Unassociated Document


    

      
        
          	
                  Exhibit
      4.1

                
	 
      


        

      

       

      BIOFUEL
ENERGY CORP.,

       

      MELLON
INVESTOR SERVICES LLC, as Depositary,

       

      and

       

      THE
HOLDERS FROM TIME TO TIME OF THE DEPOSITARY SHARES 

      DESCRIBED
HEREIN

      
        

      

       

      Deposit
Agreement

      
        
 

      
        
          
            
              	
                      Dated
      as of February 4, 2011

                    
	 


            

          

        

      


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      DEPOSIT
AGREEMENT dated as of February 4, 2011, among BIOFUEL ENERGY CORP., a
corporation duly organized and existing under the laws of the State of Delaware,
MELLON INVESTOR SERVICES LLC (operating with the service name BNY Mellon
Shareowner Services), a limited liability company existing under the laws of the
State of New Jersey, and the holders from time to time of the Depositary Shares
(as hereinafter defined) described herein.

       

      WHEREAS
it is desired to provide, as hereinafter set forth in this Deposit Agreement,
for the deposit from time to time of shares of Series A Non-Voting Convertible
Preferred Stock, $0.01 par value, of BIOFUEL ENERGY CORP. with the Depositary
(as hereinafter defined) for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares (as hereinafter defined) in respect of the Stock (as
hereinafter defined) so deposited;

       

      WHEREAS
the Receipts are to be substantially in the form of Exhibit A attached hereto,
with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement; and

       

      WHEREAS,
the terms and conditions of the Conversion (as hereinafter defined) of the Stock
(as hereinafter defined) are set forth in the Certificate of Designations (as
hereinafter defined) attached hereto as Exhibit B;

       

      NOW,
THEREFORE, in consideration of the promises and mutual covenants set forth
herein, the parties hereto agree as follows:

       

      ARTICLE
I

       

      Definitions

       

      The
following definitions shall for all purposes, unless otherwise indicated, apply
to the respective terms used in this Deposit Agreement and the
Receipts:

       

      “Certificate of
Designations” shall mean the Certificate of Designations filed with the
Secretary of State of Delaware establishing the Stock as a series of preferred
stock of the Company substantially in the form of Exhibit A.

       

      “Certificate of
Incorporation” shall mean the Amended and Restated Certificate of
Incorporation, as amended from time to time, of the Company.

       

      “Common Stock” shall
mean the common stock, par value $0.01 per share, of the Company.

       

      “Company” shall mean
BioFuel Energy Corp., a Delaware corporation having its principal office at 1600
Broadway, Suite 2200, Denver, Colorado 80202, and its
successors.


      
        
           


        

        
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      “Conversion” shall
mean the automatic conversion of the Stock into shares of Common Stock pursuant
to, and in accordance with, Section 5 of the Certificate of Designations on the
Conversion Date.

       

      “Conversion Date”
shall have the meaning set forth in the Certificate of
Designations.

       

      “Deposit Agreement”
shall mean this Deposit Agreement, as amended or supplemented from time to time
in accordance with the terms hereof.

       

      “Depositary” shall
mean Mellon Investor Services LLC, or any successor as Depositary
hereunder.

       

      “Depositary Shares”
shall mean depositary shares, each representing a .0313609378475919 fractional
interest in one share of Stock and evidenced by a Receipt.

       

      “Depositary’s Agent”
shall mean an agent appointed by the Depositary pursuant to Section
7.05.

       

      “Depositary’s Office”
shall mean the designated office of the Depositary which at any particular time
its depositary receipt business shall be administered.

       

      “DTC” shall mean The
Depository Trust Company.

       

      “DTC Receipt” shall
have the meaning set forth in Section 2.01.

       

      “Per Share Closing
Price” shall mean the closing sale price per share (or if no closing
price is reported, the average of the closing bid and ask prices or, if more
than one in either case, the average of the average closing bid and the average
closing ask prices) on such date as reported on The Nasdaq Global Market (or
such other principal national securities exchange on which the Common Stock is
then listed or authorized for quotation or, if not so listed or authorized for
quotation, the average of the midpoint of the last bid and ask prices for the
Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for this
purpose).

       

      “Receipt” shall mean
one of the depositary receipts issued hereunder to evidence one or more
Depositary Shares, whether in definitive or temporary form evidencing the
Depositary Shares substantially in the form of Exhibit B.

       

      “Record Holder” as
applied with respect to a Receipt shall mean the person in whose name a Receipt
is registered on the books of the Depositary maintained for such
purpose.

       

      “Registrar” shall mean
Mellon Investor Services LLC, or any successor as Registrar
hereunder.

       

      “Stock” shall mean
shares of the Company’s Series A Non-Voting Convertible Preferred Stock, $0.01
par value.


      
        
           


        

        
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      ARTICLE
II

       

      Form of Receipts, Deposit of
Stock, Execution and Delivery,

      Transfer, Surrender and
Redemption of Receipts

       

      SECTION
2.01.     Form and Transfer of
Receipts. Except as provided herein, if requested by any holder,
definitive Receipts shall be printed and shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, in each case with
appropriate insertions, modifications and omissions, as hereinafter provided
(but which do not affect the rights or duties of the Depositary). Pending the
preparation of definitive Receipts, the Depositary, upon, and pursuant to, the
written order of the Company delivered in compliance with Section 2.02, shall be
authorized and instructed to, and shall, execute and deliver temporary Receipts
which shall be substantially of the tenor of the definitive Receipts in lieu of
which they are issued and in each case with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine (but which do not affect the rights or duties of the
Depositary), as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at the Depositary’s Office, or such other office as
the Depositary may designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary is hereby
authorized and instructed to, and shall, execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as are represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company’s expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Deposit Agreement, and with respect to the Stock,
as definitive Receipts.

       

      Receipts
shall be executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary; provided, that if a Registrar for
the Receipts (other than the Depositary) shall have been appointed, by manual or
facsimile signature of a duly authorized signatory of such Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed, either manually
or by facsimile, by a duly authorized signatory of the Depositary or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by manual or facsimile signature of a duly authorized officer of the
Depositary and countersigned by a duly authorized signatory of such Registrar.
The Depositary shall record on its books each Receipt executed as provided above
and delivered as hereinafter provided.

       

      Receipts
shall be in denominations of any number of whole Depositary Shares. All Receipts
shall be dated the date of their issuance.

       

      Receipts
may be endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Deposit
Agreement as may be required by the Depositary and approved by the Company, or
which the Company has determined are required to comply with any applicable law
or regulation or with the rules and regulations of any securities exchange upon
which the Stock, the Depositary Shares or the Receipts may be listed for trading
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject, in
each case as directed by the Company.


      
        
           


        

        
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      Title to
any Receipt (and to the Depositary Shares evidenced by such Receipt) that is
properly endorsed, or accompanied by a properly executed instrument of transfer,
or endorsement shall be transferable by delivery with the same effect as in the
case of a negotiable instrument; provided, however, that until transfer of a
Receipt shall be registered on the books of the Depositary as provided in
Section 2.03, the Depositary may, notwithstanding any notice to the contrary,
treat the Record Holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.

