Unassociated Document


    Executive
Severance, Release and Waiver Agreement

    


    This
Executive Severance, Release and Waiver Agreement (the “Agreement”) is made
between BioFuel Energy Corp., a Delaware corporation, (the “Company”) and Daniel
J. Simon (the “Executive,” and collectively, the “Parties”) and shall be
effective on the Effective Date, as defined in Section 6(c) below.

    


    WHEREAS,
Company and Executive have determined that is in their mutual best interests
that Executive’s employment relationship with Company be severed;

    


    NOW,
THEREFORE, for and in consideration of the mutual covenants herein contained and
other good and valuable consideration, the Parties hereby agree as
follows:

    


    
      
        
          	
                  1. 

                	
                  Termination
      Date.  The Parties agree that as of  June 30,
      2010, (the “Termination Date”) the employment relationship between
      Executive and Company will be
terminated.

                


        

      

    

    


    
      	
              2.

            	
              Existing Company
      Obligations.  Company is responsible for fulfilling the
      following obligations.

            


    

    


    
      	
               
      

            	
              a.

            	
               Salary.  On
      the Termination Date, Company will pay to Executive any accrued, unpaid
      compensation through the Termination Date at his base salary rate, subject
      to standard payroll deductions and tax
  withholdings.

            


    

    


    
      	
               
      

            	
              b.

            	
               Bonus.  Executive
      shall be eligible to earn a bonus in an amount of up to Fifty
      Thousand Dollars ($50,000), based upon a successful transition of his
      duties on or before the Termination Date and in lieu of any performance
      bonus that would otherwise have been accrued or payable, which shall be
      determined by the Company’s Chief Executive Officer in his sole discretion
      and shall be payable on the Termination Date, subject to standard payroll
      deductions and tax withholdings.

            


    

    


    
      	
               
      

            	
              c.

            	
              Expenses.  Company
      will reimburse Executive for any unreimbursed business
      expenses.  Executive has notified Company in writing of all
      expenses for which he is entitled to, but has not yet received,
      reimbursement.  The list of such unreimbursed expenses is
      attached below as Schedule A.

            


    

    


    
      	
               
      

            	
              d.

            	
              Equity and
      Options.  Nothing in this Agreement shall impair
      Executive’s rights regarding any vested equity interests, options,
      warrants or other equity related rights, and any such rights continue to
      be fully enforceable.  Further, the Company and Executive agree
      that, for purposes of vesting under the Company’s 2007 Equity Incentive
      Compensation Plan (the “Equity Plan”), Executive shall be considered a
      “consultant” for the period during which the Company is obligated to pay
      Severance (as defined below), such that any awards that are unvested or
      partially vested as of the Termination Date shall continue to vest
      according to the terms of the Equity Plan or any applicable award
      agreements during such period.  The Company shall also take
      whatever steps are reasonably necessary (e.g., to cause Company counsel to
      issue legal opinions under Rule 144 promulgated under the Securities Act
      of 1933) to remove any restrictive legends on any of Executive’s existing
      equity interests in the Company upon lapse of any restrictions
      thereon.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      	
               
      

            	
              e.

            	
              No Other
      Obligations.  Except as set forth in this Section 2,
      Executive acknowledges that he is not entitled to any other compensation,
      benefits or other form of remuneration, including the Severance payment
      described in Section 4, except for the fact that he has executed,
      delivered and declined to revoke this
Agreement.

            


    

    


    
      	
              3.

            	
              Existing Executive
      Obligations.  Executive represents and warrants that he
      has returned to Company any and all of Company’s tangible or intangible
      property that has been in his possession.  This includes, but is
      not limited to, any cell phone, pager, computer or computer accessory,
      software, computer files, paper files, customer information, product or
      service data, and confidential Company information, data, correspondence,
      or work-product.  To the extent that Executive still has
      possession of, or has not returned to Company, any Company property, that
      property is listed below in Schedule B.  Property listed on
      Schedule B will be returned to Company within 7 days of the Termination
      Date, unless otherwise noted on Schedule B.  Notwithstanding the
      foregoing, Executive may retain copies of his employment related
      documents, and other documents directly pertaining to Executive’s
      employment rights and indemnity rights, and doing so shall not be
      considered a violation of this
provision.

