Schedule 13D/A

BIOFUEL ENERGY CORP.

/s/ Kelly G. Maguire

Kelly G. Maguire

Executive V.P. & CFO

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SHiOX4Z7tgKyct915vU0m4snhH1X77u+8XwVRdDhgMTYZmuPO7g0LgVORdqR1Q7N /lubgyog8H8gpDnPb+Eppg== 0000950123-10-114711.txt : 20101217 0000950123-10-114711.hdr.sgml : 20101217 20101217172751 ACCESSION NUMBER: 0000950123-10-114711 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20101217 DATE AS OF CHANGE: 20101217 GROUP MEMBERS: DAVID EINHORN GROUP MEMBERS: DME ADVISORS GP, LLC GROUP MEMBERS: DME ADVISORS, L.P. GROUP MEMBERS: GREENLIGHT CAPITAL OFFSHORE PARTNERS GROUP MEMBERS: GREENLIGHT CAPITAL QUALIFIED, L.P. GROUP MEMBERS: GREENLIGHT CAPITAL, INC. GROUP MEMBERS: GREENLIGHT CAPITAL, L.L.C. GROUP MEMBERS: GREENLIGHT CAPITAL, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BioFuel Energy Corp. CENTRAL INDEX KEY: 0001373670 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL ORGANIC CHEMICALS [2860] IRS NUMBER: 205952523 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-82940 FILM NUMBER: 101260832 BUSINESS ADDRESS: STREET 1: 1801 BROADWAY, SUITE 1060 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 303-592-8110 MAIL ADDRESS: STREET 1: 1801 BROADWAY, SUITE 1060 CITY: DENVER STATE: CO ZIP: 80202 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GREENLIGHT CAPITAL LLC CENTRAL INDEX KEY: 0001040272 IRS NUMBER: 133886851 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 140 EAST 45TH STREET STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2129731900 MAIL ADDRESS: STREET 1: 140 EAST 45TH STREET STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 c09813sc13dza.htm SCHEDULE 13D/A Schedule 13D/A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 4)*

BIOFUEL ENERGY CORP.

(Name of Issuer)

Shares of Common Stock, par value $0.01 per share

(Title of Class of Securities)

09064Y109

(CUSIP Number)

Greenlight Capital, L.L.C.
140 East 45th Street, Floor 24
New York, New York 10017
Tel. No.: (212) 973-1900

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

December 14, 2010

(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.		09064Y109


1	NAMES OF REPORTING PERSONS Greenlight Capital, L.L.C.


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)

	AF, WC, OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			4,460,196

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			4,460,196

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	4,460,196

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)

	15.0%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	OO

Page 2 of 16


CUSIP No.		09064Y109


1	NAMES OF REPORTING PERSONS Greenlight Capital, Inc.


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)

	AF, WC, OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			5,221,530

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			5,221,530

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	5,221,530

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)

	20.5%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	CO

Page 3 of 16


CUSIP No.		09064Y109


1	NAMES OF REPORTING PERSONS David Einhorn


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)

	AF, WC, OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	USA

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			11,853,500

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			11,853,500

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	11,853,500

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)

	39.8%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	IN

Page 4 of 16


CUSIP No.		09064Y109


1	NAMES OF REPORTING PERSONS Greenlight Capital, L.P.


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, OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			924,062

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			924,062

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	924,062

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)

	3.1%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	PN

Page 5 of 16


CUSIP No.		09064Y109


1	NAMES OF REPORTING PERSONS Greenlight Capital Qualified, L.P.


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, OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			3,536,134

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			3,536,134

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	3,536,134

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)

	11.9%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	PN

Page 6 of 16


CUSIP No.		09064Y109


1	NAMES OF REPORTING PERSONS Greenlight Capital Offshore Partners


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, OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	British Virgin Islands

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			5,221,530

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			5,221,530

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	5,221,530

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)

	20.5%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	PN

Page 7 of 16


CUSIP No.		09064Y109


1	NAMES OF REPORTING PERSONS DME Advisors GP, LLC


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)

	AF, WC, OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			2,171,774

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			2,171,774

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	2,171,774

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)

	7.3%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	OO

Page 8 of 16


CUSIP No.		09064Y109


1	NAMES OF REPORTING PERSONS DME Advisors, L.P.


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)

	AF, WC, OO

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			1,447,443

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			1,447,443

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	1,447,443

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)

	5.7%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	PN

Page 9 of 16

AMENDMENT NO. 4 TO SCHEDULE 13D

This Amendment No. 4 to Schedule 13D (the “Amendment”), relating to shares of common stock, par value $0.01 per share (“Common Stock”), of BioFuel Energy Corp., a Delaware corporation (the “Issuer”), 1600 Broadway, Suite 2200, Denver, CO 80202, amends and supplements the Schedule 13D originally filed with the Securities and Exchange Commission (the “Commission”) on June 26, 2007, as amended by Amendment No. 1 filed with the Commission on May 4, 2010, Amendment No. 2 filed with the Commission on September 27, 2010 (“Amendment No. 2”) and Amendment No. 3 filed with the Commission on September 27, 2010 (“Amendment No. 3”).

This Amendment is being filed on behalf of Greenlight Capital, L.L.C., a Delaware limited liability company (“Greenlight LLC”), Greenlight Capital, Inc., a Delaware corporation (“Greenlight Inc.”), Mr. David Einhorn (the “Principal”), Greenlight Capital, L.P., a Delaware limited partnership (“Greenlight Fund”), of which Greenlight LLC is the general partner, Greenlight Capital Qualified, L.P., a Delaware limited partnership (“Greenlight Qualified”), of which Greenlight LLC is the general partner, Greenlight Capital Offshore Partners, a British Virgin Islands partnership (“Greenlight Offshore”), for which Greenlight Inc. acts as investment manager, DME Advisors GP, LLC, a Delaware limited liability company (“Advisors GP”), and DME Advisors, L.P., a Delaware limited partnership of which Advisors GP is the general partner (“Advisors” and, together with Greenlight LLC, Greenlight Inc., Greenlight Fund, Greenlight Qualified, Greenlight Offshore, Advisors GP and the Principal, the “Reporting Persons”). Mr. Einhorn is the principal of each of Greenlight LLC, Greenlight Inc., and Advisors GP. Mr. Einhorn is also a Director of the Issuer.

In addition, Advisors GP is the general partner of DME Capital Management, LP, a Delaware limited partnership (“DME CM”). Advisors acts as the investment manager for a managed account (the “Managed Account”). DME CM acts as the investment manager for Greenlight Capital Offshore Master (Gold), Ltd., a British Virgin Islands company (“Greenlight Gold Offshore”). DME Management GP, LLC, a Delaware limited liability company controlled by the Principal (“DME Management GP”), is the general partner of Greenlight Capital (Gold), L.P., a Delaware limited partnership (“Greenlight Gold”).

Certain of the Reporting Persons also own membership interests (the “Common Membership Interests”) in BioFuel Energy LLC, a subsidiary of the Issuer (the “LLC”), and corresponding shares of Class B Common Stock, par value $0.01 per share, of the Issuer (“Class B Common Stock”) on a one-for-one basis. Pursuant to the limited liability company agreement of the LLC, the Common Membership Interests may be exchanged at any time for shares of Common Stock on a one-for-one basis. Upon the exchange of Common Membership Interests for Common Stock, the Class B Common Stock attributable to the exchanged Common Membership Interests will be transferred to the Issuer and retired. Holders of Class B Common Stock are entitled to one vote for each share held.

Page 10 of 16

The Reporting Persons are filing this Amendment in connection with an agreement between the Reporting Persons and the Issuer that may result in the acquisition by the Reporting Persons of additional securities of the Issuer. This Amendment is being filed to amend Item 4, Item 5, Item 6 and Item 7 as follows:


Item 4.		Purpose of Transaction

Item 4 of the Schedule 13D is hereby amended to add the following:

On December 14, 2010, the Reporting Persons entered into an Amended and Restated Rights Offering Letter Agreement with the Issuer, the LLC, Third Point Loan LLC and Third Point Advisors, LLC (the “A&R ROLA”), which amends and restates the Rights Offering Letter Agreement described in Amendment No. 2 and Amendment No. 3 and filed by the Issuer as Exhibit 10.2 on its Form 8-K, which was filed with the Commission on September 27, 2010. As described below, the A&R ROLA amends, among other things, certain obligations of the parties thereto with respect to a registered offering of rights (the “Rights Offering”) to purchase depositary shares (“Depositary Shares”), each representing a fractional interest in a share of Series A Non-Voting Convertible Preferred Stock of the Issuer (“Series A Non-Voting Convertible Preferred Stock”). The Issuer has filed a Registration Statement on Form S-1 for the Rights Offering (the “Registration Statement”) with the Commission.

Under the A&R ROLA, the Issuer would distribute non-transferable subscription rights to purchase Depository Shares pro rata to each of the Issuer’s record holders of Common Stock. Each Depositary Share would represent a fractional interest in a share of Series A Non-Voting Convertible Preferred Stock (subject to adjustment as described in the A&R ROLA and the Registration Statement) and would entitle the holder to a proportional fractional interest in the rights and preferences of such share of Series A Non-Voting Convertible Preferred Stock, including conversion, dividend, liquidation and voting rights. Pursuant to the A&R ROLA, each share of Series A Non-Voting Convertible Preferred Stock would, following the approval by the holders of Common Stock and Class B Common Stock of the authorization and issuance of additional shares of Common Stock, automatically convert into that number of shares of Common Stock equal to the quotient obtained by dividing the total number of Depository Shares actually purchased in the Rights Offering and pursuant to the Backstop Commitment (as defined in the A&R ROLA) by 2,000,000. Upon conversion of the Series A Non-Voting Convertible Preferred Stock, each Depositary Share would entitle the holder thereof to receive one share of Common Stock and, upon the distribution of one share of Common Stock to the holder of each such Depositary Share, each such Depositary Share would be automatically cancelled and have no further value.

Concurrent with the Rights Offering, the A&R ROLA provides that the LLC would conduct a private placement of a new class of preferred membership interests in the LLC. Under the A&R ROLA, the LLC’s concurrent private placement is structured so as to provide the holders of Common Membership Interests (other than the Issuer) with a private placement that is economically equivalent to the Rights Offering, as described in more detail in the A&R ROLA.

In addition, certain Reporting Persons, Third Point Loan LLC and Third Point Advisors, LLC (collectively, the “Backstop Parties”) have agreed, pursuant to the A&R ROLA and subject to certain conditions and possible reductions, to purchase Depositary Shares in an amount equal to their full pro rata subscription in the Rights Offering, to participate for their full pro rata privileges to purchase preferred membership interests in the LLC’s concurrent private placement and to purchase immediately prior to expiration of the

Page 11 of 16

Rights Offering all of the available Depositary Shares not otherwise sold in the Rights Offering and to purchase all of the available preferred membership interests in the LLC not otherwise sold in the LLC’s concurrent private placement. Notwithstanding the foregoing, the A&R ROLA provides that the number of Depository Shares and preferred membership interests that the Backstop Parties would otherwise be required to purchase pursuant to the preceding sentence may be reduced in certain circumstances. In the event the number of Depository Shares that the Backstop Parties would otherwise be required to purchase is reduced, the Backstop Parties could instead purchase Class B Preferred Membership Interests in the LLC, the terms of which are set forth in the A&R ROLA.

The A&R ROLA provides that the proceeds of the Rights Offering, the LLC’s concurrent private placement and the Backstop Commitment be used (i) first, to repay all amounts owed under the Loan Agreement, dated September 24, 2010, among the Issuer, the Reporting Persons and Third Point Loan LLC (the “Loan Agreement”); (ii) second, to repay all amounts owed under the Mezzanine Loan Agreement (as defined in the Loan Agreement); (iii) third, to make the Cargill Payment (as defined in the A&R ROLA); and (iv) fourth, to pay certain fees and expenses incurred in connection with the Rights Offering and the LLC’s concurrent private placement.

In connection with the Rights Offering and the Concurrent Private Placement, the Issuer and the Backstop Parties entered into an Amended and Restated Registration Rights Agreement on December 15, 2010 that provides registration rights, under certain circumstances and subject to certain restrictions set forth therein, with respect to, among other things, certain shares of Common Stock and Common Membership Interests acquired in connection with the Rights Offering and the LLC’s concurrent private placement and certain warrants that may be issued if the Bridge Loan (as defined in Amendment No. 2 and Amendment No. 3) is not paid in full on or prior to March 24, 2011. Such registration rights would be in addition to the registration rights currently held by the Backstop Parties for shares of Common Stock currently held by them and for shares of Common Stock issuable upon exchange of Common Membership Interests currently held by the Backstop Parties.

The Reporting Persons and the Issuer also entered into an Amended and Restated Voting Agreement on December 14, 2010 (the “A&R Voting Agreement”) in connection with the A&R ROLA. The A&R Voting Agreement requires, among other things, that the Reporting Persons cast their votes:

	(a)		in favor of at least two directors that are not affiliated with, or employed by, and are otherwise independent of, the Reporting Persons; and

	(b)		in favor of certain proposals intended to facilitate the consummation of the transactions contemplated by the A&R ROLA for which the Issuer will seek stockholder approval at a meeting of the Issuer’s stockholders, as set forth in the Issuer’s Preliminary Proxy Statement filed with the Commission on November 15, 2010, including, but not limited to, a proposal to amend the Issuer’s Amended and Restated Certificate of Incorporation to increase the number of authorized but unissued shares of Common Stock from 100,000,000 to 140,000,000 and Class B Common Stock from 50,000,000 to 75,000,000.

Page 12 of 16

Consistent with the Reporting Persons’ investment purpose, each Reporting Person, at any time and from time to time, may acquire additional securities of the Issuer or dispose of any or all of its securities of the Issuer depending upon an ongoing evaluation of the investment in such securities, prevailing market conditions, other investment opportunities, liquidity requirements of the Reporting Persons and/or other investment considerations. No Reporting Person has made a determination regarding a maximum or minimum number of securities of the Issuer that it may hold at any point in time.

Also, consistent with their investment purpose, the Reporting Persons have engaged in, and intend to continue to engage in, communications with one or more of Issuer’s stockholders, officers and/or members of the board of directors relating to topics including, but not limited to, the operations of the Issuer.

Third Point Loan LLC participated in the Bridge Loan and Third Point Loan LLC and Third Point Advisors, LLC, each of which are affiliated with Third Point, LLC (“Third Point”), are Backstop Parties and have agreed to participate in the Rights Offering and the LLC’s concurrent private placement pursuant to the A&R ROLA. According to Amendment No. 3 to Schedule 13D filed on behalf of Third Point with the Commission on September 28, 2010, Third Point beneficially owned 5,803,284 shares of Common Stock, representing approximately 22.8% of the issued and outstanding Common Stock of the Issuer. By virtue of the participation of the Reporting Persons and Third Point in the Bridge Loan and the Rights Offering, such parties may be deemed to have formed a “group” within the meaning of Section 13(d) under the Act. If the Reporting Persons and Third Point are deemed to have formed a group, the group may be deemed, collectively, to beneficially own approximately 17,656,784 shares of Common Stock, representing approximately 62.6% of the issued and outstanding shares of Common Stock of the Issuer. Although, as indicated above, the Reporting Persons may be deemed members of a group within the meaning of Section 13(d) of the Act with Third Point, the Reporting Persons expressly disclaim membership in a group with Third Point or any other person.


Item 5.		Interest in Securities of the Issuer

Item 5 of the Schedule 13D is hereby amended to add the following:

Third Point Loan LLC participated in the Bridge Loan and Third Point Loan LLC and Third Point Advisors, LLC, each of which are affiliated with Third Point, are Backstop Parties and have agreed to participate in the Rights Offering and the LLC’s concurrent private placement pursuant to the A&R ROLA. According to Amendment No. 3 to Schedule 13D filed on behalf of Third Point with the Commission on September 28, 2010, Third Point beneficially owned 5,803,284 shares of Common Stock, representing approximately 22.8% of the issued and outstanding Common Stock of the Issuer. By virtue of the participation of the Reporting Persons and Third Point in the Bridge Loan and the Rights Offering, such parties may be deemed to have formed a “group” within the meaning of Section 13(d) under the Act. If the Reporting Persons and Third Point are deemed to have formed a group, the group may be deemed, collectively, to beneficially own approximately 17,656,784 shares of Common Stock, representing approximately 62.6% of the issued and outstanding shares of Common Stock of the Issuer. Although, as indicated above, the Reporting Persons may be deemed members of a group within the meaning of Section 13(d) of the Act with Third Point, the Reporting Persons expressly disclaim membership in a group with Third Point or any other person.