       

      Notwithstanding
the foregoing, the Depositary and the Company will make application to DTC for
acceptance of all of the Receipts for its book-entry settlement system. The
Company hereby appoints the Depositary acting through any authorized officer
thereof as its attorney-in fact, with full power to delegate, for purposes of
executing any agreements, certifications or other instruments or documents
necessary or desirable in order to effect the acceptance of such Receipts for
DTC eligibility. So long as the Receipts are eligible for book-entry settlement
with DTC, unless otherwise required by law, all Depositary Shares shall be
traded with book-entry settlement through DTC and shall be represented by a
single receipt (the “DTC Receipt”), which
shall be deposited with DTC (or its custodian) evidencing all such Depositary
Shares and registered in the name of the nominee of DTC (initially expected to
be Cede & Co.). The DTC Receipt shall be in such form and shall bear such
legend or legends as may be appropriate or required by DTC in order for it to
accept the Depositary Shares for its book-entry settlement system. The Bank of
New York Mellon or such other entity as is agreed to by DTC will hold the DTC
Receipt as custodian for DTC. Ownership of beneficial interests in the DTC
Receipt shall be shown on, and the transfer of such ownership shall be effected
through, records maintained by (i) DTC or its nominee for such DTC Receipt or
(ii) institutions that have accounts with DTC.

       

      Interests
in the DTC Receipt shall be exchangeable for definitive Receipts only if (i) DTC
notifies the Company at any time that it is unwilling or unable to continue to
make its book-entry settlement system available for the Receipts and a successor
to DTC is not appointed by the Company within 90 days of the date the Company is
so informed in writing or (ii) DTC notifies the Company at any time that it has
ceased to be a clearing agency registered under applicable law and a successor
to DTC is not appointed by the Company within 90 days of the date the Company is
so informed in writing. The Company shall provide written notice to the
Depositary upon receipt of a notice described in clause (i) or (ii) of the
preceding sentence. Until such written notice is received by the Depositary, the
Depositary may presume conclusively for all purposes that the events described
in clause (i) and (ii) of the first sentence of this paragraph have not
occurred. If the beneficial owners of interests in Depositary Shares are
entitled to exchange such interests for definitive Receipts as the result of an
event described in clause (i), or (ii) of the first sentence of this paragraph,
then without unnecessary delay, the Depositary is hereby directed to and shall
provide written instructions to DTC to deliver to the Depositary for
cancellation the DTC Receipt, and the Company shall instruct the Depositary in
writing to execute and deliver to the beneficial owners of the Depositary Shares
previously evidenced by the DTC Receipt definitive Receipts in physical form
evidencing such Depositary Shares.


      
        
           


        

        
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      Notwithstanding
any other provision herein to the contrary (including Section 4.03), delivery of
shares of Common Stock and other property in connection with the Conversion and
subsequent distribution to the holders of the Depositary Shares will be made
through DTC and in accordance with its procedures, unless the holder of the
relevant Receipt otherwise requests and such request is reasonably acceptable to
the Depositary and the Company. Upon the Conversion, if requested by the holder
of the relevant Receipt, the Company shall take any action reasonably requested
by DTC in order for the securities issuable upon the Conversion to be eligible
for settlement in DTC’s book-entry system.

       

      SECTION
2.02.     Deposit of Stock; Execution
and Delivery of Receipts in Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement, the Company may from time to time deposit
shares of Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and together with a written order of
the Company directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing interests in such
deposited Stock. The Company hereby appoints the Registrar as registrar for the
Stock deposited hereunder and the Registrar hereby accepts such
appointment.

       

      The
deposited Stock shall be held by the Depositary at the Depositary’s Office or at
such other place or places as the Depositary shall determine.

       

      If
required by the Depositary, Stock presented for deposit by the Company at any
time shall also be accompanied by an agreement or assignment, or other
instrument reasonably satisfactory to the Depositary, that will provide for the
prompt transfer to the Depositary or its nominee of any dividend or right to
subscribe for additional Stock or to receive other property that any person in
whose name the Stock is or has been registered may thereafter receive upon or in
respect of such deposited Stock, or in lieu thereof such agreement of indemnity
or other agreement as shall be satisfactory to the Depositary.

       

      Upon
receipt by the Depositary of a certificate or certificates for Stock deposited
in accordance with the provisions of this Section, together with the other
documents required as above specified, and upon receipt of sufficient evidence
by the Depositary of the recordation of the Stock on the books of the Company
(or its duly approved transfer agent) in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement (including the DTC provisions set forth in Section 2.01 and the single
DTC Receipt contemplated therein), shall execute and deliver, to or upon the
order of the person or persons named in the written order delivered to the
Depositary, a Receipt or Receipts for the number of Depositary Shares
representing the Stock so deposited and registered in such name or names as may
be requested by such person or persons. The Depositary shall execute and deliver
such Receipt or Receipts at the Depositary’s Office or such other offices, if
any, as the Depositary may designate. Delivery at other offices shall be at the
risk and expense of the person requesting such delivery. However, in each case,
such delivery will be made only upon payment to the Depositary of all taxes and
charges and fees payable by the depositor, as provided in Section
5.07.


      
        
           


        

        
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      The
Company shall deliver to the Depositary from time to time such quantities of
Receipts as the Depositary may request to enable the Depositary to perform its
obligations under this Deposit Agreement.

       

      SECTION
2.03.     Registration and Transfer of
Receipts. Subject to the terms and conditions of this Deposit Agreement
(including the DTC provisions set forth in Section 2.01 and the single DTC
Receipt contemplated therein and the payment of the fees of the Depositary as
provided in Section 5.07), the Registrar shall register on its books from time
to time transfers of Receipts upon any surrender thereof by the holder in person
or by a duly authorized attorney, agent or representative properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of payment by the applicable party of any taxes or
charges a may be required by law. Thereupon the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the person entitled
thereto.

       

      Notwithstanding
anything contained in this Deposit Agreement to the contrary, neither the
Depositary nor the Registrar shall have any duty or obligation under any section
of this Deposit Agreement which requires the payment of taxes or charges unless
and until it is satisfied that all such taxes and/or charges have been
satisfied.

       

      SECTION
2.04.     Split-ups and Combinations
of Receipts and Surrender of Receipts. Upon surrender of a Receipt or
Receipts at the Depositary’s Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and the receipt by it of all necessary information and documents,
subject to the terms and conditions of this Deposit Agreement (including the DTC
provisions set forth in Section 2.01 and the single DTC Receipt contemplated
therein), upon receipt by the Depositary of any required certification and a
written order of the Company, the Depositary shall execute and deliver a new
Receipt or Receipts in the authorized denomination or denominations requested,
evidencing the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.

       

      Holders
of Receipts shall have no rights to withdraw the shares of Stock represented by
the Depositary Shares.


      
        
           


        

        
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      SECTION
2.05.     Limitations on Execution and
Delivery, Transfer, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt, the Depositary, any of the
Depositary’s Agents or the Company, subject to the terms and conditions of this
Deposit Agreement (including the DTC provisions set forth in Section 2.01 and
the single DTC Receipt contemplated therein), may require any or all of the
following: (i) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other charges and stock transfer or
registration fee payable pursuant to Section 5.07 with respect thereto
(including any such tax or charge with respect to the Stock being deposited or
withdrawn); (ii) the production of proof satisfactory to it as to the identity
and genuineness of any signature (or the authority of any signature); and (iii)
compliance with such regulations, if any, as the Depositary or the Company may
establish consistent with the provisions of this Deposit Agreement, applicable
law and/or as may be required by any securities exchange on which the Stock,
Depositary Shares or the Receipts may be included for quotation or
listing.

