Total Exercise Price”).
1. Adjustments
1.01 Adjustments for Certain Events.
(a) Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
(b) Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
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(c) Adjustment Upon Issuance of Shares of Common Stock. If and whenever on or after the first date any of the Warrants are issued, the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 1.01(c) is deemed to have granted, issued or sold, any shares of Common Stock (including the grant, issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Per Share Exercise Price in effect immediately prior to such grant, issuance or sale or deemed grant, issuance or sale (such Per Share Exercise Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Per Share Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Per Share Exercise Price and the New Issuance Price under this Section 1.01(c)), the following shall be applicable:
(i) Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities (as defined below) (“Options”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof is less than the Per Share Exercise Price that is then in effect, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting, issuance or sale (or the time of execution of such agreement to grant, issue or sell, as applicable) of such Option for such price per share. For purposes of this Section 1.01(c)(i), the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting , issuance or sale (or the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (“Convertible Securities”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 1.01(c)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 1.01(c), except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made by reason of such issuance or sale.
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(iii) Intentionally Omitted.
(iv) Calculation of Consideration Received. If any Option and/or Convertible Security and/or adjustment right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Company’s board of directors in good faith, the “Primary Security”, and such Option and/or Convertible Security and/or adjustment right, the “Secondary Securities” and together with the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit, (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Section 1.01(c)(i) or 1.01(c)(ii) above and (z) the lowest VWAP of the shares of Common Stock on any day trading during the period commencing on the date of the public announcement of such Dilutive Issuance through, and including, the fourth (4th) Trading Day immediately following the closing of such Dilutive Issuance (the “Adjustment Period”) (for the avoidance of doubt, if this Warrant is exercised on any given Exercise Date during any such Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise Date, such applicable Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined by the Company’s board of directors in good faith. For purposes of this Section 1.01(c), “Excluded Securities” shall mean (i) shares of Common Stock, restricted stock units or options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such, provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options and restricted stock units) after the Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately prior to the first date any of the Warrants are issued and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Registered Holder; and (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock that are covered by the preceding clause (i)) issued prior to the date any of the Warrants are first issued, provided that the conversion price of any such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) is not lowered, none of such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are otherwise materially changed in any manner that adversely affects the Registered Holder.
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(v) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
(vi) Certain Events. If any event of the type contemplated by the provisions of this Section 1.01(c) but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features) occurs, then the Board shall make an appropriate adjustment in the Per Share Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Registered Holder in a manner consistent with the provisions of this Section 1.01(c); provided, that no such adjustment pursuant to this Section 1.01(c) shall increase the Per Share Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 1.01(c).
(d) Adjustment for Extraordinary, Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the shares of Common Stock on account of such shares of Common Stock, other than (a) as described in subsection 1.01(a), (b) or (c) above, or (b) in connection with any distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Per Share Exercise Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend.
1.02 General Adjustment Provisions
(a) Notice of Adjustments. Upon each event that causes an adjustment of the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b) Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the Per Share Exercise Price or the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
(c) No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1 except as contemplated by Section 1.01(a)(iii), and then in no event to an amount larger than the Per Share Exercise Price as adjusted pursuant to such Section.
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(d) Disputes. In the event that there is any dispute as to the computation of the Per Share Exercise Price or the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the Per Share Exercise Price and number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2. Exercise.
2.01 Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on , 2036 (the “Expiration Date”).
2.02 Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03 Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04 Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
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For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06 Holder’s Exercise Limitations.
(a) Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b) Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
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(c) Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
2.07 Fundamental Transaction. If, at any time while the Warrants are outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another person (other than for the purpose of changing the Company’s name), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another person) is completed pursuant to which holders of the outstanding equity securities of the Company having voting power are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of outstanding securities representing more than 50% of the aggregate voting power of the issued and outstanding equity securities of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another person or group of persons whereby such other person or group acquires securities representing more than 50% of the aggregate voting power, including the power to vote on the election of directors of the Company, of the issued and outstanding equity securities of the Company (each a “Fundamental Transaction”), then, upon consummation of such Fundamental Transaction, this Warrant shall automatically become exercisable for the kind and amount of securities, cash or other assets which the Registered Holder would have owned immediately after the consummation of such Fundamental Transaction if the Registered Holder had exercised in full this Warrant immediately before the consummation of such Fundamental Transaction. If holders of Common Stock are given any choice as to the kind or amount of securities, cash or other assets receivable upon the consummation of such Fundamental Transaction, then the Registered Holder shall be given the same choice as to such consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
3. Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
4. Reservation of Common Stock; Valid Issuance. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws). The Company further covenants that such shares of Common Stock as may be issued pursuant to such exercise will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof.
5. Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
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6. Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7. Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8. Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
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9. Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)
“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)
“Principal Market” means the Nasdaq Capital Market.
(c)
“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)
“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
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10. Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at BlackRock Financial Management, Inc., 50 Hudson Yards, New York, New York, 10001, Attention: Steven Karpel, Email: steven.karpel@blackrock.com, With a copy to (which shall not constitute notice): BlackRock, Inc., Office of the General Counsel, 50 Hudson Yards, New York, New York 10001, Attention: Lucy Liu, Email: lucy.liu1@blackrock.com, legaltransactions@blackrock.com, or such address of the Registered Holder reflected after the date hereof (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
11. Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12. No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13. Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
14. Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
15. Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
16. Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By:
Name:
Ryan Loneman
Title:
General Counsel & Secretary
[Signature Page to Form of Warrant Agreement]
EXHIBIT A
FORM NOTICE OF EXERCISE
TO:
Green Plains Inc.
(1) The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
¨
Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
¨
Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2) Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
(Name)
(Address)
(3) The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
Date
(Signature)
(Print Name)
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
Name of Assignee
Address
No. of Warrants
Dated:
Signature:
Witness:
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