Page 13 of 16


Item 6.		Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer

Item 6 of the Schedule 13D is hereby amended to add the following:

See Item 4.


Item 7.		Material to be Filed as Exhibits

Exhibits

10.1

Amended and Restated Rights Offering Letter Agreement, dated as of December 14, 2010, by and among the Issuer, Greenlight Capital, LP, Greenlight Capital Qualified, LP, Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners, Greenlight Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance, Ltd., Third Point Loan LLC and Third Point Advisors, LLC

10.2

Amended and Restated Voting Agreement, dated as of December 14, 2010, by and among the Issuer, Greenlight Capital, LP, Greenlight Capital Qualified, LP, Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners, Greenlight Capital Offshore Master (Gold), Ltd. and Greenlight Reinsurance, Ltd.

10.3

Amended and Restated Registration Rights Agreement, dated as of December 15, 2010, by and among the Issuer, Greenlight Capital, LP, Greenlight Capital Qualified, LP, Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners, Greenlight Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance, Ltd., Third Point Partners LP, Third Point Partners Qualified, L.P., Third Point Loan LLC and Daniel S. Loeb

Page 14 of 16

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: December 17, 2010


	Greenlight Capital, L.L.C.
	By:	/s/ Daniel Roitman
		Daniel Roitman, Chief Operating Officer

	Greenlight Capital, Inc.
	By:	/s/ Daniel Roitman
		Daniel Roitman, Chief Operating Officer

	Greenlight Capital, L.P.
	By:	Greenlight Capital, L.L.C., its General Partner


	By:	/s/ Daniel Roitman
		Daniel Roitman, Chief Operating Officer


	Greenlight Capital Qualified, L.P.
	By:	Greenlight Capital, L.L.C., its General Partner


	By:	/s/ Daniel Roitman
		Daniel Roitman, Chief Operating Officer


	Greenlight Capital Offshore Partners
	By:	Greenlight Capital, Inc., its Investment Manager


	By:	/s/ Daniel Roitman
		Daniel Roitman, Chief Operating Officer

Page 15 of 16


	DME Advisors GP, L.L.C.
	By:	/s/ Daniel Roitman
		Daniel Roitman, Chief Operating Officer

	DME Advisors, L.P.
	By:	DME Advisors GP, L.L.C., its General Partner


	By:	/s/ Daniel Roitman
		Daniel Roitman, Chief Operating Officer


	/s/ Daniel Roitman**
	Daniel Roitman, on behalf of David Einhorn


*		The Joint Filing Agreement, executed by and among the Reporting Persons, and filed as an exhibit to that Schedule 13D filed with the Securities and Exchange Commission on June 26, 2007 by the Reporting Persons with respect to the shares of Common Stock of BioFuel Energy Corp., is hereby incorporated by reference.

**		The Power of Attorney, executed by David Einhorn and authorizing Harry Brandler and Daniel Roitman to sign and file this Schedule 13D on David Einhorn’s behalf, that was filed as an exhibit to that Schedule 13G filed with the Securities and Exchange Commission on July 18, 2005 by the Reporting Persons with respect to the Ordinary Shares of Flamel Technologies S.A., is hereby incorporated by reference.

Page 16 of 16

EX-10.1 2 c09813exv10w1.htm EXHIBIT 10.1 Exhibit 10.1

Exhibit 10.1

EXECUTION VERSION

AMENDMENT AND RESTATEMENT to the Rights Offering Letter Agreement among Greenlight Capital, LP, Greenlight Capital Qualified, LP, Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners, Greenlight Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance, Ltd., Third Point Loan LLC and BioFuel Energy Corp. dated as of September 24, 2010 (the “Original ROLA”), is entered into as of December 14, 2010 (this “Letter Agreement”).

WHEREAS, Greenlight, BFE Corp. and Third Point Advisors, LLC (each as defined below) desire to amend and restate the Original ROLA pursuant to Paragraph 18 (Amendment; Waiver; Counterparts) of the Original ROLA.

NOW, THEREFORE, it is hereby agreed that the Original ROLA is hereby amended and restated in its entirety to read as follows:

This Letter Agreement is entered into pursuant to and in connection with that certain Loan Agreement, dated as of September 24, 2010 (the “Loan Agreement”), by and among BioFuel Energy Corp. (“BFE Corp.”), Greenlight Capital Offshore Partners, Greenlight Capital, L.P., Greenlight Capital Qualified, L.P., Greenlight Reinsurance, Ltd. (collectively, “Greenlight” or the “Greenlight Parties”), the other lenders identified as lenders on Schedule 1.1(A) thereto (together with Greenlight, the “Lenders”), and Greenlight APE, LLC, in its capacity as administrative agent for the Lenders. Under the Loan Agreement, the Lenders have made a term loan to BFE Corp. in the aggregate principal amount of $19,420,620 (the “Bridge Loan”).

This Letter Agreement sets forth the parties’ respective obligations with respect to a registered rights offering described herein (the “Rights Offering”) of rights to purchase depositary shares (“Depositary Shares”), each representing a fractional interest in a share of Series A Non-Voting Convertible Preferred Stock of BFE Corp. (“Series A Non-Voting Convertible Preferred Stock”). On October 18, 2010, BFE Corp. filed a Registration Statement on Form S-1 for the Rights Offering (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”). The characteristics of the Series A Non-Voting Convertible Preferred Stock are more fully described on Exhibit A to this Letter Agreement. Concurrent with the Rights Offering, BioFuel Energy, LLC (the “LLC”) will grant purchase privileges to purchase a new class of preferred membership interests in the LLC (the “Preferred Membership Interests”) in a concurrent private placement (the “Concurrent Private Placement”). The characteristics of the Preferred Membership Interests are more fully described on Exhibit B to this Letter Agreement. Subject to the terms and conditions of this Letter Agreement, the parties hereto intend that the Rights Offering and the Concurrent Private Placement shall provide for anticipated aggregate gross proceeds sufficient to fully pay off, at a minimum, all principal and accrued but unpaid interest of the Bridge Loan and the Mezzanine Loan Agreement (as defined in the Loan Agreement) and the Cargill Payment (as defined below).

In consideration of the premises and respective covenants and agreements set forth in this Letter Agreement and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties agrees as follows:

1. Registration Statement. BFE Corp. hereby agrees to use its commercially reasonable best efforts to commence and complete the Rights Offering, subject to the terms and conditions set forth herein. Specifically, BFE Corp. hereby commits to use its commercially reasonable best efforts to cause the Registration Statement to be declared effective on or before January 24, 2011 and to remain effective throughout the entire offering period without interruption. The offering period for the Rights Offering shall be equal to five (5) weeks. Notwithstanding the foregoing, a failure to cause the Registration Statement to be declared effective on or before January 24, 2011 despite the use of commercially reasonable best efforts to do so by BFE Corp. shall not be deemed a violation or failure to comply with this Letter Agreement for purposes of Paragraph 9 hereof nor an Event of Default under the Loan Agreement; provided, however that if BFE Corp. has not used such commercially reasonable best efforts then there shall be deemed to be a failure to have complied with the conditions in Paragraph 9 hereof.

2. Terms of Rights Offering. In connection with the Rights Offering, BFE Corp. shall distribute at no charge to each of the record holders (the “Eligible Common Stockholders”) of Common Stock, par value $0.01 per share, of BFE Corp. (“Common Stock”) non-transferable subscription rights (the “Rights”) to purchase Depositary Shares representing 2,000,000 shares of Series A Non-Voting Convertible Preferred Stock. Each share of Series A Non-Voting Convertible Preferred Stock shall be convertible upon the terms described in Exhibit A to this Letter Agreement into that number of shares of Common Stock equal to the quotient obtained by dividing the total number of Depositary Shares actually purchased in the Rights Offering (by the Eligible Common Stockholders) and pursuant to the Backstop Commitment (by the Backstop Parties) by 2,000,000 (the “Conversion Ratio”). Upon conversion of the Series A Non-Voting Convertible Preferred Stock, each Depositary Share shall entitle the holder thereof to receive one share of Common Stock and, upon the distribution of one share of Common Stock to the holder of each such Depositary Share, each such Depositary Share shall be automatically cancelled and have no further value.

All Eligible Common Stockholders shall be eligible to participate in the Rights Offering by receiving Rights pro rata based on each Eligible Common Stockholder’s ownership of Common Stock at the record date for the Rights Offering, and each Eligible Common Stockholder that exercises all of its Rights may oversubscribe for unsubscribed Rights in an amount equal to up to 100% of its pro rata share of Rights (the “Over-Subscription Privileges”). For purposes of this paragraph, “pro rata” shall mean (x) the aggregate number of shares of Common Stock held by each Eligible Common Stockholder divided by (y) the aggregate number of shares of Common Stock outstanding. If and to the extent that the Backstop Parties determine, in their sole discretion after consultation with BFE Corp., that the exercise of the Over-Subscription Privileges would result in adverse tax, legal or regulatory consequences to BFE Corp. or any of the Backstop Parties, BFE Corp. may reduce or eliminate, pro rata for all holders of Rights, exercise of Over-Subscription Privileges.

Each Right shall entitle the holder thereof to acquire, at a price equal to the Rights Price, one Depositary Share. The “Rights Price” shall mean $0.56. The number of Rights offered in the Rights Offering shall be determined by dividing the Offering Size of the Rights Offering by the Rights Price. The “Offering Size” of the Rights Offering will be an amount equal to the Aggregate Size multiplied by a fraction, the numerator of which is the total number of shares of Common Stock outstanding as of the record date and the denominator of which is the total number of shares of Common Stock outstanding as of the record date plus the total number of Common Membership Interests held by the Eligible LLC Members (as defined below) as of the record date. The “Aggregate Size” of the Rights Offering and the Concurrent Private Placement will be an aggregate amount sufficient to (i) repay all amounts owed at the time of consummation of the Rights Offering, including accrued and unpaid interest, under the Bridge Loan and the Mezzanine Loan Agreement, (ii) make the Cargill Payment (as defined below) and (iii) pay certain fees and expenses incurred in connection with the Rights Offering and the Concurrent Private Placement. The “Private Placement Size” of the Concurrent Private Placement will be an amount equal to the Aggregate Size minus the Offering Size.

Immediately following the consummation of the Rights Offering, BFE Corp. will contribute all proceeds of the Rights Offering to the LLC, and the LLC will issue to BFE Corp. a number of Preferred Membership Interests equal to the number of Depositary Shares that BFE Corp. issued in the Rights Offering.

3. Terms of Concurrent Private Placement. In connection with the Concurrent Private Placement, the LLC shall grant at no charge to each of the record holders other than BFE Corp. (the “Eligible LLC Members”) of membership interests in the LLC (“Common Membership Interests”) purchase privileges (the “LLC Purchase Privileges”) to purchase Preferred Membership Interests. Each Preferred Membership Interest shall be convertible into a Common Membership Interest upon the terms described in Exhibit B to this Letter Agreement. All Eligible LLC Members shall be eligible to participate in the Concurrent Private Placement by receiving LLC Purchase Privileges pro rata based on each Eligible LLC Member’s ownership of Common Membership Interests at the record date for the Concurrent Private Placement, and each Eligible LLC Member that exercises all of its LLC Purchase Privileges may exercise an additional purchase privilege for unsubscribed LLC Purchase Privileges in an amount equal to up to 100% of its pro rata share of LLC Purchase Privileges (the “LLC Additional Purchase Privileges”). For purposes of this paragraph, “pro rata” shall mean (x) the aggregate number of Common Membership Interests held by each Eligible LLC Member divided by (y) the aggregate number of Common Membership Interests held by all Eligible LLC Members.

Each LLC Purchase Privilege shall entitle the applicable Eligible LLC Member to acquire, at a price equal to the Rights Price, one Preferred Membership Interest. The number of LLC Purchase Privileges granted in the Concurrent Private Placement shall be determined by dividing the Private Placement Size of the Concurrent Private Placement by the Rights Price. The “Rights Price” for the Concurrent Private Placement shall be the same as the Rights Price for the Rights Offering.

4. Use of Proceeds. The proceeds of the Rights Offering, the Concurrent Private Placement and the Backstop Commitment shall be used by BFE Corp. or the LLC, as applicable, promptly upon consummation thereof, (i) first, to repay all amounts owed at such time, including accrued and unpaid interest, under the Bridge Loan; (ii) second, to repay all amounts owed at such time, including accrued and unpaid interest, under the Mezzanine Loan Agreement; (iii) third, to make the Cargill Payment; and (iv) fourth, to pay certain fees and expenses incurred in connection with the Rights Offering and the Concurrent Private Placement. In the event that the

Backstop Parties reduce the number of Depositary Shares that they would otherwise be obligated to purchase pursuant to the Rights Offering Basic Commitment or Rights Offering Backstop Commitment as contemplated by Paragraph 7 and, as a result, there are sufficient proceeds from the Rights Offering and the Concurrent Private Placement to pay off the Bridge Loan but insufficient proceeds, after paying off the Bridge Loan, to both pay off all indebtedness under the Mezzanine Loan Agreement and to make the Cargill Payment, then the Backstop Parties may elect to cause BFE Corp. to use the proceeds remaining after the pay off of the Bridge Loan to make the Cargill Payment before paying off any indebtedness under the Mezzanine Loan Agreement.

5. Basic Commitment. Subject to the terms, conditions and limitations described herein, each of the parties listed on Exhibit B hereto (collectively, the “Backstop Parties”) hereby agrees to participate in the Rights Offering for its full pro rata share of Depositary Shares (the “Rights Offering Basic Commitment”) and to participate in the Concurrent Private Placement for its full pro rata share of Preferred Membership Interests (the “LLC Basic Commitment,” and, together with the Rights Offering Basic Commitment, the “Basic Commitment”).

6. Backstop Commitment. Subject to the terms, conditions and limitations described herein (including Paragraph 7 hereof), to provide assurance that the Rights Offering will be fully subscribed, the Backstop Parties severally and not jointly commit to purchase, in the respective percentages set forth on Exhibit B hereto (the “Commitment Percentages”), all of the additional Depositary Shares not sold to other Eligible Common Stockholders in the Rights Offering (the “Rights Offering Backstop Commitment”) and all of the additional Preferred Membership Interests not sold to other Eligible LLC Members in the Concurrent Private Placement (the “LLC Backstop Commitment,” and, together with the Rights Offering Backstop Commitment, the “Backstop Commitment”). Greenlight, in its discretion, may allocate its aggregate Backstop Commitment among the Greenlight Parties and accordingly allocate the Greenlight Parties’ Commitment Percentage among the Greenlight Parties (it being understood and agreed that no such allocation among the Greenlight Parties will decrease the aggregate amount of Depositary Shares or Preferred Membership Interests that the Greenlight Parties are obligated to purchase pursuant to the Backstop Commitment). The Greenlight Parties shall provide notice to BFE Corp., a reasonable amount of time prior to closing, of such allocation.

7. Backstop Reduction. Notwithstanding the foregoing, (i) the Backstop Parties shall reduce the number of Depositary Shares that the Backstop Parties would otherwise be obligated to purchase pursuant to the Backstop Commitment and/or the Basic Commitment, or (ii) BFE Corp. shall reduce the aggregate number of Depositary Shares that are offered in the Rights Offering, in the event the Backstop Parties determine, in their sole discretion, but after consultation with BFE Corp., that consummation of the Rights Offering, the Basic Commitment and/or the Backstop Commitment would result in adverse tax, legal or regulatory consequences to BFE Corp. and/or any Backstop Party (“Adverse Consequences”) to the extent (and only to the extent) the Backstop Parties deem necessary in their sole discretion, but after consultation with BFE Corp., to avoid Adverse Consequences (a “Backstop Reduction”). The reduction in the number of Depositary Shares that the Backstop Parties are obligated to purchase in the event of a Backstop Reduction would be referred to as the “Shortfall Amount”. In the event of a Backstop Reduction, the Rights Offering shall nevertheless proceed and, other than in the event of a Backstop Reduction that takes the form of a reduction of the number of

Depositary Shares that the Backstop Parties would otherwise be obligated to purchase pursuant to the Backstop Commitment (which is the subject of the following paragraph), the parties shall use their respective commercially reasonable best efforts to structure and consummate an alternative transaction to take the place of the issuance of the Shortfall Amount that, combined with the Rights Offering, would (i) permit BFE Corp. to (A) pay off the Bridge Loan; (B) pay off all indebtedness under the Mezzanine Loan Agreement; and (C) make the Cargill Cash Payment (an “Alternative Financing Transaction”) and (ii) be structured so as to preserve the economic benefits to the parties as if the Rights Offering had been consummated in full in accordance with the terms set forth herein without otherwise giving effect to a Backstop Reduction provided that each Backstop Party shall not be obligated to fund an amount in excess of the amount represented by its Backstop Commitment.