       

      The
deposit of Stock may be refused, the delivery of Receipts against Stock may be
suspended, the registration of transfer of Receipts may be refused and the
registration of transfer, surrender or exchange of outstanding Receipts may be
suspended (i) during any period when the register of stockholders of the Company
is closed or (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary’s Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.

       

      SECTION
2.06.     Lost Receipts, etc.
Subject to the terms and conditions of this Deposit Agreement (including the DTC
provisions set forth in Section 2.01 and the single DTC Receipt contemplated
therein), in case any Receipt shall be mutilated and surrendered to the
Depositary or destroyed or lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt. Before the Depositary shall execute and deliver a new Receipt in
substitution for a destroyed, lost or stolen Receipt, the holder thereof shall
have (i) delivered to the Depositary (a) a request for such execution and
delivery prior to the Depositary having received notice that the Receipt has
been acquired by a bona fide purchaser, (b) evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt and of ownership
thereof and (c) indemnification satisfactory to the Depositary and (ii)
satisfied any other reasonable requirements imposed by the
Depositary.

       

      ARTICLE
III

       

      Certain Obligations of the
Holders

      of Receipts and the
Company

       

      SECTION
3.01.     Filing Proofs, Certificates
and Other Information.  Any holder of a Receipt may be required
from time to time to file with the Depositary such proof of residence, guarantee
of signature or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary may reasonably
deem necessary or proper or the Company may reasonably require by written
request to Depositary. The Depositary or the Company may withhold or delay the
delivery of any Receipt, or delay the registration of transfer or exchange, of
any Receipt or the distribution of any dividend or other distribution or the
sale of any property or rights or of the proceeds thereof until such proof or
other information is filed or such certificates are executed or such
representations and warranties are made.


      
        
           


        

        
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      SECTION
3.02.     Payment of Taxes or Other
Governmental Charges.  Holders of Receipts shall be obligated
to make payments to the Depositary of certain charges and expenses, as provided
in Section 5.07. Registration of transfer of any Receipt and all money or
other property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or all or any part of
the Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such taxes or other
charges or expenses, the holder of such Receipt remaining liable for any
deficiency.

       

      SECTION
3.03.     Warranty as to
Stock.  The Company hereby represents and warrants that the
Stock, when issued, will be validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock and the
issuance of Receipts.

       

      ARTICLE
IV

       

      The Deposited Securities;
Distributions; Conversions; Notices

       

      SECTION
4.01.     Cash
Distributions.  Whenever the Depositary shall receive any cash
dividend or other cash distribution on Stock (other than any cash distribution
in respect of declared but unpaid dividends on account of the Conversion), the
Depositary shall, on the date of receipt or as soon as practicable thereafter,
subject to Sections 3.01 and 3.02, distribute to Record Holders of Receipts on
the record date fixed pursuant to Section 4.05 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided,
however, that in case the Company or the Depositary shall be required by
law to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required by law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly.  The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
Record Holders of Receipts then outstanding. Each holder of a Receipt shall
provide the Depositary with its certified tax identification number on a
properly completed Form W-8 or W-9, as may be applicable. Each holder of a
Receipt acknowledges that, in the event of non-compliance with the preceding
sentence, the Internal Revenue Code of 1986, as amended, may require withholding
by the Depositary of a portion of any of the distributions to be made
hereunder.


      
        
           


        

        
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      SECTION
4.02.     Distributions Other than
Cash.  Whenever the Depositary shall receive any distribution
other than cash on Stock (other than any distribution in connection with the
Conversion), the Depositary shall, on the date of receipt or as soon as
practicable thereafter, subject to Sections 3.01 and 3.02, distribute to
Record Holders of Receipts on the record date fixed pursuant to
Section 4.05 such amounts of the non-cash property received by it as are,
as nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If the Depositary determines that such distribution is
subject to tax or other governmental charge that the Depositary is obligated by
law to withhold, the Depositary may dispose of all or any portion of such
property, at a public or private sale, as the Depositary deems necessary and
practicable to pay such tax or charge, and the Depositary will distribute the
net proceeds of such sale or the balance of any such property, after deduction
of such tax or charge, to holders of the Depositary Shares in proportion to the
number of outstanding Depositary Shares evidenced by Receipts that they
hold.  If the Depositary determines, however, that any such distribution to
certain holders (but not all holders) is subject to withholding tax, the
Depositary will use its commercially reasonable efforts to sell only the
non-cash property distributable to such holders.  If in the opinion of
the Depositary such distribution cannot be made proportionately among such
Record Holders, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes or governmental
charges) the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the purpose
of effecting such distribution, including the sale (at public or private sale)
of the securities or property thus received, or any part thereof, at such place
or places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.01 and 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to Record
Holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash.

       

      SECTION
4.03.     Distribution upon
Conversion.   On the Conversion Date, or as soon as practicable
thereafter, (a) the Company shall cause to be furnished to the Depositary
pursuant to the Certificate of Designations (i) a certificate or
certificates evidencing such number of shares of Common Stock, or instruction to
issue such number of shares of Common Stock in book-entry form, into which the
Stock has been converted and (ii) an amount of cash, if any, equal to the
declared but unpaid dividends payable by the Company on such shares of Stock
pursuant to the Certificate of Designations upon the Conversion, and
(b) the Depositary upon receipt of such certificates and/or necessary cash
and instructions, in its capacity as Depositary and transfer agent for the
Common Stock, is hereby authorized and instructed to, and shall, deliver to the
holders of Depositary Shares, (i) a certificate or certificates, or
book-entry notations, evidencing the number of shares of Common Stock into which
the Stock has been converted, (ii) an amount of cash, if any, equal to the
amount of cash equal to the declared but unpaid dividends paid by the Company on
such shares of Stock pursuant to the Certificate of Designations upon the
Conversion and (iii) an amount in cash, rounded to the nearest cent, equal to
such holder’s proportionate interest in any fractional shares (as contemplated
by the following paragraph) based on the Per Share Closing Price of the Common
Stock at the close of business on the trading day next preceding the Conversion
Date.


      
        
           


        

        
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      No
fractional shares of Common Stock or any other security will be delivered to a
holder of the Depositary Shares in connection with the Conversion. The number of
full shares of Common Stock or other securities deliverable in connection with
the Conversion shall be computed on the basis of the aggregate number of
Depositary Shares entitled to such distribution. The Depositary shall (a)
receive all shares of Common Stock issuable upon the Conversion but not
delivered to holders of Depositary Shares pursuant to Section this 4.03 due to
the existence of fractional shares, (b) as soon as practicable after the
Conversion Date, sell such shares of Common Stock on the open market and (c)
distribute such proceeds to the holders of Depositary Shares entitled to receive
fractional interests in shares of Common Stock such that each such holder
receives, in lieu of a fractional share, an amount in cash, rounded to the
nearest cent, equal to such holder’s proportionate interest in the fractional
shares based on the Per Share Closing Price of the Common Stock at the close of
business on the trading day next preceding the Conversion Date. To the extent
that the proceeds of the sale of such Depositary Shares exceed the holders’
aggregate interest in the fractional shares, the Depositary shall furnish the
excess amount to the Company. To the extent that the holders’ aggregate interest
in the fractional shares exceeds the proceeds of the sale of such Depositary
Shares, the Company shall furnish the excess amount to the
Depositary.

