EXECUTION COPY


 


 


 


 


 


 


 


 


 


 


 







 





SECTION 382 RIGHTS AGREEMENT


 


dated as of March 27, 2014


 


between


 


BIOFUEL ENERGY CORP.


 


and


 


BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC.,


 


as Rights Agent


  


 


 


 


 


 


 


 


 


 


 




    	 



    	 



    

 


Table of Contents


 





	 		Page
	SECTION 1.	Certain Definitions	1
	SECTION 2.	Appointment of Rights Agent	12
	SECTION 3.	Issue of Rights and Right Certificates	12
	SECTION 4.	Form of Right Certificates	15
	SECTION 5.	Execution, Countersignature and Registration	16
	SECTION 6.	Transfer, Split-Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates; Uncertificated Rights	16
	SECTION 7.	Exercise of Rights; Expiration Date of Rights	17
	SECTION 8.	Cancelation and Destruction of Right Certificates	19
	SECTION 9.	Reservation and Availability of Preferred Shares	20
	SECTION 10.	Preferred Shares Record Date	22
	SECTION 11.	Adjustments in Rights After There Is an Acquiring Person; Exchange of Rights for Shares; Business Combinations	22
	SECTION 12.	Certain Adjustments	27
	SECTION 13.	Certificate of Adjustment	28
	SECTION 14.	Additional Covenants	29
	SECTION 15.	Fractional Rights and Fractional Shares	29
	SECTION 16.	Rights of Action	30
	SECTION 17.	Transfer and Ownership of Rights and Right Certificates	31
	SECTION 18.	Right Certificate Holder Not Deemed a Stockholder	31
	SECTION 19.	Concerning the Rights Agent	32
	SECTION 20.	Merger or Consolidation or Change of Rights Agent	32
	SECTION 21.	Duties of Rights Agent	33
	SECTION 22.	Change of Rights Agent	36
	SECTION 23.	Issuance of Additional Rights and Right Certificates	37
	SECTION 24.	Redemption and Termination	37
	SECTION 25.	Notices	38
	SECTION 26.	Supplements and Amendments	38
	SECTION 27.	Successors	39
	SECTION 28.	Benefits of Rights Agreement; Determinations and Actions by the Board, etc	39
	SECTION 29.	Process to Seek Exemption	40
	SECTION 30.	Tax Benefits Review	41
	SECTION 31.	Severability	41
	SECTION 32.	Governing Law	41
	SECTION 33.	Counterparts; Effectiveness	42
	SECTION 34.	Descriptive Headings	42
	 	 	 
	Exhibits	 	 
	A	Form of Certificate of Designation	A-1
	B	Form of Right Certificate	B-1
	C	Summary of Rights	C-1










 










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SECTION 382 RIGHTS AGREEMENT dated
as of March 27, 2014 (the “Rights Agreement”), between Biofuel Energy
Corp., a Delaware corporation (the “Company”), and BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as Rights
Agent (the “Rights Agent”).


 


WHEREAS, the Company has generated NOLs (as
such term is hereinafter defined) for United States Federal income tax purposes; and such NOLs may potentially provide valuable
tax benefits to the Company; the Company desires to avoid an “ownership change” within the meaning of Section 382 and
the Treasury Regulations (as such terms are hereinafter defined) promulgated thereunder, and thereby preserve the ability to utilize
fully such NOLs and any other Tax Benefits that may arise; and, in furtherance of such objective, the Company desires to enter
into this Rights Agreement; and


 


WHEREAS, on March 27, 2014 (the “Rights
Dividend Declaration Date”) the Board of Directors of the Company (the “Board”) has adopted resolutions
creating a series of preferred stock designated as “Series B Junior Participating Preferred Stock” and authorized and
declared a dividend of one Right (as hereinafter defined) for each share of Common Stock, par value $0.01 per share, of the Company
(the “Common Stock”) outstanding at the Close of Business (as hereinafter defined) on April 7, 2014 (the “Record
Date”), and has further authorized and directed the issuance of one Right (as such number may hereafter be adjusted pursuant
to the provisions of this Rights Agreement) with respect to each share of Common Stock that shall become outstanding (whether originally
issued or delivered from the Company’s treasury) between the Record Date and the earliest of the Distribution Date, the Redemption
Date and the Expiration Date (as such terms are hereinafter defined); provided, however, that Rights may be issued
with respect to shares of Common Stock that shall become outstanding after the Distribution Date (whether originally issued or
delivered from the Company’s treasury) and prior to the earlier of the Redemption Date and the Expiration Date only in accordance
with the provisions of Section 23. Each Right shall initially represent the right to purchase one one-thousandth (1/1,000th)
of a share of Series B Junior Participating Preferred Stock, par value $0.01 per share, of the Company (the “Preferred
Shares”), having the powers, rights and preferences set forth in the Certificate of Designation attached hereto as Exhibit A;


