Green Plains Inc 8-K, filed Sep 28, 2021
Green Plains Inc. (GPRE)
About this 8-K
Green Plains Inc filed this 8-K on September 28, 2021, reporting on events of September 27, 2021.
Items reported
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 7.01: Regulation FD disclosure
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
|
|
Date of Report (Date of earliest event reported) |
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation)
|
|
|
|
(Commission file number) | (IRS employer identification no.) |
|
|
(Address of principal executive offices) | (Zip code) |
(
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
|
|
|
Title of each class | Trading Symbol | Name of each exchange on which registered |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On September 27, 2021, the board of directors (the “Board”) of Green Plains Inc. (the “Company”) approved and adopted the Fourth Amended and Restated Bylaws of the Company (the “Bylaws”) to update certain procedures and make various technical and conforming changes. The Bylaws were effective immediately and include, among other things, the following changes (the “Amendments”):
lowering the ownership threshold for shareholders to call a special meeting from 50% to 20%;
allowing long-term shareholders the ability to nominate directors in the Company’s proxy statement via a “proxy access” provision;
updating the advance notice requirements for director nominations and shareholder proposals;
incorporating a majority voting standard in uncontested elections of directors;
clarifying the voting standard for items of business other than the election of directors is a majority standard;
including a resignation policy for any director who fails to receive support from a majority of votes cast;
specifying the powers of the chairman of a shareholder meeting over the conduct of such meetings; and
generally updating the language for electronic communications, including expressly providing that a shareholder meeting may be held solely by remote communications.
The complete text of the Bylaws is attached hereto as Exhibit 3.1 and is incorporated herein by reference. The description of the Amendments herein does not purport to be complete and is qualified in its entirety by Exhibit 3.1.
Item 7.01 | Regulation FD Disclosure. |
Attached as Exhibit 99.1 to this Current Report on Form 8-K is a copy of the Company’s press release dated September 28, 2021. The press release is incorporated by this reference and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section.
|
|
Item 8.01 | Other Events. |
On September 27, 2021, the Board adopted new Corporate Governance Guidelines and a Board Qualifications and Diversity Policy. The Board also approved updates to the Audit Committee Charter, Nominating and Governance Committee Charter and Compensation Committee Charter.
Also on September 27, 2021, the Board appointed Jim Anderson to the newly created role of Lead Independent Director and eliminated the role of Vice Chairman of the Board. The newly adopted Corporate Governance Guidelines defines the role of the Company’s Lead Independent Director. A copy of the Corporate Governance Guidelines is filed as Exhibit 99.2 to this report.
Additionally, and upon the recommendation of the Nominating and Governance Committee, the Board has approved revisions to the Company’s pledging policy to eliminate any potential exceptions from the categorical prohibition on the ability of any director, officer or other employee of the Company to pledge the Company’s securities.
The complete text of each of the Corporate Governance Guidelines, Board Qualifications and Diversity Policy, Audit Committee Charter, Nominating and Governance Committee Charter and Compensation Committee Charter are attached hereto as Exhibits 99.2, 99.3, 99.4, 99.5 and 99.6, respectively, and are incorporated herein by reference. The descriptions of the aforementioned revisions and newly adopted guidelines and policy do not purport to be complete and are qualified in their entirety by Exhibits 99.2, 99.3, 99.4, 99.5 and 99.6.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are filed as part of this report.
|
|
Exhibit No. | Description of Exhibit |
|
|
3.1 | Fourth Amended and Restated Bylaws of Green Plains Inc., dated September 27, 2021. |
|
|
99.1 | |
|
|
99.2 | |
|
|
99.3 | |
|
|
99.4 | |
|
|
99.5 | |
|
|
99.6 | |
|
|
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
Date: September 28, 2021 |
Green Plains Inc.
By: /s/ Michelle Mapes Michelle Mapes
|
FOURTH AMENDED AND RESTATED
BYLAWS
OF
GREEN PLAINS INC.
|
Section 2.02 Remote Communications. The Board of Directors, acting in its sole discretion, may establish guidelines and procedures in accordance with applicable provisions of the Iowa Business Corporation Act (the “IBCA”) and any other applicable law for the participation of shareholders by means of remote communications, and may determine that any meeting of shareholders will not be held at any place but will be held solely by means of remote communications. Shareholders and proxy holders complying with such procedures and guidelines and otherwise entitled to vote at a meeting of shareholders shall be deemed present in person and entitled to vote at a meeting of shareholders, whether such meeting is to be held at a designated place or solely by means of remote communications. |
1
|
(a) Special meetings of the shareholders may be called, for any purpose or purposes, by (i) the Chairman of the Board, (ii) the Chief Executive Officer, (iii) the President, (iv) the Board of Directors or a committee thereof, or (v) one or more shareholders of record that, at the time a request is delivered, collectively Own (as defined below) at least 20% of all of the outstanding shares entitled to vote at the proposed special meeting, and shall be held at such place, if any, on such date, and at such time as the Board of Directors shall fix. |
|
(c) Nominations of persons for election to the Board of Directors may be made at a special meeting of shareholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (i) by or at the direction of the Board of Directors or (ii) by any shareholder of the Corporation who is a shareholder of record at the time of giving notice provided for in these Bylaws of the Corporation (as may be amended or amended and restated from time to time, these “Bylaws”) who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.04. In the event the Corporation calls a special meeting of shareholders for the purpose of electing one or more directors to the Board of Directors, any such shareholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the shareholder’s notice required by Section 2.11 (which shall also be required by this Section 2.04) of these Bylaws shall be received by the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 120th day prior to the date of such special meeting and not later than the close of business on the later of the 90th day prior to the date of such meeting or the 10th day following the day on which a public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above. |
2
If an annual or special shareholders meeting is adjourned or postponed to a different date, time, or place, notice need not be given if the new date, time, or place is announced at the meeting before adjournment. However, notice must be given in the manner provided in Section 2.05 of these Bylaws if the adjournment or postponement is for more than 30 days or a new record date for the adjourned or postponed meeting is or must be fixed.
relevant in deciding whether to accept such director’s resignation, including any recommendation of the nominating and governance committee. Any director whose offer to resign is under consideration may not participate in any deliberation or vote of the Board of Directors (or any committee thereof) regarding such offer, but such director may participate in the deliberation or vote of any other business transacted by the Board of Directors (or any committee thereof). Within 90 days after the date of certification of the election results, the Board of Directors will determine whether to accept or reject such director’s offer to resign. Notwithstanding the foregoing, in the event that no nominee for director receives the vote required pursuant to this Section 2.07, any and all directors may participate in the Board of Directors’ deliberation and vote regarding the directors’ offers to resign. Any other action shall be authorized by an affirmative majority of the outstanding shares present in person or represented by proxy and entitled to vote, unless the question is one upon which by express provision of the Articles of Incorporation, these Bylaws or the IBCA a different vote is required, in which case such express provision shall govern and control the decision of such question. |
the meeting is to be held solely by means of remote communications, then such list shall also be open to the examination of any shareholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided within the notice of the meeting. The stock ledger shall be the only evidence as to who are the shareholders entitled to examine the stock ledger, the list of shareholders referred to in this section or the books of the Corporation, or to vote in person or by proxy it any meeting of shareholders. |
Notwithstanding the foregoing provisions of this Section 2.11, the nominee for election or re-election as a director of the Corporation shall also provide to the Corporation such additional information as the Corporation may reasonably request. The Corporation may request such additional information necessary to permit the Board of Directors to determine the eligibility of such person to serve as a director of the Corporation, including information relevant to a determination of whether such person can be considered an independent director and that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee. The nominee will provide facts, statements and other information in all communications with the Corporation and its shareholders that are or will be true and correct in all material respects and have not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing provisions of this Section 2.11, the Proposing Person must also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.11. Nothing in this Section 2.11 shall be deemed to affect any rights of a shareholder to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
7
Notwithstanding anything in these Bylaws to the contrary, no nominations shall be brought and no business shall be conducted at any meeting of the shareholders except in accordance with the procedures set forth in this Section 2.11 or Section 2.12 below. The Chairman of the Board or other presiding officer shall, if the facts warrant, determine and declare at any meeting of the shareholders that a nomination or business was not properly brought before the meeting in accordance with the provisions of this Section 2.11 or Section 2.12 below, and if he or she should so determine, he or she shall so declare to the meeting and any such nomination not properly brought before the meeting shall be disregarded and any such business not properly brought before the meeting shall not be transacted.
|
(a) Definitions. For purposes of this Section 2.12, the following terms shall have the meanings set forth below, except as otherwise provided herein. |
“Eligible Holder” means a person who has either (i) been a record holder of the shares of common stock of the Corporation used to satisfy the eligibility requirements of Section 2.12(d) continuously for the three-year period as described in Section 2.12(d), or (ii) provides to the Secretary, within the time period specified in Section 2.12(d), evidence of continuous Ownership of such shares for such three-year period from one or more securities intermediaries in a form that the Board of Directors, or its designee, determines would be acceptable for purposes of a shareholder proposal under Rule 14a-8(b)(2) under the Exchange Act (or any successor rule).
“Maximum Number” with respect to any annual meeting of the shareholders, means the number of nominees for election to the Board of Directors that constitutes no more than the greater of (i) two (2) or (ii) 20% of the total number of directors of the Corporation as of the last day on which a Qualified Nomination Notice may be submitted pursuant to Section 2.12(e) (rounded down to the nearest whole number). The Maximum Number shall be subject to the adjustments described in Section 2.12(c).
“Minimum Number” means 3% of the Corporation’s issued and outstanding shares of common stock of the Corporation as of the most recent date for which such amount is given in any filing made by the Corporation with the Securities and Exchange Commission (the “SEC”) prior to the submission of the Qualified Nomination Notice.
“Nominating Shareholder” means an Eligible Holder or group of up to 20 Eligible Holders who nominate a Nominee for election to the Board of Directors.
“Nominee” means any person nominated for election to the Board of Directors by a Nominating Shareholder that, individually and collectively, in the case of a group, satisfy all applicable procedures set forth in Section 2.12(d) and Section 2.12(e).