       

      Subject
to the terms and conditions of this Deposit Agreement (including the DTC
provisions set forth in Section 2.01 and the single DTC Receipt contemplated
therein), delivery of shares of Common Stock pursuant to this Section 4.03
following the Conversion may be made by the delivery of such certificates,
documents of title and other instruments or book-entry notations as the
Depositary and the Company may deem appropriate, which, if required by the
Depositary, shall be properly endorsed or accompanied by proper instructions or
transfer. If such delivery is to be made otherwise than at the Depositary’s
Office, such delivery shall be made, as hereinafter provided, without
unreasonable delay, at the risk of any holder surrendering Receipts, and for the
account of the applicable holder of Depositary Shares, to such place designated
in writing by such holder.

       

      Following
the Conversion, all Receipts evidencing Depositary Shares shall be deemed
automatically canceled effective as of the Conversion Date, subject to the right
of holders of Receipts to receive the distributions in respect of the Conversion
contemplated by this Section 4.03.

       

      Notwithstanding
anything to the contrary set forth herein, the Common Stock issuable upon the
Conversion shall not be treated as new deposited property under this Deposit
Agreement.

       

      SECTION
4.04.     Subscription Rights,
Preferences or Privileges.  If the Company shall at any time
offer or cause to be offered to the persons in whose names deposited Stock is
registered on the books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or privileges shall in
each such instance be made available by the Depositary to the Record Holders of
Receipts in such manner as the Company shall instruct (including by the issue to
such Record Holders of warrants representing such rights, preferences or
privileges); provided, however, that
(i) if at the time of issue or offer of any such rights, preferences or
privileges the Company determines or is advised by legal counsel that it is not
lawful or not feasible to make such rights, preferences or privileges available
to holders of Receipts by the issue of warrants or otherwise, or (ii) if
and to the extent so instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, the Depositary shall then, if
so directed by the Company and provided with an opinion of counsel that such
rights, preferences or privileges have been registered under the Securities Act
of 1933, as amended, or do not need to be registered and that if the Depositary
undertakes such actions it will not be deemed an “issuer” under the Securities
Act or an “investment company” under the Investment Company Act of 1940, as
amended, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sales shall be distributed by the Depositary to the Record
Holders of Receipts entitled thereto as provided by Section 4.01 in the
case of a distribution received in cash.


      
        
           


        

        
          10

          
            

          

        

        
           


        

      


      If
registration under the Securities Act of 1933, as amended, of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees that it will promptly
notify the Depositary of such requirement and will file reasonably promptly a
registration statement pursuant to such Act with respect to such rights,
preferences or privileges and securities and use its commercially reasonable
efforts and take all steps available to it to cause such registration statement
to become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of the Securities
Act and the Company shall have provided to the Depositary an opinion of counsel
to such effect.

       

      If any
other action under the laws of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees that it will promptly notify the Depositary of such
requirements and that the Company will use its commercially reasonable efforts
to take such action or obtain such authorization, consent or permit sufficiently
in advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.

       

      The
Depositary will not be deemed to have any knowledge of any item for which it is
supposed to receive notification by the Company under any Section of this
Deposit Agreement unless and until it has received such
notification.

       

      SECTION
4.05.     Notice of Dividends, etc.;
Fixing of Record Date for Holders of Receipts.  Whenever any
cash dividend or other cash distribution (other than any such dividend or
distribution in connection with the Conversion) shall become payable or any
distribution other than cash shall be made, or if rights, preferences or
privileges shall at any time be offered, with respect to Stock, or whenever the
Depositary shall receive notice of any meeting at which holders of Stock
are entitled to vote or of which holders of Stock are entitled to notice, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the applicable record date fixed by the Company with respect to the
Stock) for the determination of the holders of Receipts who shall be entitled
hereunder to receive a distribution in respect of such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting.


      
        
           


        

        
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      SECTION
4.06.     Voting
Rights.  Upon receipt of notice of any meeting at which the
holders of Stock are entitled to vote, the Depositary shall, if requested in
writing and provided with all necessary information and documents, as soon as
practicable after receiving such notice, mail to the Record Holders of Receipts
a notice, which shall be provided by the Company and which shall contain
(i) such information as is contained in such notice of meeting, (ii) a
statement that the holders may, subject to any applicable restrictions, instruct
the Depositary as to the exercise of the voting rights pertaining to the amount
of Stock represented by their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Receipts on the relevant record date, to the
extent practicable, the Depositary shall vote or cause to be voted, in
accordance with the voting instructions set forth in such requests, the maximum
number of whole shares of Stock represented by the Depositary Shares evidenced
by all Receipts as to which any particular voting instructions are received,
provided that the
Depositary receives such instructions sufficiently in advance (as contemplated
by the notice sent to the Record Holders of Receipts) of such voting to enable
it to so vote or cause such Stock to be voted.  If any holder of
Depositary Shares instructs the Depositary to vote a fractional interest of a
share of Stock, the Depositary will aggregate such interest with all other
fractional interests with the same voting instruction and will submit the number
of whole votes for whole shares of Stock resulting from such aggregation in
accordance with the instructions receive in such requests.  The
Company hereby agrees to take all reasonable actions that the Depositary
determines are necessary to enable the Depositary to vote as instructed. If the
Depositary does not receive specific voting instructions from the holders of any
Depositary Shares, it will not vote an amount of Stock represented by such
non-voting Depositary Shares.

       

      SECTION
4.07.     Changes Affecting Deposited
Securities and Reclassifications, Recapitalizations, etc.  Upon
any change in par or stated value, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation or sale of all or substantially all the
Company’s assets affecting the Company or to which it is a party, the Depositary
may in its discretion with the approval of, and shall upon the instructions of,
the Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in the
fraction of an interest in one share of Stock represented by one Depositary
Share as may be necessary or appropriate to fully reflect the effects of such
change in par or stated value, split-up, combination or other reclassification
of Stock and (ii) treat any securities which shall be received by the
Depositary in exchange for or upon conversion (other than upon the Conversion)
of or in respect of the Stock as new deposited securities so received in
exchange for or upon conversion (other than upon the Conversion) or in respect
of such Stock. In any such case, the Depositary may, upon the receipt of a
written request of the Company, execute and deliver additional Receipts, or may
call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.

       

      SECTION
4.08.     Inspection of
Reports.  The Depositary shall make available for inspection by
holders of Receipts at the Depositary’s Office, and at such other places as it
may from time to time deem advisable, during normal business hours, any reports
and communications received from the Company that are received by the Depositary
as the holder of Stock.


      
        
           


        

        
          12

          
            

          

        

        
           


        

      


      SECTION
4.09.     List of Receipt
Holders.  Promptly upon request from time to time by the
Company, the Registrar shall furnish to it a list, as of a recent date specified
by the Company, of the names, addresses and holdings of Receipts of all persons
in whose names Receipts are registered on the books of the
Registrar.

       

      ARTICLE
V

       

      The Depositary, the
Depositary’s Agents,

      the Registrar and the
Company

       

      SECTION
5.01.     Maintenance of Offices,
Agencies and Transfer Books by the Depositary; Registrar. Upon execution
of this Deposit Agreement, the Depositary shall maintain, at the Depositary’s
Office, facilities for the execution and delivery, registration and registration
of transfer, surrender and exchange of Receipts, and at the offices of the
Depositary’s Agents, if any, facilities for the delivery, registration or
transfer, surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement.