 


NOW, THEREFORE, in consideration of the premises
and the mutual agreements herein set forth, the parties hereby agree as follows:


 


SECTION 1. Certain Definitions. For
purposes of this Rights Agreement, the following terms have the meanings indicated:


 


“Acquiring Person” shall
mean any Person who or which, alone or together with all Affiliates and Associates of such Person, shall be the Beneficial Owner
of 4.99% or more of the Common Shares then outstanding, but not including (a) the Company, any Subsidiary of the Company,
any employee benefit or compensation plan of the Company or of any of its Subsidiaries or any Person organized, appointed or established
by the Company and holding Common Shares for or pursuant to the terms of any such employee benefit or compensation plan, (b) any
Grandfathered Person, unless such Grandfathered Person becomes the Beneficial Owner of a
percentage of Common Shares then outstanding exceeding such Grandfathered Person’s Grandfathered Percentage by 0.5%
or more of the outstanding Common Shares or (c) any Exempt Person; provided, however, that no Person who or which,
alone or together with all Affiliates and Associates of such Person, has become and is the Beneficial Owner of 4.99% or more (or
in the case of a Grandfathered Person, has exceeded and is exceeding such Grandfathered Person’s Grandfathered Percentage
by 0.5% or more) of the Common Shares at the time outstanding, will be deemed to have become an Acquiring Person solely as the
result of (i) a change in the aggregate number of Common Shares outstanding since the last date on which such Person acquired
Beneficial Ownership of any Common Shares, including pursuant to a dividend or distribution of shares by the Company made on a
pro rata basis to all holders of Common Shares or the issuance of shares by the Company pursuant to a split or subdivision of the
outstanding Common Shares; (ii) equity compensation awards granted to such Person by the Company or as a result of an adjustment
to the number of Common Shares represented by such equity compensation award pursuant to the terms thereof, unless and until such
time, in the case of clause (i) and clause (ii), as such Person or one or more of its Affiliates or Associates thereafter acquires
Beneficial Ownership of one additional Common Share (other than any Common Shares acquired as described in clause (i) or (ii) above);
or (iii) the acquisition by such Person or one or more of its Affiliates or Associates of Beneficial Ownership of additional
Common Shares if the Board determines that such acquisition was made in good faith without the knowledge by such Person or one
or more of its Affiliates or Associates that such Person would thereby become an Acquiring Person (including because (A) such Person
was unaware that it Beneficially Owned a percentage of then-outstanding Common Shares that would otherwise cause such Person, together
with all Affiliates and Associates of such Person, to become an “Acquiring Person” or (B) such Person was aware of
the extent of its Beneficial Ownership but was unaware of the consequences of such Beneficial Ownership under this Rights Agreement),
which determination of the Board shall be conclusive and binding on such Person, the Rights Agent, the holders of the Rights and
all other Persons.


 






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Notwithstanding clause (iii) of the proviso in the prior sentence,
unless the Board determines pursuant to the definition of “Exempt Person” that an Inadvertent Acquiror is an Exempt
Person, if any Person that is not an Acquiring Person due to such clause (iii) does not reduce its, together with all of its Affiliates’
and Associates’, percentage of Beneficial Ownership of Common Shares to less than 4.99% (or in the case of a Grandfathered
Person, to less than 0.5% in excess of its Grandfathered Percentage) by the Close of Business on the tenth calendar day after notice
from the Company (the date of notice being the first day) that such Person’s Beneficial Ownership of Common Shares would
make it an Acquiring Person, such Person shall, at the end of such ten calendar day period, become an Acquiring Person (and such
clause (iii) shall no longer apply to such Person). If any Person that is not an Acquiring Person due to such clause (iii) and
the requirements of the prior sentence shall again become the Beneficial Owner of 4.99% or more (or in the case of a Grandfathered
Person, a percentage of Common Shares then outstanding exceeding such Grandfathered Person’s
Grandfathered Percentage by 0.5% or more) of the Common Shares then outstanding, such Person shall be deemed an “Acquiring
Person”, subject to the exceptions set forth in this definition.


 


Notwithstanding the foregoing, no Person shall become an “Acquiring
Person” solely as a result of an Exempt Transaction.


