As
filed with the Securities and Exchange Commission on October 20,
2020
Registration No. 333-248948
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Pre-Effective Amendment No. 1 to FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
Teucrium Commodity Trust
(Registrant)
Delaware
(State or other jurisdiction of incorporation or
organization)
6799
(Primary Standard Industrial Classification Code
Number)
[●]
(I.R.S. Employer Identification No.)
c/o Teucrium Trading, LLC
Three Main Street
Suite 215
Burlington, VT 05401
Phone: (802) 540-0019
(Address, including zip code, and telephone number, including area
code, of Registrant’s principal executive
offices)
Sal Gilbertie
Chief Executive Officer
Teucrium Trading, LLC
Three Main Street
Suite 215
Burlington, VT 05401
Phone: (802) 540-0019
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
W. Thomas Conner, Esq.
VedderPrice P.C.
1401 I Street NW
Suite 1100
Washington, DC 20005
Approximate
date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration
Statement.
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box.
☒
If
this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check
the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If
this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
i
Indicate by
check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act.
Large accelerated filer
☐
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Accelerated filer
☒
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Non-accelerated filer
☐
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Smaller reporting company
☒
Emerging growth company
☐
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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
7(a)(2)(B) of the Securities Act. ☐
This
Pre-Effective Amendment incorporates by reference Part I included
in the initial Registration Statement on Form S-1 (File No.
333-248948) dated September 21, 2020. The Amendment is not intended
to amend or delete any part of the Registration Statement except as
specifically noted herein.
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act or
until this Registration Statement shall become effective on such
date as the Commission, acting pursuant to said Section 8(a), may
determine.
ii
Part I - Information Required in
Prospectus.
(As noted
above, Part I is incorporated by reference from Registrant's
intitial Registration Statement.)
1
PART
II
Information Not
Required in the Prospectus
Item
13.
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Other Expenses of Issuance and Distribution.
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Set forth below is an estimate
(except as indicated) of the amount of fees and expenses (other
than underwriting commissions and discounts) payable by the
registrant in connection with the issuance and distribution of the
units pursuant to the prospectus contained in this registration
statement.
[To be added by pre-effective
amendment]
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Amount
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SEC registration fee
(actual)
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$[●]
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NYSE Arca Listing Fee
(actual)
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$[●]
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FINRA filing fees
(actual)
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$[●]
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Blue Sky
expenses
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$[●]
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Auditor’s fees and
expenses
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$[●]
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Legal fees and
expenses
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$[●]
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Printing
expenses
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$[●]
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Miscellaneous
expenses
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$[●]
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Total
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$[●]
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Item
14.
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Indemnification of Directors and Officers.
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The Trust’s Sixth Amended and
Restated Declaration of Trust and Trust Agreement (the “Trust
Agreement”) provides that the Sponsor shall be indemnified by
the Trust (or, by a series of the Trust separately to the extent
the matter in question relates to a single series or
disproportionately affects a series in relation to other series)
against any losses, judgments, liabilities, expenses and amounts
paid in settlement of any claims sustained by it in connection with
its activities for the Trust, provided that (i) the Sponsor was
acting on behalf of or performing services for the Trust and has
determined, in good faith, that such course of conduct was in the
best interests of the Trust and such liability or loss was not the
result of gross negligence, willful misconduct, or a breach of the
Trust Agreement on the part of the Sponsor and (ii) any such
indemnification will only be recoverable from the applicable trust
estate or trust estates. All rights to indemnification permitted by
the Trust Agreement and payment of associated expenses shall not be
affected by the dissolution or other cessation to exist of the
Sponsor, or the withdrawal, adjudication of bankruptcy or
insolvency of the Sponsor, or the filing of a voluntary or
involuntary petition in bankruptcy under Title 11 of the Bankruptcy
Code by or against the Sponsor.