       

      The
Registrar shall keep books at the Depositary’s Office for the registration and
registration of transfer of Receipts, which books at all reasonable times shall
be open for inspection by the Record Holders of Receipts; provided, that any
such holder requesting to exercise such right shall certify to the Registrar
that such inspection shall be for a proper purpose reasonably related to such
person’s interest as an owner of Depositary Shares evidenced by the
Receipts.

       

      The
Company may cause the Registrar to close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.

       

      If the
Receipts, such Depositary Shares or such Stock are listed on one or more other
stock exchanges, the Registrar will, at the request and expense of the Company,
arrange such facilities for the delivery, transfer, surrender and exchange of
such Receipts, such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulations.


      
        
           


        

        
          13

          
            

          

        

        
           


        

      


      SECTION
5.02.     Prevention of or Delay in
Performance by the Depositary, the Depositary’s Agents, the Registrar or the
Company. Neither the Depositary nor any Depositary’s Agent nor the
Registrar nor the Company shall incur any liability to any holder of any Receipt
if by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America or of any other governmental
authority or by reason of any provision, present or future, of the Certificate
of Incorporation (including the Certificate of Designations) or by reason of any
act of God or war or other circumstance beyond the control of the relevant
party, including terrorism, civil or military disorder, work stoppage, accident,
electrical outages, equipment or transmission failure, failure or malfunction of
any utilities, means of communication or computer services, the unavailability
of the Federal Reserve Bank or the Depositary, any of the Depositary’s Agents,
the Registrar or the Company shall be prevented or forbidden from, delayed in,
or subjected to any penalty on account of, doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary, any of the Depositary’s Agents, the Registrar or the
Company incur any liability to any holder of a Receipt or to the Company (i) by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which the terms of this Deposit Agreement provide shall or
may be done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement except, in case
of any such exercise or failure to exercise discretion not caused as aforesaid,
if caused by the gross negligence or willful misconduct of the party charged
with such exercise or failure to exercise, provided, that in the
case of the Depositary, any of the Depositary’s Agents or the Registrar, such
gross negligence or willful misconduct must be determined by a final,
nonappealable order, judgment, decree or ruling of a court of competent
jurisdiction.

       

      SECTION
5.03.     Obligations of the
Depositary, the Depositary’s Agents, the Registrar and the Company.
Neither the Depositary nor any of the Depositary’s Agents nor the Registrar nor
the Company assumes any obligation or shall be subject to any liability under
this Deposit Agreement to holders of Receipts, the Company or any other person
or entity other than for its gross negligence or willful misconduct (which gross
negligence or willful misconduct must be determined by a final, nonappealable
order, judgment, decree or ruling of a court of competent jurisdiction).
Notwithstanding anything in this Deposit Agreement to the contrary, neither the
Depositary, nor any of the Depositary’s Agents nor any Registrar nor the Company
shall be liable in any event for special, punitive, incidental, indirect or
consequential losses or damages of any kind whatsoever (including but not
limited to lost profits), even if such person alleged to be liable has knowledge
of the possibility of such damages or been advised of the likelihood of such
loss or damage and regardless of the form of action. Any liability of the
Depositary, any of the Depositary’s Agents (except for such Depositary’s Agents
which are not employees of the Depositary) or the Registrar under this Deposit
Agreement shall be limited to one hundred and fifty percent (150%) of the amount
of annual fees paid by the Company to such person; provided, however, that in the
event that such liability arises as a result of misappropriation of funds by the
Depositary, any of the Depositary’s Agents (except for such Depositary’s Agents
which are not employees of the Depositary) or the Registrar through fraud or
willful misconduct on the part of such person (as determined by a final,
non-appealable judgment of a court of competent jurisdiction), such limit shall
not apply and such liability hereunder shall be instead limited to the amount of
such misappropriated funds.

       

      None of
the Depositary nor any of the Depositary’s Agents nor the Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.


      
        
           


        

        
          14

          
            

          

        

        
           


        

      


      The
Depositary, any of the Depositary’s Agents and the Registrar may consult counsel
satisfactory to it (who may be an employee of the Depositary or the Registrar).
None of the Depositary nor any of the Depositary’s Agents nor the Registrar nor
the Company shall be liable for any action taken, suffered or omitted to be
taken by it in reliance upon the advice of legal counsel or accountants, or
information from any holder of a Receipt or any other person believed by it to
be competent to give such information. The Depositary, any of the Depositary’s
Agents, the Registrar and the Company may each rely and shall each be protected
in acting upon any written notice, request, direction, certificate, instrument,
opinion, letter, facsimile transmission or other document reasonably believed by
it to be genuine and to have been signed or presented by the proper party or
parties and shall have no responsibility for determining the accuracy
thereof.

       

      In the
event the Depositary shall receive conflicting claims, requests or instructions
from any Record Holders of Receipts, on the one hand, and the Company, on the
other hand, the Depositary shall be entitled to act on such claims, requests or
instructions received from the Company, and shall incur no liability and shall
be entitled to the full indemnification set forth in Section 5.06 in connection
with any action so taken.

       

      The
Depositary shall not be responsible for any failure to carry out any instruction
to vote any of the shares of Stock or for the manner or effect of any such vote,
as long as any such action or nonaction is not in bad faith. The Depositary and
the Registrar undertake to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no implied covenants or
obligations shall be read into this Deposit Agreement against the Depositary or
the Registrar. The Depositary, its parents, affiliates or subsidiaries, any of
the Depositary’s Agents and the Registrar may own and deal in any class of
securities of the Company or its affiliates and in Receipts or Depositary Shares
or become pecuniarily interested in any transaction in which the Company or its
affiliates may be interested or contract with or lend money to or otherwise act
as fully or as freely as if it were not the Depositary, Depositary’s Agent or
Registrar hereunder. The Depositary, any of the Depositary’s Agents or the
Registrar may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates or act in any other capacity for the Company
or its affiliates.

       

      The
Depositary shall not be obligated to segregate such monies from other monies
held by it, except as required by law. The Depositary shall not be responsible
for advancing funds on behalf of the Company and shall have no duty or
obligation to make any payments if it has not timely received sufficient funds
to make timely payments.

       

      It is
intended that neither the Depositary nor any of the Depositary’s Agents shall be
deemed to be an “issuer” of the securities under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed that
the Depositary and any of the Depositary’s Agents are acting only in a
ministerial capacity as Depositary for the deposited Stock; provided, however, that the
Depositary agrees to comply with all information reporting and withholding
requirements applicable to it under law or this Deposit Agreement in its
capacity as Depositary.

       

      Neither
the Depositary (or its officers, directors, employees, agents or affiliates) nor
any of the Depositary’s Agents makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
deposited Stock, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein; provided, however, that the
Depositary is responsible for its representations in this Deposit
Agreement.


      
        
           


        

        
          15

          
            

          

        

        
           


        

      


      The
Company agrees that it has registered the deposited Stock and the Depositary
Shares in accordance with the applicable securities laws or no such registration
is required.