 


Notwithstanding the foregoing, no Person shall become an “Acquiring
Person” solely as the result of an acquisition of Common Shares by the Company which, by reducing the number of Common Shares
outstanding, increases the proportion of the Common Shares beneficially owned by such Person to 4.99% or more (or in the case of
a Grandfathered Person, has exceeded and is exceeding such Grandfathered Person’s Grandfathered Percentage by 0.5% or more)
of the Common Shares at the time outstanding unless and until such time as such Person or one or more of its Affiliates or Associates
thereafter acquires Beneficial Ownership of one additional Common Share unless, upon becoming the Beneficial Owner of such additional
Common Share, such Person is not then the Beneficial Owner of 4.99% or more (or in the case of a Grandfathered Person, of a
percentage of Common Shares then outstanding exceeding such Grandfathered Person’s Grandfathered Percentage by 0.5%
or more) of the Common Shares at the time outstanding.


 


“Affiliate” and “Associate”,
when used with reference to any Person, shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act, as in effect on the date of this Rights Agreement, and to the extent not included
within the foregoing, shall also include, with respect to any Person, any other Person whose Common Shares would be deemed to be
constructively owned by such first Person, owned by a single “entity” as defined in Section 1.382-3(a)(1) of the Treasury
Regulations, or otherwise aggregated with shares owned by such first Person, pursuant to the provisions of the Code, or any successor
or replacement provision, and the Treasury Regulations promulgated thereunder.


 


A Person shall be deemed the “Beneficial
Owner” of, and shall be deemed to “Beneficially Own”, and shall be deemed to have “Beneficial
Ownership” of, any securities:


 


(a) that such Person or any of
such Person’s Affiliates or Associates is deemed to “beneficially own” within the meaning of Rule 13d-3 of the
General Rules and Regulations under the Exchange Act, as in effect on the date of this Rights Agreement; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own, or to have Beneficial Ownership of, any Common
Shares by virtue of owning securities or other interests (including rights, options, warrants or LLC Units) that are convertible
or exchangeable into, or exercisable for, such Common Shares, except to the extent that upon the acquisition or transfer of such
securities or other interests, such securities or other interests would be treated as exercised under Section 1.382-4(d) or other
applicable sections of the Treasury Regulations;


 






    	 



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(b) that such Person or any of
such Person’s Affiliates or Associates has, directly or indirectly, the legal, equitable or contractual right or obligation
to acquire (whether such right is exercisable or such obligation is required to be performed immediately or only after the passage
of time, compliance with regulatory requirements, fulfillment of a condition or otherwise, or whether within the control of such
Person) pursuant to any agreement, arrangement or understanding (written or oral), or upon the exercise of conversion rights, exchange
rights, other rights (other than the Rights), warrants or options, or otherwise; provided, however, that a Person
shall not be deemed under this clause (b) to be the Beneficial Owner of, or to Beneficially Own, or to have Beneficial Ownership
of, (i) any Common Shares by virtue of owning securities or other interests (including rights, options, warrants or LLC Units)
that are convertible or exchangeable into, or exercisable for, such Common Shares, except to the extent that upon the acquisition
or transfer of such securities or other interests, such securities or other interests would be treated as exercised under Section
1.382-4(d) or other applicable sections of the Treasury Regulations or (ii) any securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person’s Affiliates or Associates until such tendered securities
are accepted for purchase or exchange thereunder or cease to be subject to withdrawal by the tendering security holder;


 


(c) that such Person or any of
such Person’s Affiliates or Associates has the right to vote pursuant to any agreement, arrangement or understanding (written
or oral); provided, however, that a Person shall not be deemed under this clause (c) to be the Beneficial Owner of,
or to Beneficially Own, or to have Beneficial Ownership of, any security if (i) the agreement, arrangement or understanding to
vote such security arises solely from a revocable proxy or consent given to such Person in response to a public proxy or consent
solicitation made generally to all holders of Common Shares of the Company pursuant to, and in accordance with, the applicable
rules and regulations under the Exchange Act and (ii) the beneficial ownership of such security is not also then reportable on
Schedule 13D or 13G under the Exchange Act (or any comparable or successor report);


 


(d) that such Person or any of
such Person’s Affiliates or Associates has the right to dispose of, pursuant to any agreement, arrangement or understanding
(written or oral);


 


