United States securities and exchange commission logo
May 19, 2023
David Gardels
Partner
Husch Blackwell, LLP
13330 California St., Suite 200
Omaha, NE 68154
Re: SOUTHWEST IOWA
RENEWABLE ENERGY, LLC
Schedule 13E-3
filed April 21, 2023
File No. 005-94044
PRE 14A filed April
21, 2023
File No. 000-53041
Dear David Gardels:
We have reviewed your filings and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand your
disclosure.
Please respond to these comments by providing the requested
information or advise us as
soon as possible when you will respond. If you do not believe our
comments apply to your facts
and circumstances, please tell us why in your response.
After reviewing your response to these comments, we may have
additional comments.
Capitalized terms used but not defined herein have the same meaning
given to them in the proxy
statement.
PRE 14A filed April 21, 2023
General
1. We note the disclosure
in the filing indicating that the Company intends to use the "notice
and access" rules with
respect to distribution of the proxy statement. However, Rule 14a-
16 does not appear to
be applicable to the Reclassification. See Exchange Act Rules 14a-
3 and 14a-16(m) and
Securities Act Rules 165 and 145(a)(1). Please revise the disclosure
accordingly to provide
for full set delivery, or advise.
2. Please refer to the
previous comment. Please confirm that the Company will deliver the
financial statements
required by Item 1010(a) through (b) of Regulation M-A to unit
holders, or,
alternatively, will provide the summarized financial information required by
David Gardels
FirstName LastNameDavid Gardels
Husch Blackwell, LLP
Comapany
May NameHusch Blackwell, LLP
19, 2023
May 19,
Page 2 2023 Page 2
FirstName LastName
Item 1010(c). Please see Instruction 1 to Item 13 of Schedule 13E-3.
3. Please provide straightforward, objective disclosure describing the
various amendments to
the Proposed Operating Agreement, and the impact that such changes
will have on unit
holders. To take just one example, it appears that Section 5.6
("Restrictions on Authority
of Directors") of the Proposed Operating Agreement is being amended to
reduce a
unanimous consent standard to a majority consent standard with respect
to items (a)(i)
through (iii) of Section 5.6, and from a two-thirds consent standard
to a majority consent
standard with respect to items (a)(iv) and (b)(i) and (ii) of Section
5.6. Aside from the
redline indicating such changes, which is helpful but takes
considerable effort to analyze,
an explanation of such changes appears to be absent from the
disclosure in the proxy
statement.
Furthermore, disclosure that is included in the proxy statement
appears to obfuscate the
nature of changes to the Proposed Operating Agreement. For example,
the entry on
"Voting Rights" in the chart on page 49 discloses the following for
existing unit holders:
"All members are entitled to vote on: (i) the election of directors,
(ii) amendments to the
Current Operating Agreement that require member consent and (iii) all
other matters
requiring the consent of members under the Current Operating Agreement
and Iowa law,"
while disclosing the following for Series A Members: "Series A Members
are entitled to
vote on: (i) the election of directors, (ii) amendments to the
Proposed Operating
Agreement that require member consent and (iii) all other matters
requiring the consent of
members under the Proposed Operating Agreement and Iowa law." Such
disclosure
suggests that members' voting rights have effectively remained
identical, obscuring the
substantive changes that are being made to unit holders' rights, which
changes appear to
go well beyond what is required to implement mechanically the
Reclassification.
4. Please refer to the previous comment. Given the extent of the changes
reflected in the
Proposed Operating Agreement, Proposal 1 appears to "bundle" numerous
material
matters, including, without limitation, provisions set out in Section
5.6 and Articles VIII
and IX of the Proposed Operating Agreement. In your response letter,
please provide an
analysis as to how the presentation of such matters under a single
proposal complies with
Rule 14a-4(a)(3), or, alternatively, please "unbundle" the various
matters so as to allow
unit holders to express their views separately on such material
provisions that will affect
their substantive rights as unit holders. For general guidance, refer
to Question 201.01 of
the Division of Corporation Finance's Compliance and Disclosure
Interpretations related
to Rule 14a-4(a)(3), available on the Commission s website at
https://w
ww.sec.gov/corpfin/divisionscorpfinguidanceexchange-act-rule-14a-4a3htm.
5. Regarding the conversion of units, please revise the disclosure
throughout to refer to the
impact being the same on the transferor as it is on the transferee, as
the explanation on the
top of page 14 makes clear. Current drafting includes repeated
references to the
"transferee" but not the transferor.
David Gardels
Husch Blackwell, LLP
May 19, 2023
Page 3
Information about the Meeting, page 1
6. We note the reference on page 4 to "withhold authority" voting
options. Please delete, or
advise.
7. We note the following disclosure on page 7: "Members that hold 11 or
more of our
existing Series A Units will not be reclassified and will retain
rights and privileges that are
substantially the same as the existing units." As indicated in Comment
3 above, please
revise to account for the fact that such rights and privileges are
not, in fact, "substantially
the same," or advise. Please make similar edits to the disclosure
throughout as
appropriate.
8. In the final answer on page 7, please qualify the disclosure to
explain that measures are
being put in place in the Proposed Operating Agreement to reduce the
likelihood of
reregistration being required.
Questions about the Reclassification and Deregistration, page 6
9. On page 11, please revise the disclosure so as to refer to transfer
"restrictions," rather than
transfer "rights." Please do the same on page 50.
Background of the Reclassification Transaction, page 18
10. Please refer to Comment 3 above and to the disclosure on page 21
concerning the Board's
consideration of the potential negative consequences of the
Reclassification. With a view
toward revised disclosure, please advise us as to what consideration
the Board gave to the
potential negative impact on unit holders of the various changes to
the Proposed Operating
Agreement. Please do the same with respect to the disclosure on pages
25-31 concerning
the Board's evaluation of the fairness of the Reclassification.
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Please direct any questions to David Plattner at 202-551-8094.
FirstName LastNameDavid Gardels Sincerely,
Comapany NameHusch Blackwell, LLP
Division of
Corporation Finance
May 19, 2023 Page 3 Office of
Mergers and Acquisitions
FirstName LastName