       

      The
Depositary, any of the Depositary’s Agents and the Registrar may rely on and
shall be authorized and protected in acting or omitting to act upon the written,
telephonic, electronic and oral instructions, with respect to any matter
relating to the Depositary’s or the Registrar’s actions as depositary, transfer
agent or registrar covered by this Deposit Agreement (or supplementing or
qualifying any such actions), of officers of the Company. In the event the Depositary,
any of the Depositary’s Agents or the Registrar believes any ambiguity or
uncertainty exists hereunder or in any notice, instruction, direction, request
or other communication, paper or document received by it pursuant to this
Deposit Agreement, such person shall promptly notify the Company of the details
of such alleged ambiguity or uncertainty, and the Depositary may, in its sole
discretion upon written notice to the Company, refrain from taking any action
and shall be fully protected and shall not be liable in any way to the Company,
any holders of Receipts or any other person or entity for refraining from taking
such action, unless such person receives written instructions or a certificate
signed by the Company which eliminates such ambiguity or uncertainty to the
satisfaction of such person or which proves or establishes the applicable matter
to the satisfaction of such person.

       

      No
disclaimer of liability by the Company under the Securities Act is intended by
any provision of this Deposit Agreement.

       

      Whenever
in the performance of its duties under this Deposit Agreement, the Depositary or
any of the Depositary’s Agents or the Registrar shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking, suffering or omitting to take any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively provided and established by a
certificate signed by any one of the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or Assistant Secretary of the
Company and delivered to the Depositary or any of the Depositary’s Agents or the
Registrar, and such certificate shall be full and complete authorization and
protection to the Depositary and any of the Depositary’s Agents and the
Registrar, the Depositary and any of the Depositary’s Agents and the Registrar
shall incur no liability for or in respect of any action taken, suffered or
omitted to be taken by it under the provisions of this Deposit Agreement in
reliance upon such certificate. The Depositary and any of the Depositary’s
Agents and the Registrar, shall not be liable for or by reason of any of the
recitals or representations or warranties of the Company contained in this
Deposit Agreement or in the Receipts (except its countersignature thereof) or be
required to verify the same, but all such recitals or representations or
warranties are and shall be deemed to have been made by the Company
only.

       

      None of
the Depositary or any of the Depositary’s Agents or the Registrar will be under
any duty or responsibility to ensure compliance with any applicable federal or
state securities laws in connection with the issuance, transfer or exchange of
the Receipts, Stock or Depositary Shares.


      
        
           


        

        
          16

          
            

          

        

        
           


        

      


      Notwithstanding
anything herein to the contrary, no amendment to the Certificate of Designations
shall affect the rights, duties, obligations or immunities of the Depositary or
any of the Depositary’s Agents or the Registrar.

       

      The
Depositary and the Registrar hereunder:

       

      (i)         shall have no duties or obligations
other than those specifically set forth herein, or as may subsequently be agreed
to in writing by the parties;

       

      (ii)        shall have no obligation to make
payment hereunder unless the Company shall have provided the necessary federal
or other immediately available funds or securities or property, as the case may
be, to pay in full amounts due and payable with respect
thereto;

       

      (iii)       shall not be called upon at any time
to advise any person with respect to the Depositary Shares or
Receipts;

       

      (iv)       shall not be liable or responsible
for any recital or representation or warranty of the Company contained in any
documents relating hereto or the Depositary Shares or Receipts;
and

       

      (v)        shall not be liable in any respect
on account of the identity, authority or rights of the parties (other than with
respect to it’s own) executing or delivering or purporting to execute or deliver
this Deposit Agreement or any documents or papers deposited or called for under
this Deposit Agreement.

       

      The
obligations of the Company set forth in this Section 5.03 shall survive the
replacement, removal or resignation of any Depositary, any of the Depositary’s
Agents or the Registrar or the termination of this Deposit
Agreement.

       

      SECTION
5.04.     Resignation and Removal of
the Depositary; Appointment of Successor Depositary. The Depositary may
resign at any time as Depositary hereunder by delivering notice to the Company
of its election to do so, such resignation to take effect upon the appointment
of a successor Depositary and its acceptance of such appointment as hereinafter
provided.

       

      The
Depositary may at any time be removed by the Company by notice of such removal
delivered to the Depositary, such removal to take effect upon the appointment of
a successor Depositary hereunder and its acceptance of such appointment as
hereinafter provided.

       

      In case
the Depositary acting hereunder shall at any time resign or be removed, the
Company shall, within 60 days after the delivery of the notice of resignation or
removal, as the case may be, appoint a successor Depositary, which shall be a
bank or trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $50,000,000. If no
successor Depositary shall have been so appointed and have accepted appointment
within 60 days after delivery of such notice, the resigning or removed
Depositary may petition any court of competent jurisdiction for the appointment
of a successor Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and upon the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the Record Holders
of all outstanding Receipts. Any successor Depositary shall promptly mail notice
of its appointment to the Record Holders of Receipts.


      
        
           


        

        
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      Any
corporation or entity into or with which the Depositary may be merged,
consolidated or converted, or any corporation or entity to which all or a
substantial part of the assets of the Depositary may be transferred, shall be
the successor of such Depositary without the execution or filing of any document
or any further act, and notice thereof shall not be required hereunder. Such
successor Depositary may execute the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.

       

      SECTION
5.05.     Corporate Notices and
Reports.  The Company agrees that it will deliver to the
Depositary, and the Depositary, if requested in writing by the Company and
provided with necessary information and documents, agrees that it will, promptly
after receipt thereof, transmit to the Record Holders of Receipts, in each case
at the address recorded in the Depositary’s or Registrar’s books or through the
facilities of the DTC, copies of all notices and reports (including, without
limitation, financial statements) required by law, the rules of any national
securities exchange upon which the Stock, the Depositary Shares or the Receipts
are listed or by the Certificate of Incorporation (including the Certificate of
Designations) to be furnished by the Company to holders of Stock. Such
transmission will be at the Company’s expense, and the Company will provide the
Depositary with such number of copies of such documents as the Depositary may
reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts (at the Company’s expense) such other documents as may be
requested by the Company.

       

      SECTION
5.06.     Indemnification by the
Company.  Notwithstanding anything in Section 5.03 to the
contrary, the Company shall indemnify the Depositary, any of the Depositary’s
Agents and the Registrar (including each of their officers, directors, agents
and employees) against, and hold each of them harmless from, any loss, damage,
cost, penalty, liability or expense (including the costs and expenses of
defending itself) which may arise out of (i) acts performed, suffered or
omitted to be taken in connection with this Deposit Agreement and the Receipts
by (a) the Depositary, the Registrar or any of their respective agents
(including any of the Depositary’s Agents), and any transactions or documents
contemplated hereby, except for any liability arising out of gross negligence or
willful misconduct (which gross negligence or willful misconduct must be
determined by a final, non-appealable order, judgment, decree or ruling of a
court of competent jurisdiction) on the respective parts of any such person or
persons or (b) the Company or any of its agents (other than the Depositary, the
Depositary’s Agents, the Registrar or any of their agents), or (ii) the offer,
sale, or registration of the Receipts or Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.06 shall
survive any succession, replacement, removal or resignation of any Depositary,
Registrar or Depositary’s Agent or termination of this Deposit
Agreement.