(e) that are beneficially owned,
directly or indirectly, by any other Person (or an Affiliate or Associate thereof) with which such Person (or any of such Person’s
Affiliates or Associates) has any agreement, arrangement or understanding (written or oral) for the purpose of acquiring (except
pursuant to a tender or exchange offer subject to withdrawal as described in the proviso to clause (b) of this definition) such
securities, but only if the effect of such agreement, arrangement or understanding is to treat such Persons as an “entity”
under Section 1.382-3(a)(1) or other applicable sections of the Treasury Regulations; or


 






    	 



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(f) which are the subject of,
or the reference securities for, or that underlie, any derivative security (as defined under Rule 16a-1 under the Exchange Act)
Beneficially Owned by such Person or any of such Person’s Affiliates or Associates, with the number of Common Shares deemed
Beneficially Owned being the notional or other number of Common Shares specified in the documentation evidencing such derivative
security as being subject to be acquired upon the exercise or settlement of such derivative security or as the basis upon which
the value or settlement amount of such derivative security is to be calculated in whole or in part or, if no such number of Common
Shares is specified in such documentation, as determined by the Board in its sole discretion to be the number of Common Shares
to which such derivative security relates, to the extent that such derivative security is being used to evade the ownership change
rules under Section 382.


 


Notwithstanding the foregoing, nothing contained in this definition
shall cause a Person to be deemed the “Beneficial Owner” of, or to “Beneficially Own”, or to have “Beneficial
Ownership” of, securities (A) if the Person is ordinarily engaged in business as an underwriter of securities and has acquired
such securities in a bona fide firm commitment underwriting pursuant to an underwriting agreement with the Company until the expiration
of 40 calendar days (or such later date as the Board may determine in any specific case) after the date of such acquisition, and
then only if such securities continue to be owned by such Person at such expiration of 40 calendar days (or such later date as
the Board may determine in any specific case), or (B) if such Person is a “clearing agency” (as defined in Section
3(a)(23) of the Exchange Act) and has acquired such securities solely as a result of such status.


 


Notwithstanding anything in this Rights Agreement to the contrary,
(x) to the extent not contained in this definition, a Person shall be deemed the “Beneficial Owner” of and shall be
deemed to “Beneficially Own” or have “Beneficial Ownership” of, Common Shares that such Person would be
deemed to constructively own or that otherwise would be aggregated with shares owned by such Person pursuant to Section 382, or
any successor provision or replacement provision of the Code and the Treasury Regulations promulgated thereunder and (y) a Person
shall not be deemed the Beneficial Owner of, or to Beneficially Own, or to have Beneficial Ownership of, any Common Shares by virtue
of owning shares of Class B Common Stock or any LLC Units.


 


“Board” shall have the
meaning set forth in the introductory paragraph of this Rights Agreement.


 


“Book Value”, when used
with reference to Common Shares issued by any Person, shall mean the amount of equity of such Person applicable to each Common
Share, determined (a) in accordance with generally accepted accounting principles in effect on the date as of which such Book
Value is to be determined, (b) using all the consolidated assets and all the consolidated liabilities of such Person on the
date as of which such Book Value is to be determined, except that no value shall be included in such assets for goodwill arising
from consummation of a business combination, and (c) after giving effect to (i) the exercise of all rights, options and
warrants to purchase such Common Shares (other than the Rights), and the conversion of all securities convertible into such Common
Shares, that have an exercise or conversion price, per Common Share, which is less than such Book Value before giving effect to
such exercise or conversion (whether or not exercisability or convertibility is conditioned upon occurrence of a future event),
(ii) all dividends and other distributions on the capital stock of such Person declared prior to the date as of which such
Book Value is to be determined and to be paid or made after such date, and (iii) any other agreement, arrangement or understanding
(written or oral), or transaction or other action contemplated prior to the date as of which such Book Value is to be determined
that would have the effect of thereafter reducing such Book Value.


 






    	 



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“Business Combination”
shall have the meaning set forth in Section 11(c)(i).


 


“Business Day” shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.


 


“Certificate of Designation”
shall mean the Certificate of Designation of Series B Junior Participating Preferred Stock of the Company, substantially in the
form of Exhibit A hereto.


 


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


 


“Close of Business” on
any given date shall mean 5:00 p.m., New York City time, on such date; provided, however, that, if such date
is not a Business Day, “Close of Business” shall mean 5:00 p.m., New York City time, on the next succeeding
Business Day.


 


“Code” shall mean Internal
Revenue Code of 1986, as amended.