            


    

    


    
      	
              4.

            	
              Severance.  Provided
      that Executive signs and does not revoke this Agreement, Company will pay
      to Executive the sum of Two Hundred Seventy Thousand ($270,000.00),
      subject to standard payroll deductions and tax withholdings (the
      “Severance”).  The Severance will be paid to Executive in equal
      installments corresponding with the Company’s payroll dates beginning with
      the first payroll date following the Termination Date  and
      ending on the first anniversary of such payroll
  date.

            


    

    


    
      	
              5.

            	
              Health
      Insurance.  The Company will reimburse Executive for the
      cost of healthcare continuation under COBRA, upon presentation by
      Executive of reasonable documentation of prior payment, for the twelve
      (12) months beginning with the first month following the Termination Date.
      The Executive will then be eligible to continue receiving health insurance
      benefits pursuant to federal COBRA law, or, if applicable, state insurance
      laws, and by Company’s current health insurance
      policy.  Executive will receive from Company further information
      regarding COBRA rights.  Executive will be responsible for all
      premiums to be paid under any COBRA extension of Executive’s health
      insurance benefits that Executive may
elect.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    
      	
              6.

            	
              Release.   In
      consideration of the payment of Severance by the Company, Executive, for
      himself, his heirs, personal representatives and assigns, and any other
      person or entity that could or might act on behalf of his, including,
      without limitation, his counsel (all of whom are collectively referred to
      as “Releasers”), hereby fully and forever releases and discharges the
      Company, its present and future affiliates and subsidiaries, and each of
      their past, present and future officers, directors, employees,
      shareholders, independent contractors, attorneys, insurers and any and all
      other persons or entities that are now or may become liable to any
      Releaser due to any Releasee’s act or omission, all of whom are
      collectively referred to as “Releasees,” of and from any and all actions,
      causes of action, claims, demands, costs and expenses, including
      attorney’s fees, of every kind and nature whatsoever, in law or in equity,
      whether now known or unknown, that Releasers, or any person acting under
      any of them, may now have, or claim at any future time to have, based in
      whole or in part upon any act or omission occurring on or before the
      Termination Date, without regard to present actual knowledge of such acts
      or omissions, including specifically, but not by way of limitation,
      matters which may arise at common law, such as breach of contract, express
      or implied, promissory estoppels, wrongful discharge, tortuous
      interference with contractual rights, infliction of emotional distress,
      defamation, or under federal, state or local laws, such as the Fair Labor
      Standards Act, the Executive Retirement Income Security Act, the National
      Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Age
      Discrimination in Employment Act, the Rehabilitation Act of 1973, the
      Equal Pay Act, the Americans with Disabilities Act, and any state civil
      rights or anti-discrimination acts; EXCEPT for the rights and obligations
      created by this agreement.  Executive hereby warrants that he
      has not assigned or transferred to any person any portion of any claim
      which is released, waived and discharged above.  Executive
      further states and agrees that he has not experienced any illness, injury,
      or disability compensable and recoverable under the worker’s compensation
      law of any state that was not reported to the Company before the
      Termination Date, and Executive agrees that he will not file a worker’s
      compensation claim asserting the existence of any such illness, injury, or
      disability.  Executive understands and agrees that by signing
      this Agreement he is giving up his right to bring any legal claim against
      the Company concerning, directly or indirectly, Executive’s employment
      relationship with the Company, including his separation from
      employment.  Executive agrees that this legal release is
      intended to be interpreted in the broadest possible manner in favor of the
      Company, to include all actual or potential legal claims that Executive
      may have against the Company, except as specifically provided otherwise in
      this agreement.  Executive covenants never to institute any
      action or other proceeding based in whole or part upon any right or claim
      released by this agreement.  Notwithstanding the foregoing or
      anything else contained herein to the contrary, Executive shall be
      entitled to seek, and the Company agrees not to contest, any benefits that
      may otherwise be available to Executive under state or federal
      unemployment insurance programs.