Notwithstanding the foregoing, the
Sponsor shall not be indemnified for any losses, liabilities or
expenses arising from or out of an alleged violation of U.S.
federal or state securities laws unless (i) there has been a
successful adjudication on the merits of each count involving
alleged securities law violations as to the particular indemnitee
and the court approves the indemnification of such expenses
(including, without limitation, litigation costs), (ii) such claims
have been dismissed with prejudice on the merits by a court of
competent jurisdiction as to the particular indemnitee and the
court approves the indemnification of such expenses (including,
without limitation, litigation costs) or (iii) a court of competent
jurisdiction approves a settlement of the claims against a
particular indemnitee and finds that indemnification of the
settlement and related costs should be made.
The Trust and its series shall not
incur the cost of that portion of any insurance which insures any
party against any liability, the indemnification of which is
prohibited by the Trust Agreement.
Expenses incurred in defending a
threatened or pending civil, administrative or criminal action,
suit or proceeding against the Sponsor shall be paid by the Trust
or the applicable series of the Trust in advance of the final
disposition of such action, suit or proceeding, if (i) the legal
action relates to the performance of duties or services by the
Sponsor on behalf of the Trust or a series of the Trust; (ii) the
legal action is initiated by a party other than the Trust; and
(iii) the Sponsor undertakes to repay the advanced funds with
interest to the Trust or the applicable series of the Trust in
cases in which it is not entitled to indemnification under the
Trust Agreement.
76
For purposes of the indemnification
provisions of the Trust Agreement, the term “Sponsor”
includes, in addition to the Sponsor, any other covered person
performing services on behalf of the Trust and acting within the
scope of the Sponsor’s authority as set forth in the Trust
Agreement.
In the event the Trust or a series
of the Trust is made a party to any claim, dispute, demand or
litigation or otherwise incurs any loss, liability, damage, cost or
expense as a result of or in connection with any
Shareholder’s (or assignee’s) obligations or
liabilities unrelated to Trust business, such Shareholder (or
assignees cumulatively) shall indemnify, defend, hold harmless, and
reimburse the Trust or the applicable series of the Trust for all
such loss, liability, damage, cost and expense incurred, including
attorneys’ and accountants’ fees.
The payment of any amount pursuant
to the Trust Agreement shall take into account the allocation of
liabilities and other amounts, as appropriate, among the series of
the Trust.
Item
15
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Recent Sales of Unregistered Securities.
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Not applicable.
Item
16
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Exhibits and Financial Statement Schedules.
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(a) Exhibits
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3.1
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Sixth Amended and Restated
Declaration of Trust and Trust Agreement.*
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5.1
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Opinion of [_____] relating to the
legality of the Shares.*
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8.1
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Opinion of [_____] with respect to
federal income tax consequences.*
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77
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23.1
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Consents of [_____] (included in
Exhibits 5.1 and 8.1).*
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23.2
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Consent of [_____], Independent
Registered Public Accounting Firm.*
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* To be filed by
amendment.
(1) Previously filed as Exhibit 3.2
to Registrant’s Registration Statement on Form S-1
(333-162033), filed on September 21, 2009 and incorporated by
reference herein.
(2) Previously filed as Exhibit 3.1
to Pre-Effective Amendment No. 2 to Registrant’s Registration
Statement on Form S-1 (333-230626), filed on April 26, 2019 and
incorporated by reference herein.
(3) Previously filed as Exhibit
10.2(1) to the Registrant’s Current Report on Form 8-K for
the Teucrium Corn Fund (File No. 001-34765), filed on November 1,
2011 and incorporated by reference herein.
(4) Previously filed as Exhibit
10.2(2) to the Registrant’s Current Report on Form 8-K for
the Teucrium Corn Fund (File No. 001-34765), filed on November 1,
2011 and incorporated by reference herein.
(5) Previously filed as Exhibit
10.2(3) to the Registrant’s Current Report on Form 8-K for
the Teucrium Corn Fund (File No. 001-34765), filed on November 1,
2011 and incorporated by reference herein.
(6) Previously filed as
like-numbered exhibit to Pre-Effective Amendment No. 1 to
Registrant’s Registration Statement on Form S-1 (333-187463),
filed on April 26, 2013 and incorporated by reference
herein.
(7) Previously filed as Exhibit
10.9 to Registrant’s Registration Statement on Form S-1 (File
No. 333-201953) filed on February 9, 2015 and incorporated by
reference herein.