 


“Common Shares”, when used
with reference to the Company prior to a Business Combination, shall mean the shares of Common Stock or any other shares of capital
stock of the Company into which the Common Stock shall be reclassified or changed and any
other interest that would be treated as “stock” of the Company for purposes of Section 382 (including Treasury
Regulation Section 1.382-2T(f)(18)) in this Section 1 and all other provisions of this Rights Agreement in which such
meaning is necessary in order to ensure that this Rights Agreement is effective in carrying out its stated purpose and intent of
preserving the Company’s NOLs and other Tax Benefits; “Common Shares”, when used with reference
to any Person (other than the Company prior to a Business Combination), shall mean shares of capital stock of such Person (if such
Person is a corporation) of any class or series, or units of equity interests in such Person (if such Person is not a corporation)
of any class or series, the terms of which do not limit (as a maximum amount and not merely in proportional terms) the amount of
dividends or income payable or distributable on such class or series or the amount of assets distributable on such class or series
upon any voluntary or involuntary liquidation, dissolution or winding up of such Person and do not provide that such class or series
is subject to redemption at the option of such Person, or any shares of capital stock or units of equity interests into which the
foregoing shall be reclassified or changed, and if there shall be more than one class or series of such shares of capital stock
or units of equity interests of such Person, then “Common Shares” of such Person shall mean the class or series
of capital stock of such Person or units of equity interests in such Person having voting power (being the power under ordinary
circumstances (and not merely upon the happening of a contingency) to vote in the election of directors of such Person (if such
Person is a corporation) or to participate in the management and control of such Person (if such Person is not a corporation)),
or in the case of multiple classes or series having such voting power, having the greatest voting power.


 






    	 



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“Common Stock” shall have
the meaning set forth in the introductory paragraph of this Rights Agreement.


 


“Company” shall have the
meaning set forth in the heading of this Rights Agreement; provided, however, that if there is a Business Combination,
“Company” shall have the meaning set forth in Section 11(c)(iii).


 


The term “control” with
respect to any Person shall mean the power to direct the management and policies of such Person, directly or indirectly, by or
through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written
or oral) with one or more other Persons by or through stock ownership, agency or otherwise; and the terms “controlling”
and “controlled” shall have meanings correlative to the foregoing.


 


“Distribution Date” shall
have the meaning set forth in Section 3(b).


 


“Exchange Act” shall mean
the Securities Exchange Act of 1934, as in effect on the date in question, unless otherwise specifically provided.


 


“Exchange Consideration”
shall have the meaning set forth in Section 11(b)(i).


 


“Exempt Person” shall mean
any Person, alone or together with all Affiliates and Associates of such Person, whose Beneficial Ownership of 4.99% or more of
the then outstanding Common Shares, as determined by the Board in its sole discretion, or a duly constituted committee of Independent
Directors, in its sole discretion, including a determination pursuant to Section 29, (a) would not jeopardize or endanger the availability
to the Company of its NOLs or other Tax Benefits, taking into account such facts and circumstances as the Board (or any such committee)
reasonably deems relevant, or (b) is otherwise in the best interests of the Company; provided, however, that
the Board, or a duly constituted committee of Independent Directors, makes such determination either (x) before the time such Person
otherwise would have become an Acquiring Person, or (y) after the time such Person otherwise would have become an Acquiring Person
if the Board, or a duly constituted committee of Independent Directors, has determined that such Person is an Inadvertent Acquiror;
provided, further, that such Person will cease to be an “Exempt Person” if the Board, in its sole discretion,
or a duly constituted committee of Independent Directors, in its sole discretion, makes a contrary determination with respect to
the effect of such Person’s Beneficial Ownership (together with all Affiliates and Associates of such Person) with respect
to the availability to the Company of its NOLs or other Tax Benefits, taking into account such facts and circumstances as the Board
(or any such committee) reasonably deems relevant. In granting an exemption under this definition, the Board, or a duly constituted
committee of Independent Directors, may require any Person who would otherwise be an Acquiring Person to make certain representations,
undertakings or covenants or to agree that any violation or attempted violation of such representations, undertakings or covenants
will result in such consequences and be subject to such conditions as the Board, or a duly constituted committee of Independent
Directors, may determine in its sole discretion, including that any such violation shall result in such Person becoming an Acquiring
Person.