In addition, in the event of a Backstop Reduction that takes the form of a reduction of the number of Depositary Shares that the Backstop Parties would otherwise be obligated to purchase pursuant to the Backstop Commitment, the Backstop Parties shall either (i) exercise their respective Rights Offering Backstop Commitment with respect to all or a portion of the available Depositary Shares not otherwise sold in the Rights Offering to other Eligible Common Stockholders by purchasing a new class of class B preferred membership interests (the “Class B Membership Interests”) in the LLC (instead of purchasing such available Depositary Shares) in the event that such Backstop Parties determine, in their sole discretion, that the purchase of such available Depositary Shares would result in adverse tax, legal or regulatory consequences to BFE Corp. or such Backstop Parties (such an election, a “LLC Backstop Reallocation”) or (ii) not exercise their respective Rights Offering Backstop Commitment with respect to all or a portion of the available Depositary Shares not otherwise sold in the Rights Offering to other Eligible Common Stockholders in the event that such Backstop Parties determine, in their sole discretion, that the purchase of such available Depositary Shares would result in adverse tax, legal or regulatory consequences to BFE Corp. or such Backstop Parties. In the event of a LLC Backstop Reallocation, the LLC will issue such Class B Preferred Membership interests to the applicable Backstop Parties (in equal number to the number of available Depositary Shares not purchased because of such LLC Backstop Reallocation) in exchange for payment of the Rights Price for each Class B Preferred Membership Interest purchased. The Class B Preferred Membership interests, if issued, would have the same terms as the Preferred Membership Interests (including as to conversion, distribution, liquidation and other rights), except that, upon conversion of such Class B Preferred Membership Interests, holders of such Class B Preferred Membership Interests would receive Common Membership Interests that would not be exchangeable for shares of Common Stock.

In the event that the Backstop Parties purchase Class B Preferred Membership Interests, the Greenlight Parties may allocate their participation in any such purchases among the Greenlight Parties in their discretion, following notice to BFE Corp.

8. Consideration. In consideration of the Backstop Commitment, BFE Corp. paid, on September 24, 2010, a fee equal to $743,795.00 in consideration of the Backstop Commitment (the “Option Premium”). To the extent that the total purchase price for the Depositary Shares offered in the Rights Offering plus the Preferred Membership Interests and Class B Preferred Membership Interests offered in the Concurrent Private Placement is more than $40,000,000, BFE Corp. shall make an additional payment to the Backstop

Parties in an amount equal to 4% of such excess amount (excluding for calculation purposes any additional Depositary Shares or Preferred Membership Interests purchased by the Backstop Parties pursuant to their Basic Commitments or purchased by the Backstop Parties pursuant to any Over-Subscription Privileges in the Rights Offering or LLC Additional Purchase Privileges in the Concurrent Private Placement), with such additional payment to be made concurrent with the closing of the Rights Offering and the Concurrent Private Placement. Subject to the provisions below, the Option Premium was fully earned upon execution of the Original ROLA, regardless of whether the Rights Offering or Concurrent Private Placement is consummated or whether the Rights Offering or Concurrent Private Placement is fully subscribed. BFE Corp. agrees that the Option Premium is nonrefundable and that the Option Premium and any other payments hereunder shall be paid without setoff or recoupment and shall not be subject to defense or offset on account of any claim, defense or counterclaim.

9. Conditions. The Backstop Parties’ obligations to purchase any securities pursuant to the Basic Commitment and/or the Backstop Commitment are subject to the following conditions: (i) the execution and delivery of mutually satisfactory definitive documentation among BFE Corp. and the Backstop Parties which incorporates the terms set forth herein (the “Definitive Agreements”); (ii) the satisfaction or waiver by the Backstop Parties of the conditions to the Backstop Parties’ obligations to consummate the transactions contemplated by the Definitive Agreements as may be agreed upon in the Definitive Documents; (iii) BFE Corp. shall be in compliance with its obligations under the Loan Agreement and all other transaction documents relating to the Bridge Loan in all material respects; (iv) there has not occurred any material adverse change, or any development involving a prospective material adverse change, since the date hereof in the condition, financial or otherwise, or in the earnings, business, operations or properties of BFE Corp. and its subsidiaries, taken as a whole (a “Material Adverse Change”); (v) there not having occurred after the date hereof at any time prior to the funding of the Basic Commitment and/or the Backstop Commitment any material disruption or material adverse change in the financial, banking or capital markets that, in the commercially reasonable judgment of the Backstop Parties, would have a material adverse impact on the success of the Rights Offering; (vi) all required approvals and consents shall have been obtained; (vii) all representations and warranties made by BFE Corp. in this Letter Agreement being true and correct in all material respects; (viii) BFE Corp. shall be in compliance with all covenants and other provisions of this Letter Agreement in all material respects; (ix) the Cargill Acknowledgement Letter (as defined below) being in full force and effect; (x) each of the Executive Management Waiver Agreements (as defined in the Loan Agreement) being in full force and effect; (xi) no actions, suits or proceedings shall be pending or threatened that challenge any Definitive Agreement, this Letter Agreement, the Loan Agreement, the Cargill Acknowledgement Letter or any related agreement; (xii) the Backstop Parties having been reasonably satisfied with (A) the Certificate of Designations setting forth the rights and preferences of the Series A Non-Voting Convertible Preferred Stock that reflects the terms set forth on Exhibit A hereto and other customary terms and provisions as determined by Greenlight in its reasonable discretion and (B) the amended and restated limited liability company agreement of the LLC setting forth the rights and preferences of the Preferred Membership Interests and, if applicable, the Class B Preferred Membership Interests, and other customary terms and provisions as determined by Greenlight in its reasonable discretion; (xiii) the receipt by the Backstop Parties of a legal opinion from Cravath, Swaine & Moore LLP with respect to customary matters in a form satisfactory to Greenlight in its reasonable

discretion; (xiv) BFE Corp. shall not have entered into any letter of intent, memorandum of understanding, agreement in principle or other agreement relating to any competing plan, proposal, offer or transaction with a third party other than Greenlight materially inconsistent with this Letter Agreement; and (xv) the Board of Directors of BFE Corp. shall have adopted Section 16b-3 Resolutions related to the issuance to the Backstop Parties of Series A Non-Voting Convertible Preferred Stock, Preferred Membership Interests, Class B Preferred Membership Interests, Common Stock and warrants and the allocation among the Greenlight Parties, of the Backstop Commitment and any purchase of Class B Preferred Membership Interests, the form of which shall be satisfactory to Greenlight in its sole discretion.

10. Registration Rights. Each of the Backstop Parties expressly waives any and all rights under Section 2.2 of the Registration Rights Agreement, dated as of June 19, 2007, by and between BioFuel and the holders of shares of BFE Common Stock identified therein (the “Existing Registration Rights Agreement”), that may arise in connection with the Rights Offering or the Concurrent Private Placement. For purposes of this Letter Agreement, “BFE Common Stock” shall mean the Common Stock and the Class B Common Stock, par value $0.01 per share, of BFE Corp. (the “Class B Common Stock”). In connection with the Rights Offering and the Concurrent Private Placement, the Existing Registration Rights Agreement will be amended and restated to provide registration rights, under certain circumstances and subject to certain restrictions to be set forth in such amended and restated agreement, with respect to the sale of shares of Common Stock that are issued to (i) the Backstop Parties and the other parties to the Existing Registration Rights Agreement in respect of any Depositary Shares that they acquire in the Rights Offering (or the Backstop Parties acquire upon exercise of their Backstop Commitment) following conversion of the Series A Non-Voting Convertible Preferred Stock, (ii) the Backstop Parties and the other parties to the Existing Registration Rights Agreement in respect of any Common Membership Interests that are issued to them following conversion of any Preferred Membership Interests that they acquire in the Concurrent Private Placement (or the Backstop Parties acquire upon exercise of their Backstop Commitment) and (iii) the Backstop Parties in respect of the Warrants (as defined in the Loan Agreement) that may be issued to them in the event that the Bridge Loan is not paid in full on or prior to March 24, 2011, in each case insofar as such Common Stock constitutes “Registrable Securities” (as defined therein).

11. Cargill. BFE Corp. has entered into an agreement, dated as of September 23, 2010 (the “Cargill Acknowledgement Letter”) with Cargill, Incorporated and its affiliates (collectively, “Cargill”), which provides that upon payment (the “Cargill Payment”) of $2,800,828 (plus accrued and unpaid interest on such amount as of the date of payment pursuant to the agreement, dated January 14, 2009, by and between BFE Corp. and certain of its affiliates and Cargill (the “Cargill Settlement Agreement”)) from the proceeds of the Rights Offering and the Concurrent Private Placement, Cargill shall forgive the remaining Payable (as defined in the Cargill Settlement Agreement) in exchange for Depositary Shares in an amount equal to the amount of the remaining Payable, which amount shall be converted into Depositary Shares at a price equal to the average of the volume weighted averages of the trading prices for the prior ten (10) day trading period of the Common Stock, ending on the second trading day immediately preceding the date the Depositary Shares are issued to Cargill (such amount of Depositary Shares, the “Cargill Depositary Shares”). BFE Corp. hereby agrees that it shall not breach, violate or terminate the Cargill Acknowledgment Letter. BFE Corp. agrees that it will not amend, waive or modify the Cargill Acknowledgement Letter without the written consent of Greenlight.

The Cargill Depositary Shares will have the same rights and preferences (including the same Conversion Ratio) as the Depositary Shares that will be issued in the Rights Offering. In order to issue the Cargill Depositary Shares, BFE Corp. will designate and issue and deposit with the depositary a number of additional shares of Series A Non-Voting Convertible Preferred Stock that corresponds to the aggregate fractional interests in shares of Series A Non-Voting Convertible Preferred Stock that the newly issued Cargill Depositary Shares represent. In the event that an insufficient number of authorized shares of Series A Non-Voting Convertible Preferred Stock are available for such issuance and deposit with the depositary, BFE Corp. will establish an alternative method for satisfying the Cargill Stock Payment that is satisfactory to it, Cargill and the Backstop Parties. Concurrent with the issuance of Cargill Depositary Shares, the LLC will issue to BFE Corp. a number of Preferred Membership Interests equal to the number of Cargill Depositary Shares.

12. Representations and Warranties of BFE Corp. BFE Corp. represents and warrants to the Backstop Parties that the statements contained in this Paragraph 12 are correct and complete as of the date of this Letter Agreement and will be true as of the closing of the Rights Offering:

(a) Organization. BFE Corp. (a) is a corporation duly organized, validly existing and in good standing under the Laws (as defined below) of the State of Delaware, (b) is duly qualified to do business as a foreign corporation and is in good standing under the Laws of each jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification, (c) has the relevant entity power and authority necessary to own or lease its properties and to carry on its businesses as currently conducted and (d) is not in breach or violation of, or default under, any provision of its organizational documents, except, in the case of clauses (b) and (c), where any failures, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Change. BFE Corp. has never approved or taken any action, nor is there any currently pending or (to BFE Corp.’s knowledge) threatened action, seeking BFE Corp.’s dissolution, liquidation or insolvency.

(b) Power and Authority; Enforceability. BFE Corp. has the relevant entity power and authority necessary to execute and deliver this Letter Agreement and each other agreement, document or writing executed or delivered in connection with the Letter Agreement and each amendment or supplement to any of the foregoing (including this Letter Agreement, the “Transaction Documents”) to which BFE Corp. is a party, and to perform and consummate the transactions contemplated hereby and thereby (the “Transactions”). BFE Corp. has taken all action necessary to authorize the execution and delivery by BFE Corp. of each Transaction Document to which BFE Corp. is party, the performance of BFE Corp.’s obligations thereunder, and the consummation by BFE Corp. of the Transactions. Each Transaction Document to which BFE Corp. is a party has been duly authorized, executed and delivered by BFE Corp., and is enforceable against BFE Corp. in accordance with its terms except as such enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other Laws relating to or affecting the rights of creditors and general principles of equity (the “Enforceability Exception”).

(c) No Violation; Necessary Approvals. The execution and the delivery by BFE Corp. of this Letter Agreement and the other Transaction Documents to which BFE Corp. is a party, the performance by BFE Corp. of BFE Corp.’s obligations hereunder and thereunder, and consummation of the Transactions by BFE Corp. will not (i) with or without notice or lapse of time, constitute, create or result in a breach or violation of, default under, loss of benefit or right under or acceleration of performance of any obligation required under any (A) law (statutory, common or otherwise), constitution, ordinance, rule, regulation, executive order or other similar authority (“Law”) enacted, adopted, promulgated or applied by any legislature, agency, bureau, branch, department, division, commission, court, tribunal or other similar recognized organization or body of any federal, state, county, municipal, local or foreign government or other similar recognized organization or body exercising similar powers or authority (a “Governmental Body”), (B) order, ruling, decision, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any Governmental Body or arbitrator (an “Order”), (C) contract, agreement, arrangement, commitment, instrument, document or similar understanding (whether written or oral), including a lease, sublease and rights thereunder (“Contract”) or permit, license, certificate, waiver, notice and similar authorization (“Permit”) to which, in the case of (A), (B) or (C), BFE Corp. is a party or by which it is bound or any of its assets are subject, or (D) any provision of the organizational documents of BFE Corp. as in effect as of the date of this Letter Agreement; except, in the case of clauses (A), (B) and (C), where any failures, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Change or a material adverse effect on its ability to complete the Transactions, (ii) result in the imposition of any material lien, claim or encumbrance (an “Encumbrance”) upon any assets (including the securities of BFE Corp.) owned by BFE Corp.; (iii) require any consent under any Contract or organizational document to which BFE Corp. is a party or by which it is bound or any of its assets are subject; (iv) require any Permit under any Law or Order other than (A) required filings, if any, with the Commission and (B) notifications or other filings with state or federal regulatory agencies after the date of this Letter Agreement that are necessary or convenient and do not require approval of the agency as a condition to the validity of the Transactions; or (v) trigger any rights of first refusal, preferential purchase or similar rights with respect to any securities of BFE Corp., other than piggyback registration rights under the Existing Registration Rights Agreement.

(d) Capitalization. BFE Corp.’s authorized equity interests consist of 155,000,000 shares, consisting of (a) 100,000,000 shares of Common Stock, (b) 50,000,000 shares of Class B Common Stock and (c) 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Stock” and, together with the BFE Common Stock, the “Capital Stock”). With respect to Common Stock, 25,465,728 shares are issued and outstanding and 809,606 shares are held in treasury. With respect to Class B Common Stock, 7,111,985 shares are issued and outstanding and 0 shares are held in treasury. With respect to Preferred Stock, 0 shares are issued and outstanding and 0 shares are held in treasury. All of the issued and outstanding shares of Capital Stock: (a) have been duly authorized and are validly issued, fully paid, and nonassessable, (b) were issued in compliance with all applicable state and federal securities Laws and (c) were not issued in breach of any commitments. Except as disclosed in BFE Corp.’s filings with the Commission, BFE Corp. has no outstanding options, warrants, exchangeable or convertible securities, subscription rights, exchange rights, statutory pre-emptive rights, preemptive rights granted under BFE Corp.’s organizational documents, stock appreciation rights, phantom stock, profit participation or similar rights, or any other right or instrument pursuant to which any person may be entitled to purchase any security of BFE Corp., and has no obligation to issue any rights or instruments. Except as disclosed in BFE Corp.’s filings with the Commission, there are no Contracts with respect to the voting or transfer of any of the Capital Stock. BFE Corp. is not obligated to redeem or otherwise acquire any of its outstanding Capital Stock.