      
        
           


        

        
          18

          
            

          

        

        
           


        

      


      SECTION
5.07.     Charges and
Expenses.  The Company shall pay all transfer and other taxes
and charges arising solely from the existence of this Deposit Agreement. The
Company shall also pay all fees and expenses of the Depositary in connection
with the initial deposit of the Stock and the initial issuance of the Depositary
Shares, all withdrawals of shares of the Stock by owners of Receipts and the
registration of transfer of title to any Receipts. All other transfer and other
taxes and governmental charges shall be at the expense of holders of Receipts.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it or the Company is not otherwise liable hereunder, such
holder will be liable for such charges and expenses. All other charges, expenses
of the Depositary and any of the Depositary’s Agents hereunder and of the
Registrar (including, in each case, fees and expenses of counsel) incurred in
the preparation, negotiation, delivery, amendment, administration, modification,
waiver, performance, enforcement and execution of this Deposit Agreement and
incident to the performance of their respective obligations hereunder will be
paid by the Company upon consultation and agreement between the Depositary and
the Company as to the amount and nature of such charges, fees and expenses will
be paid. The Depositary (and if applicable, the Registrar) shall present its
statement for fees and expenses to the Company once every three months or at
such other intervals as the Company and the Depositary may agree.

       

      ARTICLE
VI

       

      Amendment and
Termination

       

      SECTION
6.01.     Amendment.  The
form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable; provided, however, that no such
amendment which shall materially and adversely alter the rights of the holders
of Receipts shall be effective unless such amendment shall have been approved by
the holders of at least a majority of the Depositary Shares then outstanding.
Every holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by this Deposit Agreement as amended
thereby.

       

      SECTION
6.02.     Termination.  The
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Company and the holders of all Receipts then outstanding if
at any time 90 days shall have expired after the Depositary shall have delivered
to the Company a written notice of its election to resign and a successor
Depositary shall not have been appointed and accepted its appointment as
provided in Section 5.04.  If the Record Holder of any Receipt or
Receipts shall not have surrendered such Receipt or Receipts in exchange for
whole shares of Stock on or prior to the effective date of termination of this
Deposit Agreement resulting from the failure to appoint a successor Depositary
in accordance with the first paragraph of this Section 6.02, such holder shall
for all purposes, including the payment of dividends, be deemed to be a holder
of the appropriate number of whole shares of Stock previously represented by
such Receipt or Receipts and shall thereafter surrender to the Company such
Receipt or Receipts in exchange for whole shares of Stock.


      
        
           


        

        
          19

          
            

          

        

        
           


        

      


      If any
Receipts shall remain outstanding after the date of termination resulting from
the failure to appoint a successor Depositary in accordance with the first
paragraph of this Section 6.02, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to the Stock, shall sell rights as provided in this Deposit
Agreement, and shall continue to deliver such Stock, together with any dividends
or other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the holder of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of one year from the date of termination resulting from the failure
to appoint a successor Depositary in accordance with the first paragraph of this
Section 6.02, the Depositary may sell such Stock then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, without liability for interest, for the
pro rata benefit of the holders which have not theretofore surrendered their
Receipts. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement, except to distribute such net proceeds
and other cash (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the holder of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges).

       

      This
Deposit Agreement will terminate if there has been a final distribution in
respect of the Stock, including in connection with the Conversion or with the
Company’s liquidation, dissolution or winding up, and the Conversion,
liquidation or distribution proceeds, as the case may be, have been distributed
to the holders of the Depositary Shares pursuant to Section 4.01, 4.02 or 4.03,
as applicable.

       

      Upon the
termination of this Deposit Agreement in accordance with this Section, each of
the parties hereto shall be discharged from all obligations under this Deposit
Agreement except for the obligations of the Depositary to the Company and of the
Company to the Depositary, any of the Depositary’s Agents and the Registrar,
under Sections 5.03, 5.06 and 5.07.

       

      ARTICLE
VII

       

      Miscellaneous

       

      SECTION
7.01.     Counterparts.  This
Deposit Agreement may be executed in any number of counterparts, and by each of
the parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such counterparts
taken together, shall constitute one and the same
instrument.  Delivery of an executed counterpart of a signature page
to this Deposit Agreement by facsimile or other electronic means shall be
effective as delivery of a manually executed counterpart of this Deposit
Agreement.


      
        
           


        

        
          20

          
            

          

        

        
           


        

      


      SECTION
7.02.     Exclusive Benefit of
Parties.  This Deposit Agreement is for the exclusive benefit
of the parties hereto, and their respective successors hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim to any other
person whatsoever.

       

      SECTION
7.03.     Invalidity of
Provisions.  In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby; provided, however, that if
such provision materially affects any of the rights, duties, liabilities or
obligations of the Depositary or Registrar, such person shall be entitled to
resign in accordance with Section 5.04 of this Deposit Agreement.

       

      SECTION
7.04.     Notices.  Any
and all notices to be given to the Company hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail or facsimile confirmed by letter, addressed to the
Company at 1600 Broadway, Suite 2200, Denver, Colorado 80202, to the attention
of the Secretary, or at any other address of which the Company shall have
notified the Depositary in writing.

       

      Any and
all notices to be given to the Depositary or Registrar hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by facsimile confirmed by letter,
addressed to the Depositary or Registrar at the Depositary’s Office,
at:

       

      BNY Mellon Shareowner
Services

      1775 Sherman St. Suite
2775

      Denver, CO
80203

      Attention:  Lucinda G. Bray,
Relationship Manager

       

      with a copy
to:

       

      Mellon Investor Services
LLC

      480 Washington Blvd, 29th
Floor

      Jersey City,
NJ  07310

      Attention:  Legal
Department

      


      or such other address of which the Depositary shall have
notified to Company in writing.

      


      Any
notices given to any Record Holder of a Receipt hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly given if transmitted
through the facilities of DTC in accordance with DTC’s procedures or personally
delivered or sent by mail, recognized next-day courier service or facsimile
confirmed by letter, addressed to such Record Holder at the address of such
Record Holder as it appears on the books of the Depositary, provided that any
Record Holder may direct the Depositary to deliver notices to such Record Holder
at an alternate address or in a specific manner that is reasonably requested by
such Record Holder in a written request timely filed with the Depositary and
that is reasonably acceptable to the Depositary.


      
        
           


        

        
          21

          
            

          

        

        
           


        

      


      Delivery
of a notice sent by mail or by facsimile shall be deemed to be effected at the
time when a duly addressed letter containing the same (or a confirmation thereof
in the case of a facsimile) is deposited, postage prepaid, in a post office
letter box, or in the case of a next-day courier service, when deposited with
such courier, courier fees prepaid. The Depositary or the Company may, however,
without liability, act upon any facsimile received by it from the other or from
any holder of a Receipt, notwithstanding that such facsimile shall not
subsequently be confirmed by letter or as aforesaid.

       

      SECTION
7.05.     Depositary’s
Agents.  The Depositary may from time to time appoint
Depositary’s Agents to act in any respect for the Depositary for the purposes of
this Deposit Agreement and may at any time appoint additional Depositary’s
Agents and vary or terminate the appointment of such Depositary’s Agents. The
Depositary will notify the Company of any such action.

       

      SECTION
7.06.     Holders of Receipts Are
Parties.  The holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance of delivery
thereof to the same extent as though such person executed this Deposit
Agreement.

       

      SECTION
7.07.     Governing
Law.  THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS
HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.

       

      SECTION
7.08.     Inspection of Deposit
Agreement.  Copies of this Deposit Agreement shall be filed
with the Depositary and any of the Depositary’s Agents and shall be open to
inspection during business hours at the Depositary’s Office by any holder of any
Receipt.

       

      SECTION
7.09.     Headings. The
headings of articles and sections in this Deposit Agreement and in the form of
the Receipt set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as a part of this Deposit Agreement or the
Receipts or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.