(8) Previously filed as Exhibit
10.8 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2015, filed on March 15, 2016, and
incorporated by reference herein.
(9) Previously filed as Exhibit
10.9 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2015, filed on March 15, 2016, and
incorporated by reference herein.
(10) Previously filed as Exhibit
10.10 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2015, filed on March 15, 2016, and
incorporated by reference herein.
(11) Previously filed as Exhibit
10.11 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2015, filed on March 15, 2016, and
incorporated by reference herein.
(12) Previously filed as Exhibit
10.6 to Post-Effective Amendment No. 1 to Registrant’s
Registration Statement on Form S-1 (333-162033) filed on October
22, 2010 and incorporated by reference herein.
(b) Financial Statement
Schedules
The financial statement schedules
are either not applicable or the required information is included
in the financial statements and footnotes related
thereto.
78
Item
17.
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Undertakings.
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(a) The undersigned registrant
hereby undertakes:
(1) To file, during any period in
which offers or sales are being made, a post-effective amendment to
this registration statement:
(i) To include any prospectus
required by section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus
any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee”
table in the effective registration statement.
(iii) To include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to
such information in the registration statement.
Provided, however, that paragraphs
(a)(1)(i), (ii), and (iii) of this section do not apply if the
registration statement is on Form S-1, Form S-3, Form SF-3 or Form
F-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or, as to
a registration statement on Form S-3, is contained in a form of
prospectus filed pursuant to § 230.424(b) that is part of the
registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide
offering thereof.
(3) To remove from registration by
means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(4) That, for the purpose of
determining liability under the Securities Act of 1933 to any
purchaser:
(i) If the registrant is subject to
Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of
a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date
it is first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such
document immediately prior to such date of first
use.
(5) That, for the purpose of
determining liability of the registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the
securities: The undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to
this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
79
(iii) The portion of any other free
writing prospectus relating to the offering containing material
information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant;
and
(iv) Any other communication that
is an offer in the offering made by the undersigned registrant to
the purchaser.
(b) Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
80
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the Registrant has duly caused this
Registration Statement on Form S-1 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the city of
Burlington, State of Vermont, on October 20,
2020.
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Teucrium
Commodity Trust
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By: Teucrium Trading, LLC,
Sponsor
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By:
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/s/ Sal
Gilbertie
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Date: October 20,
2020
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Sal Gilbertie
Principal Executive Officer,
Secretary and Member
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Pursuant to the requirements of the
Securities Act of 1933, this registration statement has been signed
by the following persons in the capacities and on the dates as
indicated. The document may be executed by signatories hereto on
any number of counterparts, all of which shall constitute one and
the same instrument. The undersigned members and officers of
Teucrium Trading, LLC, the sponsor of Teucrium Commodity Trust,
hereby constitute and appoint Sal Gilbertie, Cory Mullen Rusin and
Steve Kahler and each of them with full power to act with full
power of substitution and resubstitution, our true and lawful
attorneys-in-fact with full power to execute in our name and behalf
in the capacities indicated below this Registration Statement on
Form S-1 and any and all amendments thereto, including
post-effective amendments to this Registration Statement and to
sign any and all additional registration statements relating to the
same offering of securities as this Registration Statement that are
filed pursuant to Rule 462(b) of the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange
Commission and thereby ratify and confirm that such
attorneys-in-fact, or any of them, or their substitutes shall
lawfully do or cause to be done by virtue
hereof.
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Signature
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Title
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Date
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/s/ Sal
Gilbertie
Sal Gilbertie
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President/Chief Executive
Officer/Chief Investment Officer/Member of the
Sponsor
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October 20,
2020
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/s/ Cory
Mullen-Rusin
Cory
Mullen-Rusin
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Chief Financial Officer/Chief
Accounting Officer/Chief Compliance Officer/Principal Financial
Officer
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October 20,
2020
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/s/ Steve
Kahler
Steve Kahler
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Chief Operating
Officer
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October 20,
2020
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Exhibit
Index
81