Exchange Agreement, dated August 3, 2022, by and between Green Plains Inc and the applicable Noteholders

SECTION 1.       Exchange.

1.1          Exchange of Existing 2022 Notes.

(a)         On and subject to the terms and conditions set forth in this Agreement and in reliance upon the representations and warranties set forth below, on the Closing Date (as defined below), the Company shall acquire from each Noteholder or its Represented Account, and each Noteholder shall transfer, assign and deliver to the Company, all of its or its Represented Account’s rights, title and interest in the aggregate principal amount of the Existing 2022 Notes owned by such Noteholder and as set forth in the applicable Schedule A hereto for such Noteholder, free and clear of any Liens (as defined below), in exchange for (i) a number of shares of Common Stock equal to the Exchanged Shares, free and clear of any Liens to be issued at the Closing as contemplated herein, plus (ii) an amount in cash equal to the accrued and unpaid interest on such Existing 2022 Notes to and including the Closing Date as calculated in accordance with that certain indenture by and between the Company and the Trustee, dated August 15, 2016 (the “Indenture”), relating to the Existing 2022 Notes (such interest payment, in the amounts shown on Schedule A hereto, the “Cash Interest Payment”). The Cash Interest Payment shall be made by wire transfer to the account of the Noteholder specified in the applicable Schedule A at the Closing.

(b)         No additional consideration for any purpose shall be due to the Noteholders in respect of such Existing 2022 Notes other than the Exchanged Shares issuable hereunder and the Cash Interest Payment.

1.2          Delivery of Exchanged Shares.  Notwithstanding anything herein to the contrary, but subject to Section 1.2(b) and the conditions set forth in Section 1.4, at the Closing, the Company shall issue and deliver to each Noteholder the number of Exchanged Shares equal to the number of Exchanged Shares as finally determined pursuant to Section 1.1(c).

1.3          Announcement of the Transactions.  The Company shall, by 9:00 a.m., New York City time, on the first (1st) business day immediately following the date hereof, issue one or more press releases or file with the Securities and Exchange Commission (the “Commission”) a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, all material terms of the transactions contemplated hereby and any other material, nonpublic information that the Company or any of its respective officers, directors or employees has provided to any Noteholder at any time prior to the issuance or filing, as applicable, of the Disclosure Document.

1.4          Closings.

(a)          The closing of the transactions contemplated by Section 1.1 with respect to the Exchanged Shares (the “Closing”) will take place on the second business day following final determination of the calculations contemplated in Section 1.1(c), subject to this Section 1.4 and to the satisfaction or waiver of the conditions set forth in this Section 1.4 (other than those that by their terms are to be satisfied or waived at the Closing) or at the first date thereafter as the conditions set forth in this Section 1.4 have been satisfied or waived (the “Closing Date”).

(b)         On the Closing Date, each Noteholder shall (i) direct the eligible Depository Trust Company (“DTC”) participant through which such Noteholder, or its Represented Account, holds a beneficial interest in the Existing 2022 Notes to submit a one-sided withdrawal instruction through DTC’s DWAC program to Wilmington Trust, National Association, as custodian and trustee for the Existing 2022 Notes (the “Trustee”), of such Noteholder’s, or its Represented Account’s, Existing 2022 Notes set forth on such Noteholder’s applicable Schedule A, on (and not before) the Closing Date no later than 9:30 a.m., New York City time, on the Closing Date (and such Noteholder acknowledges that any such withdrawal instruction submitted on any day before the Closing Date will expire unmatched at the close of business on such day and will need to be resubmitted on the Closing Date); and (ii) submit, for its own account or the account of its Represented Account, through the DTC’s DWAC program, a deposit instruction to Continental Stock Transfer & Trust Company, acting as transfer agent and DTC custodian for the Common Stock (the “Stock Transfer Agent”), for the aggregate number of Exchanged Shares applicable to such Noteholder, which deposit instruction must be submitted on (and not before) the Closing Date no later than 9:30 a.m., New York City time, on the Closing Date (and such Noteholder acknowledges that any such deposit instruction submitted on any day before the Closing Date will expire unmatched at the close of business on such day and will need to be resubmitted on the Closing Date).

