SC 13D/A 1 a09-23895_3sc13da.htm SC 13D/A

 

 

UNITED STATES

 

 

SECURITIES AND EXCHANGE COMMISSION

 

 

Washington, D.C. 20549

 

 

 

 

 

SCHEDULE 13D

 

 

Under the Securities Exchange Act of 1934
Amendment No. 5

 

Granite Falls Energy, LLC

(Name of Issuer)

 

Membership Units

(Title of Class of Securities)

 

n/a

(CUSIP Number)

 

Leonard, Street and Deinard Professional Association

Attn: Thomas A. Jensen, Esq.

150 South Fifth Street, Suite 2300

Minneapolis, MN 55402

612-335-1500

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

August 20, 2009

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.


* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 



 

CUSIP No.   n/a

 

 

1.

Names of Reporting Persons
ROLAND “RON” J. FAGEN(1)

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
WC(2)

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
3,925

 

8.

Shared Voting Power
0

 

9.

Sole Dispositive Power
3,925

 

10.

Shared Dispositive Power
0

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
3,925

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
12.8%

 

 

14.

Type of Reporting Person (See Instructions)
IN


(1) Mr. Fagen beneficially owns 3,925 Membership Units indirectly through his voting control over Fagen, Inc.

(2) The 3,925 Membership Units were purchased with the working capital of Fagen, Inc., over which Mr. Fagen has voting control.

 

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Reference is hereby made to the statement on Schedule 13D originally filed with the Securities and Exchange Commission on February 13, 2008, Amendment No.1 filed with the Securities and Exchange Commission on December 10, 2008, Amendment No.2 filed with the Securities and Exchange Commission on February 11, 2009, Amendment No. 3 filed with the Securities Exchange Commission on February 23, 2009, and Amendment No. 4 filed with the Securities and Exchange Commission on July 10, 2009 (“Schedule 13D”).  Pursuant to this Amendment No. 5 to Schedule 13D, Item 3, Item 4, Item 5, Item 6 and Item 7 are hereby amended as follows:

 

Item 3.

Source and Amount of Funds or Other Consideration

 

The working capital funds of Fagen, Inc., a Minnesota corporation (“Fagen”), were used to purchase the 3,925 Membership Units held by Fagen.  Mr. Fagen has beneficial ownership of the Membership Units through his voting control over Fagen.   The aggregate purchase price of these Membership Units was $3,840,000.00.

 

No part of the purchase price for the 3,925 Membership Units beneficially owned by Mr. Fagen was represented by funds or other consideration borrowed or otherwise obtained for the purpose of acquiring, holding, trading, or voting the securities.

 

Fagen’s working capital funds were used as the purchase price consideration paid by Fagen with respect to the Agreement (as defined in Item 4 below).  As described in Item 4 below, if Glacial Lakes Energy, LLC (“Glacial Lakes”), within seven months of the date of the Agreement, enters into an agreement to sell its 6,500 membership units of the Issuer to a third party and closes on the sale of the 6,500 unit membership interest to the third party, then Glacial Lakes must immediately return the purchase price consideration paid by Fagen to Fagen and pay a termination fee to Fagen.

 

ITEM 4.

Purpose of the Transaction.

 

On December 4, 2008, Fagen entered into a Membership Unit Purchase Agreement (the “Agreement”) with Glacial Lakes pursuant to which Fagen agreed to purchase 2,000 Granite Falls Energy, LLC (“Granite Falls Energy” ) Membership Units (the “Units”) from Glacial Lakes for a purchase price of $1,000 per Unit, for an aggregate purchase price $2.0 million, subject to adjustment for any distributions between execution of the agreement and closing.  Under the terms of the Agreement, the purchase price was paid to Glacial Lakes upon execution of the Agreement.  The closing of the transaction was subject to customary conditions, including the accuracy of certain representations and warranties, delivery of Units free and clear of all liens, encumbrances and security interests, and approval of the transfer by the Board of Governors of Granite Falls Energy under its Fifth Amended and Restated Operating and Member Control Agreement.  The closing of the transaction was originally also subject to Glacial Lakes’ right to complete a sale of its 6,500 unit membership interest to a third party within seven months of the date of the Agreement, provided that Glacial Lakes could waive such condition at any time before the expiration of the seven month period and proceed to closing with Fagen.  Glacial Lakes did not have the right to terminate the Agreement with Fagen, other than if it completed a sale of its 6,500 unit membership interest within the seven month period.  If Glacial Lakes entered into an agreement to sell its 6,500 membership units with a third party and closed on the sale of the 6,500 unit membership interest to the third party, then the Agreement with Fagen terminated automatically, and Glacial Lakes would have had to immediately return the purchase price paid by Fagen and also pay Fagen a termination fee equal to the amount by which the per unit purchase price that Glacial Lakes received on the sale of the 6,500 membership units to a third party exceeded the $1,000 per unit purchase price under the Agreement with Fagen, multiplied by 2,000 (the number of units covered by the Agreement with Fagen), plus any distribution adjustment that would have been payable to Fagen if Glacial Lakes had closed on the sale to Fagen under the Agreement.  A copy of the Agreement is included as Exhibit 7.1 to this Amendment No. 4 to Schedule 13D.

