Contract
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 & Xxxxx 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 Xxxxxxx, Xxxxxxxxxxxx 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/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT CAPITAL, LP |
||||
| By: | Greenlight Capital, LLC, its general partner | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT CAPITAL QUALIFIED, L.P. |
||||
| By: | Greenlight Capital, LLC, its general partner | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT REINSURANCE, LTD. |
||||
| By: | DME Advisor, L.P., its investment manager | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT CAPITAL (GOLD), LP |
||||
| By: | DME Management GP, LLC, its general partner |
|||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| GREENLIGHT CAPITAL OFFSHORE MASTER (GOLD), LTD. |
||||
| By: | DME Capital Management, LP, its investment manager |
|||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| Chief Operating Officer | ||||
| THIRD POINT LOAN LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Xxxxx X. Xxxxxxxxx | ||||
| Chief Administrative Officer | ||||
| THIRD POINT ADVISORS, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Xxxxx X. Xxxxxxxxx | ||||
| Chief Administrative Officer | ||||
| The foregoing is hereby accepted and agreed to in all respects by the undersigned: BIOFUEL ENERGY CORP. |
||||
| /s/ Xxxxx X. Xxxxxx | ||||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | President and CEO | |||
| BIOFUEL ENERGY, LLC |
||||
| /s/ Xxxxx X. Xxxxxx | ||||
| Name: | Xxxxx X. Xxxxxx | |||
| 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 | % | ||