“Qualified Nomination Notice” means a notice given by a Nominating Shareholder that complies with the requirements of Section 2.12(e) and names a Nominee.
|
(b) Inclusion of Nominee in Proxy Statement. Subject to the provisions of this Section 2.12, if expressly requested in a Qualified Nomination Notice delivered by a Nominating
8 |
Shareholder, the Corporation shall include in its proxy statement for any annual meeting of the shareholders: |
|
(i) the name of the Nominee, which shall also be included on the Corporation’s form of proxy and ballot; |
|
(ii) disclosures about the Nominee and Nominating Shareholder required under the rules of the SEC or other applicable law to be included in the proxy statement; |
|
(iii) any statement included by the Nominating Shareholder in the Qualified Nomination Notice for inclusion in the proxy statement in support of the Nominee’s election to the Board of Directors (subject, without limitation, to Section 2.12(e)), if such statement does not exceed 500 words, is delivered at the same time as the Qualified Nomination Notice, and fully complies with Section 14 of the Exchange Act, and the rules and regulations thereunder, including Rule 14a-9; and |
|
(iv) any other information that the Corporation or the Board of Directors determines, in its discretion, to include in the proxy statement relating to the nomination of the Nominee, including, without limitation, any statement in opposition to the nomination and any of the information provided pursuant to this Section 2.12. |
|
(i) The Corporation shall not be required to include in the proxy statement for an annual meeting of the shareholders more Nominees than the Maximum Number for such annual meeting. The Maximum Number for a particular annual meeting of the shareholders shall be reduced by: (A) Nominees who are subsequently withdrawn or that the Board of Directors itself decides to nominate for election at such annual meeting, (B) Nominees who cease to satisfy, or Nominees of Nominating Shareholders that cease to satisfy, the eligibility requirements in this Section 2.12, and (C) the number of incumbent directors who were Nominees with respect to any of the preceding two annual meetings of the shareholders and whose reelection at the upcoming annual meeting of the shareholders is being recommended by the Board of Directors. If one or more vacancies for any reason occurs on the Board of Directors after the deadline set forth in Section 2.12(e), but before the date of the annual meeting of the shareholders, and the Board of Directors resolves to reduce the size of the Board of Directors in connection therewith, the Maximum Number shall be calculated based on the number of directors in office as so reduced. |
|
(ii) If the number of Nominees pursuant to this Section 2.12 for any annual meeting of the shareholders exceeds the Maximum Number then, promptly upon notice from the Corporation, each Nominating Shareholder will select one Nominee for inclusion in the proxy statement until the Maximum Number is reached, going in order of the amount (largest to smallest) of the Ownership position as disclosed in each Nominating Shareholder’s Qualified Nomination Notice, with the process repeated if the Maximum Number is not reached after each Nominating Shareholder has selected one Nominee. If, after the deadline for submitting a Qualified Nomination Notice as set forth in Section 2.12(e), a Nominating Shareholder becomes ineligible or withdraws its nomination, or a Nominee becomes unwilling to serve on the Board of Directors,
9 |
whether before or after the delivery of the definitive proxy statement, then the nomination shall be disregarded, and the Corporation (A) shall not be required to include in its proxy statement or on any ballot or form of proxy the disregarded Nominee or any successor or replacement Nominee proposed by the Nominating Shareholder or by any other Nominating Shareholder, and (B) may otherwise communicate to its shareholders, including, without limitation, by amending or supplementing its proxy statement or ballot or form of proxy, that the Nominee will not be included as a Nominee in the proxy statement or on any ballot or form of proxy and will not be voted on at the annual meeting of the shareholders. |
|
(i) An Eligible Holder or group of up to 20 Eligible Holders may submit a nomination in accordance with this Section 2.12 only if the person or group (in the aggregate) has continuously Owned at least the Minimum Number of shares of the common stock of the Corporation (as adjusted for any stock splits, stock dividends, or similar events) throughout the three-year period preceding, including the date of submission of, the Qualified Nomination Notice, and continues to Own at least the Minimum Number through the date of such annual meeting of the shareholders. A group of funds under common management and investment control shall be treated as one Eligible Holder if such Eligible Holder shall provide, together with the Qualified Nomination Notice, documentation reasonably satisfactory to the Corporation that demonstrates that the funds are under common management and investment control. For the avoidance of doubt, in the event of a nomination by a group of Eligible Holders, any and all requirements and obligations for an individual Eligible Holder that are set forth in this Section 2.12, including the minimum holding period, shall apply to each member of such group; provided, however, that the Minimum Number shall apply to the Ownership of the group in the aggregate. If any shareholder withdraws from a group of Eligible Holders acting together as a Nominating Shareholder at any time prior to the annual meeting of the shareholders, the group of Eligible Holders shall only be treated as Owning the shares held by the remaining members of the group. |
Nominee or other intermediary, so long as such person retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest (including the opportunity for profit and risk of loss on) in the shares. Such person’s Ownership of shares shall be deemed to continue during any period in which such person has delegated any voting power by means of a proxy, power of attorney, or other similar instrument or arrangement that is revocable at any time by such person. The terms “Owned,” “Owning,” “Ownership” and other variations of the word “Own” shall have correlative meanings. Whether outstanding shares of common stock of the Corporation are “Owned” for these purposes shall be determined by the Board of Directors. |
|
(iii) No person shall be permitted to be in more than one group constituting a Nominating Shareholder, and if any person appears as a member of more than one group, it shall be deemed to be a member of the group that has the largest ownership position as reflected in the Qualified Nomination Notice. |
|
(i) A Schedule 14N (or any successor form) relating to the Nominee, completed and filed with the SEC by the Nominating Shareholder as applicable, in accordance with SEC rules. |
|
(ii) A written notice of the nomination of such Nominee, in a form deemed satisfactory by the Board of Directors, that includes the following additional information, agreements, representations and warranties by the Nominating Shareholder (including each group member): (A) the information required with respect to the nomination of directors pursuant to Section 2.11 of these Bylaws, (B) the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N; (C) a representation and warranty that the Nominating Shareholder acquired the securities of the Corporation in the ordinary course of business and did not acquire, and is not holding, securities of the Corporation for the purpose or with the effect of influencing or changing control of the Corporation; (D) a representation and warranty that the Nominee’s candidacy or, if elected, Board of Directors membership would not violate applicable state or federal law or the rules of any stock exchange on which the Corporation’s securities are traded; (E) a representation and warranty that the Nominee: (1) does
11 |
not have any direct or indirect relationship with the Corporation that would cause the Nominee to be considered not independent pursuant to the Corporation’s corporate governance guidelines as most recently published on its website and otherwise qualifies as independent under the rules of the primary stock exchange on which the Corporation’s securities are traded; (2) meets the audit committee independence requirements under the rules of any stock exchange on which the Corporation’s securities are traded; (3) is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act (or any successor rule); (4) is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D (or any successor rule) under the Securities Act of 1933, as amended (the “Securities Act”) or Item 401(f) of Regulation S-K (or any successor rule) under the Exchange Act, without reference to whether the event is material to an evaluation of the ability or integrity of the Nominee; and (5) has not been named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) and has not been convicted in such a criminal proceeding in the last ten years; (F) a representation and warranty that the Nominating Shareholder satisfies the eligibility requirements set forth in Section 2.12(d) and has provided evidence of ownership to the extent required by Section 2.12(d); (G) a representation and warranty that the Nominating Shareholder intends to continue to satisfy the share ownership eligibility requirements described in Section 2.12(d) through the date of the annual meeting of the shareholders; (H) details of any position of the Nominee as an officer or director of any competitor (that is, any entity that produces products or provides services that compete with or are alternatives to the principal products produced or services provided by the Corporation or its affiliates) of the Corporation, within the five years preceding the submission of the Qualified Nomination Notice; (I) a representation and warranty that the Nominating Shareholder will not engage in a “solicitation” within the meaning of Rule 14a-1(l) of the Exchange Act (without reference to the exception in Rule 14a-1(l)(2)(iv) of the Exchange Act) (or any successor rules) with respect to the annual meeting of the shareholders, other than with respect to the Nominee or any nominee of the Board; (J) a representation and warranty that the Nominating Shareholder will not use any proxy card other than the Corporation’s proxy card in soliciting shareholders in connection with the election of a Nominee at the annual meeting of the shareholders; (K) if desired, a statement for inclusion in the proxy statement in support of the Nominee’s election to the Board of Directors; provided that such statement shall not exceed 500 words and shall fully comply with Section 14 of the Exchange Act and the rules and regulations thereunder, including Rule 14a-9; and (L) in the case of a nomination by a group, the designation by all group members of one group member who is authorized to act on behalf of all group members with respect to all matters relating to the nomination, including withdrawal of the nomination. |
|
(iii) An executed agreement, in a form deemed satisfactory by the Board of Directors, which must be submitted within seven days of the Nominating Shareholder’s first submission of any information required by this Section 2.12, in a form deemed satisfactory by the Board of Directors or its designee, pursuant to which the Nominating Shareholder (including each group member) agrees: (A) to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election; (B) to file any written solicitation or other communication with the Corporation’s shareholders relating to one or more of the Corporation’s directors or director nominees or any Nominee with the SEC, regardless of whether any such filing is required under rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation; (C) to assume all liability stemming from an action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication or action by the Nominating Shareholder or any of its Nominees with the
12 |
Corporation, its shareholders or any other person in connection with the nomination or election of directors, including, without limitation, the Qualified Nomination Notice; and (D) to indemnify and hold harmless (jointly with all other group members, in the case of a group member) the Corporation and each of its directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including attorneys’ fees) incurred in connection with any threatened or pending action, suit or proceeding, whether legal, administrative, or investigative, against the Corporation or any of its directors, officers or employees arising out of or relating to a failure or alleged failure of the Nominating Shareholder to comply with, or any breach or alleged breach of, its obligations, agreements or representations under this Section 2.12, or otherwise arising out of any nomination, solicitation or other activity by any Nominating Shareholder in connection with its efforts under this Section 2.12. |
|
(iv) An executed agreement, in a form deemed satisfactory to the Board of Directors, which must be submitted within seven days of the Nominating Shareholder’s first submission of any information required by this Section 2.12, in a form determined to be satisfactory by the Board of Directors, or its designee, by the Nominee: (A) to provide to the Corporation such other information, including completion of the Corporation’s director questionnaire, as it may reasonably request; and (B) that includes the representation and agreement set forth in Section 2.11(a) of these Bylaws. |
|
