Share Exchange Agreement

SHARE EXCHANGE AGREEMENT


By and Among
GREEN PLAINS RENEWABLE ENERGY, INC.,
SUPERIOR ETHANOL, LLC,
and the
CONTROLLING MANAGER
As of February 22, 2006


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SHARE EXCHANGE AGREEMENT


This Share Exchange Agreement (hereinafter the "Agreement") is entered into effective as of this 22nd day of February, 2006, by and among Green Plains Renewable Energy, Inc., an Iowa corporation (hereinafter "GPRE"), Superior Ethanol, LLC, an Iowa limited liability company (hereinafter "Superior"), Brian D. Peterson, a manager and the sole member of Superior (hereinafter "Controlling Manager").


RECITALS:


WHEREAS, Controlling Manager owns all of the membership interest of Superior (the "Superior Stock"). GPRE desires to acquire the Superior Stock in exchange for 100,000 shares of restricted voting common stock of GPRE (the "GPRE Stock"), making Superior a wholly-owned subsidiary of GPRE.


NOW THEREFORE, for the mutual consideration set out herein and other good and valuable consideration, the legal sufficiency of which is hereby acknowledged, the parties agree as follows:


ARTICLE I
DEFINITIONS


1.01 Definitions. Accounting terms used in this Agreement and not otherwise defined herein shall have the meanings provided by GAAP. Certain capitalized terms are used in this Agreement as specifically defined in this Section 1.1 as follows:


"Affiliate" means any Person directly or indirectly controlling, controlled by or under direct or indirect common control with Superior (or other specified Person) and shall include (a) any Person who is an officer, director or beneficial holder of at least 10% of the outstanding capital stock of Superior (or other specified Person), (b) any Person of which Superior (or other specified Person) or any officer or director of Superior (or other specified Person) shall, directly or indirectly, either beneficially own at least 10% of the outstanding equity securities or constitute at least a 10% participant, and (c) in the case of a specified Person who is an individual, Members of the Immediate Family of such Person; provided, however, that Controlling Manager shall not be Affiliates of Superior for purposes of this Agreement.


"Agreement" is defined in the Preamble.


"Balance Sheet Date" is defined in Section 4.06.


"Bylaws" means all written rules, regulations, procedures, bylaws, operating agreements and all other similar documents, relating to the management, governance or internal regulation of a Person other than an individual, each as from time to time amended or modified.


"Charter" means the articles or certificate of incorporation, articles of organization, statute, constitution, joint venture or partnership agreement or articles or other charter of any Person other than an individual, each as from time to time amended or modified.


"Closing" is defined in Section 2.02.


"Code" means the federal Internal Revenue Code of 1986 or any successor statute, and the rules and regulations thereunder, as from time to time amended and in effect.


"Commission" means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act, the Exchange Act or both.


"Contractual Obligation" means, with respect to any Person, any contracts, agreements, deeds, mortgages, leases, licenses, other instruments, commitments, undertakings, arrangements or understandings, written or oral, or other documents, including any document or instrument evidencing indebtedness, to which any such Person is a party or otherwise subject to or bound by or to which any asset of any such Person is subject.


"Controlling Manager" is defined in the preamble.


"Debt Funding Documents" is defined in Section 2.03(i).


"Employee Benefit Plan" means each and all "employee benefit plans" as defined in section 3(3) of ERISA, maintained or contributed to by Superior, any of its Affiliates or any of their respective predecessors, or in which Superior, any of its Affiliates or any of their respective predecessors participates or participated and which provides benefits to employees of Superior or their spouses or covered dependents or with respect to which Superior has or may have a material liability, including, (i) any such plans that are "employee welfare plans" as defined in section 3(1) of ERISA and (ii) any such plans that are "employee pension benefit plans" as defined in section 3(2) of ERISA.


"ERISA" means the Employee Retirement Income Security Act of 1974 or any successor statute and the rules and regulations thereunder, and in the case of any referenced section of any such statute, rule or regulation, any successor section thereof, collectively and as from time to time amended and in effect.


"ERISA Group", with respect to any entity, means any Person which is a member of the same "controlled group" or under "common control", within the meaning of section 414(b) or (c) of the Code or section 4001(b)(1) of ERISA, with such entity.


"Exchange Act" means the Securities Exchange Act of 1934, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as from time to time amended and in effect.


"Financial Statements" is defined in Section 4.06.


"GAAP" means United States generally accepted accounting principles, as in effect from time to time, consistently applied.


"GPRE" is defined in the Preamble.


"GPRE Stock" is defined in the Recitals.


"Intellectual Property" is defined in Section 4.17(a).


"Intellectual Property Licenses" is defined in Section 4.17(d).