            


    

    


    
      	
              6.

            	
              Waiver of ADEA
      Claims.  Executive acknowledges that he understands the
      language used in this Agreement and the Agreement’s legal
      effect.  Executive further acknowledges that he understands
      that, by signing this Agreement, he is giving up the right to sue Company
      for age discrimination.  The Parties agree that this waiver and
      release does not apply to any rights that may arise under the ADEA after
      the Effective Date of this Agreement.  Executive acknowledges
      that the consideration given for this waiver and release was given by
      Company in addition to any wages, benefits, bonuses, or other things of
      value to which Executive would otherwise have been
      entitled.  Further, Executive acknowledges that he has been
      advised here in writing as follows:

            


    

    


    
      	
               
      

            	
              a.

            	
              Executive
      has been advised to consult with an attorney before signing this
      Agreement.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              b.

            	
              Executive
      has had at least 21 days to consider this Agreement before signing
      it.  If Executive signed this Agreement within 21 days of the
      date that the Agreement was offered to Executive, then Executive’s choice
      not to wait for the full 21-day period to expire was made knowingly and
      voluntarily, and was in no way induced by Company by means of
      intimidation, fraud, duress, or any other threat to withdraw the terms
      offered under this Agreement.

            


    

    


    
      
        	
              	
                c. 

              	
                For
      a period of seven (7) calendar days after signing the Agreement, Executive
      may, in his sole discretion, rescind this Agreement, by delivering a
      written notice of recision to the Company to the attention of Mark
      Zoeller, General Counsel.  If Executive rescinds this Agreement
      within seven calendar days after signing it, this Agreement shall be void,
      all actions taken pursuant to this Agreement shall be reversed, and
      neither this Agreement nor the fact of or circumstances surrounding its
      execution shall be admissible for any purpose whatsoever in any proceeding
      between the parties, except in connection with a claim or defense
      involving the validity or effective rescission of this
      Agreement.  If Executive does not rescind this Agreement within
      seven calendar days after signing, this Agreement shall become final and
      binding and shall be irrevocable upon the eighth day after the Executive
      signs it (the “Effective
Date”).

              


      

    

    


    
      	
              7.

            	
              Mutual
      Non-Disparagement.  To the extent permitted by law,
      Executive acknowledges and agrees that, as a condition for Company’s
      payment of the Severance, and of the promises made by Company in this
      Agreement, Executive shall not make any disparaging, derogatory or
      detrimental statements to anyone, including but not limited to any media
      outlet, industry group, financial institution, current or former employee,
      consultant, client or customer of Company, regarding Company or any of its
      directors, officers, employees, agents, affiliates, consultants or
      representatives or about Company's business affairs and financial
      condition, any statements that disparage any person, product, service,
      finances, financial condition, capability or any other aspect of Company’s
      business, and will not engage in any conduct which is intended to harm
      professionally or personally the reputation of Company (including its
      officers, directors, and employees). Company agrees to instruct its
      officers and directors not to make any disparaging, derogatory or
      detrimental statements to anyone, including but not limited to any media
      outlet, industry group, or current or future employee about Executive;
      about Executive’s employment with Company; or about Executive’s separation
      from Company.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      	
              8.

            	
              Nondisclosure.

            


    

    


    
      	
               
      

            	
              a.