 

 

 

On January 13, 2009, without any request for approval of the transaction by either Glacial Lakes or Fagen or submission of any other transfer request documents, the Board of Governors of Granite Falls Energy adopted a resolution unilaterally approving the “transfer” of 2,000 Membership Units from Glacial Lakes to Fagen, and deeming the transfer to have closed on and be effective as of January 13, 2009.

 

 

 

On February 4, 2009, Glacial Lakes Energy filed a complaint in Yellow Medicine County against Granite Falls Energy and seven individual board members of Granite Falls Energy, seeking declaratory judgment reversing the Granite Falls Energy Board action, reinstating the right of Glacial Lakes to appoint two board members to the Granite Falls Energy Board, and restoring the right of Glacial Lakes to sell the entire 6,500-unit block to a third party together with the right to appoint two Granite Falls Energy board members.  Glacial Lakes also asserted claims against Granite Falls Energy and the individual board members for breach of contract, conversion, breach of fiduciary duty, and violation of the Minnesota Limited Liability Company Act (sections 322B.833 and 322B.38).  In addition to injunctive relief, Glacial Lakes sought damages, and an award of attorneys fees for violation of the Minnesota LLC Act.  Glacial Lakes named Fagen as a “potentially interested party” under Minnesota law.

 

 

 

On February 18, 2009, Judge Paul A. Nelson, District Court Judge, Yellow Medicine County, Minnesota, issued an Order for Injunctive Relief, enjoining Granite Falls Energy from, among other things, entering in the books and records of Granite Falls Energy any transfer or sale of the Units or otherwise transferring ownership of the Units to Fagen until such time as Glacial Lakes Energy provides Granite Falls Energy an executed request for transfer along with appropriate support documentation.

 

 

 

Effective July 1, 2009, Fagen and Glacial Lakes entered into an Extension of Closing Date of Membership Unit Purchase Agreement, pursuant to which the parties agreed to extend from seven months to ten months the time period during which Glacial Lakes has a right to complete a sale of its 6,500 membership units to a third party, as well as the date on which the closing of the transactions contemplated by the Agreement must occur.

 

 

 

On August 20, 2009, Glacial Lakes and Fagen requested, pursuant to a private transfer request, that the Board of Governors of Granite Falls Energy, approve the transfer of the Units from Glacial Lake to Fagen, as contemplated by the Agreement. The Board of Governors of Glacial Lakes approved this transfer effective as of August 20, 2009. As a result, Fagen acquired title to the Units. A copy of the Private Transfer Request is included as Exhibit 7.5 to this Amendment No. 5 to Schedule 13D.

 

 

Item 5.

Interest in Securities of the Issuer

 

 

 

(a)                                  As of the date hereof, Mr. Fagen beneficially owns, through his voting control over Fagen, Inc., an aggregate of 3,925 Membership Units, representing 12.8% of the outstanding Membership Units of the Issuer.  This calculation is based on 30,656 Membership Units outstanding, as reported in the Issuer’s Form 10-Q filed with the Commission on June 12, 2009.

 

 

 

(b)                                 Through his voting control over Fagen, Inc., Mr. Fagen has the sole power to vote, direct the vote, dispose or direct the disposition of 3,925 Membership Units.

 

 

 

(c)                                  None.

 

 

 

(d)                                 None.

 

 

 

(e)                                  Not applicable.

 

 

ITEM 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

See response to Item 4 above and the Exhibits identified in Item 7 below.

 

 

3



 

Item 7.

Material to be Filed as Exhibits

 

7.1

Membership Unit Purchase Agreement by and between Glacial Lakes Energy, LLC and Fagen, Inc. dated December 4, 2008 (incorporated by reference to Exhibit 7.1 to Amendment No. 1 to Schedule 13D filed on December 10, 2008).

 

 

 

 

7.2

Complaint filed in Yellow Medicine County, Minnesota dated February 3, 2009 (incorporated by reference to Exhibit 7.2 to Amendment No. 2 to Schedule 13D filed on February 11, 2009).

 

 

 

 

7.3

Order for Injunctive Relief (incorporated by reference to Exhibit 7.3 to Amendment No. 3 to Schedule 13D filed on February 23, 2009).

 

 

 

 

7.4

Extension of Closing Date of Membership Unit Purchase Agreement effective July 1, 2009 (incorporated by reference to Exhibit 7.4 to Amendment No. 4 to Schedule 13D filed July 10, 2009).

 

 

 

 

7.5

Private Transfer Request dated August 20, 2009.

 

 

4



 

Signature

 

After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Dated: August 21, 2009

 

 

 

 

/s/ Roland “Ron” J. Fagen

 

Roland “Ron” J. Fagen

 

 

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