"Legal Requirement" means any federal, state or local law, statute, standard, ordinance, code, order, rule, regulation, resolution, promulgation or any final order, judgment or decree of any court, arbitrator, tribunal or governmental authority, or any license, franchise, permit or similar right granted under any of the foregoing.


"Material Adverse Effect" means a material adverse effect upon the business, assets, financial condition, income or prospects of the party in question.


"Members of the Immediate Family," as applied to any individual, means each parent, spouse, child, brother, sister or the spouse of a child, brother or sister of the individual, and each trust created for the benefit of one or more of such persons and each custodian of a property of one or more such persons.


"Other Intellectual Property" is defined in Section 4.17(c).


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"Pension Plan" means each pension plan (as defined in section 3(2) of ERISA) established or maintained, or to which contributions are or were made by Superior or any of its Subsidiaries or former Subsidiaries, or any Person which is a member of the same ERISA Group with any of the foregoing.


"Person" means an individual, partnership, corporation, company, association, trust, joint venture, unincorporated organization and any governmental department or agency or political subdivision.


"Property" is defined in Section 2.03(i).


"Rescission Period" is defined in Section 5.03.


"Shares" is defined in Section 2.01.


"Securities Act" means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be from time to time amended and in effect.


"Superior" is defined in the Preamble.


"Superior Intellectual Property" is defined in Section 4.17(b).


"Superior Stock" is defined in the Recitals.


"Transaction Prerequisites" is defined in Section 2.03(h).


"Welfare Plan" means each welfare plan (as defined in section 3(l) of ERISA) established or maintained, or to which any contributions are or were made, by Superior or any of its Subsidiaries or any Person which is a member of the same ERISA Group with any of the foregoing.


ARTICLE II
SHARE EXCHANGE


2.01 Plan of Share Exchange. It is hereby agreed that the Superior Stock shall be acquired by GPRE at Closing in exchange for 100,000 shares of restricted GPRE Stock (the "Shares"). It is the intention of the parties hereto that this transaction will qualify as a corporate reorganization under Section 368(a)(1)(B) of the Code, and related or other applicable sections thereunder. However, neither party is making any representations or warranties regarding the tax treatment of this transaction.


2.02 Closing. The closing of the Agreement (the "Closing") shall take place in Salt Lake City, Utah, at the offices of Blackburn & Stoll, LC. The Closing shall take place on a date no later than February __, 2006 or at such other place and time as the parties may otherwise agree.


Notwithstanding the foregoing, the parties will endeavor in good faith to effectuate the Closing simultaneously in different locations to avoid the travel and additional expense of requiring all parties to be simultaneously located in the same place. In connection therewith, the parties will deliver, in escrow to opposing counsel and other appropriate parties, all assignments, instructions, documents, certificates, wire transfer instructions, escrow instructions and other matters and things necessary to effect Closing in such manner.


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2.03 Conditions to Closing for GPRE. GPRE's several obligations to purchase Superior Stock pursuant to this Agreement on the Closing date are subject to the satisfaction, on or prior to the Closing date, of the following conditions:


(a) Representations and Warranties Correct. The representations and warranties made by Superior and Controlling Manager herein shall have been true and correct when made and shall be true and correct on and as of the Closing date, with the same force and effect as though made on and as of the Closing date, except for representations and warranties that are made as of a specific date which shall only be required to be true and correct as of such date.


(b) Performance. All covenants, agreements, and conditions contained in this Agreement to be performed or complied with by Superior and Controlling Manager on or prior to the Closing shall have been performed or complied with and neither Superior nor the Controlling Manager shall be in default in the performance of or compliance with any provisions of this Agreement.


(c) Compliance Certificates. Superior shall have delivered to GPRE a certificate of the manager of Superior, dated the date of the Closing date, certifying to the matters stated in Sections 2.03(a) and (b).


(d) Certified Documents. Superior shall have delivered to GPRE copies of each of the following which shall be true and correct copies in full force and effect as of the Closing date: (i) the Charter of Superior certified by Superior's secretary as of the Closing date; (ii) the Bylaws of Superior, certified by Superior's secretary as of the Closing date; and (iii) resolutions of the manager of Superior, the form and substance of which are reasonably satisfactory to GPRE, authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby.


(e) Consents. All consents and approvals to the transactions contemplated by this Agreement required to be obtained by Superior and/or Controlling Manager from any third party shall have been obtained.


(f) Legality. All authorizations, approvals or permits of any governmental authority or regulatory body that are required in connection with the lawful issuance and exchange of the GPRE Stock and the exchange of Superior Stock pursuant to this Agreement shall have been duly obtained and shall be in full force and effect.