      
        
           


        

        
          22

          
            

          

        

        
           


        

      


      IN
WITNESS WHEREOF, the undersigned have duly executed this Deposit Agreement, as
of the day and year first above set forth, and all holders by Receipts shall
become parties hereto by and upon acceptance of them of delivery of Receipts
issued in accordance with the terms hereof.

       

      
        
          	
                  BIOFUEL
      ENERGY CORP.

                
	 
      	 
      
	
                  By:

                	 
      	
                   
      /s/ Kelly G. Maguire

                
	 
      	 
      	
                  Name:
      Kelly G. Maguire

                
	 
      	 
      	
                  Title:   Executive
      Vice President and

                             Chief
      Financial Officer

                
	 
      
	
                  MELLON
      INVESTOR SERVICES LLC, as 

                  Depositary
      and Registrar

                
	 
      	 
      
	
                  By:

                	 
      	
                   
      /s/ Lucinda Bray

                
	 
      	 
      	
                  Authorized
      Signatory

                


        

      


      
        
           


        

        
          23

          
            

          

        

        
           


        

      


      EXHIBIT
A

       

      FORM OF FACE OF
RECEIPT

      


      [THE SECURITIES REPRESENTED BY THIS
INSTRUMENT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE CONVERSION OF SUCH
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT
RELATING THERETO IS IN EFFECT UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OR SUCH LAWS.]

      


      [IF GLOBAL RECEIPT
IS ISSUED: UNLESS THIS
RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE CORPORATION
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY RECEIPT
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.

      


      TRANSFERS OF THIS GLOBAL RECEIPT
SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL RECEIPT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE CERTIFICATE OF DESIGNATIONS FILED
WITH THE SECRETARY OF STATE OF DELAWARE ESTABLISHING THE SERIES A NON-VOTING
CONVERTIBLE PREFERRED STOCK AS A SERIES OF PREFERRED STOCK OF BIOFUEL ENERGY
CORP.]

      


      IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND
TRANSFER AGENT MAY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
RESTRICTIONS ON TRANSFER
AND OTHER PROVISIONS OF THE DEPOSIT AGREEMENT (THE “DEPOSIT AGREEMENT”) DATED
FEBRUARY 4, 2011 BETWEEN BIOFUEL ENERGY CORP. AND THE DEPOSITARY. ANY SALE OR
OTHER TRANSFER NOT IN COMPLIANCE WITH THE DEPOSIT AGREEMENT WILL BE
VOID.


      
        
           


        

        
          A-1

          
            

          

        

        
           


        

      

       

      
        
          	
                  Certificate
      Number ______

                	 
      	
                  [Initial]
      Number of Depositary Shares
_________

                


        

      

      


      BIOFUEL
ENERGY CORP.

      


      RECEIPT
FOR DEPOSITARY SHARES

      Each
Representing [          ] of
one Share of

      Series
A Non-Voting Convertible Preferred Stock

      (par
value $0.01 per share)

      


      Mellon
Investor Services LLC, as Depositary (the “Depositary”), hereby certifies that
                                     
                                           
is the registered owner of [                                        ]
[the number shown on Schedule I hereto of] Depositary Shares (“Depositary
Shares”), each Depositary Share representing
[          ] of one share of
Series A Non-Voting Convertible Preferred Stock, $0.01 par value per share (the
“Stock”), of BioFuel Energy Corp., a Delaware corporation (the “Company”), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated
[          ], 2010 (the
“Deposit Agreement”), among the Company, the Depositary and the holders from
time to time of Receipts for Depositary Shares. By accepting this Receipt, the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized officer or, if executed by facsimile by
the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual or facsimile signature of a duly authorized officer of
the Registrar.

       

      
        
          
            
              	 
      	
                      Mellon
      Investor Services LLC, as Depositary

                    
	 
      	 
      
	 
      	
                      By:

                    	 
      	 
      
	 
      	 
      	 
      	
                      Authorized
      Signatory

                    


            

          

        

      


      
        
           


        

        
          A-2

          
            

          

        

        
           


        

      


      [FORM OF
REVERSE OF DEPOSITARY RECEIPT]

       

      The
following abbreviations when used in the instructions on the face of this
receipt shall be construed as though they were written out in full according to
applicable laws or regulations.

      


      
        
          
            
              
                	
                        TEN
      COM - as tenant in common

                      	 	
                        UNIF
      GIFT MIN ACT -                    

                      
	 
      	 	
                        Custodian
                          

                      
	 
      	 	
                                      
             
             
             (Cust)         (Minor)

                      
	 
      	 	 
      
	
                        TEN
      ENT - as tenants by the entireties

                      	 	
                        Under
      Uniform Gifts to Minors Act

                      
	 
      	 	 
      
	
                        JT
      TEN - as joint tenants with right of survivorship and not as tenants in
      common

                      	 	
                        (State)

                      


              

            

          

        

      

      


      Additional
abbreviations may also be used though not in the above list.

      


      ASSIGNMENT

      


      For value
received,                                         
hereby sell(s), assign(s) and transfer(s) unto

      


      PLEASE
INSERT SOCIAL SECURITY OR

      OTHER
IDENTIFYING NUMBER OF ASSIGNEE, AS APPLICABLE

       

      
        
          

        
 

        

      

       

      PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS

      INCLUDING
POSTAL ZIP CODE OF ASSIGNEE

       


      
        
  

                                                           
        Depositary Shares represented
by the within Receipt, and do hereby irrevocably constitute and
appoint

                                                                  
Attorney to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution in the premises.

      


      
        
          	
                  Dated

                	 
      	 
      	 
      
	 
      	 
      
	 
      	
                  NOTICE: The
      signature to the assignment must correspond with the name as written upon
      the face of this Receipt in every particular, without alteration or
      enlargement or any change
whatever.

                


        

      

      


      SIGNATURE
GUARANTEED

      


      NOTICE:
The signature(s) must be guaranteed by a participant in a Medallion Signature
Guarantee Program at a guarantee level acceptable to the
Registrar.


      
        
           


        

        
          A-3

          
            

          

        

        
           


        

      


      Schedule I1

      


      BioFuel
Energy Corp.

      


      Receipt
for Depositary Shares,

      Each
Representing a [          ]
Interest in one share of

      Series A
Non-Voting Convertible Preferred Stock

      


      Certificate
Number:

      


      The
number of Depositary Shares initially represented by this Global Depositary
Receipt shall be [          ].
Thereafter the Transfer Agent and Registrar shall note changes in the number of
Depositary Shares evidenced by this Global Depositary Receipt in the table set
forth below:

      


      
        
          
            
              
                
                  	
                          Amount of

                          Decrease in

                          Number of

                          Depositary Shares

                          Evidenced by this

                          Global Depositary

                          Receipt

                        	 
      	
                          Amount of

                          Increase in

                          Number of

                          Depositary Shares

                          Evidenced by this

                          Global Depositary

                          Receipt

                        	 
      	
                          Number of

                          Depositary Shares

                          Represented by this

                          Global Depositary

                          Receipt following

                          Decrease or Increase

                        	 
      	
                          Signature of

                          Authorized Officer

                          of Transfer Agent

                          and Registrar

                        


                

              

            

          

        

      

      
         

        
          

        

      

      1 Attach
Schedule I only to global Receipts.


      
        
           


        

        
          A-4

          
            

          

        

        
           


        

      


      EXHIBIT
B

       

      Certificate
of Designations

       

      [See
Exhibit 4.3]


      
        
           


        

        
          B-1