(e) No Misstatements or Omissions. All information, other than forward-looking information and information of a general economic nature, which has been or is hereafter made available to Greenlight by or on behalf of BFE Corp. or its representatives in connection with the transactions contemplated hereby (the “Information”) is or, when furnished, will be complete, when taken as a whole, and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under, and the time at which, such statements are made. BFE Corp. hereby agrees to supplement the Information from time to time until the closing date of the Rights Offering so that the representation and warranty in the preceding sentence is correct on such date.

12A. Representations and Warranties of the LLC. The LLC represents and warrants to the Backstop Parties that, as of the date of this Letter Agreement and as of the closing of the Rights Offering: (i)(A) it has the relevant entity power and authority necessary to execute and deliver each Transaction Document to which it is a party, and to perform and consummate the Transactions, (B) it has taken all action necessary to authorize the execution and delivery by it of each Transaction Document to which it is a party, and the performance of its obligations thereunder and (C) the consummation by it of the Transactions and each Transaction Document to which it is a party has been duly authorized, executed and delivered by it, and is enforceable against it in accordance with its terms except as such enforceability may be subject to the Enforceability Exception; (ii)(A) it is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware, (B) it is duly qualified to do business as a foreign corporation and is in good standing under the Laws of each jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification, (C) it has the relevant entity power and authority necessary to own or lease its properties and to carry on its businesses as currently conducted and (D) is not in breach or violation of, or default under, any provision of its organizational documents, except, in the case of clauses (B) and (C), where any failures, individually or in the aggregate, would not reasonably be expected to have a material adverse change in the condition, financial or otherwise, or in the earnings, business, operations or properties of LLC and its subsidiaries, taken as a whole (an “LLC Material Adverse Change”); (iii) the execution and the delivery by the LLC of this Letter Agreement and the other Transaction Documents to which the LLC is a party, the performance by the LLC of the LLC’s obligations hereunder and thereunder, and consummation of the Transactions by the LLC will not (A) with or without notice or lapse of time, constitute, create or result in a breach or violation of, default under, loss of benefit or right under or acceleration of performance of any obligation required under any (w) Law enacted, adopted, promulgated or applied by any Governmental Body, (x) Order (y) Contract or Permit to which, in the case

of (w), (x) or (y), the LLC is a party or by which it is bound or any of its assets are subject, or (z) any provision of the organizational documents of the LLC as in effect as of the date of this Letter Agreement; except, in the case of clauses (w), (x) and (y), where any failures, individually or in the aggregate, would not reasonably be expected to have an LLC Material Adverse Change or a material adverse effect on its ability to complete the Transactions, (B) result in the imposition of any material Encumbrance upon any assets owned by the LLC, (C) require any consent under any Contract or organizational document to which the LLC is a party or by which it is bound or any of its assets are subject; or (D) require any Permit under any Law or Order other than (x) required filings, if any, with the Commission and (y) notifications or other filings with state or federal regulatory agencies after the date of this Letter Agreement that are necessary or convenient and do not require approval of the agency as a condition to the validity of the Transactions; and (iv) the LLC’s authorized Units (as defined in the Second Amended and Restated Limited Liability Company Agreement of the LLC) consist of 50,000,000 Units, of which 32,577,713 were outstanding on September 30, 2010 and 25,465,728 of which were owned by BFE Corp. as of such date.

12B. Power and Authority. Each Backstop Party represents and warrants to BFE Corp. with respect to itself only that (i) it has the relevant entity power and authority, if applicable, necessary to execute and deliver each Transaction Document to which it is a party, and to perform and consummate the Transactions; (ii) it has taken all action necessary to authorize the execution and delivery by it of each Transaction Document to which it is a party, and the performance of its obligations thereunder; and (iii) the consummation by it of the Transactions and each Transaction Document to which it is a party has been duly authorized, executed and delivered by it, and is enforceable against it in accordance with its terms except as such enforceability may be subject to the Enforceability Exception.

13. Expenses; Indemnification.

(a) General. Whether or not the transactions contemplated hereby are consummated, BFE Corp. and the LLC, jointly and severally, agree to: (y) pay within five (5) business days of demand the reasonable and documented fees, expenses, disbursements and charges of the Backstop Parties incurred previously or in the future relating to the exploration and discussion of alternative financing structures to the Backstop Commitment or to the preparation and negotiation of this Letter Agreement, and the proposed documentation and the transactions contemplated hereby, including, without limitation, the reasonable fees and expenses of any counsel to the Backstop Parties; and (z) indemnify and hold harmless the Backstop Parties and their respective stockholders, members and general and limited partners and the respective officers, directors, employees, affiliates, advisors, agents, attorneys, accountants and consultants of each such entity and to hold the Backstop Parties and such other persons and entities (each, an “Indemnified Person”) harmless from and against any and all losses, claims, damages, liabilities and expenses, joint or several, which any such person or entity may incur, have asserted against it or be involved in as a result of or arising out of or in any way related to this Letter Agreement, the matters referred to herein, the proposed Backstop Commitment contemplated hereby, the use of proceeds thereunder or any related transaction or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any of such Indemnified Persons is a party thereto, and to reimburse each such Indemnified Person within five (5) business days of demand for any legal or other expenses incurred in connection with any of the foregoing; provided, however, that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent they have resulted from the bad faith, willful misconduct or gross negligence of such Indemnified Person. Notwithstanding any other provision of this Letter Agreement, no Indemnified Person will be liable for any special, indirect, consequential or punitive damages in connection with its activities related to the Backstop Commitment. The terms set forth in this paragraph shall survive termination of this Letter Agreement.

(b) Tax Withholdings and Indemnity. BFE Corp. agrees not to withhold any taxes on any payments made to the Backstop Parties under this Letter Agreement; provided that to the extent BFE Corp. is required (by law or pursuant to the conclusion of any legal proceeding or the reasonable interpretation or administration thereof) to withhold, remit or pay over any taxes on any payments made to the Backstop Parties under this Letter Agreement, BFE Corp. agrees to indemnify the Backstop Parties and make them whole with respect to any and all such taxes actually withheld including any and all associated interest and penalties.

14. No Recourse. Notwithstanding anything that may be expressed or implied in this Letter Agreement, or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Letter Agreement, each of BFE Corp. and the LLC covenants, agrees and acknowledges that no personal liability shall attach to the former, current or future equity holders, controlling persons, directors, officers, employees, agents, affiliates, members, managers general or limited partners or assignees of a Backstop Party or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, affiliate, agent or assignee of any of the foregoing, whether by enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise.

15. Assignment; No Third Party Beneficiaries. This Letter Agreement (a) is not assignable by BFE Corp., the LLC or a Backstop Party without the prior consent of the other parties (and any purported assignment without such consent shall be null and void), and (b) is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights of, any person other than the parties hereto. Notwithstanding the foregoing, Greenlight may assign all or any portion of its obligations hereunder to one or more financial institutions reasonably acceptable to BFE Corp. (provided, that BFE Corp.’s consent shall not be required for such an assignment to an affiliate of Greenlight). Upon any such assignment (other than an assignment without BFE Corp.’s consent), the obligations of Greenlight in respect of the portion of their obligations so assigned shall terminate.

16. Governing Law; Jurisdiction. This Letter Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York regardless of the laws that might otherwise govern under applicable principles of conflicts of laws in the State of New York. The parties hereby irrevocably submit to the personal jurisdiction of the courts of the State of New York located in New York County, New York, and the Federal courts of the United States of America located in the State of New York, New York County, solely in respect of the interpretation and enforcement of the provision of this Letter Agreement and of the documents referred to in this Letter Agreement, and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any such document, that

is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Letter Agreement or any such document may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a New York State or Federal court. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and, to the extent permitted by law, over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner as may be permitted by law shall be valid and sufficient service thereof.

17. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Letter Agreement is likely to involve complicated and difficult issues, and therefore each such party hereby irrevocably and unconditionally waives any such right such party may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or relating to this Letter Agreement, or any of the transactions contemplated by this Letter Agreement. Each party certifies and acknowledges that (i) no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver, (ii) each party understands and has considered the implications of this waiver, (iii) each party makes this waiver voluntarily and (iv) each party has been induced to enter into this Letter Agreement by, among other things, the mutual waivers and certifications expressed above.

18. Amendment; Waiver; Counterparts. This Letter Agreement may not be amended, modified or waived except in a writing signed by Greenlight, BFE Corp. and Third Point Loan LLC. This Letter Agreement may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of this Letter Agreement by facsimile or e-mail shall be effective as delivery of a manually executed counterpart of this Letter Agreement.

19. Termination. The obligations of the Backstop Parties under this Letter Agreement shall terminate immediately, at Greenlight’s election, at any time prior to the consummation of the Rights Offering upon the occurrence of any of the following: (i) the termination of the Loan Agreement; (ii) BFE Corp. entering into a definitive agreement with respect to a Substitute Transaction; (iii) if in the reasonable judgment of Greenlight, the conditions in Paragraph 9 become incapable of being satisfied prior to January 24, 2011; (iv) a Material Adverse Change has occurred; (v) any condition set forth in Paragraphs 9(iv) or 9(viii) of this Letter Agreement cannot be cured or satisfied with the passage of time or, if capable of being cured or satisfied, cannot be cured or satisfied prior to March 24, 2011; (vii) the Common Stock shall no longer be listed on a national securities exchange; or (vii) BFE Corp.’s adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law. Further, each of Greenlight or BFE Corp. may terminate this Letter Agreement at any time upon five (5) business days’ prior written notice upon the occurrence of any of the following events: (x) another party’s material breach of any of the representations, warranties or covenants set forth in this Letter Agreement or with respect to the consummation of the Rights Offering or the Concurrent Private Placement that remains uncured for a period of five (5) business days after the receipt by the non-terminating party of notice of such breach or (y) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any ruling or order enjoining the consummation of a material portion of the Rights Offering, the Concurrent Private Placement or any related transactions. The Letter Agreement, and the obligations of the parties hereunder, may be terminated by mutual agreement between the parties.

20. Alternative Transactions. Notwithstanding anything to the contrary in this Letter Agreement, BFE Corp. shall be permitted to solicit, participate in, initiate or facilitate discussions or negotiations with, or provide any information to, any person or group of persons concerning any alternative equity financing or other transaction that would result in the (a) repayment in full of all amounts outstanding under the Bridge Loan, (b) repayment in full of all amounts under the Mezzanine Loan Agreement and (c) satisfy all obligations under the Cargill Acknowledgement Letter (a “Substitute Transaction”). If, as a result of such activities, the Board of Directors of the Company (the “Board”) (excluding any Board member that is an affiliate of Greenlight) determines in good faith after consultation with outside legal counsel and independent financial advisors that (i) it has the opportunity to enter into a Substitute Transaction that will be consummated within a timeframe that is not materially longer than the anticipated timeframe for the Rights Offering and the Concurrent Private Placement but in no event later than February 1, 2011, and (ii) such Substitute Transaction is more favorable to the holders of Common Stock (excluding benefits arising to the Backstop Parties by virtue of the Backstop Commitment) than the Rights Offering and the Concurrent Private Placement (taking into account all the terms and conditions of such Substitute Transaction that the Board deems relevant including, without limitation, any break-up fee provisions, expense reimbursement provisions, conditions to closing and availability of necessary financing) and is reasonably likely to be consummated prior to February 1, 2011, then the Company shall deliver three (3) business days prior notice to Greenlight of its intention to enter into such Substitute Transaction, together with reasonable details concerning the terms and conditions of such Substitute Transaction. After such three (3) business day period, (x) the Board shall be permitted to approve the Substitute Transaction, (y) BFE Corp. shall be permitted to enter into such Substitute Transaction and (z) BFE Corp. shall be permitted to terminate this Letter Agreement; so long as in each case (A) the Substitute Transaction continues to meet the requirements of clause (ii) of this Paragraph 20 and (B) upon execution of definitive documentation relating to a Substitute Transaction, BFE will pay to the Backstop Parties an aggregate break-up fee (to be allocated among the Backstop Parties in accordance with their Commitment Percentages) a sum in cash equal to $350,000 (the “Termination Fee”). For purposes of clarity, the Option Premium shall also remain payable, in addition to the Termination Fee. The proceeds of a Substitute Transaction shall be used, promptly upon consummation of such Substitute Transaction, to (a) first, repay in full all amounts outstanding under the Bridge Loan, (b) second, repay in full all amounts under the Mezzanine Loan Agreement and (c) third, satisfy all obligations under the Cargill Acknowledgement Letter.

21. Entire Agreement. This Letter Agreement constitutes the entire understanding among the parties hereto with respect to the subject matter hereof and replaces and supersedes all prior agreements and understandings, both written on oral, between the parties hereto with respect to the subject matter hereof and shall become effective and binding upon the mutual exchange of fully executed counterparts.

22. Stockholder Approval of Securities. BFE Corp. hereby agrees that, upon completion of the Rights Offering, it shall use commercially reasonable best efforts to obtain stockholder approval of the authorization of the Common Stock issuable upon conversion of the Series A Non-Voting Convertible Preferred Stock and issuable upon the exchange on a one-for-one basis of all Common Membership Interests that would be received by the Eligible LLC Members following the conversion of all Preferred Membership Interests they receive in the Concurrent Private Placement for Common Membership Interests. In furtherance of, and not in limitation of the foregoing, BFE Corp. shall use commercially reasonable best efforts to file a proxy statement with the Commission for such stockholder approval by November 15, 2010 (but in any event BFE Corp. shall file such proxy statement by January 1, 2011) and use its best efforts to obtain such stockholder approval by January 24, 2011 (provided such stockholder holder approval shall not be a condition to consummation of the Rights Offering). Notwithstanding the foregoing, a failure to file such proxy statement with the Commission by November 15, 2010 despite the use of commercially reasonable best efforts to do so by BFE Corp. shall not be deemed a violation or failure to comply with this Letter Agreement for purposes of Paragraph 9 hereof nor an Event of Default under the Loan Agreement; provided, however that if BFE Corp. has not used such commercially reasonable best efforts then there shall be deemed to be a failure to have complied with the conditions in Paragraph 9 hereof.

23. Remain Public Company. BFE Corp. hereby agrees that until the Rights Offering has been completed, it shall use commercially reasonable best efforts to remain a public company with its securities publicly-traded on a national securities exchange.

24. Voting Agreements. On the date hereof, Greenlight entered into an Amended and Restated Voting Agreement with BFE Corp. (the “Greenlight Voting Agreement”) and Third Point Loan LLC entered into an Amended and Restated Voting Agreement with BFE Corp. (the “Third Point Voting Agreement”).

25. Due Diligence. BFE Corp. agrees to make available to the Backstop Parties all reasonably requested due diligence materials (including access to BFE Corp. personal and agents), including, without limitation, due diligence materials related to tax, regulatory and other legal items.

If the foregoing is in accordance with your understanding of our agreement, please sign this letter in the space indicated below and return it to us.


	Very truly yours,

[Signature Page Follows]


	GREENLIGHT CAPITAL OFFSHORE PARTNERS
	By:	Greenlight Capital, Inc., its investment manager


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL, LP
	By:	Greenlight Capital, LLC, its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL QUALIFIED, L.P.
	By:	Greenlight Capital, LLC, its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT REINSURANCE, LTD.
	By:	DME Advisor, L.P., its investment manager


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL (GOLD), LP
	By:	DME Management GP, LLC, its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL OFFSHORE MASTER (GOLD), LTD.
	By:	DME Capital Management, LP, its investment manager


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	THIRD POINT LOAN LLC
	By:	/s/ James P. Gallagher
		James P. Gallagher
		Chief Administrative Officer

	THIRD POINT ADVISORS, LLC
	By:	/s/ James P. Gallagher
		James P. Gallagher
		Chief Administrative Officer


The foregoing is hereby accepted and agreed to in all respects by the undersigned: BIOFUEL ENERGY CORP.
/s/ Scott H. Pearce
Name:	Scott H. Pearce
Title:	President and CEO

BIOFUEL ENERGY, LLC
/s/ Scott H. Pearce
Name:	Scott H. Pearce
Title:	President and CEO

EXHIBIT A

SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK

The Amended and Restated Certificate of Incorporation (the “Certificate”) of BioFuel Energy Corp. (“BFE Corp.”) authorizes 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Stock”), and permits the Board of Directors of BFE Corp. (the “Board”), by resolution, to provide, out of unissued shares of Preferred Stock, for series of Preferred Stock. With respect to each such series, the Certificate permits the Board to fix the number of shares constituting such series and the designation of such series, and the voting powers (if any) of the shares of such series, preferences and relative, participating, optional or other special rights or privileges, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series. Pursuant to the authority granted by the Certificate, the Board has, by resolution dated September 24, 2010, provided for the issuance of shares of Series A Non-Voting Convertible Preferred Stock (“Series A Non-Voting Convertible Preferred Stock”) with the characteristics set forth below. Capitalized terms not otherwise defined shall have the meanings assigned to such terms in the Rights Offering Letter Agreement to which this Exhibit A is attached.