(v) In the event that any information or communications provided by a Nominating Shareholder or Nominee to the Corporation or its shareholders is not, when provided, or thereafter ceases to be, true, correct and complete in all material respects (including omitting a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading), each Nominating Shareholder or Nominee, as the case may be, shall promptly notify the Secretary and provide the information that is required to make such information or communication true, correct, complete and not misleading; it being understood that providing any such notification shall not be deemed to cure any such defect or limit the Board of Directors’ right to omit a Nominee from its proxy materials. The information and documents required by this Section 2.12(e) shall be: (A) provided with respect to and executed by each group member, in the case of information applicable to group members; and (B) provided with respect to the persons specified in Instruction 1 to Items 6(c) and (d) of Schedule 14N (or any successor items) in the case of a Nominating Shareholder or group member that is an entity. The Qualified Nomination Notice shall be deemed submitted on the date on which all the information and documents referred to in this Section 2.12(e) (other than such information and documents contemplated to be provided after the date the Qualified Nomination Notice is provided) have been delivered to or, if sent by mail, received by the Secretary. |
|
(f) Authority of the Board of Directors. The Board of Directors shall have the exclusive power and authority to interpret the provisions of this Section 2.12 and make, in good faith, all determinations deemed necessary or advisable in connection with this Section 2.12. |
|
(g) Exceptions. |
|
(i) Notwithstanding anything to the contrary contained in Section 2.12, the Corporation may omit from its proxy statement any Nominee and any information concerning such Nominee (including a Nominating Shareholder’s statement in support), no vote on such
13 |
Nominee will occur, and any proxies in respect of such vote that have been received by the Corporation shall be disregarded, and the Nominating Shareholder may not, after the last day on which a Qualified Nomination Notice would be timely, cure in any way any defect preventing the nomination of the Nominee, if: (A) the Nominating Shareholder or the designated lead group member, as applicable, or any qualified representative thereof, does not appear at the meeting of shareholders to present the nomination submitted pursuant to this Section 2.12, the Nominating Shareholder withdraws its nomination or the presiding officer of the annual meeting declares that such nomination was not made in accordance with this Section 2.12 and shall therefore be disregarded; (B) the Board of Directors, determines that such Nominee’s nomination or election to the Board of Directors would result in the Corporation violating or failing to be in compliance with these Bylaws or the Articles of Incorporation or any applicable law, rule or regulation to which the Corporation is subject, including any rules or regulations of any stock exchange on which the Corporation’s securities are traded; (C) the Nominee was nominated for election to the Board of Directors pursuant to this Section 2.12 at one of the Corporation’s two preceding annual meetings of shareholders and either withdrew or became ineligible or received less than 25% of the votes that all shareholders were entitled to cast for such Nominee; (D) the Nominee has been, within the past three years, an officer or director of a competitor, as defined for purposes of Section 8 of the Clayton Antitrust Act of 1914, as amended, or (E) the Corporation is notified, or the Board of Directors determines, that a Nominating Shareholder has failed to continue to satisfy the eligibility requirements described in Section 2.12(d), any of the representations and warranties made in the Qualified Nomination Notice ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statement not misleading), the Nominee becomes unwilling or unable to serve on the Board of Directors or any material violation or breach occurs of the obligations, agreements, representations or warranties of the Nominating Shareholder or the Nominee under this Section 2.12. |
|
(ii) Notwithstanding anything to the contrary contained in this Section 2.12, the Corporation may omit from its proxy statement, or may supplement or correct, any information, including all or any portion of the statement in support of the Nominee included in the Qualified Nomination Notice, if the Board of Directors determines that: (A) such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading; (B) such information directly or indirectly impugns character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any person; or (C) the inclusion of such information in the proxy statement would otherwise violate the SEC proxy rules or any other applicable law, rule or regulation. |
|
(iii) The Corporation may solicit against, and include in the proxy statement its own statement relating to, any Nominee. |
|
Section 2.13 Organization of Meetings. |
|
(a) The Chairman of the Board shall preside at each meeting of shareholders. In the absence of the Chairman of the Board, unless otherwise determined by the Board of Directors, the meeting shall be chaired by an officer of the Corporation in accordance with the following order: Chief Executive Officer, President and Vice President. The Secretary, or in his or her absence an Assistant Secretary, or in the absence of the Secretary and all Assistant Secretaries, a person whom
14 |
the chairman of the meeting shall appoint shall act as secretary of the meeting and keep a record of the proceedings thereof. |
|
(b) The Board of Directors shall be entitled to make such rules and regulations for the conduct of meetings of shareholders as it shall deem necessary, appropriate or convenient. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors prior to the meeting, the chairman of the meeting shall have the right and authority to prescribe such rules and regulations and procedures and to do all such acts as, in his or her discretion, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) convening the meeting and recessing or adjourning the meeting (whether or not a quorum is present); (b) determining and announcing the date and time of the opening and the closing of the polls for each matter upon which the shareholders will vote; (c) establishing an agenda or order of business for the meeting; (d) rules and procedures for maintaining order at the meeting and the safety of those present; (e) limitations or attendance at or participation in the meeting to shareholders of record entitled to vote at the meeting, their duly authorized and constituted proxies, or such other persons as the chairman of the meeting shall determine; (f) establishing rules and procedures with respect to the recess and adjournment of the meeting; (g) restrictions on entry to the meeting after the time fixed for the commencement thereof; (h) restrictions on the use of any audio or video recording devices at the meeting; and (i) limitations on the time allotted to questions or comments by participants. |
|
Section 2.14 No Action Without Meeting. Except where otherwise required by the IBCA, no action permitted to be taken by the shareholders of the Corporation under any provision of the IBCA and under these Bylaws may be taken without a meeting. |
|
(a) To select and remove all the other officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law, or
15 |
with the Articles of Incorporation or these Bylaws, fix their compensation, and require from them security for faithful service. |
in the Board of Directors for any reason may be filled by the Board of Directors or as set forth in Section 3.04, and any directors so chosen shall hold office until the next election of the group for which such directors shall have been chosen and until their successors shall be elected and qualified. Subject to the foregoing, at each annual meeting of shareholders the successors to the group of directors whose term shall then expire shall be elected to hold office for a term expiring at the third succeeding annual meeting. |
17
|
Section 3.10 Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned. |
business at the meeting because of lack of notice or defective notice, and does not thereafter vote for or assent to action taken at the meeting. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though made at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, or a consent to holding such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. |
|
Section 3.12 Quorum. One-half of the authorized number of directors shall be necessary to constitute a quorum for the transaction of business, except to adjourn as hereinafter provided. |
Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, unless a greater number be required by law or by the Articles of Incorporation.
these Bylaws, declare dividends, issue stock, recommend to shareholders any action requiring their approval, change the membership of any committee at any time, fill vacancies therein, and discharge any committee either with or without cause at any time. Subject to the foregoing limitations, the executive committee shall possess and exercise all other powers of the Board of Directors during the intervals between meetings. |
|
Section 4.05 Other Committees. The Board of Directors may also appoint from among its own members such other committees as the Board of Directors may determine, which shall in
20 |
each case consist of not less than two directors, and which shall have such powers and duties as shall from time to time be prescribed by the Board of Directors. Subject to applicable law, the Chief Executive Officer shall be a member ex officio of each committee appointed by the Board of Directors. |
Any officer may resign at any time by giving written notice to the Board of Directors or to the Chief Executive Officer, or to the President, or to the Secretary. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
|
Section 5.06 Chairman of the Board. The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors, and exercise and
21 |
perform such other powers and duties as may be from time to time assigned to the chairperson by the Board of Directors or prescribed by these Bylaws. |
22
business hours; and whenever required by the Board of Directors, the Chief Executive Officer or the Chief Financial Officer, shall render a statement of his or her accounts. He or she shall perform such other duties as may be prescribed from time to time by the Board of Directors or by these Bylaws. |
|
Section 6.04 Transfer Agent. The Board of Directors shall have power to appoint one or more transfer agents and registrars for the transfer and registration of certificates of stock of any class. |
|
(a) Each person who was or is made a party or is threatened to be made a party or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a
24 |
director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the IBCA, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 7.01(b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. |
|
Section 7.03 Non-Exclusivity of Rights. The rights conferred on any person in Section 7.01 and Section 7.02 shall not be exclusive of any other right which such persons may
25 |
have or hereafter acquire under any statute, provision of the Articles of Incorporation, these Bylaws, agreement, vote of shareholders or disinterested directors, or otherwise. |
|
Section 8.01 Fiscal Year. The fiscal year of the Corporation shall begin on January 1st and end on December 31st. It may be changed by resolution of the Board of Directors. |
|
Section 8.02 Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors. |
a director, or a partnership, corporation or association of which a director is a member, officer, director, trustee or employee is so interested, such fact shall be disclosed or shall have been known to the Board of Directors or a majority thereof. This paragraph shall not be construed to invalidate any such contract or transaction which would otherwise be valid under the common and statutory law applicable thereto. |
For purposes of this Section 8.08, and subject to the Corporation’s right to consent to an alternative forum as provided above, to the extent no state court located within the State of Iowa has jurisdiction, then any such action shall also be solely and exclusively brought in a federal court located within the State of Iowa, to the extent such court has subject matter jurisdiction over the action. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by applicable law, be the exclusive forum for the resolution of any complaint asserting a cause of
27
action arising under the Securities Act. Notwithstanding the foregoing, the foregoing provisions of this Article VIII shall not apply to claims seeking to enforce any liability or duty created by the Exchange Act, or any other claim for which the U.S. federal courts have exclusive jurisdiction.
Amended & Restated September 27, 2021
28
Exhibit 99.1
|
|
|
|
|
|
Green Plains Announces Corporate Governance Enhancements
|
· |
Names Jim Anderson Lead Independent Director |
|
· |
Amends Bylaws and Adopts Corporate Governance Guidelines to Strengthen Shareholder Rights |
|
· |
Reiterates Commitment to Further Build on the Board’s Expertise and Enhance Diversity through Previously Announced Comprehensive Director Search Process |
OMAHA, Neb. September 28, 2021, (GLOBE NEWSWIRE) Green Plains Inc. (NASDAQ: GPRE) today announced that the Board of Directors (the “Board”) has unanimously approved changes to the Board’s leadership structure, Fourth Amended and Restated Bylaws (the “Bylaws”) and corporate governance documents to further enhance the effectiveness of the Board’s oversight and strengthen shareholder rights.
Appointment of Jim Anderson as Lead Independent Director
The Board has appointed Jim Anderson to the newly-created role of Lead Independent Director. In this role, Mr. Anderson will be responsible for leading meetings of the independent directors, presiding at meetings of the Board at which the Chairman is not present and reviewing and providing input on Board agendas and materials in advance of Board meetings. The Lead Independent Director will also have the authority to call meetings of the independent directors. Mr. Anderson has served on the Board since 2008 and is currently the Chief Executive Officer of Molycop and previously held various executive roles at United Malt Holdings, The Gavilon Group, LLC and ConAgra Foods, Inc. As part of these Board leadership changes, the Board has eliminated the position of Vice Chair. Alain Treuer, the current Vice Chair, will continue as an independent director.