            	
              The
      Company has provided Executive with some or all of the Company’s various
      trade secrets and confidential or proprietary information, consisting of,
      but not limited to, information relating to:  (a) business
      operations and methods; (b) existing and proposed investments and
      investment strategies; (c) financial performance;
      (d) compensation, severance arrangements and amounts (whether
      relating to the Company or to any of its employees, including Executive);
      (e) contractual relationships (including the terms of this
      Agreement); (f) business partners and relationships; (g) limited
      partners and prospective limited partners of the Company’s funds;
      (h) marketing strategies; (i) intellectual property and
      technology, software, systems, methods, apparatuses, inventions,
      discoveries, improvements, designs, techniques, code, procedures,
      development tools, formulas, research, developments, objects, agents and
      components thereof, subroutines and other programs and (j) lists with
      information related to existing or prospective customers, partners or
      investors, including, but not limited to particular investments,
      investment strategies, investment patterns and amounts (collectively,
      “Confidential
      Information”).  Confidential Information shall not
      include:  (i) information that Executive may furnish to
      third parties regarding his obligations under Sections 8 and 9;
      (ii) information that becomes generally available to the public by
      means other than Executive’s breach of Section 8; or
      (iii) information that Executive is required by law, regulation,
      court order or discovery demand to disclose; provided, however, that in
      the case of clause (iii), Executive gives the Company reasonable notice
      prior to the disclosure of the Confidential Information and the reasons
      and circumstances surrounding such disclosure to provide the Company an
      opportunity to seek a protective order or other appropriate request for
      confidential treatment of the applicable Confidential
      Information.

            


    

    


    
      	
               
      

            	
              b.

            	
              Executive
      agrees that all Confidential Information, whether prepared by Executive or
      otherwise coming into his possession prior to or during the term of
      Executive’s employment by the Company, shall remain the exclusive property
      of the Company.  Executive further agrees that Executive shall
      not, without the prior written consent of the Company, use or disclose to
      any third party any of the Confidential Information described herein,
      directly or indirectly, except as permitted by the Company in writing or
      as necessary to defend any claim against him or to enforce any rights he
      may have as an equity holder of the
Company.

            


    

    


    
      	
               
      

            	
              c.

            	
              Subject
      to the exceptions set forth elsewhere in this Agreement,Executive agrees
      that all Confidential Information and other files, documents, materials,
      records, notebooks, customer lists, business proposals, contracts,
      agreements and other repositories containing information concerning the
      Company or the business of the Company (including all copies thereof) in
      Executive’s possession, custody or control, whether prepared by Executive
      or others, shall remain with or be returned to the Company promptly
      (within twenty-four (24) hours, to the extent practicable) after the
      Termination Date.

            


    

    


    
      	
              9.

            	
              Noncompete and
      Nonsolicitation.  In consideration of the payment of
      Severance by the Company, Executive agrees as
  follows:

            


    

     

    
      	
               
      

            	
              a.

            	
              Business Relationships
      and Goodwill.  Executive acknowledges and agrees that, as
      the Executive Vice President and Chief Operating Officer of the Company,
      Executive has been given Confidential Information and that his services
      have been unique and extraordinary.  Executive acknowledges and
      agrees that this creates a special relationship of trust and confidence
      between the Company, Executive and the Company’s current and prospective
      customers, members, and investors.  Executive further
      acknowledges and agrees that there is a high risk and opportunity for any
      person given such responsibility, specialized training, and Confidential
      Information to misappropriate the relationship and goodwill existing
      between the Company and the Company’s current and prospective customers,
      members, vendors and investors.  Executive therefore
      acknowledges and agrees that it is fair and reasonable for the Company to
      take steps to protect itself from the risk of such
      misappropriation.  Consequently, Executive agrees to the
      following noncompetition and nonsolicitation
  covenants.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        5

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              b.

            	
              Scope of
      Noncompetition Obligations.  Executive acknowledges and
      agrees that the period commencing with the Effective Date of this
      Agreement and ending one (1) year after the Termination Date will
      constitute the non-compete, non-solicit and non-divert period (the “Non-Interference
      Period”).  Notwithstanding the foregoing, in the event
      the Company does not pay the Severance to Executive that is otherwise due
      to Executive under Section 4 of this Agreement by reason of bankruptcy,
      dissolution or insolvency of the Company, the Non-Interference Period
      shall terminate on the date such Severance Payment would otherwise have
      been due.

            


    

     

    
      	
               
      

            	
              i.