Liquidation Preference:		In the event of any liquidation, dissolution or winding up of BFE Corp. (each, a “*Liquidation Event*”), the proceeds of such Liquidation Event shall be paid as follows:
		First, the holders of Series A Non-Voting Convertible Preferred Stock shall receive an amount equal to the Rights Price multiplied by the quotient obtained by dividing the total number of Depositary Shares actually purchased in the Rights Offering (by the Eligible Common Stockholders) and pursuant to the Rights Offering Backstop Commitment (by the Backstop Parties) by 2,000,000 for each share of Series A Non-Voting Convertible Preferred Stock. The balance of any proceeds from a Liquidation Event shall be distributed pro rata among the holders of the Common Stock.

Dividends:		The Series A Non-Voting Convertible Preferred Stock will be paid a dividend or have a distribution made to it (as applicable) if, and when, such dividend or distribution is paid or made (as applicable) to the holders of Common Stock (payable on a per share basis in proportion to the number of shares of Common Stock that each share of Series A Non-Voting Convertible Preferred Stock is convertible into).


Voting Rights:		The holders of Series A Non-Voting Convertible Preferred Stock will have no voting rights, except that the consent of at least a majority of the outstanding shares of Series A Non-Voting Convertible Preferred Stock (in the aggregate, voting as a class) will be required to (i) authorize or issue additional shares of Series A Non-Voting Convertible Preferred Stock of the same series, (ii) authorize or issue any other series of preferred equity securities which are senior or on parity with respect to liquidation or dividend payments to the Series A Non-Voting Convertible Preferred Stock or (iii) amend the Certificate or Bylaws of BFE Corp. (the “*Bylaws*”) to adversely affect the rights, preferences or privileges of the Series A Non-Voting Convertible Preferred Stock.

Automatic Conversion:		All shares of Series A Non-Voting Convertible Preferred Stock shall automatically convert into shares of Common Stock as set forth in Paragraph 2 of the Rights Offering Letter Agreement to which this Exhibit A is attached promptly following stockholder approval (by the affirmative vote of the holders of outstanding BFE Common Stock) of the authorization and issuance of the Common Stock issuable upon conversion of all Series A Non-Voting Convertible Preferred Stock and issuable upon the exchange on a one-for-one basis of all Common Membership Interests that would be received by the Eligible LLC Members following the conversion of all Preferred Membership Interests they receive in the Concurrent Private Placement for Common Membership Interests.

EXHIBIT B

PREFERRED MEMBERSHIP INTERESTS

In connection with the Concurrent Private Placement (as defined in the Rights Offering Letter Agreement to which this Exhibit B is attached), the Second Amended and Restated Limited Liability Company Agreement (the “LLC Agreement”) of BioFuel Energy, LLC (“LLC”) will be amended to provide for preferred membership interests (“Preferred Membership Interests”) with the characteristics set forth below. Capitalized terms not otherwise defined shall have the meanings assigned to such terms in the Rights Offering Letter Agreement to which this Exhibit B is attached.


Liquidation Preference:		In the event of the voluntary or involuntary liquidation, dissolution or winding up of the LLC, the holder of each Preferred Membership Interest will be entitled to receive and to be paid out of the assets available for distribution to the members of the LLC, before any payment or distribution is made to holders of the Common Membership Interests, a liquidation preference per Preferred Membership Interest in an amount equal to the Rights Price. After payment of the full amount of the liquidation preference to which they are entitled, the holders of the Preferred Membership Interests will have no right or claim to any of the LLC’s remaining assets in the event of the LLC’s liquidation, dissolution or winding up.

Dividends:		The Preferred Membership Interests will be entitled to pro rata distributions from the LLC, on an equivalent one-to-one basis with the Common Membership Interests, including the right to receive authorized distributions, including distributions to fund tax liabilities.

Voting Rights:		Holders of Preferred Membership Interests will generally not have any voting rights in the LLC. However, the LLC will not, without the approval of the holders of at least a majority of the Preferred Membership Interests, (i) authorize or issue additional Preferred Membership Interests (provided that no such approval shall be required in respect of any Preferred Membership Interests to be authorized and issued in connection with the Cargill Stock Payment) or (ii) authorize or issue any other series of preferred interests which are


		senior or on parity with respect to liquidation or dividend payments to the Preferred Membership Interests (provided that no such approval shall be required in respect of any Class B Preferred Membership Interests to be authorized and issued in connection with a LLC Backstop Reallocation). In addition, the LLC Agreement shall not be amended in such a way as would adversely affect the holders of the Preferred Membership Interests, in their capacity as such, without the approval of the holders of at least a majority of the Preferred Membership Interests then outstanding.

Automatic Conversion:		Following stockholder approval (by the affirmative vote of the holders of outstanding BFE Common Stock) of the authorization and issuance of the Common Stock issuable upon conversion of all Series A Non-Voting Convertible Preferred Stock and issuable upon the exchange on a one-for-one basis of all Common Membership Interests that would be received by the Eligible LLC Members following the conversion of all Preferred Membership Interests they receive in the Concurrent Private Placement for Common Membership Interests, all Preferred Membership Interests will automatically convert into Common Membership Interests and the holders of the Preferred Membership Interests (other than BFE Corp.) will also receive one share of Class B Common Stock for each Common Membership Interest received upon conversion.

EXHIBIT C

BACKSTOP PARTIES


Entity	Commitment Percentage
Greenlight Parties		66.7	%
Third Point Loan LLC		33.3	%

EX-10.2 3 c09813exv10w2.htm EXHIBIT 10.2 Exhibit 10.2

Exhibit 10.2

EXECUTION VERSION

AMENDED AND RESTATED VOTING AGREEMENT

AMENDMENT AND RESTATEMENT to the Voting Agreement among BioFuel Energy Corp., a Delaware corporation (the “Company”), and each of the Persons listed on Schedule I attached hereto (including, with their permitted transferees or assigns, collectively, the “Stockholders”) dated as of September 24, 2010 (the “Original Voting Agreement”), is entered into as of December 14, 2010 (this “Agreement”)

WHEREAS, the Stockholders and the Company desire to amend and restate the Original Voting Agreement pursuant to Section 4.8 (Amendments) of the Original Voting Agreement.

NOW, THEREFORE, it is hereby agreed that the Original Voting Agreement is hereby amended and restated in its entirety to read as follows:

This Agreement is entered into by and among the Company and the Stockholders. This Agreement shall become effective immediately upon the consummation of that certain proposed registered rights offering for depositary shares (the “Depositary Shares”) representing fractional interests in shares of Series A Non-Voting Convertible Preferred Stock of the Company (the “Rights Offering”) as further described in that certain Loan Agreement dated as of September 24, 2010 and Amended and Restated Rights Offering Letter Agreement dated as of the date hereof, each by and among the Company, each of the Stockholders and the other signatories thereto (the “Loan Agreement” and the “Rights Offering Letter Agreement”, respectively).

AGREEMENT

NOW, THEREFORE, in consideration of the premises and respective covenants and agreements set forth in this Agreement and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties agree as follows:

ARTICLE I.

VOTING

Section 1.1 Agreement to Vote. Each Stockholder hereby agrees to vote each share of voting capital stock of the Company that such Stockholder currently holds or subsequently acquires (hereinafter the “Stockholder Shares”), at regular and special meetings of the Company’s stockholders (or by written consent) in accordance with and subject to the provisions of this Agreement.

Section 1.2 Manner of Voting. The voting of Stockholder Shares pursuant to this Agreement may be effected in person, by proxy, by written consent, or in any other manner permitted by the laws of the State of Delaware.

Section 1.3 Grant of Proxy. Should the provisions of this Agreement be construed to constitute the granting of proxies, such proxies shall be deemed coupled with an interest and are irrevocable for the term of this Agreement.

ARTICLE II.

BOARD OF DIRECTORS

Section 2.1 Size and Composition of Board of Directors. The size and composition of the Board of Directors of the Company shall be determined in accordance with the provisions of the Company’s Amended and Restated Certificate of Incorporation, in each case as in effect from time to time (the “Restated Certificate”) and the Company’s By-Laws (the “By-Laws”).

Section 2.2 Election of Non-Affiliated Directors. Subject to the provisions of the Restated Certificate and By-Laws, effective as of the date of the consummation of the Rights Offering, each Stockholder agrees that at each annual meeting of the Company’s stockholders, at any other meeting of the Company’s stockholders at which members of the Board are to be elected, and whenever members of the Board are to be elected by written consent, such Stockholder shall vote or act with respect to all of its Stockholder Shares so as to elect Director nominees that are not Affiliates of any or all of the Stockholders such that at least two directors are not Affiliates of any or all of the Stockholders; provided that the Company nominates one or more Director nominees that are not Affiliates of any or all of the Stockholders; and provided further that there are at least five directors on the Board.

Section 2.3 Approval of Proposals Contemplated by the Company’s Proxy Statement. Each Stockholder agrees that at a meeting of the Company’s stockholders at which the Company, as contemplated by the Company’s Preliminary Proxy Statement filed on November 15, 2010, proposes to seek stockholder approval in order to (a) amend its Restated Certificate so as to increase the number of authorized but unissued shares of Common Stock from 100,000,000 to 140,000,000 and Class B Common Stock from 50,000,000 to 75,000,000, and (b) authorize and approve, pursuant to NASDAQ Rule 5635(d), (i) the issuance of all shares of Common Stock issuable upon the conversion of all shares of Series A Non-Voting Convertible Preferred Stock underlying the Depositary Shares purchased in connection with the Rights Offering (or pursuant to the Backstop Commitment) and issued pursuant to the Cargill Stock Payment, (ii)(A) the issuance of all shares of Class B Common Stock issuable upon the conversion of all Preferred Membership Interests and Class B Preferred Membership Interests (if any) in BioFuel Energy, LLC (the “LLC”) that holders of Common Membership Interests in the LLC (other than BioFuel Energy Corp.) purchase in the LLC’s Concurrent Private Placement (or pursuant to the Backstop Commitment) and (B) the issuance of all shares of Common Stock issuable upon the elective exchange of Common Membership Interests in the LLC received by such persons following the conversion of all Preferred Membership Interests in the LLC and (iii) the issuance of the Warrants (as defined in the Loan Agreement) and of all shares of Common Stock issuable upon the exercise of the Warrants assuming that such Warrants are issued, it will vote in favor of each such proposal. For purposes of this Section 2.3, the terms Backstop Commitment, Cargill Stock Payment, Class B Preferred Membership Interests, Common Membership Interests, Concurrent Private Placement and Preferred Membership Interests shall have the meanings assigned to them in the Rights Offering Letter Agreement.

Section 2.4 No Limitation on Other Voting Rights. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall limit or restrict a Stockholder from acting in its sole discretion on any matter other than those referred to in this Agreement.

ARTICLE III.

CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 3.1 Ownership, Authority, Etc. Each Stockholder represents and warrants it has full power and capacity to execute, deliver and perform this Agreement, which has been duly executed and delivered by, and evidences the valid and binding obligation of, such Stockholder.

Section 3.2 No Voting or Conflicting Agreements. No Stockholder shall: (a) except as contemplated by Section 3.3 hereof, grant any proxy, (b) enter into or agree to be bound by any voting trust, (c) enter into any stockholder agreements or arrangements of any kind with any Person (whether or not such agreements or arrangements are with other stockholders of the Company that are not a party to this Agreement) or (d) act, for any reason, as a member of a group or in concert with any other Persons in any manner which is inconsistent with the provisions of this Agreement.

Section 3.3 Covenant to Vote. Each Stockholder shall appear in person or by proxy at any annual or special meeting of the Company’s stockholders for the purpose of establishing a quorum, and shall vote such Stockholder’s Shares upon any matter submitted to the Company’s stockholders in a manner not inconsistent or in conflict with, and to implement, the terms of this Agreement.

Section 3.4 Covenants of the Company.

The Company agrees to use its reasonable best efforts to propose nominees for directors that are not Affiliates of any or all of the Stockholders, so as to enable the Stockholders to comply with their obligations contemplated by Section 2.2.

ARTICLE IV.

MISCELLANEOUS

Section 4.1 Term. This Agreement shall terminate and be of no further force or effect upon the earliest to occur of (a) at such time as the Company’s Common Stock is no longer traded on a national securities exchange, (b) five years from the date of this Agreement, (c) the date as of which the parties hereto terminate this Agreement by the written consent of the holders of a majority of the Stockholder Shares then outstanding on the one hand, and the Company, on the other hand; and (d) date as of which the Stockholder Shares represent less than 15% of the Company’s issued and outstanding voting capital stock.

Section 4.2 Entire Agreement. This Agreement, together with the Schedules hereto and any certificates, documents, instruments and writings that are delivered pursuant hereto, constitutes the entire agreement and understanding of the parties in respect of the subject matter hereof and supersedes all prior understandings, agreements or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof. Except as provided in Section 4.3, there are no third party beneficiaries having rights under or with respect to this Agreement.

Section 4.3 Binding Effect; Assignment. The Company may not assign its rights under this Agreement. A transferee that is not an Affiliated Person of a Stockholder shall not be bound by the terms and conditions of this Agreement. No Stockholders may transfer Stockholder Shares to an Affiliated Person (whether by merger or otherwise by operation of law) unless such Affiliated Person shall agree to be bound by the terms hereof pursuant to the form set forth in Exhibit A.

Section 4.4 Notices. All notices, requests and other communications provided for or permitted to be given under this Agreement must be in writing and shall be given by personal delivery, by certified or registered United States mail (postage prepaid, return receipt requested), by a nationally recognized overnight delivery service for next day delivery, or by facsimile transmission, as follows (or to such other address as any party may give in a notice given in accordance with the provisions hereof):

If to a Stockholder:

Greenlight Capital, Inc.
140 E. 45 Street — 24fl.
New York, New York 10017
Phone: (212) 973-1900
Fax: 212-973-9219
Attn: Daniel Roitman

With a copy to (which does not constitute notice):

Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Phone: (212) 872-1095
Fax: (212) 872-1002
Attn: Kerry E. Berchem, Esq.

If to the Company:

BioFuel Energy Corp.
1600 Broadway, Suite 2200
Denver, Colorado 80202
Phone: (303) 640-6500
Fax: (303) 592-8117
Attn: President

With a copy to (which does not constitute notice):

Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New York 10019
Phone: (212) 474-1000
Fax: (212) 474-3700
Attn: Craig F. Arcella

All notices, requests or other communications will be effective and deemed given only as follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified or registered mail, on the fifth business day after being deposited in the United States mail, (iii) if sent for next day delivery by overnight delivery service, on the date of delivery as confirmed by written confirmation of delivery, or (iv) if sent by facsimile, upon the transmitter’s confirmation of receipt of such facsimile transmission, except that if such confirmation is received after 5:00 p.m. (in the recipient’s time zone) on a business day, or is received on a day that is not a business day, then such notice, request or communication will not be deemed effective or given until the next succeeding business day. Notices, requests and other communications sent in any other manner, including by electronic mail, will not be effective.

Section 4.5 Submission to Jurisdiction; Waiver of Jury Trial.

(a) Submission to Jurisdiction. Any action, suit or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby may be brought in any federal court located in the State of Delaware or any Delaware state court, and each party consents to the non-exclusive jurisdiction and venue of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such, action, suit or proceeding in any such court or that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, service of process on such party as provided in Section 4.4 shall be deemed effective service of process on such party.

(b) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS SECTION 4.5(b).

Section 4.6 Headings. The article and section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

Section 4.7 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law principles.

Section 4.8 Amendments. The Company will amend Schedule I promptly to reflect transfers to Affiliates as contemplated by this Agreement. An amendment or modification to any provision of this Agreement will require the written consent of the Company and the holders of at least a majority of the Stockholder Shares.