Amendments to Bylaws and Other Governance Enhancements
The Board has also adopted amendments to the Bylaws, including:
|
· |
incorporating a majority voting standard in uncontested elections of directors; |
|
· |
lowering the ownership threshold for shareholders to call a special meeting from 50% to 20%; and |
|
· |
allowing long-term shareholders the ability to nominate directors in the Company’s proxy statement via a “proxy access” provision. |
In addition, as part of a comprehensive corporate governance review following the 2021 annual shareholders meeting, the Board has also published new Corporate Governance Guidelines and adopted a new Board Qualifications and Diversity Policy codifying its commitment to enhancing and maintaining Board diversity. The Board also approved updates to the charters of the Audit, Nominating and Governance and Compensation Committees aimed at clarifying and enhancing the oversight roles of these key independent Board committees in accordance with corporate governance best practices.
Board Commentary
“As part of our review of our corporate governance and Board composition, the Board has unanimously adopted changes to our leadership structure, Bylaws and corporate governance policies to enhance accountability and strengthen shareholder rights,” said Kimberly Wagner, Chair of the Green Plains Nominating and Governance Committee. “We are continuing our search for a new, highly qualified complementary director with the assistance of a third-party search firm and appreciate the input we have received from shareholders regarding the profile and experience they believe we should add to the Board.”
“I’d like to congratulate Jim on being appointed Lead Independent Director,” said Wayne Hoovestol, Chairman of the Board of Green Plains. “Jim’s background and experience have been invaluable to the Board as we oversee the execution of the Company’s ambitious transformation to Green Plains 2.0. The governance enhancements we’ve announced today, along with the Board leadership changes, underscore our commitment to sound Board oversight and aligning Green Plains’ corporate governance with best practices. We look forward to sharing updates on our Board refreshment process in due course, and I am confident we will
continue to enhance our approach to environmental, social and corporate governance matters for the benefit of our shareholders and other stakeholders.”
About Green Plains Inc.
Green Plains Inc. (NASDAQ:GPRE) is a leading biorefining company focused on the development and utilization of fermentation, agricultural and biological technologies in the processing of annually renewable crops into sustainable value-added ingredients. This includes the production of cleaner low carbon biofuels, renewable feedstocks for advanced biofuels and high purity alcohols for use in cleaners and disinfectants. Green Plains is an innovative producer of Ultra-High Protein and novel ingredients for animal and aquaculture diets to help satisfy a growing global appetite for sustainable protein. The Company also owns a 48.9% limited partner interest and a 2.0% general partner interest in Green Plains Partners LP. For more information, visit www.gpreinc.com
Forward-Looking Statements
This news release includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. Forward-looking statements reflect management’s current views, which are subject to risks and uncertainties including, but not limited to, anticipated financial and operating results, plans and objectives that are not historical in nature. These statements may be identified by words such as “believe,” “expect,” “may,” “should,” “will” and similar expressions. Factors that could cause actual results to differ materially from those expressed or implied include: disruption caused by health epidemics, such as the coronavirus outbreak, competition in the industries in which Green Plains operates; commodity market risks, financial market risks; counterparty risks; risks associated with changes to federal policy or regulation, including changes to tax laws; risks related to closing and achieving anticipated results from acquisitions and disposals. Other factors can include risks associated with Green Plains’ ability to realize higher margins anticipated from the company’s high protein feed, clean sugar, specialty alcohol and carbon sequestrations initiatives; to achieve anticipated savings from Project 24; to successfully pursue its ongoing transformation strategy and other risks discussed in Green Plains’ reports filed with the Securities and Exchange Commission. Investors are cautioned not to place undue reliance on forward-looking statements, which speak only as of the date of this news release. Green Plains assumes no obligation to update any such forward-looking statements, except as required by law.
Green Plains Inc. Contacts
Investors: Phil Boggs | Executive Vice President, Investor Relations | 402.884.8700 | phil.boggs@gpreinc.com
Media: Lisa Gibson | Communications Manager | 402.952.4971 | lisa.gibson@gpreinc.com
###
Exhibit 99.2
GREEN PLAINS INC.
Corporate Governance Guidelines
(Adopted as of September 27, 2021)
|
I. |
The Board of Directors |
|
A. |
Size of the Board |
The number of directors that constitutes the Board of Directors (the “Board”) of Green Plains Inc. (the “Company”) will be fixed from time to time pursuant to the Company’s Articles of Incorporation and Bylaws (as each may be amended, or amended and restated, from time to time). The Nominating and Governance Committee is responsible for reviewing the advisability or need for any changes in the number and composition of the Board.
|
B. |
Qualification Standards |
Directors should possess the highest personal and professional ethics, integrity and values, and be committed to representing the long-term interests of the Company and its stockholders. The Board will have a majority of directors who are “Independent Directors” as defined by the listing requirements of The NASDAQ Stock Market LLC. Each year, the Nominating and Governance Committee will review the relationships between the Company and each director and will report the results of its review to the Board, which will then determine which directors satisfy the applicable independence standards.
The Nominating and Governance Committee is responsible for identifying individuals qualified to become Board members. Nominees for directorship will be identified by the Nominating and Governance Committee in accordance with the policies and principles in, or established pursuant to, its charter. An invitation to join the Board should be extended by the Board itself, by the Chairman of the Nominating and Governance Committee or by the Chairman of the Board.
|
C. |
Director Responsibilities |
The basic responsibility of each director is to exercise his or her business judgment to act in what he or she reasonably believes to be in the best interests of the Company and its stockholders. In discharging this obligation, directors should be entitled to rely on the honesty and integrity of the Company’s senior executives and its outside advisors and auditors. Directors are expected to attend Board meetings and meetings of committees on which they serve and to spend the time needed and meet as frequently as necessary to properly discharge their responsibilities. Information and data that are important to the Board’s understanding of the business to be conducted at a Board or committee meeting should generally be distributed in writing to the directors before the meeting, and directors should review these materials in advance of the meeting. Attendance at Board and committee meetings should be considered by the Nominating and Governance Committee in assessing each director’s performance.
|
D. |
Service on Other Boards |
In advance of accepting an invitation to serve on another public company board, directors should advise the Chairman of the Board to allow an assessment to be made of, among other things, the potential impact of such service on the director’s time and availability, potential conflict of interest issues and the director’s status as an independent director. Each director must be able to devote the time and attention necessary to fulfill his or her responsibilities. In determining whether a director has the capacity necessary to fulfill his or her obligations, the Board will consider, among other factors, investor perspectives and best practices regarding director service on other boards.
|
E. |
No Term Limits |
The Board does not believe it should establish limits on a director’s service. Seasoned directors are able to provide valuable insight and an important historical perspective into the Company based on their experience and understanding of the Company’s strategy and objectives. As an alternative to term limits, the Nominating and Governance Committee will review each director’s continuation on the Board every year such director is up for reelection. This will allow each director the opportunity to conveniently confirm his or her desire to continue as a member of the Board. The Nominating and Governance Committee will take into consideration best practices with respect to director tenure and refreshment.
|
F. |
Chairman of the Board |
It is the Board’s policy not to mandate the separation of the offices of Chairman and Chief Executive Officer. The Board believes that this issue is part of the succession planning process and that it is in the best interests of the Company for the Board to make a determination regarding this issue each time it appoints a new Chief Executive Officer and during times of transition.
|
G. |
Meetings of the Board |
The Chairman of the Board, or in the event the Board has appointed a Lead Independent Director, the Lead Independent Director, will establish for each Board meeting the agenda, which will be developed in conjunction with the Chief Executive Officer, to the extent appropriate. At the beginning of the year, the Chairman of the Board together with the Lead Independent Director if one has been appointed, and the Chief Executive Officer, to the extent appropriate, will establish a schedule of agenda subjects to be discussed during the year (to the degree this can be foreseen). The Chairman of the Board, or in the event the Board has appointed a Lead Independent Director, the Lead Independent Director, will coordinate with management to ensure that best efforts are made to distribute materials and documents, if any, to directors a reasonable time in advance of each Board meeting to provide directors sufficient time for preparation and a thorough review of such materials and documents, if any. Each director is free to suggest the inclusion of items on the agenda. Each director is free to raise at any Board meeting subjects that are not on the agenda for that meeting.
Page 2
|
H. |
Meetings of Independent Directors |
The independent directors will have regularly scheduled meetings, at least twice a year, in executive session. The Lead Independent Director, if one has been appointed, or any other director chosen by the Board (based on the recommendation of the Nominating and Governance Committee) to preside at these meetings will have the authority to call meetings of the independent directors and will be responsible for preparing an agenda for the meetings of the independent directors in executive session. Either the name of the director responsible for presiding at all the meetings of the independent directors or, if the same person does not preside at every meeting, the procedure by which the directors charged with presiding are selected will be disclosed in the Company’s proxy statement for its annual meeting of stockholders or, if the Company does not file an annual proxy statement, in its Annual Report on Form 10-K.
|
I. |
Board Interaction with External Constituencies |
The Board believes that it is management’s responsibility to speak for the Company. As such, individual directors will not meet or otherwise directly communicate with stockholders, research analysts, vendors, the press or other external constituencies on behalf of the Company unless the communication is (1) requested by the Chairman of the Board, the Chief Executive Officer or the full Board or (2) required to discharge his or her duties as set forth in committee charters. If communication from the Board is appropriate, it should, in most instances, come from the Chairman of the Board or, if one has been appointed, the Lead Independent Director. In all events, if it becomes necessary for a director to speak with an outside constituency, it is expected that the director will only do so with knowledge of the Chairman of the Board.
|
J. |
Director Compensation |
The Compensation Committee will conduct a periodic review of director compensation for service on the Board and Board committees and make a recommendation to the Board regarding the form and amount of director compensation, including any recommended changes thereto. The Compensation Committee will consider that a director’s independence may be jeopardized if (1) director compensation and perquisites exceed customary levels, (2) the Company makes substantial charitable contributions to organizations with which a director is affiliated or (3) the Company enters into consulting contracts with (or provides other indirect forms of compensation to) a director or an organization with which the director is affiliated. Directors who are employees of the Company may not receive any additional compensation for service on the Board.
|
K. |
Annual Performance Evaluation of the Board |
The Nominating and Governance Committee will lead the Board in its annual performance review. As part of this process, the Nominating and Governance Committee will receive comments from all directors and report to the full Board with an assessment of the Board’s performance.
Page 3
|
L. |
Director Orientation and Continuing Education |
The Board considers it desirable for directors to participate in continuing education opportunities. The Nominating and Governance Committee is responsible for developing and evaluating an orientation and continuing education program for directors, and for making appropriate recommendations for final Board action regarding this program.
|
M. |
Board Member Attendance at the Annual Meetings of Stockholders |
Directors are encouraged to attend the Company’s annual meeting of stockholders.
|
N. |
Stockholder Communications with Directors |
The Board welcomes communications from the Company’s stockholders and other interested parties. Stockholders and any other interested parties may send communications to the Board, any committee of the Board, the Chairman of the Board, the Lead Independent Director, if one has been appointed, or any other director in particular to:
Green Plains Inc.