            	
              During
      the Non-Interference Period, Executive will not, directly or indirectly,
      participate in the ownership, management, operation, financing or control
      of, or be employed by or consult for or otherwise render services to, any
      Competitor in the States of New York, Colorado, Minnesota, or Nebraska, or
      in any other state within the United States of America, or in any country
      in the world.  The term “Competitor”
      means any person or entity who is engaged in the business that the Company
      or any subsidiary of the Company engages in at or preceding the time of
      termination of employment, including building and operating facilities to
      be used for the production of corn-based ethanol and engaging in
      commercial sales of corn-based ethanol. For purposes of clarity, a
      Competitor does not include any entity that engages in the manufacture or
      sale of ethanol or other bio-fuel products that are derived from biomass
      sources other than corn.

            


    

     

    
      	
               
      

            	
              ii.

            	
              During
      the Non-Interference Period, Executive will not divert away or attempt to
      divert away any business from the Company to another company, business, or
      individual.  Additionally, Executive shall not, during the
      Non-Interference Period, solicit, divert away or attempt to divert away
      business from any Company Customer, either directly or indirectly. “Company
      Customer” is defined as any person, company, or business that
      Executive has on behalf of the Company contacted, solicited, serviced, or
      had access to Confidential Information about. “Solicit”
      is defined as soliciting, inducing, attempting to induce, or assisting any
      other person, firm, entity, business or organization, whether direct or
      indirect, in any such solicitation, inducement or attempted inducement, in
      all cases regardless of whether the initial contact was by Executive, the
      Company Customer, or any other person, firm, entity, business, or
      organization.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        6

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              iii.

            	
              Executive
      further agrees that, during the Non-Interference Period, he will not
      directly or indirectly:  (a) solicit, entice, persuade or
      induce any employee, agent or representative of the Company, who was an
      employee, agent or representative of the Company upon the termination or
      expiration of this Agreement, to terminate such person’s relationship with
      the Company or to become employed by any business or person other than the
      Company; (b) approach any such person for any of the foregoing
      purposes; (c) authorize, solicit or assist in the taking of such
      actions by any third party; or (d) hire or retain any such person, in
      each instance other than any (x) employee whose employment was terminated
      by the Company or any direct or indirect subsidiary of the Company or
      (y) employee, agent, representative or other person who independently
      responded to a general solicitation for employment by Executive or any
      third party which was not specifically targeted to or reasonably expected
      to target the Company.

            


    

     

    
      	
               
      

            	
              c.

            	
              Acknowledgement.  Executive
      acknowledges that the compensation, specialized training, and the
      Confidential Information provided to Executive pursuant to his employment
      with the Company give rise to the Company’s interest in restraining
      Executive from competing with the Company, that the noncompetition and
      nonsolicitation covenants are designed to enforce such consideration and
      that any limitations as to time, geographic scope and scope of activity to
      be restrained as defined herein are reasonable and do not impose a greater
      restraint than is necessary to protect the goodwill or other business
      interest of the Company.

            


    

    


    
      	
               
      

            	
              d.

            	
              Survival of
      Covenants.  Executive agrees not to challenge the
      enforceability or scope of Sections 8 and 9.  Executive further
      agrees to notify all future persons or businesses with which he becomes
      affiliated or employed, of the restrictions set forth in Sections 8 and 9,
      prior to the commencement of any such affiliation or
      employment.

            


    

    


    
      	
               
      

            	
              e.

            	
              Permitted Ethanol
      Investments.  Notwithstanding anything herein to the
      contrary, during the Non-Interference Period Executive may own a passive
      equity interest of less than one percent in any public corn-based ethanol
      companies; provided, that Executive does not participate in the management
      of such corn-based ethanol company in any capacity (including, but not
      limited to, director, officer or manager).  No such ownership
      restrictions shall apply to investments in companies that are not engaged
      in the manufacture of corn-based ethanol or any other line of business in
      which the Company is engaged at the time of such investment, so long as
      such Executive does not participate in the management of such company in
      any capacity.