(c)         On the Closing Date, the Company shall deliver or caused to be delivered to such Noteholder or Represented Account the number of Exchanged Shares set forth on Schedule A applicable to such Noteholder via book-entry delivery pursuant to DWAC instructions specified on the applicable Schedule A, with any transfer taxes payable in connection with the delivery of such Exchanged Shares duly paid by the Company; provided that it is understood that no delivery of such Exchanged Shares shall be made until a valid DWAC withdrawal instruction for the Existing 2022 Notes and a valid DWAC deposit instruction for such Exchanged Shares has been received by the Trustee and the Stock Transfer Agent.

(d)         On the Closing Date, the Company will deliver to such Noteholder the applicable Cash Interest Payment by wire transfer to the account of such Noteholders, or its Represented Accounts as set forth on the applicable Schedule A.

(e)         As a condition to the Closing, as of the Closing Date, the Exchanged Shares shall have been approved for listing on the Nasdaq Global Select Market (“Nasdaq Market”) without requiring approval thereof by the Company’s stockholders under the rules of the Nasdaq Market, subject to official notice of issuance.

(f)          If (i) the Trustee is unable to locate the Noteholder’s DWAC withdrawal in respect of the Existing 2022 Notes, (ii) the Stock Transfer Agent is unable to locate the DWAC deposit in respect of the Exchanged Shares or (iii) such DWAC withdrawal or DWAC deposit does not conform with the Existing 2022 Notes or the Exchanged Shares to be exchanged or issued, as applicable, pursuant to this Agreement, the Company will promptly notify the applicable Noteholder. If, because of the occurrence of such an event, the Exchanged Shares are not delivered on the Closing Date, they will be delivered on the business day following the Closing Date, on which the Trustee is able to locate the DWAC withdrawal or the Stock Transfer Agent is able to locate the DWAC deposit and/or the DWAC withdrawal or DWAC deposit conforms with the Existing 2022 Notes or the Exchanged Shares, as applicable. All questions as to the form of all documents and the validity and acceptance of the Existing 2022 Notes and the issuance of the Exchanged Shares will be determined by the Company, in its reasonable discretion, which determination shall be final and binding.

2.1          Organization.  The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Iowa.

2.2          Authorization.

(a)          The Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and subject to Section 2.6, all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.

(b)          This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and by general equitable principles.

2.3          Validity of the Shares.  The Company has duly authorized and reserved for issuance a number of shares of Common Stock equal to the maximum number of Exchanged Shares that may be issued pursuant to this Agreement. When issued and delivered in accordance with the terms of this Agreement, the Exchanged Shares will be validly issued, fully paid and nonassessable, and the issuance of any such Exchanged Shares will not subject to any preemptive or similar rights.

2.4          SEC Filings.

(a)          The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the Commission under Sections 13, 14(a) and 15(d) of the Exchange Act, in the two years preceding the date hereof on a timely basis, except where the failure to file on a timely basis would not reasonably be expected to affect the Company’s ability to carry out and perform all of its obligations under this Agreement. As of their respective filing dates (or, if amended prior to the date of this Agreement, when amended), such documents filed with the Commission pursuant to the Exchange Act (the “SEC Documents”) complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder. The Company has made available to each Noteholder or its representatives, or each Noteholder has had access through the Commission’s EDGAR website to, true and complete copies of the SEC Documents.

(b)          The Company is not and, after giving effect to the transactions contemplated by this Agreement, will not be required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.

(c)           As of the date hereof, the Covered Documents (as defined below), taken as a whole, do not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As used herein, “Covered Documents” means each of the following documents: (i) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, including those portions of the Company’s Proxy Statement on Schedule 14A filed on March 25, 2022 that are incorporated therein by reference; (ii) the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022; and (iii) the Company’s Current Reports on Form 8-K (excluding any Current Reports or portions thereof that are furnished, and not filed, pursuant to Item 2.02 or Item 7.01 of Form 8-K, and any related exhibits) filed with the SEC after December 31, 2021.