1811 Aksarben Drive
Omaha, NE 68106
Stockholders and any other interested parties should mark the envelope containing each communication as “Stockholder Communication with Directors” and clearly identify the intended recipient(s) of the communication. The Company’s Chief Legal & Administration Officer will review each communication received from stockholders and other interested parties and will forward the communication, as expeditiously as reasonably practicable, to the addressees if: (1) the communication complies with the requirements of any applicable policy adopted by the Board relating to the subject matter of the communication; and (2) the communication falls within the scope of matters generally considered by the Board. To the extent the subject matter of a communication relates to matters that have been delegated by the Board to a committee or to an executive officer of the Company, then the Company’s Chief Legal & Administration Officer may forward the communication to the executive officer or chairman of the committee to which the matter has been delegated. The acceptance and forwarding of communications to the members of the Board or an executive officer does not imply or create any fiduciary duty of the Board members or executive officer to the person submitting the communications.
|
II. |
Committees of the Board of Directors |
|
A. |
Committees |
The Board will have at all times an Audit Committee, a Compensation Committee and a Nominating and Governance Committee. However, the Board may, from time to time, establish and maintain additional committees as necessary or appropriate. Committee members will be appointed by the Board upon recommendation of the Nominating and Governance Committee, with consideration given to the desires of individual directors.
Page 4
All of the members of the Audit Committee, Compensation Committee and Nominating and Governance Committee must satisfy the independence and experience requirements detailed in their respective committee charters. The Nominating and Governance Committee will determine whether or not each director is independent, disinterested, and a non-employee director under the standards applicable to the committees on which such director is serving or may serve, and will report the results of its review to the Board. The Board will then determine which directors qualify as independent, disinterested, non-employee directors under applicable standards.
|
B. |
Committee Charters |
Each committee will have its own charter. The charters will set forth the authority and responsibilities of the committees as well as qualifications for committee membership, procedures for committee member appointment and removal, committee structure and operations and committee reporting to the Board. The charters will also provide that each committee will evaluate its performance.
|
C. |
Committee Meetings |
The Chairman of each committee, in consultation with the committee members, will determine the frequency and length of the committee meetings consistent with any requirements set forth in the committee’s charter. The Chairman of each committee, in consultation with the appropriate members of the committee and management, will develop the committee’s agenda. At the beginning of the year, the Chairman of each committee should establish a schedule of agenda subjects to be discussed during the year (to the degree these can be foreseen). Committee members are free to suggest the inclusion of items on the agenda. Committee members are free to raise at any committee meeting subjects that are not on the agenda for that meeting.
|
D. |
Annual Performance Evaluation of the Committees |
The Nominating and Governance Committee will lead the Board in the annual performance review of the Board’s committees. As part of this process, the Nominating and Governance Committee will request that the Chairman of each committee report to the full Board about the committee’s annual evaluation of its performance and evaluation of its charter.
|
III. |
Director Access to Independent Advisors and Management |
The Board and each committee has the power to hire legal, financial or other experts and advisors as it may deem necessary, without consulting or obtaining the approval of any officer of the Company in advance.
Directors have full and free access to officers and employees of the Company. Any meetings or contacts that a director wishes to initiate may be arranged through the Chief Executive Officer or directly by the director. The directors will use their judgment to ensure that any such contact is not disruptive to the business operations of the Company.
Page 5
The Board welcomes regular attendance at each Board meeting of executive officers of the Company.
|
IV. |
Management Evaluation and Succession Planning |
The Compensation Committee will conduct the annual performance review of the Chief Executive Officer. The Nominating and Governance Committee will oversee the CEO and management succession planning process and will meet periodically on such succession planning. The succession plan will be updated and reported to the Board periodically. The Chief Executive Officer should at all times make available his or her recommendations and evaluations of potential successors, along with a review of any development plans recommended for such individuals.
|
V. |
Review of Governance Policies |
The Nominating and Governance Committee periodically will review and reassess the adequacy of these Guidelines and recommend any proposed changes to the Board for approval. In addition, the Nominating and Governance Committee will consider any other corporate governance issues that arise from time to time and will develop appropriate recommendations for the Board.
|
VI. |
Posting Requirement |
The Company should post these Guidelines, the charters of each Board committee and the Company’s Code of Conduct on the Company’s website as required by applicable rules and regulations. In addition, the Company should disclose in its proxy statement for its annual meeting of stockholders or, if for any reason the Company does not file a proxy statement, in its Annual Report on Form 10-K, that a copy of each document is available on the Company’s website and provide the website address.
Page 6
Exhibit 99.3
Board Qualifications and Diversity Policy
The following Board Qualifications and Diversity Policy (the “Policy”) has been adopted by the Board of Directors (the “Board”) of Green Plains Inc. (“Green Plains” or the “Company”) to assist the Board in the exercise of its responsibilities. This Policy should be read in conjunction with the Corporate Governance Guidelines adopted by the Board (the “Guidelines”) and the charter of the Board’s Nominating and Governance Committee and reflects the Board’s commitment to selecting ideal candidates for Board service. This Policy is in addition to, and is not intended to change or interpret, any Federal or state law or regulation, including Chapter 490 of the Iowa Business Corporation Act, or the Articles of Incorporation, Bylaws or Guidelines of the Company. The Policy is subject to modification from time to time by the Board.
The Board recognizes the value of nominating directors who bring varying perspectives, opinions, skills, experiences, backgrounds and personal characteristics to the Board’s discussion and decision-making process. The Board seeks to remain comprised of talented and dedicated directors whose collective breadth of experience reflects the strategic needs of the Company; diversity (based on factors commonly associated with diversity such as race, gender identity or expression, national origin, religion, or sexual orientation, as well as on broader principles such as diversity of perspective and experience) is one of many elements to be considered in evaluating a particular candidate.
As provided on Exhibit A, which is attached hereto, the Board has identified certain qualifications, attributes, experiences and skills that are important to the functioning of the Board as a whole, in consideration of the Company’s current and future goals.
Consistent with its charter, the Nominating and Governance Committee shall be responsible for performing the annual performance evaluation of the effectiveness of the Board, Board committees and individual directors. As a part of such annual performance evaluation, the Nominating and Governance Committee will consider the balance of skills, experience, independence and knowledge of the Company on the Board and the diversity representation of the Board, including gender, how the Board works together as a unit, and other factors relevant to its effectiveness. The Nominating and Governance Committee will also review whether the Board’s approach to diversity is functioning effectively.
The Nominating and Governance Committee will discuss and agree annually on any and all measurable objectives for achieving diversity on the Board and recommend them to the Board for adoption. At any given time the Board may seek to improve one or more aspects of its diversity and measure progress accordingly. As of the date of adoption of this Policy,
|
§ |
the Nominating and Governance Committee, when engaging any search firm to assist with the identification of potential new Board members or filling a vacancy on the Board, will direct any search firm to provide a candidate pool so that at least 50% of the candidates are women or otherwise Diverse candidates; |
|
§ |
the Nominating and Governance Committee, when identifying potential new Board members or filling a vacancy on the Board, commits to interviewing candidates so that at least 25% of the candidates affirmatively considered are women or otherwise Diverse; and |
|
§ |
the Board’s goal is that the Board will include at least 2 women and at least 1 otherwise Diverse director by the end of 2024. |
For these purposes, “Diverse” has the meaning as set forth in Nasdaq Rule 5605(f).
The Nominating and Governance Committee will review the Policy annually, which will include an assessment of the effectiveness of the Policy. The Nominating Governance Committee will discuss any revisions that may be required and recommend any such revisions to the Board for approval.
Adopted September 27, 2021
2
Exhibit A
Key Skills and Experience
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
|
|
Industry |
Strategic |
Leadership |
|||||||||||||||||||
|
|
Industrial Manufacturing & Ingredient Production |
Commodity Markets / Marketing |
Strategy Development |
International Business |
M&A / Partnerships |
Capital Markets |
Audit / Risk / Cybersecurity |
Legal / Regulatory / Govt. Relations |
Public Company / Corp. Governance / ESG |
Executive Leadership |
Executive Compensation |
|||||||||||
|
Director |
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
|
Key Skills and Experiences |
Description of Skills and Explanation of Its Importance |
|||||||||||||||||||||
|
Industrial Manufacturing & Ingredient Production |
Green Plains has grown to be one of the leading corn processors in the world for low carbon products at our biorefineries, inclusive of ethanol, corn oil, ultra-high protein, distillers grains as our core sources of revenue. We operate 11 biorefineries located in six states. It is important for our Board to have a deep understanding industrial manufacturing, the biorefinery and the proprietary and patented protein production processes, as well as potential future technologies applicable to our biorefineries. |
|||||||||||||||||||||
|
Commodity Markets / Marketing |
Green Plains procures grain and natural gas to produce our products and markets, sells and distributes our products, e.g., ethanol, distillers grains, ultra-high protein, and corn oil produced at our biorefineries. A strong understanding of commodity markets is essential as well as an understanding of U.S. and global markets impacting the supply and demand characteristics driving the needs for our products. |
|||||||||||||||||||||
|
Strategy Development |
We believe that we can maximize our competitive advantage to create lasting value for our stockholders, both in the near- and longer-term, by successfully executing on our strategic plan, to take advantage of the world's growing demand for protein feed ingredients. It is important for our Board to have directors who have experience developing, delivering and directing corporate strategy. Further, it is important to have board members who have experience transforming organizations and culture and improving processes, services, and products with an aim of enhancing long-term value. |
|||||||||||||||||||||
|
International Business |
Global competition, international trade and product-related policies, and international activities can have a significant impact on our business. In 2020, we exported 21% of our ethanol production, marketing to international customers. |
|||||||||||||||||||||
|
M&A / Partnerships |
Joint ventures, partnerships, mergers and acquisitions are an important part of maintaining a competitive advantage by maximizing our production capabilities, leveraging our proprietary technology and expanding new products into fast-growing, higher margin markets. We intend to continue exploring potential growth opportunities and strategies through these disciplines. As such, it is important to have board members well-versed in M&A-related activities to ensure that the right opportunities are being pursued, operational and financial risks can be quantified and effectively managed while expected synergies and growth projections are reasonable and realistic. |
|||||||||||||||||||||
|
Capital Markets |
As our Company continues to transform, having expertise in capital markets and various equity and debt financing alternatives will continue to be a critical skillset for our board to ensure we have the optimal capital structure, and financing needed to support these efforts. |
|||||||||||||||||||||
|
Audit / Risk / |
As a public company, we are subject to various auditing, accounting, and financial reporting obligations. Our Audit Committee’s responsibilities include reviewing the Company’s financial statements, financial reporting, and internal controls, as well as overseeing the independent auditor. Green Plains is also subject to various forms of risk, including, without limitation, cybersecurity risk, liquidity risk, credit risk, market risk, interest rate risk, operational risk, legal and compliance risk, and reputational risk. It is important for our Board to have directors who are financial experts and who understand financial reporting as well as effective risk management practices. |
|||||||||||||||||||||
|
Legal / Regulatory / Government Relations |
Our operations are regulated by various government entities that can impose significant costs on our business. It is important to have board members who have a strong comprehension of the legal and regulatory landscape specific to our business. Our production levels, markets and grain we procure are affected by federal government programs. Government policies such as tariffs, duties, subsidies, import and export restrictions and embargos can also impact our business. |
||||||||||||||||||||
|
Public Company / Corporate Governance / |
Our Board is responsible for overseeing the successful execution of our strategy and the selection and retention of key executives, which affects the fundamental operation of the Company. It is important for our Board to have directors who understand the fiduciary obligations of public company directors and who have experience shaping a company’s priorities and structure. Effective corporate governance, ongoing board refreshment and a commitment to diversity are all part of a broader effort to ensure that ESG considerations and goals are incorporated into the Company's corporate strategy. Also, the implementation of leading ESG practices are a very important component of our business as the effects of global climate change continues to attract considerable attention with widespread concerns about the impacts of human activity, especially the emissions of greenhouse gases. |
||||||||||||||||||||
|
Executive Leadership |
One of the core considerations of our Board in examining director candidates is that the director should have an established track record of professional accomplishment in the candidate’s chosen field. It is important we have highly qualified directors with a diverse range of complementary skill sets, but the common thread is that our directors have experience leading large, complex organizations and teams. Green Plains is a company with an array of important stakeholders, including employees, stockholders, customers, partners, regulators, and communities. It is important for our Board to have directors who have experience dealing with a similar range of stakeholders and managing the challenges associated with operating a large organization. |
||||||||||||||||||||
|
Compensation |
The Board believes that aligning executive compensation with shareholder interests is consistent with the Company's philosophy of driving performance and building long-term shareholder value. This pay-for-performance philosophy is embraced by the Board and is intended to align the interests of key executives, attract and retain high-performing employees, and link a significant amount of compensation to the achievement of pre-established performance metrics directly tied to our business goals and strategies. It is important for Green Plains to have board members who have participated in the design and supervision of executive compensation programs. |
||||||||||||||||||||
Exhibit 99.4
GREEN PLAINS INC.