 






    	 



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“Exempt Transaction” shall
mean (a) an exchange by any holder of LLC Units held by it on the Rights Dividend Declaration Date for Common Shares pursuant to
its rights under the LLC Agreement and (b) any other transaction that the Board determines, or a duly constituted committee of
Independent Directors determines, is exempt from this Rights Agreement, which determination shall be made in the sole discretion
of the Board (or any such committee) prior to the date of such transaction, including if the Board (or any such committee) determines
that (i) neither the Beneficial Ownership of Common Shares by any Person, directly or indirectly, as a result of such transaction
nor any other aspect of such transaction would jeopardize or endanger the availability to the Company of the NOLs or other Tax
Benefits, taking into account such facts and circumstances as the Board (or any such committee) reasonably deems relevant, or (ii) such
transaction is otherwise in the best interests of the Company. In granting an exemption under this definition, the Board, or a
duly constituted committee of Independent Directors, may require any Person who would otherwise be an Acquiring Person to make
certain representations, undertakings or covenants or to agree that any violation or attempted violation of such representations,
undertakings or covenants will result in such consequences and be subject to such conditions as the Board, or a duly constituted
committee of Independent Directors, may determine in its sole discretion, including that any such violation shall result in such
Person becoming an Acquiring Person.


 


“Exemption Request” shall
have the meaning set forth in Section 29.


 


“Expiration Date” shall
have the meaning set forth in Section 7(a).


 


“Final Expiration Date”
shall mean the Close of Business on March 27, 2017.


 


“Further Subsequent Transferee”
shall have the meaning set forth in Section 7(e).


 






    	 



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“Grandfathered Percentage”
shall mean, with respect to any Grandfathered Person, the percentage of the outstanding Common Shares of the Company that such
Grandfathered Person, together with all Affiliates and Associates of such Grandfathered Person, Beneficially Owns as of the Rights
Dividend Declaration Date; provided that, in the event any Grandfathered Person shall sell, transfer, or otherwise dispose
of any outstanding Common Shares of the Company after the Rights Dividend Declaration Date, the Grandfathered Percentage shall,
subsequent to such sale, transfer or disposition, mean, with respect to such Grandfathered Person, the lesser of (a) the Grandfathered
Percentage as in effect immediately prior to such sale, transfer or disposition or (b) the percentage of outstanding Common Shares
of the Company that such Grandfathered Person, together with all Affiliates and Associates of such Grandfathered Person, Beneficially
Owns immediately following such sale, transfer or disposition.


 


“Grandfathered Person”
shall mean any Person who or which, together with all Affiliates and Associates of such Person, is, as of the Rights Dividend Declaration
Date, the Beneficial Owner (as disclosed in public filings with the Securities and Exchange Commission on the Rights Dividend Declaration
Date) of 4.99% or more of the Common Shares of the Company then outstanding. Notwithstanding anything to the contrary provided
in this Rights Agreement, any Grandfathered Person who after the Rights Dividend Declaration Date becomes the Beneficial Owner
of less than 4.99% of the Common Shares of the Company then outstanding shall cease to be a Grandfathered Person and shall be subject
to all of the provisions of this Rights Agreement in the same manner as any Person who or which is not and was never a Grandfathered
Person.


 


“including” shall mean
including, without limitation.


 


“Inadvertent Acquiror”
shall mean any Person who would be an Acquiring Person but for clause (iii) of the proviso in the definition of “Acquiring
Person”.


 


“Independent Director”
shall mean an independent director as defined under Listing Rules of the Nasdaq Stock Market.


 


“LLC Agreement” shall mean
the Third Amended and Restated Limited Liability Company Agreement of BioFuel Energy, LLC dated as of February 4, 2011, as amended
as of March 27, 2014, as amended, restated, supplemented or otherwise modified from time to time.


 


“LLC Units” shall mean
the membership units in BioFuel Energy, LLC.


 


“Major Part”, when used
with reference to the assets of the Company and its Subsidiaries as of any date, shall mean assets (a) having a fair market
value aggregating 50% or more of the total fair market value of all the assets of the Company and its Subsidiaries (taken as a
whole) as of the date in question, (b) accounting for 50% or more of the total value (net of depreciation and amortization)
of all the assets of the Company and its Subsidiaries (taken as a whole) as would be shown on a consolidated or combined balance
sheet of the Company and its Subsidiaries as of the date in question, prepared in accordance with generally accepted accounting
principles then in effect, or (c) accounting for 50% or more of the total amount of earnings before interest, taxes, depreciation
and amortization or of the revenues of the Company and its Subsidiaries (taken as a whole) as would be shown on, or derived from,
a consolidated or combined statement of income or net earnings of the Company and its Subsidiaries for the period of 12 months
ending on the last day of the Company’s monthly accounting period immediately preceding the date in question, prepared in
accordance with generally accepted accounting principles then in effect.