2.5          Non-Contravention.  The execution, delivery and performance by the Company of this Agreement, the issuance of the Exchanged Shares and the consummation by the Company of the transactions contemplated by this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination of any right or asset of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property, right or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority applicable to the Company or any of its subsidiaries or by which the Company or any of its subsidiaries is bound or to which any of the property, right or assets of the Company or any of its subsidiaries is subject, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default or termination that, would not, individually or in the aggregate, have, or would reasonably be expected to have, a material adverse effect on the business, properties, management, financial position, stockholders’ equity, results of operations and prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”).

2.6          No Consents or Approvals.  No consent, filing, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of its obligations under this Agreement, the issuance of the Exchanged Shares and the consummation by the Company of the transactions contemplated by this Agreement, except for such filings, consents, approvals, authorizations, orders and registrations or qualifications (i) which have been obtained or made or (ii) as may be required by the Financial Industry Regulatory Authority, Inc. and the Nasdaq Market.

2.7          No Registration Required.  Assuming the accuracy of each Noteholder’s representations in Section 3 hereof, it is not necessary in connection with the issuance of the Exchanged Shares to such Noteholder in the manner contemplated by this Agreement to register such issuances and sales under the Securities Act of 1933, as amended (the “Securities Act”). Upon issuance, the Exchanged Shares will be issued without any restricted CUSIP or other restrictive legend and will be freely tradable (other than by affiliates of the Company) under the Securities Act.

3.1          Organization.  Such Noteholder is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.

3.2          Authorization.

(a)          Such Noteholder has full right, power and authority to exchange, sell, assign and transfer the Existing 2022 Notes and to execute and deliver this Agreement and to perform its obligations hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.

(b)          This Agreement has been duly authorized, executed and delivered by the Noteholder and constitutes a valid and binding obligation of the Noteholder, enforceable against the Noteholder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and by general equitable principles.

3.3          Ownership.  Such Noteholder, or each of its Represented Accounts, is the beneficial owner of the Existing 2022 Notes set forth on the applicable Schedule A and, as of the Closing, will be the beneficial owner of such Existing 2022 Notes. Such Noteholder, or each of its Represented Accounts, has, and will have at the Closing, good, valid and marketable title to the Existing 2022 Notes set forth on the applicable Schedule A opposite the name of such Noteholder or Represented Account, free and clear of all mortgages, liens, pledges, charges, security interests, encumbrances, title retention agreements, options, preemptive rights, equity or other adverse claims thereto (collectively, “Liens”) (other than pledges or security interests that the Noteholder may have created in favor of a prime broker under and in accordance with its prime brokerage agreement with such broker, which will be terminated in connection with Closing). No proceeding relating to such Noteholder is pending or, to the knowledge of such Noteholder, is threatened before any court, arbitrator or administrative or governmental body that would adversely affect such Noteholder’s right to transfer the Existing 2022 Notes to the Company. Such Noteholder is not, and has not been during the consecutive three-month period preceding the date hereof, a director, officer or “affiliate” within the meaning of Rule 144 under the Securities Act of the Company. To its knowledge, such Noteholder did not acquire any of the Existing 2022 Notes, directly or indirectly, from the Company or any affiliate of the Company and no affiliate of the Company has held such Existing 2022 Notes within the past year.

3.4          Transfer of the Existing 2022 Notes.  Such Noteholder has made an independent decision to transfer such Noteholder’s Existing 2022 Notes based on the information available to such Noteholder. Each Noteholder acknowledges that it has independently made its own analysis and decision to transfer such Noteholder’s Existing 2022 Notes and without reliance upon the Company or its affiliates or representatives and based on such information as it has deemed appropriate in its independent judgment. Such Noteholder has not relied on any information (in any form, whether written or oral, including any representation or warranty of the Company) furnished by or on behalf of the Company or any of its respective affiliates or representatives in making that decision (other than, with respect to the Company, filings made by the Company with the Commission and other public disclosures and the representations of the Company expressly set forth herein).