AUDIT COMMITTEE CHARTER
There shall be a committee of the Board of Directors (the “Board”) of Green Plains Inc. (the “Company”) designated as the Audit Committee (the “Committee”).
The purpose of the Committee is to assist the Board in fulfilling its oversight responsibilities to shareholders, potential shareholders, creditors and other stakeholders related to corporate accounting and financial controls, reporting practices of the Company, and the quality and integrity of the Company’s financial reports. In so doing, it is the responsibility of the Committee to maintain a free and open means of communication between committee members, the independent registered public accountants and Company management.
COMPOSITION
The Committee shall comprise three or more directors. The Board shall appoint the members of the Committee upon the recommendation of the Nominating and Governance Committee. Each member of the Committee shall be independent in accordance with Rule 10A-3 of the Securities Act of 1933, and Nasdaq Rule 5605(a)(2), each as amended from time to time. Each member of the Committee shall be financially literate, as such standard is determined by the Board in its business judgment, and at least one member of the Committee shall be designated as the audit committee financial expert in accordance with Rule 407(d)(5) of Regulation S-K and Nasdaq Rule 5605(c).
If a member of the Committee ceases to satisfy the independence requirements discussed above for reasons outside of the reasonable control of such member, the member may remain on the Committee until one year from the occurrence of the event that caused the failure of such member to be independent, provided that an officer of the Company provides notice to Nasdaq promptly upon learning of the event or circumstance that caused the noncompliance pursuant to Rule 5605(c)(4) of the Nasdaq listing rules. Notwithstanding the foregoing membership requirements, no action by the Committee will be invalid for any such requirement not being met at the time such action was taken.
The members of the Committee shall serve for such term or terms as determined by the Board or until earlier resignation or death. Any Committee member may resign effective upon giving oral or written notice to the Chairman of the Board, the Corporate Secretary or the Board (unless the notice specifies a later time for the effectiveness of such resignation). If the resignation of a Committee member is effective at a future time, the Board may elect a successor to take office when the resignation becomes effective. The entire Committee or any individual Committee member may be removed from office with or without cause by the affirmative vote of a majority of the Board.
GREEN PLAINS INC.
AUDIT COMMITTEE CHARTER
MEETINGS
Frequency
The Committee shall meet at least quarterly, or more frequently as circumstances dictate. As part of its responsibility to foster open communication, the Committee or its members are expected to meet for discussions with Company management frequently. There will be at least two formal meetings per year with Company management in the presence of the independent registered public accountants. The Committee may hold separate executive sessions to discuss any matters that the Committee believes should be discussed privately. The Committee is governed by the same rules governing meetings (including meetings in person, by telephone or other similar communications equipment), action without meetings, notice, waiver of notice, and quorum and voting requirements applicable to the Board.
Chairperson
A chairperson of the Committee (the “Chairperson”) may be designated by the Board based upon recommendations by the Committee, if any. In the absence of such designation, the members of the Committee may designate the Chairperson by majority vote of the full Committee membership. The Chairperson shall determine the agenda, frequency and length of meetings and have unlimited access to management and information. The Chairperson shall establish such other rules that may be necessary, from time to time, and proper to conduct the business of the Committee.
AUTHORITY
The Committee shall have the authority to conduct or authorize investigations into any matters within the committee’s scope of responsibilities. In the course of fulfilling its responsibilities under this charter, in connection with such investigations or otherwise, the Committee shall have the authority to:
|
· |
Appoint, oversee, approve the compensation of and replace, when appropriate, the independent registered public accountants. |
|
· |
Resolve any disagreements between management and the independent registered public accountants regarding financial reporting. |
|
· |
Pre-approve and review disclosure, as required, of all audit and non-audit services provided by the independent registered public accountants. |
|
· |
Approve the appointment, compensation, removal or replacement of the Company’s chief audit executive, as necessary. |
|
· |
Oversee the operations of the Company’s internal audit department. |
|
· |
Retain special legal, accounting, or other consultants or advisors for advisory services. |
Page 2
GREEN PLAINS INC.
AUDIT COMMITTEE CHARTER
|
· |
Request any officer or employee of the Company, its outside legal counsel or independent registered public accountants to attend an Committee meeting or meet with members of, or consultants or advisors to, the Committee. |
|
· |
Authorize any related party transaction or transactions in accordance with Board-approved parameters. |
|
· |
Meet with company officers, internal auditors, independent registered public accountants, or outside counsel, as necessary. |
|
· |
Work with appropriate Company personnel to resolve possible unethical or improper actions reported via confidential compliance hotline. |
|
· |
Seek any information it requires from employees — all of whom are directed to cooperate with the Committee’s requests — or external parties. |
The responsibilities of a member of the Committee shall be in addition to such member’s duties as a member of the Board.
While the Committee shall have the responsibilities and powers set forth in this charter, it shall not be the duty of the Committee to plan or conduct audits or to determine whether the Company’s financial statements are complete, accurate, or in accordance with generally accepted accounting principles. These are the responsibilities of management and the independent registered public accountants. Nor shall it be the duty of the Committee to conduct investigations or to assure compliance with laws and regulations, or the Company’s own policies.
The Company must provide for appropriate funding, as determined by the Committee, for payment of (a) compensation to any independent registered public accountants engaged for the purpose of rendering or issuing an audit report or performing other audit, review or attest services for the Company; (b) compensation to any advisors employed by the Committee; and (c) ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its duties.
RESPONSIBILITIES
In carrying out its responsibilities, the Committee’s policies and procedures will remain flexible, in order to best react to changing conditions and promote effective corporate accounting and reporting practices of the Company in accordance with all requirements. In carrying out these responsibilities, the Committee will:
General
|
· |
Maintain an effective Committee Charter approved by the Board. Review and assess the adequacy of the Committee Charter annually, request Board approval for proposed changes to promote appropriate disclosure as may be required by law or regulation. |
Page 3
GREEN PLAINS INC.
AUDIT COMMITTEE CHARTER
|
· |
Influence the overall Company “tone” for quality financial reporting, sound business risk controls and ethical behavior. |
|
· |
Monitor compliance with the Company’s Code of Conduct and regulatory requirements, and review and assess conflicts of interest and related-party transactions. |
|
· |
Establish and review procedures for receipt, retention and treatment of complaints received by the Company regarding accounting, internal control and auditing matters, including procedures for confidential, anonymous submissions of concerns by employees regarding questionable accounting and auditing matters. |
|
· |
Review and discuss with management the Company’s major risk exposures and the steps management has taken to understand, monitor and control such risks. |
|
· |
Establish and review procedures for receipt, retention and treatment of complaints received by the Company regarding possible violations of the Company’s Code of Conduct and other ethical matters, including procedures for confidential, anonymous submissions of concerns by employees regarding such matters. |
|
· |
Review and approve required stock exchange certifications and proxy statement disclosure, if any. |
|
· |
Periodically review and update the Committee responsibilities calendar to reflect changes in regulatory requirements and authoritative guidance. |
|
· |
Institute and oversee special investigations as needed. |
|
· |
Perform other activities related to this charter as requested by the Board. |
|
· |
Review and discuss with management the Company’s information and cyber security programs. |
|
· |
Confirm annually that all responsibilities outlined in this charter were carried out. |
Financial Statements
|
· |
Review significant accounting and reporting issues, including complex or unusual transactions and highly judgmental areas, and recent professional and regulatory pronouncements, and understand their impact on the financial statements. Concur, per discussion with the independent registered public accountants and management, on changes to accounting principles. |
|
· |
Review with management and the independent registered public accountants the results of the audit, including any difficulties encountered. |
Page 4
GREEN PLAINS INC.