 






    	 



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“Market Value”, when used
with reference to Common Shares on any date, shall mean the average of the daily closing prices, per share, of such Common Shares
for the period that is the shorter of (a) 30 consecutive Trading Days ending on the Trading Day immediately prior to
the date in question and (b) the number of consecutive Trading Days beginning on the Trading Day immediately after the date
of the first public announcement of the event requiring a determination of the Market Value of Common Shares and ending on the
Trading Day immediately prior to the record date of such event. The closing price for each Trading Day shall be the closing price
quoted on the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the
Nasdaq Stock Market, or, if the Common Shares or other relevant securities are not quoted on the Nasdaq Stock Market, on the principal
United States securities exchange registered under the Exchange Act (or any recognized foreign stock exchange) on which such securities
are listed or admitted to trading, or, if such securities are not listed or admitted to trading on any such exchange, the closing
price (or, if no sale takes place on such Trading Day, the average of the closing bid and asked prices on such Trading Day) as
quoted on any reputable quotations system specified by the Board, or if no such quotations are available, the average of the closing
bid and asked prices as furnished by a professional market maker making a market in such securities selected by the Board, or if
on any such Trading Day no market maker is making a market in such securities, the closing price of such securities on such Trading
Day shall be deemed to be the fair value of such securities as determined in good faith by the Board (whose determination
shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent, the holders of Rights and
all other Persons); provided, however, that if a Trading Day occurs during a period following an announcement of
any action of the type described in Section 12(a) that would require an adjustment thereunder by the issuer of the securities
the closing price of which is to be determined, then, and in each such case, the closing price of such securities shall be appropriately
adjusted to reflect the effect of such action on the market price of such securities; and provided further, however,
that for the purpose of determining the closing price of the Preferred Shares for any Trading Day on which there is no market maker
for the Preferred Shares, the closing price on such Trading Day shall be deemed to be the Formula Number (as defined in the Certificate
of Designation) multiplied by the closing price of the Common Shares of the Company on such Trading Day.


 


“NOLs” shall mean the Company’s
net operating loss carryforwards.


 


“Person” shall mean an
individual, firm, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization
or other entity, or a group of Persons making a “coordinated acquisition” of shares or otherwise treated as an entity
within the meaning of Section 1.382-3(a)(1) of the Treasury Regulations, and shall include any successor (by merger or otherwise)
of such individual or entity, but shall not include a Public Group (as defined in Section 1.382-2T(f)(13)
of the Treasury Regulations).


 






    	 



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“Post Transferee” shall
have the meaning set forth in Section 7(e).


 


“Preferred Shares” shall
have the meaning set forth in the introductory paragraph of this Rights Agreement. Any reference in this Rights Agreement to Preferred
Shares shall be deemed to include any authorized fraction of a Preferred Share, unless the context otherwise requires.


 


“Principal Party” shall
mean the Surviving Person in a Business Combination; provided, however, that, (i) if such Surviving Person is
a direct or indirect Subsidiary of any other Person, “Principal Party” shall mean the Person that is the ultimate
parent of such Surviving Person, and (ii) in the event ultimate control of such Surviving Person is shared by two or more
Persons, “Principal Party” shall mean that Person that is immediately controlled by such two or more Persons.


 


“Prior Transferee” shall
have the meaning set forth in Section 7(e).


 


“Purchase Price” with respect
to each Right shall mean $13.50, as such amount may from time to time be adjusted as provided in this Rights Agreement, and shall
be payable in lawful money of the United States of America. All references herein to the Purchase Price shall mean the Purchase
Price as in effect at the time in question.


 


“Record Date” shall have
the meaning set forth in the introductory paragraph of this Rights Agreement.


 


“Redemption Date” shall
have the meaning set forth in Section 24(a).


 


“Redemption Price” with
respect to each Right shall mean $0.0001, as such amount may from time to time be adjusted in accordance with Section 12.
All references herein to the Redemption Price shall mean the Redemption Price as in effect at the time in question.


 


“Registered Common Shares”
shall mean Common Shares that are, as of the date of consummation of a Business Combination, and have continuously been for the
12 months immediately preceding such date, registered under Section 12 of the Exchange Act, and if a Person has multiple classes
or series of Registered Common Shares outstanding, “Registered Common Shares” of such Person shall mean the
class or series of Registered Common Shares of such Person having voting power (being the power under ordinary circumstances (and
not merely upon the happening of a contingency) to vote in the election of directors of such Person (if such Person is a corporation)
or to participate in the management and control of such Person (if such Person is not a corporation)), or in the case of multiple
classes or series having such voting power, having the greatest voting power.