3.5          Investment.

(a)         Such Noteholder is knowledgeable, sophisticated and experienced in business and financial matters and has previously invested in securities similar to the Exchanged Shares. Such Noteholder is able to bear the economic risk of its investment in the Exchanged Shares and is presently able to afford the complete loss of such investment and has been afforded access to information about the Company and its affiliates and their financial condition, results of operations, business, property and management sufficient to enable such Noteholder to evaluate its investment in the Exchanged Shares. Such Noteholder was given a meaningful opportunity to negotiate the terms of the transactions contemplated hereby and neither the Company nor any of its affiliates or representatives put any pressure on such Noteholder to respond to the opportunity to participate in the transactions contemplated hereby or condition its participation on such Noteholder exchanging a minimum amount of its Existing 2022 Notes. Such Noteholder and Represented Account for which it is acting are each an “accredited investor” as defined in Rule 501(a) under the Securities Act and such Noteholder and any Represented Account for which it is acting are each a “qualified institutional buyer” as defined in Rule 144A under the Securities Act.

(b)         Such Noteholder (i) has received such information about the Company as requested by such Noteholder, including the SEC Documents and the Covered Documents; (ii) understands and accepts that the Exchanged Shares to be issued pursuant to this Agreement involve risk, including those described or incorporated by reference in the SEC Documents and the Covered Documents, as applicable, and (iii) has made an independent decision to acquire the Exchanged Shares based on the information available to such Noteholder. Such Noteholder acknowledges that it has independently made its own analysis and decision to acquire the Exchanged Shares without reliance upon the Company or its respective representatives and based on such information as it has deemed appropriate in its independent judgment. Such Noteholder has not relied on any information (in any form, whether written or oral, including any representation or warranty of the Company) furnished by or on behalf of the Company or its respective affiliates and representatives in making that decision (other than, with respect to the Company, filings made by the Company with the Commission and other public disclosures and the representations of the Company expressly set forth herein). Such Noteholder further acknowledges that (i) it has consulted its own tax advisors and (ii) it has not relied on the Company or its respective affiliates or representatives for any tax advice related to the transactions contemplated hereunder.

(c)         Such Noteholder acknowledges and understands that (i) the Company possesses material nonpublic information regarding the Company not known to the Noteholder that may impact the value of the Common Stock of the Company (the “Information”), and that the Company is not disclosing the Information to such Noteholder. Such Noteholder understands, based on its experience, the disadvantage to which such Noteholder is subject due to the disparity of information between the Company and such Noteholder. Notwithstanding such disparity, such Noteholder has deemed it appropriate to enter into this Agreement and to the exchange of the Existing 2022 Notes for the Exchanged Shares and the consummation by the Noteholder of the transactions contemplated by this Agreement.

(d)          Such Noteholder agrees that none of the Company, its affiliates, principals, employees and agents shall have any liability to such Noteholder whatsoever due to or in connection with the Company’s use or non-disclosure of the Information or otherwise as a result of the exchange of the Existing 2022 Notes for the Exchanged Shares and the consummation of the transactions contemplated by this Agreement, and such Noteholder hereby irrevocably waives any claim that it might have based on the failure of the Company to disclose the Information.

(e)          Such Noteholder is acquiring the Exchanged Shares to be issued to it pursuant to this Agreement for investment purposes and solely for its account without a view to the distribution thereof.

(f)          None of the Company nor any of its respective affiliates, representatives, officers, employees, agents or controlling persons have provided any investment advice or rendered any opinion to such Noteholder as to whether the transaction contemplated hereby is prudent or suitable.

3.6          Compliance with Laws.

SECTION 6.        Miscellaneous.

If to the Company:

Telephone: (402) 952-4906

E-mail: ***@***

Attention: Chief Financial Officer

If to the Noteholders:

To the address or addresses set forth on Schedule A