            


    

    


    
      	
               
      

            	
              f.

            	
              Severability and
      Reformation.  If any one or more of the terms,
      provisions, covenants or restrictions of this Agreement shall be
      determined by a court of competent jurisdiction to be invalid, void or
      unenforceable, the remainder of the terms, provisions, covenants and
      restrictions shall remain in full force and effect, and the invalid, void
      or unenforceable provisions shall be deemed
      severable.  Moreover, if any one or more of the provisions
      contained in this Agreement shall for any reason be held to be excessively
      broad as to duration, geographical scope, activity or subject, it shall be
      reformed by limiting and reducing it to the minimum extent necessary, so
      as to be enforceable to the extent compatible with the applicable law as
      it shall then appear.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        7

        
          

        

      

      
         


      

    

    


    
      	
              11.

            	
              Denial of
      Liability.  The parties understand and agree that this
      Agreement shall not be construed as an admission of liability on the part
      of any person or entity, liability being expressly
  denied.

            


    

    


    
      	
              12.

            	
              Governing
      Law.  This Agreement shall be construed in accordance
      with, and governed in all respects by, the laws of the State of Colorado,
      without regard to conflicts of law principles.  Every dispute
      arising from or relating to this Agreement shall be tried only in the
      state or federal courts situated in Denver, Colorado metropolitan
      area.  The parties consent to venue in those courts, and agree
      that those courts shall have personal jurisdiction over them in, and
      subject matter jurisdiction concerning, any such
  action.

            


    

    


    
      	
              13.

            	
              Counterparts.   This
      Agreement may be executed in several counterparts, each of which shall
      constitute an original and all of which, when taken together, shall
      constitute one agreement.

            


    

    


    
      	
              14.

            	
              Assignment.   Neither
      Company nor Executive may assign its respective rights or obligations
      under this Agreement without prior written consent from Company and
      Executive, except that such rights and obligations may be assigned without
      such prior written consent if the assignment is in connection with a sale
      or transfer of control of Company.

            


    

    


    
      	
              15.

            	
              Severability.   If
      any part or parts of this Agreement shall be held unenforceable for any
      reason, the remainder of this Agreement shall continue in full force and
      effect. If any provision of this Agreement is deemed invalid or
      unenforceable by any court of competent jurisdiction, and if limiting such
      provision would make the provision valid, then such provision shall be
      deemed to be construed as so
limited.

            


    

    


    
      	
              16.

            	
              Notice.   Any
      notice required or otherwise given pursuant to this Agreement shall be in
      writing and mailed certified return receipt requested, postage prepaid, or
      delivered by overnight delivery service, addressed as
    follows:

            


    

    


    
      	 
      	
              If
      to the Company:

            	
              BioFuel
      Energy Corp.

            
	 
      	 
      	
              Attn:  Mark
      Zoeller, General Counsel

            
	 
      	 
      	
              1600
      Broadway, Suite 2200

            
	 
      	 
      	
              Denver,
      CO  80202

            


    

    


    
      	 
      	
              If
      to the Executive:

            	
              Daniel
      J. Simon

            
	 
      	 
      	
              39000
      CR 44

            
	 
      	 
      	
              Steamboat
      Springs, CO 80487

            


    

    


    
      	
              17.

            	
              Headings.   The
      headings for sections herein, or lack thereof, are for convenience only
      and shall not affect the meaning of the provisions of this
      Agreement.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        8

        
          

        

      

      
         


      

    

     

    
      
        
          	
                  18. 

                	
                   Indemnification.