AUDIT COMMITTEE CHARTER
|
· |
Review the interim and annual financial statements and consider whether they are complete, consistent with information known to Committee members, and reflect appropriate accounting principles. |
|
· |
Review operational data and other sections of the interim or annual report and related regulatory filings before release and consider the accuracy and completeness of the information. |
|
· |
Review with management and the independent registered public accountants all matters required to be communicated to the Committee under Generally Accepted Auditing Standards. |
|
· |
Understand how management develops interim financial information, and the nature and extent of internal audit and the independent registered public accountants’ involvement. |
|
· |
Monitor the integrity and quality of annual and interim financial reporting with management and the independent registered public accountants to determine the independent registered public accountants’ satisfaction with the disclosure and content of the financial statements to be presented. |
Internal Controls
|
· |
Emphasize the adequacy of internal controls to identify any payments, transactions or procedures that may be deemed illegal or otherwise improper. Review the Company’s policy statements to enforce adherence to its code of conduct. |
|
· |
Monitor the integrity and quality of internal financial and operating information used by management in its decision-making processes. |
|
· |
Review and discuss the effectiveness of the organization’s risk management and internal control systems, including information technology security and control. |
|
· |
Review and discuss risks related to information systems, information security and cybersecurity and the steps management has taken to monitor and mitigate those exposures, including the organization’s policies and procedures for managing internal and external information and security incidents. |
|
· |
Review and discuss with the CEO and CFO the organization’s internal disclosure controls and procedures and any material control weaknesses and fraud. |
|
· |
Understand the scope of internal audit’s review of risk management and internal controls over financial and operational reporting, and obtain reports on significant findings and recommendations, together with management’s responses. |
Page 5
GREEN PLAINS INC.
AUDIT COMMITTEE CHARTER
|
· |
Understand the scope of the independent registered public accountants’ review of internal controls over financial reporting, and obtain reports on significant findings and recommendations, together with management’s responses. |
|
· |
Review with management and the independent registered public accountants their respective assessments and attestation of the effectiveness of the organization’s internal controls and procedures for financial reporting. |
Internal Audit
|
· |
Review with management and the chief audit executive the charter, plans, activities, staffing, resources and organizational structure of the internal audit function. |
|
· |
Review any material restrictions or limitations imposed upon internal audit personnel to determine if they are justified, and review and concur in the appointment, replacement or dismissal of the chief audit executive. |
|
· |
Set clear hiring policies for partners and employees of the external audit firm consistent with prevailing regulatory requirements. |
|
· |
Review the effectiveness of the internal audit activity, including compliance with The Institute of Internal Auditors’ International Standards for the Professional Practice of Internal Auditing. |
|
· |
Review the performance of the chief audit executive and exercise final approval on his/her appointment, compensation and discharge, as deemed appropriate. |
|
· |
On a regular basis, meet separately with the chief audit executive to discuss any matters that the Committee or internal audit personnel believe should be discussed privately. |
Independent Registered Public Accountants
|
· |
Review and recommend to the Board the Committee’s choice of the independent registered public accounting firm and the level of fees for audits of the Company’s financial statements. Recommend dismissal when necessary. The Company’s independent registered public accountants shall ultimately be accountable to the Committee and the Board as representatives of the shareholders. |
|
· |
Maintain an active dialog with the independent registered public accountants to identify and disclose any relationship or services that may affect the objectivity and independence of the auditors. |
|
· |
Meet with the independent registered public accountants and financial management of the Company to review the scope of the proposed audit for the current year and the audit procedures to be utilized, and at the conclusion thereof review the results of such audit,
Page 6
|
GREEN PLAINS INC.
AUDIT COMMITTEE CHARTER
including any comments or recommendations of the independent registered public accountants. |
|
· |
Provide sufficient opportunity for the independent registered public accountants to meet with members of the Committee without members of management present. Among the items to be discussed in these meetings are the independent registered public accountants’ evaluation of the Company’s financial and accounting personnel and their cooperation with the independent registered public accountants during the course of the audit or quarterly review. |
|
· |
Discuss with the independent registered public accountants the results of their review of interim financial statements before the Company files its Form 10-Q. |
|
· |
Consider and review with the independent registered public accountants: |
|
o |
Any significant findings in the independent registered public accountants’ interim financial statement review, pursuant to PCAOB Auditing Standard 4105 Reviews of Interim Financial Information, prior to the Company’s filing of its Form 10-Q. |
|
o |
The adequacy of the Company’s internal controls, including computerized information system controls and security. |
|
o |
Any significant findings and recommendations of the independent registered public accountants together with management’s responses thereto. |
|
· |
If required, provide a report in the proxy of the Committee’s findings that result from its financial reporting oversight responsibilities, including representation that the Committee has: |
|
o |
Discussed with the independent registered public accountants matters required to be discussed by Statement on Auditing Standards No. 114, The Auditor’s Communication With Those Charged With Governance, |
|
o |
Received and reviewed the written disclosures and the letter from the independent registered public accountants required by Independence Discussions with Committees, as amended, by the Independence Standards Board, |
|
o |
Discussed with the auditors the auditors’ independence. |
|
· |
Conduct an annual quality discussion with the independent registered public accountants wherein the independent registered public accountants discuss their judgment about the quality, not just the acceptability, of the Company’s accounting principles as applied in its financial reporting. |
|
· |
Assess the independent auditors’ performance. |
Page 7
GREEN PLAINS INC.
AUDIT COMMITTEE CHARTER
PERFORMANCE EVALUATION
The Committee shall conduct an annual evaluation of the performance of its duties under this charter and shall present the results of the evaluation to the Board, as appropriate. The Committee shall conduct this evaluation in such manner it deems appropriate.
AMENDMENT
This Charter and any provision contained herein may be amended or repealed by the Board of Directors.
Approved: Board of Directors
Date: September 27, 2021
Page 8
Exhibit 99.5
GREEN PLAINS INC.
NOMINATING AND GOVERNANCE COMMITTEE CHARTER
There shall be a committee of the Board of Directors (the “Board”) of Green Plains Inc. (the “Company”) designated as the Nominating and Governance Committee (the “Committee”). The purpose of the Committee is:
|
· |
To assist the Board in defining and assessing qualifications for Board membership and identify qualified individuals; |
|
· |
To assist the Board in organizing itself to discharge its duties and responsibilities properly and effectively; |
|
· |
To assist the Board in ensuring proper attention and effective response to stockholder concerns regarding corporate governance; and |
|
· |
To perform such other duties and responsibilities enumerated in and consistent with this Charter. |
COMPOSITION
The Committee shall comprise such number of members of the Board, as determined from time to time by the Board based on recommendations, if any, from the Committee. The members of the Committee shall be appointed by the Board upon the recommendation, if any, of the Committee. Each member of the Committee shall meet the objective test of “independence,” which has been established by the Board, or in the absence of such test, the Board shall make an individual determination that such Director is independent within the meaning of any applicable law or any listing standard or rule established by Nasdaq Marketplace Rules and applicable to the Committee.
The members of the Committee shall serve for such term or terms as determined by the Board or until earlier resignation or death. Any Committee member may resign effective upon giving oral or written notice to the Chairman of the Board, the Corporate Secretary or the Board (unless the notice specifies a later time for the effectiveness of such resignation). If the resignation of a Committee member is effective at a future time, the Board may elect a successor to take office when the resignation becomes effective. The entire Committee or any individual Committee member may be removed from office with or without cause by the affirmative vote of a majority of the Board
MEETINGS
Frequency
The Committee shall meet as frequently as the Committee deems necessary, but no less than two times a year at such times and places deemed necessary to fulfill its responsibilities. The Corporate
GREEN PLAINS INC.
NOMINATING AND GOVERNANCE COMMITTEE CHARTER
Secretary shall act as the Secretary, whose duties and responsibilities shall be to keep full and complete records of the proceedings of the Committee for the purposes of reporting Committee activities to the Board and perform all other duties that may be assigned, from time to time, to him or her by the Committee or otherwise at the direction of a Committee member. The Committee is governed by the same rules governing meetings (including meetings in person, by telephone or other similar communications equipment), action without meetings, notice, waiver of notice, and quorum and voting requirements applicable to the Board.
The Committee shall review this Charter at least annually and recommend any proposed changes to the Board for approval.
The Committee shall lead the Board in an annual self-evaluation process, including a review of the self-evaluation process of each Board committee, and report its conclusions and any further recommendations to the Board.
Chairperson
A chairperson of the Committee (the “Chairperson”) may be designated by the Board based upon recommendations by the Committee, if any. In the absence of such designation, the members of the Committee may designate the Chairperson by majority vote of the full Committee membership. The Chairperson shall determine the agenda, frequency and length of meetings and have unlimited access to management and information. The Chairperson shall establish such other rules that may be necessary, from time to time, and proper to conduct the business of the Committee. The Chairperson shall preside over any executive session of non-management Directors.
AUTHORITY
In the course of its duties, the Committee shall have sole authority, at the Company’s expense, to retain and terminate consultants or search firms, as the Committee deems advisable, including the sole authority to approve the consultant or search firm’s fees and other retention terms.
RESPONSIBILITIES
The following shall be the common recurring duties and responsibilities of the Committee in carrying out its oversight functions. These duties and responsibilities are set forth below as a guide to the Committee with the understanding that the Committee may alter or supplement them as appropriate under the circumstances to the extent permitted by applicable law or listing standard.
|
· |
Board and Board Committee Composition |
|
o |
The Committee shall recommend criteria for assessment of the composition and performance of the Board as a whole. |
|
o |
Annually, the Committee shall assess the size, composition and performance of the Board in light of the operating requirements of the Company, existing trends and
Page 2
|
GREEN PLAINS INC.
NOMINATING AND GOVERNANCE COMMITTEE CHARTER
other relevant criteria. The Committee shall make a recommendation as to the appropriate size of the Board based on its various responsibilities. |
|
o |
Annually, the Committee shall assess the leadership structure of the Board, and, if appropriate, recommend changes. |
|
o |
The Committee shall develop membership qualifications for the Board and all Board committees, including defining specific criteria for director independence and committee membership, and annually review independence and membership in light thereof. |
|
o |
Annually, the Committee shall review and recommend directors for continued service as required based on evolving needs of the Company. |
|
o |
The Committee shall coordinate and assist management and the Board in recruiting new members to the Board. |
|
o |
The Committee shall investigate suggestions for candidates for membership on the Board and recommend prospective Directors, as required, to provide an appropriate balance of knowledge, diversity of experience and capability on the Board, including stockholder nominations for the Board. |
|
o |
The Committee shall make recommendations to the Board, in consultation with the Board Chair and CEO, regarding the composition, director assignments and responsibilities of Board Committees. |
|
· |
The Committee shall review proposed changes to the Company’s articles or by-laws, or Board committee charters, and make recommendations to the Board. |
|
· |
The Committee shall periodically review the form of questionnaire provided to the Directors and officers, review proposed changes to the form, if any, and make recommendations to the Board regarding any updates to the form or to the experience and skills matrix referenced therein. |
|
· |
The Committee shall periodically review in detail the CEO and management succession plan and share such plan with the full Board. |
|
· |
The Committee shall oversee the orientation process for new Directors and the creation of a continuing education program for current Directors. |
|
· |
The Committee shall review governance-related stockholder proposals and recommend the Board’s response. |
|
· |
The Committee shall review stockholder voting results from any stockholder meeting and recommend the Board’s response. |
Page 3
GREEN PLAINS INC.