(g) Due Diligence. After completing its due diligence investigation prior to the Closing, GPRE shall have determined that, in GPRE's sole discretion, the financial condition of Superior and the condition of Superior otherwise is suitable to GPRE. In the event that GPRE determines, in its sole discretion, that Superior is not suitable to GPRE for any reason whatsoever, then GPRE may rescind this Agreement prior to Closing by giving written notice to Superior prior to Closing. In the event of any such rescission, this Agreement thereafter shall be null and void and neither party shall have any obligation to the other.


(h) Transaction Prerequisites. At Closing, or at such later time as the parties may agree, the following shall have occurred (the "Transaction Prerequisites"):


(i) Superior will have had at least $210,000 in its bank
account(s).


(ii) The land that Superior has options on pertaining to the
proposed site shall have been awarded a complete property tax abatement
from Dickinson County, Iowa, for a period of twelve years, with three
additional years of a tax abatement of 50% (fifty percent).


(iii) The land that Superior has options on pertaining to the
proposed site shall be zoned "heavy industrial" and shall also have any
other special zoning or zoning permits required to allow construction
of the proposed ethanol plant.


(i) Transaction Documents. At Closing, or at such later time as the parties may agree, Superior shall deliver to GPRE the following (the "Debt Funding Documents"):


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(i) Ten year pro forma financial statements prepared by
Christianson & Associates, PLLP, in a form that is reasonably
acceptable to the lender(s) that GPRE solicits to obtain funds for the
construction of an ethanol plant in or near Superior, Iowa. The parties
agree that such financial statements shall be prepared post-Closing at
GPRE's expense.


(ii) A feasibility study completed by PRX Pro Experts relating
to the Property.


(iii) Superior shall have options to acquire at least 135 (one
hundred thirty five) acres of continuous real property in Dickinson
County, Iowa (the "Property").


(j) General. All instruments and legal and corporate proceedings in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to GPRE, and GPRE shall have received copies of all documents, including records of corporate proceedings and officers' certificates, which they may have reasonably requested in connection therewith.


2.04 Conditions to Closing for Superior. Superior's several obligations to enter into the transactions described in this Agreement on the Closing date are subject to the satisfaction, on or prior to the Closing date, of the following conditions:


(a) Representations and Warranties Correct. The representations and warranties made by GPRE herein shall have been true and correct when made and shall be true and correct on and as of the Closing date with the same force and effect as though made on and as of the Closing date.


(b) Performance. All covenants, agreements and conditions contained in this Agreement to be performed or complied with by GPRE on or prior to the Closing shall have been performed or complied with and GPRE shall not be in default in the performance of or compliance with any provisions of this Agreement.


(c) Compliance Certificates. GPRE shall have delivered to GPRE a certificate of the chief executive officer or chief financial officer of GPRE, dated the date of the Closing date, certifying to the matters stated in Sections 2.04(a) and (b).


(d) Certified Documents. GPRE shall have delivered to Superior copies of each of the following which shall be true and correct copies in full force and effect as of the Closing date: (i) the Charter of GPRE certified by GPRE's secretary as of the Closing date; (ii) the Bylaws of GPRE, certified by GPRE's secretary as of the Closing date; and (iii) resolutions of the Board of Directors of GPRE, certified by GPRE's secretary as of the Closing date, the form and substance of which are reasonably satisfactory to GPRE, authorizing the execution, delivery and performance of this Agreement and the transactions contemplated hereby.


(e) Consents. All consents and approvals to the transactions contemplated by this Agreement required to be obtained by any Seller from any third party shall have been obtained by such Seller.


(f) Legality. All authorizations, approvals or permits of any governmental authority or regulatory body that are required in connection with the lawful issuance and exchange of the GPRE Stock and the exchange of Superior Stock pursuant to this Agreement shall have been duly obtained and shall be in full force and effect.


(g) Due Diligence. After completing its due diligence investigation prior to the Closing, Superior shall have determined that, in Superior's sole discretion, the financial condition of GPRE and the condition of GPRE otherwise is suitable to Superior and its Controlling Manager. In the event that Superior


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determines, in its sole discretion, that GPRE is not suitable to Superior or its Controlling Manager for any reason whatsoever, then Superior may rescind this Agreement by giving written notice to GPRE. In the event of any such rescission, this Agreement thereafter shall be null and void and neither party shall have any obligation to the other.


(h) General. All instruments and legal and corporate proceedings in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to Superior, and Superior shall have received copies of all documents, including records of corporate proceedings and officers' certificates, which they may have reasonably requested in connection therewith.


2.05 Other Events Occurring at Closing. At Closing, the following shall be accomplished:


(a) All of the manager and officers, if any, of Superior shall resign and the nominees identified by GPRE shall have been appointed.


(b) This Agreement shall have been duly authori ...