Section 4.9 Extensions; Waivers. (a) The Company may extend the time for the performance of any of the obligations of the Stockholders under this Agreement, and the Stockholders may extend the time for the performance of any of the obligations of the Company under this Agreement; (b) the Company may waive any inaccuracies in the representations and warranties of the Stockholders contained herein or in any document delivered pursuant hereto, and the Stockholders may waive any inaccuracies in the representations and warranties of the Company contained herein or in any document delivered pursuant hereto; and (c) the Company may waive compliance with any of the agreements or conditions for the benefit of the Company contained herein, and the Stockholders may collectively waive compliance with any of the agreements or conditions for the benefit of the Stockholders contained herein. Any such extension or waiver will be valid only if set forth in a writing signed by the party or parties to be bound thereby. No waiver by any party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising because of any prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise of the same or of any other right or remedy.

Section 4.10 Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party or to any circumstance, is judicially determined not to be enforceable in accordance with its terms, the parties agree that the court judicially making such determination may modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its modified form, such provision will then be enforceable and will be enforced.

Section 4.11 Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. This Agreement will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

Section 4.12 Construction. This Agreement has been freely and fairly negotiated among the parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. Any reference to any law will be deemed to refer to such law as in effect on the date hereof and all rules and regulations promulgated thereunder, unless the context requires otherwise. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties intend that each representation, warranty, and covenant contained herein will have independent significance. If any party has breached any covenant contained herein in any respect, the fact that there exists another covenant relating to the same subject matter (regardless of the relative levels of specificity) which the party has not breached will not detract from or mitigate the fact that the party is in breach of the first covenant.

Section 4.13 Aggregation of Stock. All Stockholder Shares owned or acquired by any Stockholder or its Affiliated Persons shall be aggregated together for the purpose of determining the availability of any right under this Agreement.

Section 4.14 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“Affiliate” means, with respect to any Person, (i) any other Person of which securities or other ownership interests representing more than 50% of the voting interests are, at the time such determination is being made, owned, Controlled or held, directly or indirectly, by such Person or (ii) any other Person which, at the time such determination is being made, is Controlling, Controlled by or under common Control with, such Person. As used herein, “Control”, whether used as a noun or verb, refers to the possession, directly or indirectly, of the power to direct, or cause the direction of, the management or policies of a Person, whether through the ownership of voting securities or otherwise.

“Person” means any individual, firm, corporation, company, partnership, trust, incorporated or unincorporated association, limited liability company, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger or otherwise) of any such entity.

Section 4.15 Incorporation of Exhibits and Schedules. The exhibits and schedules identified in this Agreement are incorporated by reference herein and made a part hereof.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.


	GREENLIGHT CAPITAL OFFSHORE PARTNERS
	By:	Greenlight Capital, Inc., its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL, LP
	By:	Greenlight Capital, LLC, its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL QUALIFIED, L.P.
	By:	Greenlight Capital, LLC, its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT REINSURANCE, LTD.
	By:	DME Advisor, LP, its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL (GOLD), LP
	By:	DME Management GP, LLC, its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL OFFSHORE MASTER (GOLD), LTD.
	By:	DME Capital Management, LP, its general partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


Accepted and Agreed: BIOFUEL ENERGY CORP.
By:	/s/ Scott H. Pearce
Name:		Scott H. Pearce
Title:		President and CEO

EXECUTION VERSION

SCHEDULE I

STOCKHOLDER

Greenlight Capital, L.L.C.

Greenlight Capital, Inc.

Greenlight Capital, L.P.

Greenlight Capital Qualified, L.P.

Greenlight Capital Offshore Partners

DME Advisors GP, L.L.C.

DME Advisors, L.P.

Schedule I

EXHIBIT A

ADOPTION AGREEMENT

This Adoption Agreement (“Adoption Agreement”) is executed by the undersigned (the “Affiliated Transferee”) pursuant to the terms of that certain Amended and Restated Voting Agreement dated as of _____, 2010 (the “Agreement”) by and among the Company and certain of its stockholders. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Adoption Agreement, the Transferee agrees as follows:

	(a)		Acknowledgment. The Affiliated Transferee acknowledges that the Transferee is acquiring certain shares of the capital stock of the Company (the “*Stock*”), subject to the terms and conditions of the Agreement;

	(b)		Agreement. The Affiliated Transferee: (i) agrees that the Stock acquired by the Transferee, and any Stock acquired by the Affiliated Transferee in the future, shall be bound by and subject to the terms of the Agreement, and (ii) hereby adopts the Agreement with the same force and effect as if the Affiliated Transferee were originally a party thereto; and

	(c)		Notice. Any notice required or permitted by the Agreement shall be given to the Transferee at the address listed beside the Affiliated Transferee’s signature below.

EXECUTED AND DATED this _____ day of _____, 201[ ].


	AFFILIATED TRANSFEREE:

	Name:
	Title:
	Address:
	Facsimile:


Accepted and Agreed: BIOFUEL ENERGY CORP.
By:
Name:
Title:

A-1

EX-10.3 4 c09813exv10w3.htm EXHIBIT 10.3 Exhibit 10.3

Exhibit 10.3

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated as of December 15, 2010 is entered into by and among BioFuel Energy Corp., a Delaware corporation (the “Company”), and certain holders of securities of the Company party to this Agreement (collectively, the “Investor Parties”).

A. The persons, including the Investor Parties, listed on Schedule A hereto (the “Existing Investors”) are party, with the Company, to a Registration Rights Agreement dated as of June 19, 2007 (the “Existing Registration Rights Agreement”), pursuant to which the Company is obligated to register, subject to the terms and conditions set forth therein, shares of common stock of the Company, par value $0.01 per share (the “Common Stock”), held by such Existing Investors and their respective permitted assignees and transferees, including shares of Common Stock deliverable or delivered in exchange for the Units (as defined below) (all such outstanding or deliverable or delivered shares of Common Stock constituting “Registrable Securities” under the Existing Registration Rights Agreement, the “Existing Registrable Securities”);

B. The Investor Parties hold at least fifty percent (50%) of the outstanding Existing Registrable Securities;

C. The Investor Parties and the Company wish to amend and restate the Existing Registration Rights Agreement, pursuant to Section 3.9 of the Existing Registration Rights Agreement, to read as set forth herein;

D. In addition to the Existing Registrable Securities, certain of the Existing Investors (including certain of the Investor Parties) are holders, or will become holders, of (i) shares of Series A Non-Voting Convertible Preferred Stock of the Company (the “Series A Preferred Stock”) or depositary shares in respect thereof, which shall automatically convert into shares of Common Stock as described in the Certificate of Designation (as defined below) and (ii) warrants that, in the event that the Company fails to repay the Loan (as defined in the Bridge Loan Agreement (as defined below)) at maturity, will entitle the holders to a right to purchase shares of Common Stock as described in the Loan Agreement (the “Warrant”); and

E. The Company desires to provide the Existing Investors with registration rights with respect to the Existing Registrable Securities and the shares of Common Stock underlying the Series A Preferred Stock and the Warrant.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the Existing Registration Rights Agreement is amended and restated to read, and the parties hereto agree, as follows:

ARTICLE I

CERTAIN DEFINED TERMS

Section 1.1 DEFINITIONS. For purposes of this Agreement:

(a) “A&R Rights Offering Letter Agreement” means that certain Amendment and Restatement to the Rights Offering Letter Agreement among Greenlight Capital, LP, Greenlight Capital Qualified, LP, Greenlight Capital (Gold), LP, Greenlight Capital Offshore Partners, Greenlight Capital Offshore Master (Gold), Ltd., Greenlight Reinsurance, Ltd., Third Point Loan LLC, Third Point Advisors, LLC and BioFuel Energy Corp. dated as of December 14, 2010.

(b) “Affiliate” means, with respect to any Person, (i) any other Person of which securities or other ownership interests representing more than fifty percent (50%) of the voting interests are, at the time such determination is being made, owned, Controlled or held, directly or indirectly, by such Person or (ii) any other Person which, at the time such determination is being made, is Controlling, Controlled by or under common Control with, such Person. As used herein, “Control”, whether used as a noun or verb, refers to the possession, directly or indirectly, of the power to direct, or cause the direction of, the management or policies of a Person, whether through the ownership of voting securities or otherwise.

(d) “Bridge Loan Agreement” means the Bridge Loan Agreement, dated September 24, 2010, by and among the Company, Greenlight APE, L.L.C. as administrative agent and the lender parties identified therein, as amended, modified, supplemented or restated from time to time.

(e) “Certificate of Designation” means the Certificate of Designation of the Series A Non-Voting Convertible Preferred Stock of BioFuel Energy Corp., to be entered into upon consummation of the rights offering contemplated by the A&R Rights Offering Letter Agreement.

(f) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

(g) “FINRA” means the Financial Industry Regulatory Authority, Inc.

(h) “Holder” means a Person that (i) is a party to this Agreement (or a permitted transferee under Section 2.11 hereof) or a party to the Existing Registration Rights Agreement (or a permitted transferee under Section 2.11 thereof) and (ii) owns Registrable Securities.

(i) “LLC Agreement” means the BFE LLC Third Amended and Restated LLC Agreement, to be entered into upon consummation of the rights offering contemplated by the A&R Rights Offering Letter Agreement, among the Company and the members of BFE LLC, as the same may be amended, modified, supplemented or restated from time to time.

(j) “Participating Holders” means Holders participating, or electing to participate, in an offering of Registrable Securities.

(k) “Person” means any individual, firm, corporation, company, partnership, trust, incorporated or unincorporated association, limited liability company, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger or otherwise) of any such entity.

(l) “Registrable Securities” means shares of Common Stock held by Holders, including shares of Common Stock deliverable or delivered (i) in exchange for Units pursuant to the LLC Agreement and the organizational documents of the Company, (ii) upon conversion of the Series A Preferred Stock (or depositary shares in respect thereof) or (iii) upon exercise of the Warrant; provided, however, that equity interests that are considered to be Registrable Securities shall cease to be Registrable Securities (A) upon the sale thereof pursuant to an effective registration statement, (B) upon the sale thereof pursuant to Rule 144 (or successor rule under the Securities Act), (C) when such securities cease to be outstanding or (D) when such securities become eligible for sale under Rule 144 (or successor rule under the Securities Act), without any volume limitations under such Rule.

(m) “Registration Expenses” mean all expenses (other than underwriting discounts and commissions) arising from or incident to the performance of, or compliance with, this Agreement, including, without limitation, (i) SEC, stock exchange, FINRA and other registration and filing fees, (ii) all fees and expenses incurred in connection with complying with any securities or blue sky laws (including fees, charges and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities), (iii) all printing, messenger and delivery expenses, (iv) the fees, charges and disbursements of counsel to the Company and of its independent public accountants and any other accounting and legal fees, charges and expenses incurred by the Company (including any expenses arising from any special audits or “comfort letters” required in connection with or incident to any registration), (v) the fees, charges and disbursements of any special experts retained by the Company in connection with any registration pursuant to the terms of this Agreement, (vi) all internal expenses of the Company (including all salaries and expenses of its officers and employees performing legal or accounting duties), (vii) the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange and (viii) Securities Act liability insurance (if the Company elects to obtain such insurance), regardless of whether any Registration Statement filed in connection with such registration is declared effective.

(n) “Registration Expenses” shall also include fees, charges and disbursements of one (1) firm of counsel to all of the Participating Holders participating in any underwritten public offering pursuant to Article II hereof (which shall be selected by a majority, based on the number of Registrable Securities to be sold, of the Participating Holders).

(o) “Registration Statement” means any Registration Statement of the Company filed with the SEC on the appropriate form pursuant to the Securities Act which covers any of the Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the prospectus contained therein, all exhibits thereto and all materials incorporated by reference therein.

(p) “Rights Offering Letter Agreement” means the Rights Offering Letter Agreement, dated September 24, 2010, by and among the Company and the lender parties identified therein, as amended, modified, supplemented or restated from time to time.

(q) “SEC” means the United States Securities and Exchange Commission.

(r) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

(s) “Selling Expenses” means the underwriting fees, discounts, selling commissions and stock transfer taxes applicable to all Registrable Securities registered by the Participating Holders.

(t) “Units” means (i) Common Units (as defined in the LLC Agreement) held by the Existing Investors on the date of this Agreement together with (ii) Common Units issued to the Existing Investors upon conversion of any Preferred Units (as defined in the LLC Agreement) or Class B Preferred Units (as defined in the LLC Agreement) (if and to the extent issued) held by the Existing Investors on the date of this Agreement, in the case of (i) and (ii) after giving effect to the execution of the LLC Agreement.

ARTICLE II

REGISTRATION RIGHTS

Section 2.1 DEMAND REGISTRATION

(a) Request by Holders. Upon receipt of a written request from Holders that hold at least twenty percent (20%) of the Registrable Securities then outstanding (the “Requesting Holders”) that the Company register Registrable Securities held by Requesting Holders (a “Demand Request”), then the Company shall, within ten (10) days after receipt of such Demand Request, give written notice of such request (“Request Notice”) to all Holders. Each Demand Request shall (x) specify the number of Registrable Securities that the Requesting Holders intend to sell or dispose of, (y) state the intended method or methods of sale or disposition of the Registrable Securities and (z) specify the expected price range (net of underwriting discounts and commissions) acceptable to the Requesting Holders to be received for such Registrable Securities. Following receipt of a Demand Request, the Company shall:

(i) cause to be filed, as soon as practicable, but within ninety (90) days of the date of delivery to the Company of the Demand Request, a Registration Statement covering such Registrable Securities which the Company has been so requested to register by the Requesting Holders and other Holders who request to the Company that their Registrable Securities be registered within twenty (20) days of the mailing of the Request Notice, providing for the registration under the Securities Act of such Registrable Securities to the extent necessary to permit the disposition of such Registrable Securities in accordance with the intended method of distribution specified in such Demand Request;

(ii) use its reasonable best efforts to have such Registration Statement declared effective by the SEC as soon as practicable thereafter; and refrain from filing any other Registration Statements, other than pursuant to a Registration Statement on Form S-4 or S-8 (or similar or successor forms), with respect to any other securities of the Company until such date which is ninety (90) days following effectiveness of the Registration Statement filed in response to the Demand Request.

(b) Effective Registration Statement. A registration requested pursuant to this Section 2.1 shall not be deemed to have been effected (i) unless a Registration Statement with respect thereto has become effective and remained effective in compliance with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Holders thereof set forth in such Registration Statement; (ii) if, after it has become effective, such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court and has not thereafter become effective, or if the offering of Registrable Securities is not consummated for any reason, including, without limitation, if the underwriters of an underwritten public offering advise the Participating Holders that the Registrable Securities cannot be sold at a net price per share equal to or above the net price disclosed in the preliminary prospectus; (iii) if the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived; or (iv) if the Requesting Holders are cut back to fewer than fifty percent (50%) of the Registrable Securities requested to be registered.

(c) Selection of Underwriters. In the event that the Company is required to file a Registration Statement covering any Registrable Securities of any Requesting Holders pursuant to Section 2.1(a) hereof and the proposed public offering is to be an underwritten public offering, the managing underwriter shall be one or more reputable nationally recognized investment banks selected by a majority in interest of the Requesting Holders and reasonably acceptable to the Company, which consent shall not be unreasonably withheld, delayed or conditioned.

(d) Priority for Demand Registration. Notwithstanding any other provision of this Agreement, if the managing underwriter of an underwritten public offering determines and advises the Participating Holders and the Company in writing that the inclusion of all securities proposed to be included by the Company and any other Holders in the underwritten public offering would materially and adversely interfere with the successful marketing of the Requesting Holders’ Registrable Securities, then the Company and other Holders shall not be permitted to include any securities in excess of the amount, if any, of securities which the managing underwriter of such underwritten public offering shall reasonably and in good faith agree in writing to include in such public offering in addition to the amount of Registrable Securities to be registered for the Requesting Holders. The Company will be obligated to include in such Registration Statement, as to each Holder, only a portion of the Registrable Securities such Holder has requested be registered equal to the ratio which such Holder’s requested Registrable Securities bears to the total number of Registrable Securities requested to be included in such Registration Statement by all Holders who have requested that their Registrable Securities be included in such Registration Statement. It is acknowledged by the parties hereto that pursuant to the foregoing provision, the securities to be included in a registration requested by the Requesting Holders pursuant to this Section 2.1 shall be allocated: (i) first, to the Participating Holders, and (ii) second, to the Company and any other holders of equity interests of the Company requesting registration of securities of the Company.