                


        

      

    

     

    (a)           The
Company agrees that (i) if Executive is made a party, or is threatened to be
made a party, to any threatened or actual action, suit or proceeding, whether
civil, criminal, administrative, investigative, appellate or other (each, a
“Proceeding”)
by reason of the fact that he is or was a director, officer, employee, agent,
manager, consultant or representative of the Company or is or was serving at the
request of the Company as a director, officer, member, employee, agent, manager,
consultant or representative of another entity or (ii) if any claim, demand,
request, investigation, dispute, controversy, threat, discovery request or
request for testimony or information (each, a “Claim”) is
made, or threatened to be made, that arises out of or relates to Executive’s
service in any of the foregoing capacities, then Executive shall promptly be
indemnified and held harmless by the Company to the fullest extent legally
permitted or authorized by the Company’s certificate of formation, limited
liability company agreement or resolutions of the Board or, if greater, by the
laws of the State of Delaware, against any and all reasonable costs, expenses,
liabilities and losses (including, without limitation, attorney’s fees,
judgments, interest, expenses of investigation, penalties, fines, or penalties
and amounts paid or to be paid in settlement) incurred or suffered by Executive
in connection therewith, and such indemnification shall continue as to Executive
even if he has ceased to be a director, member, employee, agent, manger,
consultant or representative of the Company or other entity and shall inure to
the benefit of Executive’s heirs, executors and administrators. The Company
shall advance to Executive all costs and expenses incurred by him in connection
with any such Proceeding or Claim within fifteen (15) days after receiving
written notice requesting such an advance, provided that if he is ultimately
determined by a court of competent jurisdiction not to be entitled to
indemnification for such Proceeding and Claim, Executive will promptly repay the
amount advanced.

     

    (b) Neither the failure of the Company
(including the Board, independent legal counsel or stockholders) to have made a
determination in connection with any request for indemnification or advancement
under Section 18(a) that Executive has satisfied any applicable standard of
conduct, nor a determination by the Company (including the Board, independent
legal counsel or stockholders) that Executive has not met any applicable
standard of conduct, shall create a presumption that Executive has not met an
applicable standard of conduct.


     

    (c) Up until the Termination Date, and
for a period of three (3) years thereafter, the Company shall keep in place a
directors’ and officers’ liability insurance policy or (policies) providing
comprehensive coverage to Executive at least equal to the coverage that the
Company provides for any other present or former senior executive or director of
the Company.

     

    (d) Nothing in this Agreement is
intended to waive, release or compromise Executive’s rights to indemnity or
contribution under applicable law, the Company’s By-Laws, the Company’s Articles
of Incorporation, or otherwise.

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        9

        
          

        

      

      
         


      

    


    
      	
              19.

            	
              Entire
      Agreement.   This Agreement and any other agreements
      and other documents specifically referenced herein, including equity
      option awards and agreements, constitutes the entire agreement between
      Company and Executive, and supersedes any prior understanding or
      representation of any kind preceding the date of this Agreement. There are
      no other promises, conditions, understandings or other agreements, whether
      oral or written, relating to the subject matter of this
      Agreement.

            


    

    


    
      
        
          
            
              
                
                  
                    	
                            Executive:

                          	
                            Daniel J. Simon

                          	 
      	
                            BIOFUEL ENERGY CORP.

                          
	 
      	
                            (Name)

                          	 
      	
                            (Company
      Name)

                          
	 
      	 
      	 
      	 
      	 
      
	
                            Signature:

                          	
                            
                              /s/ Daniel J. Simon

                            

                          	 
      	
                            Signature:

                          	
                            
                              /s/ Scott Pearce

                            

                          
	 
      	
                            (Executive
      Signature)

                          	 
      	 
      	
                            (Authorized
      Signature)

                          
	 
      	 
      	 
      	 
      
	 
      	 
      	
                            Title:

                          	
                            CEO

                          
	 	 	 	 	 
	
                            Date:

                          	
                            6/2/10

                          	 
      	
                            Date:

                          	
                            June 2,
2010

                          


                  

                

              

            

          

        

      

    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    Schedule
A

    Unreimbursed
Business Expenses

    


    Expense
report to be submitted prior to June 30.

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        11

        
          

        

      

      
         


      

    


    Schedule
B

    Company
Property Not Returned to the Company

    


    
      	
               
      

            	
              1.

            	
              Laptop
      Computer.

            


    

     

    
      Executive
Severance, Release and Waiver Agreement

       

    

    
      
         


      

      
        12