NOMINATING AND GOVERNANCE COMMITTEE CHARTER
|
· |
The Committee shall periodically assess and recommend the Board’s action with respect to stockholder rights plans or other stockholder protections. |
|
· |
The Committee shall identify best practices and evaluate emerging corporate governance issues and trends, which may affect the Company and develop and recommend corporate governance principles applicable to the Board, as appropriate. |
|
· |
The Committee shall periodically review any insurance policy that the Company may maintain, pursuant to the terms of the Company’s Bylaws, for purposes of protecting the Company and any Director, officer, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss. The Committee shall make recommendations to the Board regarding the scope and magnitude of the coverage provided by any such policy. |
|
· |
The Committee shall oversee the Board’s engagement with institutional stockholders and the proxy advisory firms and consider the feedback received during those discussions, if any. |
|
· |
The Committee shall oversee the Company’s ESG initiatives and periodically review the Company’s progress on ESG. |
PERFORMANCE EVALUATION
The Committee shall conduct an annual evaluation of the performance of its duties under this charter and shall present the results of the evaluation to the Board, as appropriate. The Committee shall conduct this evaluation in such manner it deems appropriate.
This Charter and any provision contained herein may be amended or repealed by the Board.
Approved: Board of Directors
Date: September 27, 2021
Page 4
Exhibit 99.6
GREEN PLAINS INC.
COMPENSATION COMMITTEE CHARTER
There shall be a committee of the Board of Directors (the “Board”) of Green Plains Inc. (the “Company”) designated as the Compensation Committee (the “Committee”). The purpose of the Committee is to carry out the responsibilities delegated by the Board relating to the review and determination of executive and Board compensation.
COMPOSITION
The Committee shall comprise three or more directors. The Board shall appoint the members of the Committee upon the recommendation of the Nominating and Governance Committee. Each member of the Committee shall be independent in accordance with the provisions of Rule 10C‑1(b)(1) under Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the applicable rules of Nasdaq, all as amended from time to time.
At least two members of the Committee must (1) qualify as “non-employee directors” for the purposes of Rule 16b-3 under the Exchange Act, (2) be independent directors as defined under Nasdaq Rule 5605(a) and (d), and (3) not accept directly or indirectly any consulting, advisory or other compensatory fees from the Company or its subsidiaries. The Company will certify to Nasdaq its compliance, as requested. Should the Committee have a member who is not independent, the Company will make proper disclosures, as required under Nasdaq rules and Item 407 for Regulation S-K, and such member may not serve in any capacity not allowable under Nasdaq rules.
The members of the Committee shall serve for such term or terms as determined by the Board or until earlier resignation or death. Any Committee member may resign effective upon giving oral or written notice to the Chairman of the Board, the Corporate Secretary or the Board (unless the notice specifies a later time for the effectiveness of such resignation). If the resignation of a Committee member is effective at a future time, the Board may elect a successor to take office when the resignation becomes effective. The entire Committee or any individual Committee member may be removed from office with or without cause by the affirmative vote of a majority of the Board.
MEETINGS
Frequency
The Committee shall meet as frequently as the Committee deems necessary, but no less than two times a year at such times and places deemed necessary to fulfill its responsibilities. The Committee shall report regularly to the Board regarding its actions and make recommendations to the Board as appropriate. The Committee is governed by the same rules governing meetings (including meetings in person, by telephone or other similar communications equipment), action
GREEN PLAINS INC.
COMPENSATION COMMITTEE CHARTER
without meetings, notice, waiver of notice, and quorum and voting requirements applicable to the Board.
The Committee may invite such members of management to its meetings, as it deems appropriate. However, the Committee shall meet regularly without such members present, and in all cases, the CEO and any other such officers shall not be present at meetings at which their compensation or performance is discussed or determined.
The Committee shall review this Charter at least annually and recommend any proposed changes to the Board for approval.
Chairperson
A chairperson of the Committee (the “Chairperson”) may be designated by the Board based upon recommendations by the Committee, if any. In the absence of such designation, the members of the Committee may designate the Chairperson by majority vote of the full Committee membership. The Chairperson shall determine the agenda, frequency and length of meetings and have unlimited access to management and information. The Chairperson shall establish such other rules that may be necessary, from time to time, and proper to conduct the business of the Committee.
AUTHORITY
The Committee shall have the authority to delegate any of its responsibilities, along with the authority to take action in relation to such responsibilities, to one or more subcommittees the Committee deems appropriate in its sole discretion.
RESPONSIBILITIES
The Committee shall have the following authority and responsibilities:
General
|
(1) |
To review and approve annually the corporate goals and objectives applicable to the compensation of the chief executive officer (“CEO”), evaluate at least annually the CEO’s performance in light of those goals and objectives, and determine and approve the CEO’s compensation level based on this evaluation. In determining the long-term incentive component of CEO compensation, the Committee may consider the Company’s performance and relative stockholder return, the value of similar incentive awards given to CEOs at comparable companies and the awards given to the Company’s CEO in past years. In evaluating and determining CEO compensation, the Committee shall consider the results of the most recent stockholder advisory vote on executive compensation (“Say-on-Pay Vote”) required by Section 14A of the Exchange Act. The CEO cannot be present during any voting or deliberations by the Committee on his or her compensation. |
|
(2) |
To review and approve the compensation of all other executive officers. |
Page 2
GREEN PLAINS INC.
COMPENSATION COMMITTEE CHARTER
|
(3) |
To review and make recommendations to the Board regarding incentive compensation plans and equity-based plans, and where appropriate or required, recommend for approval such plans by the stockholders of the Company, which includes the ability to adopt, amend and terminate such plans. The Committee shall also have the authority to administer the Company’s incentive compensation plans and equity-based plans, including designation of the employees to whom the awards are to be granted, the amount of the award or equity to be granted, and the terms and conditions applicable to each award or grant, subject to the provisions of each plan. In reviewing and making recommendations regarding incentive compensation plans and equity-based plans, including whether to adopt, amend or terminate any such plans, the Committee shall consider the results of the most recent Say‑on‑Pay Vote. |
|
(4) |
To review and discuss with management the Company’s Compensation Discussion and Analysis (“CD&A”) and the related executive compensation information, recommend the CD&A and related executive compensation information for inclusion in the Company’s annual report on Form 10-K or proxy statement, and produce the compensation committee report on executive officer compensation required for inclusion in the Company’s proxy statement or annual report on Form 10-K. |
|
(5) |
To review and approve any employment agreements and severance arrangements or plans, including any benefits to be provided in connection with a change in control for the CEO and other executive officers, which includes the ability to adopt, amend and terminate such agreements, arrangements or plans. |
|
(6) |
To determine stock ownership guidelines for directors and section 16 officers and monitor compliance with such guidelines, if any. |
|
(7) |
To review and approve, to the extent not otherwise delegated to the CEO, all employee benefit plans for the Company, which includes the ability to adopt, amend and terminate such plans. |
|
(8) |
To review the Company’s overall executive compensation philosophy and executive compensation plans to determine whether they are appropriately aligned with the Company’s strategic and financial objectives. |
|
(9) |
To review the Company’s incentive compensation arrangements to determine whether they encourage excessive risk-taking; to review and discuss at least annually the relationship between risk management policies and practices, and compensation; and to evaluate compensation policies and practices that could mitigate any such risks. |
|
(10) |
To review and recommend to the Board for approval the frequency with which the Company will conduct Say-on-Pay Votes, taking into account the results of the most recent stockholder advisory vote on the frequency of Say‑on‑Pay Votes required by Section 14A of the Exchange Act, and review and approve the proposals regarding the Say-on-Pay Vote and frequency of the Say-on-Pay Vote for inclusion in the Company’s proxy statement. |
Page 3
GREEN PLAINS INC.
COMPENSATION COMMITTEE CHARTER
|
(11) |
To review director compensation for service on the Board and Board committees, and recommend to the Board the form and amount of such compensation, including any recommended changes thereto. |
Outside Advisors
The Committee shall have the authority, in its sole discretion, to select, retain and obtain the advice of a compensation consultant, as necessary, to assist with the execution of its duties and responsibilities set forth in this Charter. The Committee shall have the authority, in its sole discretion, to retain and obtain the advice and assistance of outside legal counsel and other such advisors as it deems necessary to fulfill its duties and responsibilities under this Charter. The Committee shall be directly responsible for the appointment, compensation, and oversight of the work of the compensation consultant, legal counsel or other advisor retained by the Committee. The Committee shall receive appropriate funding from the Company, as determined by the Committee in its capacity as a committee of the Board, for the payment of compensation to its compensation consultants, outside legal counsel and any other advisors. The Committee shall not be required to implement or act consistently with the advice or recommendations of its compensation consultant, legal counsel or other advisor to the compensation committee, and the authority granted in this Charter shall not affect the ability or obligation of the Committee to exercise its own judgment in fulfillment of its duties under this Charter.
The compensation consultant(s), outside counsel and any other advisors retained by, or providing advice to, the Committee (other than the Company’s in-house counsel) shall be independent as determined at the discretion of the Committee after considering the following factors specified by Nasdaq rules, as amended from time to time.
In retaining or seeking advice from compensation consultants, outside counsel and other advisors (other than the Company’s in-house counsel), the Committee must take into consideration the factors specified in applicable Nasdaq rules and other applicable laws. The Committee may retain or receive advice from, any compensation advisor they prefer, including ones that are not independent, after considering the foregoing specified factors. The Committee is not required to assess the independence of any compensation consultant or other advisor acting in a role limited to consulting on any broad-based plan that does not discriminate in scope, terms or operation in favor of executive officers or directors, that is generally available to all salaried employees, or provides information that is not customized for a particular company, or that is customized based on parameters that are not developed by the consultant or advisor, and about which the consultant or advisor does not provide advice.
The Committee shall evaluate whether any compensation consultant it retains or potentially retains has any conflict of interest in accordance with Item 407(e)(3)(iv) of Regulation S-K. Any compensation consultant retained by the Committee to assist with its responsibilities relating to executive compensation shall not be retained by the Company for any other compensation or other human resource matters.
Page 4
GREEN PLAINS INC.
COMPENSATION COMMITTEE CHARTER
PERFORMANCE EVALUATION
The Committee shall conduct an annual evaluation of the performance of its duties under this charter and shall present the results of the evaluation to the Board, as appropriate. The Committee shall conduct this evaluation in such manner it deems appropriate.
AMENDMENT
This Charter and any provision contained herein may be amended or repealed by the Board of Directors.
Approved: Board of Directors
Date: September 27, 2021
Page 5