(e) Limitation on Demand Registrations. The Company shall only be obligated to effect six (6) Demand Requests pursuant to this Section 2.1.

(f) Cancellation of Registration. A majority in interest of the Participating Holders shall have the right to cancel a proposed registration of Registrable Securities pursuant to this Section 2.1 when, (i) in their discretion, market conditions are so unfavorable as to be seriously detrimental to an offering pursuant to such registration or (ii) the request for cancellation is based upon material adverse information relating to the Company that is different from the information known to the Participating Holders at the time of the Demand Request. Such cancellation of a registration shall not be counted as one of six (6) Demand Requests and notwithstanding anything to the contrary in the Agreement, the Company shall be responsible for the expenses of the Participating Holders incurred in connection with the registration prior to the time of cancellation.

Section 2.2 PIGGYBACK REGISTRATIONS.

(a) Right to Include Registrable Securities. Subject to the limitations contained in the last sentence of this Section 2.2, each time that the Company proposes for any reason to register any of its equity interests under the Securities Act, either for its own account or for the account of equity interest holders exercising demand registration rights, other than a Demand Request pursuant to Section 2.1 hereof, a rights offering (other than the rights offering contemplated by the A&R Rights Offering Letter Agreement) or pursuant to a Registration Statement on Form S-4 or S-8 (or similar or successor forms) (a “Proposed Registration”), the Company shall promptly give written notice of such Proposed Registration to all of the Holders of Registrable Securities (which notice shall be given not less than thirty (30) days prior to the expected effective date of the Company’s Registration Statement) and shall offer such Holders the right to request inclusion of any of such Holder’s Registrable Securities in the Proposed Registration. No registration pursuant to this Section 2.2 shall relieve the Company of its obligation to register Registrable Securities pursuant to a Demand Request, as contemplated by Section 2.1 hereof. The rights to piggyback registration may be exercised on an unlimited number of occasions.

(b) Piggyback Procedure. Each Holder of Registrable Securities shall have twenty (20) days from the date of receipt of the Company’s notice referred to in Section 2.2(a) above to deliver to the Company a written request specifying the number of Registrable Securities such Holder intends to sell and such Holder’s intended method of disposition. Any Holder shall have the right to withdraw such Holder’s request for inclusion of such Holder’s Registrable Securities in any Registration Statement pursuant to this Section 2.2 by giving written notice to the Company of such withdrawal; provided, however, that the Company may ignore a notice of withdrawal made within twenty-four (24) hours of the time the Registration Statement is to become effective. Subject to Section 2.2(d) below, the Company shall use its commercially reasonable efforts to include in such Registration Statement all such Registrable Securities so requested to be included therein; provided, however, that the Company may at any time withdraw or cease proceeding with any such Proposed Registration if it shall at the same time withdraw or cease proceeding with the registration of all other Registrable Securities originally proposed to be registered. In the event that the Proposed Registration by the Company is, in whole or in part, an underwritten public offering of securities of the Company, any request under this Section 2.2(b) shall specify that the Registrable Securities be included in the underwriting on the same terms and conditions as the securities, if any, otherwise being sold through underwriters under such registration.

(c) Selection of Underwriters. The managing underwriter for any Proposed Registration that involves an underwritten public offering shall be one or more reputable nationally recognized investment banks selected by the Company and reasonably acceptable to a majority in interest of the Holders, which consent shall not be unreasonably withheld, delayed or conditioned.

(d) Priority for Piggyback Registration. Notwithstanding any other provision of this Agreement, if the managing underwriter of an underwritten public offering determines and advises the Company and the Holders in writing that the inclusion of all Registrable Securities proposed to be included by the Holders of Registrable Securities in the underwritten public offering would materially and adversely interfere with the successful marketing of the Company’s securities, then the Holders of Registrable Securities shall not be permitted to include, in the aggregate, any Registrable Securities in excess of the amount, if any, of Registrable Securities which the managing underwriter of such underwritten public offering shall reasonably and in good faith agree in writing to include in such public offering in addition to the amount of securities to be registered for the Company (the “Maximum Offering Amount”). The Company will be obligated to include in such Registration Statement only a portion of the Registrable Securities such Holder has requested be registered equal to the ratio which such Holder’s requested Registrable Securities bears to the total number of Registrable Securities requested to be included in such Registration Statement by all Holders who have requested that their Registrable Securities be included in such Registration Statement. It is acknowledged by the parties hereto that pursuant to the foregoing provision, the securities to be included in a registration initiated by the Company shall be allocated:

(i) first, to the Company;

(ii) second, pari passu to the Holders; and

(iii) third, to any others requesting registration of securities of the Company.

If as a result of the provisions of this Section 2.2(d), any Holder shall not be entitled to include more than fifty percent (50%) of its Registrable Securities in a registration that such Holder has requested to be so included, such Holder may withdraw such Holder’s request to include Registrable Securities in such Registration Statement.

(e) Underwritten Offering. In the event that the Proposed Registration by the Company is, in whole or in part, an underwritten public offering of securities of the Company, any request under this Section 2.2 shall specify that the Registrable Securities be included in the underwriting on the same terms and conditions as the securities, if any, otherwise being sold through underwriters under such registration.

Section 2.3 FORM S-3 REGISTRATION. Any Holder or group of Holders holding at least ten percent (10%) of the Registrable Securities (an “Initiating Form S-3 Holder”) may request at any time following the date hereof that the Company file a Registration Statement under the Securities Act on Form S-3 (or similar or successor form) covering the sale or other distribution of all or any portion of the Registrable Securities held by such Initiating Form S-3 Holder pursuant to Rule 415 under the Securities Act (“Form S-3 Demand”) if the Company is a registrant qualified to use Form S-3 (or any similar or successor form) to register such Registrable Securities. If such condition is met, the Company shall use its reasonable best efforts to register under the Securities Act on Form S-3 (or any similar or successor form) at the earliest practicable date, for sale in accordance with the method of disposition specified in the Form S-3 Demand, the number of Registrable Securities specified in such Form S-3 Demand. In connection with a Form S-3 Demand, the Company agrees to include in the prospectus included in any Registration Statement on Form S-3, such material describing the Company and intended to facilitate the sale of securities being so registered as is reasonably requested for inclusion therein by the Initiating Form S-3 Holders, whether or not the rules applicable to preparation of Form S-3 require the inclusion of such information. Form S-3 Demands will not be deemed to be Demand Requests as described in Section 2.1 hereof and Holders shall have the right to request an unlimited number of Form S-3 Demands. Notwithstanding the foregoing, the Company shall not be obligated to file more than four (4) Registration Statements on Form S-3 pursuant to this Section 2.3 in any given twelve (12) month period.

Section 2.4 LOCK-UP AGREEMENTS. If any registration of Registrable Securities shall be effected in connection with an underwritten public offering, no Holder shall effect any public sale or distribution, including any sale pursuant to Rule 144, of any shares of Common Stock or other security of the Company (except as part of such underwritten public offering) during the period beginning fourteen (14) days prior to the effective date of the applicable Registration Statement until the earlier of: (i) such time as the Company and the managing underwriter shall agree and (ii) one hundred and eighty (180) days.

Section 2.5 REGISTRATION PROCEDURES.

(a) Obligations of the Company. Whenever registration of Registrable Securities is required pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method of distribution thereof as promptly as possible, and in connection with any such request, the Company shall, as expeditiously as possible:

(i) Preparation of Registration Statement; Effectiveness. Prepare and file with the SEC (in any event not later than ninety (90) days after receipt of a Demand Request to file a Registration Statement with respect to Registrable Securities), a Registration Statement on any form on which the Company then qualifies, which counsel for the Company shall deem appropriate and pursuant to which such offering may be made in accordance with the intended method of distribution thereof (except that the Registration Statement shall contain such information as may reasonably be requested for marketing or other purposes by the managing underwriter), and use its reasonable best efforts to cause any registration required hereunder to become effective as soon as practicable after the initial filing thereof and remain effective for a period of not less than one hundred and eighty (180) days (or such shorter period in which all Registrable Securities have been sold in accordance with the methods of distribution set forth in the Registration Statement); provided, however, that, in the case of any registration of Registrable Securities on Form S-3 which are intended to be offered on a continuous or delayed basis, such one hundred and eighty (180) day period shall be extended, if necessary, to keep the Registration Statement effective until all such Registrable Securities are sold, provided that Rule 415, or any successor rule under the Securities Act, permits an offering on a continuous or delayed basis. Notwithstanding the foregoing, the Company may (A) defer the filing of a Registration Statement for a period of not more than 90 days (but not more than once in any twelve-month period) or (B) suspend the use of a prospectus under a Registration Statement on Form S-3 for a period not to exceed 30 days in any three-month period or an aggregate of 90 days in any 12-month period, in each case if the Board of Directors of the Company determines in good faith that because of bona fide business reasons (not including the avoidance of the Company’s obligations hereunder), including the acquisition or divestiture of assets, pending corporate developments and similar events, it is in the best interests of the Company to delay the filing of such Registration Statement or to suspend the use of such prospectus, and prior to delaying such filing or suspending such use, the Company provides the Participating Holders with written notice of such delay or suspension, which notice need not specify the nature of the event giving rise to such delay or suspension;

(ii) Participation in Preparation. Provide any Participating Holder, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by any Participating Holder or underwriter (each, an “Inspector” and, collectively, the “Inspectors”), the opportunity to participate (including, but not limited to, reviewing, commenting on and attending all meetings) in the preparation of such Registration Statement, each prospectus included therein or filed with the SEC and each amendment or supplement thereto;

(iii) Due Diligence. For a reasonable period prior to the filing of any Registration Statement pursuant to this Agreement, make available for inspection and copying by the Inspectors such financial and other information and books and records, pertinent corporate documents and properties of the Company and its subsidiaries and cause the officers, directors, employees, counsel and independent certified public accountants of the Company and its subsidiaries to respond to such inquiries and to supply all information reasonably requested by any such Inspector in connection with such Registration Statement, as shall be reasonably necessary, in the judgment of the respective counsel referred to in Section 2.5(a)(ii), to conduct a reasonable investigation within the meaning of the Securities Act;

(iv) General Notifications. Promptly notify in writing the Participating Holders, the sales or placement agent, if any, therefor and the managing underwriter of the securities being sold, (A) when such Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to any such Registration Statement or any post-effective amendment, when the same has become effective, (B) when the SEC notifies the Company whether there will be a “review” of such Registration Statement, (C) of any comments (oral or written) by the SEC and by the blue sky or securities commissioner or regulator of any state with respect thereto and (D) of any request by the SEC for any amendments or supplements to such Registration Statement or the prospectus or for additional information;

(v) 10b-5 Notification. Promptly notify in writing the Participating Holders, the sales or placement agent, if any, therefor and the managing underwriter of the securities being sold pursuant to any Registration Statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act upon discovery that, or upon the happening of any event as a result of which, any prospectus included in such Registration Statement (or amendment or supplement thereto) contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, and the Company shall promptly prepare a supplement or amendment to such prospectus and file it with the SEC (in any event no later than ten (10) days following notice of the occurrence of such event to each Participating Holder, the sales or placement agent and the managing underwriter) so that after delivery of such prospectus, as so amended or supplemented, to the purchasers of such Registrable Securities, such prospectus, as so amended or supplemented, shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made;

(vi) Notification of Stop Orders; Suspensions of Qualifications and Exemptions. Promptly notify in writing the Participating Holders, the sales or placement agent, if any, therefor and the managing underwriter of the securities being sold of the issuance by the SEC of (A) any stop order issued or threatened to be issued by the SEC or (B) any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and the Company agrees to use its reasonable best efforts to (x) prevent the issuance of any such stop order, and in the event of such issuance, to obtain the withdrawal of any such stop order and (y) obtain the withdrawal of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such Registration Statement for sale in any jurisdiction at the earliest practicable date;

(vii) Amendments and Supplements; Acceleration. Prepare and file with the SEC such amendments, including post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable time period required hereunder and, if applicable, file any Registration Statements pursuant to Rule 462(b) under the Securities Act; cause the related prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or in such prospectus as so supplemented. If a majority in interest of the Participating Holders so request, request acceleration of effectiveness of the Registration Statement from the SEC and any post-effective amendments thereto, if any are filed; provided that at the time of such request, the Company does not in good faith believe that it is necessary to amend further the Registration Statement in order to comply with the provisions of this subparagraph. If the Company wishes to further amend the Registration Statement prior to requesting acceleration, it shall have five (5) days to so amend prior to requesting acceleration;

(viii) Copies. Furnish as promptly as practicable to each Participating Holder and Inspector prior to filing a Registration Statement or any supplement or amendment thereto, copies of such Registration Statement, supplement or amendment as it is proposed to be filed, and after such filing such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as each such Participating Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Participating Holder;

(ix) Blue Sky. Use its reasonable best efforts to, prior to any public offering of the Registrable Securities, register or qualify (or seek an exemption from registration or qualifications) such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any Participating Holder or underwriter may request, and to continue such qualification in effect in each such jurisdiction for as long as is permissible pursuant to the laws of such jurisdiction, or for as long as a Participating Holder or underwriter requests or until all of such Registrable Securities are sold, whichever is shortest, and do any and all other acts and things which may be reasonably necessary or advisable to enable any Participating Holder to consummate the disposition in such jurisdictions of the Registrable Securities;

(x) Other Approvals. Use its reasonable best efforts to obtain all other approvals, consents, exemptions or authorizations from such governmental agencies or authorities as may be necessary to enable the Participating Holders and underwriters to consummate the disposition of Registrable Securities;

(xi) Agreements. Enter into customary agreements (including any underwriting agreements in customary form), and take such other actions as may be reasonably required in order to expedite or facilitate the disposition of Registrable Securities;

(xii) “Cold Comfort” Letter. Obtain a “cold comfort” letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing underwriter may reasonably request, and reasonably satisfactory to a majority in interest of the Participating Holders;

(xiii) Legal Opinion. Furnish, at the request of any underwriter of Registrable Securities on the date such securities are delivered to the underwriters for sale pursuant to such registration, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the Holders, and the placement agent or sales agent, if any, thereof and the underwriters, if any, thereof, covering such legal matters with respect to the registration in respect of which such opinion is being given as such underwriter may reasonably request and as are customarily included in such opinions, and reasonably satisfactory to a majority in interest of the Participating Holders;

(xiv) SEC Compliance; Earnings Statement. Use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make available to its shareholders, as soon as reasonably practicable, but no later than fifteen (15) months after the effective date of any Registration Statement, an earnings statement covering a period of twelve (12) months beginning after the effective date of such Registration Statement, in a manner which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(xv) Certificates; Closing. Provide officers’ certificates and other customary closing documents;

(xvi) FINRA. Cooperate with each Participating Holder and each underwriter participating in the disposition of such Registrable Securities and underwriters’ counsel in connection with any filings required to be made with FINRA;

(xvii) Road Show. Cause appropriate officers as are requested by a managing underwriter to participate in a “road show” or similar marketing effort being conducted by such underwriter with respect to an underwritten public offering;

(xviii) Listing. Use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and if not so listed, to be listed on the NASDAQ automated quotation system;

(xix) Transfer Agent, Registrar and CUSIP. Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable Securities, in each case, no later than the effective date of such registration;

(xx) Private Sales. Use its reasonable best efforts to assist a Holder in facilitating private sales of Registrable Securities by, among other things, providing officers’ certificates and other customary closing documents reasonably requested by a Holder; and

(xxi) Reasonable Best Efforts. Use its reasonable best efforts to take all other actions necessary to effect the registration of the Registrable Securities contemplated hereby.

(b) Seller Information. The Company may require each Participating Holder as to which any registration of such Holder’s Registrable Securities is being effected to furnish to the Company such information regarding such Holder and such Holder’s method of distribution of such Registrable Securities as the Company may from time to time reasonably request in writing. If a Holder refuses to provide the Company with any of such information on the grounds that it is not necessary to include such information in the Registration Statement, the Company may exclude such Participating Holder’s Registrable Securities from the Registration Statement if the Company provides such Participating Holder with an opinion of counsel to the effect that such information must be included in the Registration Statement and such Participating Holder continues thereafter to withhold such information. The exclusion of a Participating Holder’s Registrable Securities shall not affect the registration of the other Registrable Securities to be included in the Registration Statement.

(c) Notice to Discontinue. Each Participating Holder whose Registrable Securities are covered by a Registration Statement filed pursuant to this Agreement agrees that, upon receipt of written notice from the Company of the happening of any event of the kind described in Section 2.5(a)(v), such Participating Holder shall forthwith discontinue the disposition of Registrable Securities until such Participating Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.5(a)(v) or until it is advised in writing by the Company that the use of the prospectus may be resumed and has received copies of any additional or supplemental filings which are incorporated by reference into the prospectus, and, if so directed by the Company in the case of an event described in Section 2.5(a)(v), such Participating Holder shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such Participating Holder’s possession, of the prospectus covering such Registrable Securities which is current at the time of receipt of such notice. If the Company shall give any such notice, the Company shall extend the period during which such Registration Statement is to be maintained effective by the number of days during the period from and including the date of the giving of such notice pursuant to Section 2.5(a)(v) to and including the date when the Participating Holder shall have received the copies of the supplemented or amended prospectus contemplated by, and meeting the requirements of, Section 2.5(a)(v).

Section 2.6 REGISTRATION EXPENSES. Except as otherwise provided herein, all Registration Expenses shall be borne by the Company. All Selling Expenses relating to Registrable Securities registered shall be borne by the Participating Holders of such Registrable Securities pro rata on the basis of the number of Registrable Securities so registered.

Section 2.7 INDEMNIFICATION

(a) Indemnification by the Company. The Company agrees, notwithstanding termination of this Agreement, to indemnify and hold harmless to the fullest extent permitted by law, each Holder, each of their directors, officers, employees, advisors, agents and general or limited partners (and the directors, officers, employees, advisors and agents thereof), their respective Affiliates and each Person who controls (within the meaning of the Securities Act or the Exchange Act) any of such Persons, and each underwriter and each Person who controls (within the meaning of the Securities Act or the Exchange Act) any underwriter (collectively, “Holder Indemnified Parties”) from and against any and all losses, claims, damages, expenses (including, without limitation, reasonable costs of investigation and fees, disbursements and other charges of counsel, any amounts paid in settlement effected with the Company’s consent, which consent shall not be unreasonably withheld or delayed and any costs incurred in enforcing the Company’s indemnification obligations hereunder) or other liabilities (collectively, “Losses”) to which any such Holder Indemnified Party may become subject under the Securities Act, Exchange Act, any other federal law, any state or common law or any rule or regulation promulgated thereunder or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) are resulting from or arising out of or based upon (i) any untrue, or alleged untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus (as amended or

supplemented) or any document incorporated by reference in any of the foregoing or resulting from or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made), not misleading or (ii) any violation by the Company of the Securities Act, Exchange Act, any other federal law, any state or common law or any rule or regulation promulgated thereunder or otherwise incident to any registration, qualification or compliance and in any such case, the Company will promptly reimburse each such Holder Indemnified Party for any legal and any other Losses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability, action or investigation or proceeding (collectively, a “Claim”). Such indemnity obligation shall remain in full force and effect regardless of any investigation made by or on behalf of the Holder Indemnified Parties and shall survive the transfer of Registrable Securities by such Holder Indemnified Parties.

(b) Indemnification by Holders. In connection with any proposed registration in which a Holder is participating pursuant to this Agreement, each such Holder shall furnish to the Company in writing such information with respect to such Holder as the Company may reasonably request or as may be required by law for use in connection with any Registration Statement or prospectus or preliminary prospectus to be used in connection with such registration and each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, any underwriter retained by the Company and their respective directors, officers, partners, employees, advisors and agents, their respective Affiliates and each Person who controls (within the meaning of the Securities Act or the Exchange Act) any of such Persons to the same extent as the foregoing indemnity from the Company to the Holder Indemnified Parties as set forth in Section 2.7(a) (subject to the exceptions set forth in the foregoing indemnity, the proviso to this sentence and applicable law), but only with respect to any such information furnished in writing by such Holder expressly for use therein; provided, however, that the liability of any Holder under this Section 2.7(b) shall be limited to the amount of the net proceeds received by such Holder in the offering giving rise to such liability. Such indemnity obligation shall remain in full force and effect regardless of any investigation made by or on behalf of the Holder Indemnified Parties (except as provided above) and shall survive the transfer of Registrable Securities by such Holder.

(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which the Indemnified Party intends to claim indemnification or contribution pursuant to this Agreement; provided, however, that, the failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party hereunder unless and to the extent such Indemnifying Party is materially prejudiced by such failure. If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with any other Indemnifying Party similarly

notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel satisfactory to the Indemnified Party in its reasonable judgment or (iii) the named parties to any such action (including, but not limited to, any impleaded parties) reasonably believe that the representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct. In the case of clause (ii) above and (iii) above, the Indemnifying Party shall not have the right to assume the defense of such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the written consent of the Indemnified Party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (A) includes an unconditional release of the Indemnified Party from all liability arising out of such action or claim and (B) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Party. The rights afforded to any Indemnified Party hereunder shall be in addition to any rights that such Indemnified Party may have at common law, by separate agreement or otherwise.

(d) Contribution. If the indemnification provided for in this Section 2.7 from the Indemnifying Party is unavailable or insufficient to hold harmless an Indemnified Party in respect of any Losses referred to herein, then the Indemnifying Party, in lieu of indemnifying the Indemnified Party, shall contribute to the amount paid or payable by the Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the Indemnified Party, as well as any other relevant equitable considerations. The relative faults of the Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the Indemnifying Party’s and Indemnified Party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 2.7(d) shall be limited to the amount of the net proceeds received by such Holder in the offering giving rise to such liability. The amount paid or payable by a party as a result of the Losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 2.7(a), 2.7(b) and 2.7(c), any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 2.7(d).

Section 2.8 RULE 144 AND RULE 144A; OTHER EXEMPTIONS. With a view to making available to the Holders the benefits of Rule 144 and Rule 144A promulgated under the Securities Act and other rules and regulations of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration, the Company covenants that it shall (i) file in a timely manner all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder and (ii) take such further action as each Holder may reasonably request (including, but not limited to, providing any information necessary to comply with Rule 144 and Rule 144A, if available with respect to resales of the Registrable Securities under the Securities Act), at all times from and after the date hereof, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (x) Rule 144 and Rule 144A (if available with respect to resales of the Registrable Securities) under the Securities Act, as such rules may be amended from time to time or (y) any other rules or regulations now existing or hereafter adopted by the SEC. Upon the written request of a Holder, the Company shall deliver to the Holder a written statement as to whether it has complied with such requirements.

Section 2.9 CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. No Holder may participate in any Registration Statement hereunder unless such Holder completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, and other documents reasonably required under the terms of such underwriting arrangements, and agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting agreement approved by the Holder or Holders entitled hereunder to approve such arrangements; provided, however, that no such Holder shall be required to make any representations or warranties to the Company or the underwriters in connection with any such registration other than representations and warranties as to (i) such Holder’s ownership of its Registrable Securities to be sold or transferred, (ii) such Holder’s power and authority to effect such transfer and (iii) such matters pertaining to compliance with applicable securities laws as may be reasonably requested. Such Holders of Registrable Securities to be sold by such underwriters may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of the Company to and for the benefit of such underwriters, shall also be made to and for the benefit of such Holders and that any or all of the conditions precedent to the obligations of the underwriters under the underwriting agreement be conditions precedent to the obligations of the Holders.

Section 2.10 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The Company represents and warrants that other than pursuant to the Existing Registration Rights Agreement it has not granted registration rights prior to the date hereof and agrees that from and after the date hereof, it shall not, without the prior written consent of the Holders of at least fifty percent (50%) of the Registrable Securities then outstanding, enter into any agreement (or amendment or waiver of the provisions of any agreement) with any holder or prospective holder of any securities of the Company that would grant such holder registration rights that are more favorable, pari passu or senior to those granted to the Investors hereunder.

Section 2.11 TRANSFER OF REGISTRATION RIGHTS. The rights of a Holder hereunder may be transferred or assigned in connection with a transfer of Registrable Securities to (i) any Affiliate of a Holder, (ii) any subsidiary, parent, partner, retired partner, limited partner, shareholder or member of a Holder or (iii) any family member or trust for the benefit of any Holder, or (iv) any transferee who, after such transfer, holds at least one thousand (1,000) Registrable Securities (as adjusted for any stock dividends, stock splits, combinations and reorganizations and similar events). Notwithstanding the foregoing, such rights may only be transferred or assigned provided that all of the following additional conditions are satisfied: (a) such transfer or assignment is effected in accordance with applicable securities laws; (b) such transferee or assignee agrees in writing to become subject to the terms of this Agreement; and (c) the Company is given written notice by such Holder of such transfer or assignment, stating the name and address of the transferee or assignee and identifying the Registrable Securities with respect to which such rights are being transferred or assigned.

ARTICLE III

GENERAL PROVISIONS

Section 3.1 SURVIVAL OF AGREEMENTS. All covenants, agreements, representations and warranties made in the LLC Agreement or any certificate or instrument delivered to the Investors pursuant to or in connection with the LLC Agreement shall survive the execution and delivery of the LLC Agreement and all statements contained in any certificate or other instrument delivered by the Company hereunder or thereunder or in connection herewith or therewith shall be deemed to constitute representations and warranties made by the Company.

Section 3.2 ENTIRE AGREEMENT. This Agreement and any certificates, documents, instruments and writings that are delivered pursuant hereto, constitutes the entire agreement and understanding of the parties in respect of the subject matter hereof and supersedes all prior understandings, agreements or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof.

Section 3.3 ASSIGNMENT; BINDING EFFECT. Except as otherwise provided in Section 2.11, no party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other parties; provided that without the consent of any other party hereto the rights of the Investors hereunder are assignable to an assignee or transferee who acquires all of the Units held by an Investor, as the case may be. All of the terms, agreements, covenants, representations, warranties and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the parties and their respective successors and permitted assigns.

Section 3.4 NOTICES. All notices, requests and other communications provided for or permitted to be given under this Agreement must be in writing and shall be given by personal delivery, by certified or registered United States mail (postage prepaid, return receipt requested), by a nationally recognized overnight delivery service for next day delivery, or by facsimile transmission, to the address listed for each party in the LLC Agreement (or to such other address as any party may give in a notice given in accordance

with the provisions hereof). All notices, requests or other communications will be effective and deemed given only as follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified or registered mail, on the fifth business day after being deposited in the United States mail, (iii) if sent for next day delivery by overnight delivery service, on the date of delivery as confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon the transmitter’s confirmation of receipt of such facsimile transmission, except that if such confirmation is received after 5:00 p.m. (in the recipient’s time zone) on a business day, or is received on a day that is not a business day, then such notice, request or communication will not be deemed effective or given until the next succeeding business day. Notices, requests and other communications sent in any other manner, including by electronic mail, will not be effective.

Section 3.5 SPECIFIC PERFORMANCE; REMEDIES. Each party acknowledges and agrees that the other parties would be damaged irreparably if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Accordingly, the parties will be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and its provisions in any action or proceeding instituted in any state or federal court sitting in New York City, New York having jurisdiction over the parties and the matter, in addition to any other remedy to which they may be entitled, at law or in equity. Except as expressly provided herein, the rights, obligations and remedies created by this Agreement are cumulative and in addition to any other rights, obligations or remedies otherwise available at law or in equity. Except as expressly provided herein, nothing herein will be considered an election of remedies.

Section 3.6 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.

(a) Submission to Jurisdiction. Any action, suit or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall only be brought in any state or federal court sitting in New York City, New York, and each party consents to the exclusive jurisdiction and venue of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such, action, suit or proceeding in any such court or that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, service of process on such party as provided in Section 3.4 shall be deemed effective service of process on such party.

AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS SECTION 3.6(b).

Section 3.7 GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law principles.

Section 3.8 HEADINGS. The article and section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

Section 3.9 AMENDMENTS. This Agreement may not be amended or modified without the written consent of the Company and the Holders of at least fifty percent (50%) of the Registrable Securities then outstanding; provided, however, that any amendment or modification that adversely affects the rights of one or more Holders of Registrable Securities under this Agreement, in their capacity as such, in a manner that is materially different from the manner in which such amendment or modification affects the rights of other Holders of Registrable Securities under this Agreement, in their capacity as such, shall require the consent of each such adversely affected Holder.

Section 3.10 EXTENSIONS; WAIVERS. Any party may, for itself only, (a) extend the time for the performance of any of the obligations of any other party under this Agreement, (b) waive any inaccuracies in the representations and warranties of any other party contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any such extension or waiver will be valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising because of any prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to exercise any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise of the same or of any other right or remedy.

Section 3.11 SEVERABILITY. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party or to any circumstance, is judicially determined not to be enforceable in accordance with its terms, the parties agree that the court judicially making such determination may modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its modified form, such provision will then be enforceable and will be enforced.

Section 3.12 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. This Agreement will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. For purposes of determining whether a party has signed this Agreement or any document contemplated hereby or any amendment or waiver hereof, only a handwritten original signature on a paper document or a facsimile copy of such a handwritten original signature shall constitute a signature, notwithstanding any law relating to or enabling the creation, execution or delivery of any contract or signature by electronic means.

Section 3.13 CONSTRUCTION. This Agreement has been freely and fairly negotiated among the parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. Any reference to any law will be deemed to refer to such law as in effect on the date hereof and all rules and regulations promulgated thereunder, unless the context requires otherwise. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties intend that each representation, warranty, and covenant contained herein will have independent significance. If any party has breached any covenant contained herein in any respect, the fact that there exists another covenant relating to the same subject matter (regardless of the relative levels of specificity) which the party has not breached will not detract from or mitigate the fact that the party is in breach of the first covenant. Time is of the essence in the performance of this Agreement.

Section 3.14 ATTORNEYS’ FEES. If any dispute among any parties arises in connection with this Agreement, the prevailing party in the resolution of such dispute in any action or proceeding will be entitled to an order awarding full recovery of reasonable attorneys’ fees and expenses, costs and expenses (including experts’ fees and expenses and the costs of enforcing this Section 3.14) incurred in connection therewith, including court costs, from the non-prevailing party.

Section 3.15 ADJUSTMENTS FOR STOCK SPLITS, ETC. Wherever in this Agreement there is a reference to a specific number of shares of the Company’s capital stock of any class or series, then, upon the occurrence of any subdivision, combination or stock dividend of such class or series of stock, the specific number of shares so referenced in this Agreement will automatically be proportionally adjusted to reflect the effect of such subdivision, combination or stock dividend on the outstanding shares of such class or series of stock.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first above written.

Signature Pages to Amended and Restated Registration Rights Agreement


	GREENLIGHT CAPITAL, LP
	By:	Greenlight Capital, LLC, its general
		partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL QUALIFIED, L.P.
	By:	Greenlight Capital, LLC, its general
		partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT REINSURANCE, LTD.
	By:	DME Advisors, L.P., its investment
		manager


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL OFFSHORE PARTNERS
	By:	Greenlight Capital, Inc., its
		investment manager


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer

Signature Pages to Amended and Restated Registration Rights Agreement


	GREENLIGHT CAPITAL (GOLD), LP
	By:	DME Management GP, LLC, its general
		partner


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer


	GREENLIGHT CAPITAL OFFSHORE MASTER (GOLD), LTD.
	By:	DME Capital Management, LP, its
		investment manager


	By:	/s/ Daniel Roitman
		Daniel Roitman
		Chief Operating Officer

Signature Pages to Amended and Restated Registration Rights Agreement


THIRD POINT PARTNERS LP
By:	Third Point Advisors, L.L.C., its
	general partner

	By:	/s/ Josh Targoff
		Josh Targoff
		Chief Operating Officer and General Counsel

THIRD POINT PARTNERS QUALIFIED, L.P.
By:	Third Point Advisors, L.L.C., its
	general partner

	By:	/s/ Josh Targoff
		Josh Targoff
		Chief Operating Officer and General Counsel

THIRD POINT LOAN LLC
By:	/s/ Josh Targoff
	Name:	Josh Targoff
	Title:	Chief Operating Officer and General Counsel

/s/ Daniel S. Loeb
Daniel S. Loeb

Signature Pages to Amended and Restated Registration Rights Agreement

Schedule A

[Parties to Existing Registration Rights Agreement]

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