 






    	 



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“Requesting Person” shall
have the meaning set forth in Section 29.


 


“Right Certificate” shall
mean a certificate evidencing a Right in substantially the form attached hereto as Exhibit B.


 


“Right” or “Rights”
shall mean the right or rights to purchase Preferred Shares (or other securities) as provided in this Rights Agreement.


 


“Rights Dividend Declaration Date”
shall have the meaning set forth in the introductory paragraph of this Rights Agreement.


 


“Section 382” shall mean
Section 382 of the Code, or any successor provision or replacement provision.


 


“Securities Act” shall
mean the Securities Act of 1933, as in effect on the date in question, unless otherwise specifically provided.


 


“Share Acquisition Date”
shall mean the first date of public announcement (which, for purposes of this definition, shall include a report filed pursuant
to Section 13(d) of the Exchange Act) by the Company or an Acquiring Person that a Person has become an Acquiring Person, or such
earlier date as a majority of the Board shall become aware of the existence of an Acquiring Person; provided, however
that, if such Person is determined by the Board (a) to be an Exempt Person or (b) to be an Inadvertent Acquiror, then in the
case of each of clause (a) and (b), the Share Acquisition Date shall be deemed not to have occurred; but only for so long as such
Person (i) in the case of clause (a), remains an Exempt Person or (ii) in the case of clause (b), does not thereafter become
an Acquiring Person pursuant to the second sentence of the definition of “Acquiring Person”, unless, in the case of
each of clause (i) and clause (ii), the Distribution Date shall have occurred.


 


“Subsidiary” of another
Person shall mean a Person, at least a majority of the total outstanding voting power (being the power under ordinary circumstances
(and not merely upon the happening of a contingency) to vote in the election of directors of such Person (if such Person is a corporation)
or to participate in the management and control of such Person (if such Person is not a corporation)) of which is owned, directly
or indirectly, by such other Person or by one or more other Subsidiaries of such other Person or by such other Person and one or
more other Subsidiaries of such other Person.


 


“Summary of Rights” shall
have the meaning set forth in Section 3(c).


 


“Surviving Person” shall
mean (a) the Person that is the continuing or surviving Person in a Business Combination specified in Section 11(c)(i)(A)
or (b) the Person to which the Major Part of the assets of the Company and its Subsidiaries is sold, leased, exchanged or
otherwise transferred or disposed of in a transaction specified in Section 11(c)(i)(B); provided, however, that,
if the Major Part of the assets of the Company and its Subsidiaries is sold, leased, exchanged or otherwise transferred or disposed
of in one or more related transactions specified in Section 11(c)(i)(B) to more than one Person, the “Surviving Person”
in such case shall mean the Person that acquired assets of the Company and/or its Subsidiaries with the greatest fair market value
in such transaction or transactions.


 






    	 



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“Tax Benefits” shall mean
the net operating loss carryovers, capital loss carryovers, general business credit carryovers, alternative minimum tax credit
carryovers, foreign tax credit carryovers, research and development credit carryovers and any loss or deduction attributable to
a “net unrealized built-in loss” within the meaning of Section 382, and the Treasury Regulations promulgated thereunder,
of the Company or any of its Subsidiaries.


 


“Trading Day” shall mean
a day on which the principal United States securities exchange (or principal recognized foreign stock exchange, as the case may
be) on which the Rights or securities in question are listed or admitted to trading is open for the transaction of business or,
if the Rights or securities in question are not listed or admitted to trading on any United States securities exchange (or recognized
foreign stock exchange, as the case may be), a Business Day.


 


“Treasury Regulations”
shall mean final, temporary and proposed tax regulations promulgated under the Code, as amended.


 


“Trust” shall have the
meaning set forth in Section 11(b)(ii).


 


“Trust Agreement” shall
have the meaning set forth in Section 11(b)(ii).


 


SECTION 2. Appointment of Rights Agent.
The Company hereby appoints the Rights Agent to act as agent to the Company in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Company may from time to time appoint one or more co-rights agents as
it may deem necessary or desirable, upon ten days’ prior written notice to the Rights Agent (and the term “Rights
Agent” as used herein shall refer, collectively, to the Rights Agent together with any such co-rights agents). The Rights
Agent shall have no duty to supervise, and shall in no event be liable for, the acts or omissions of any such co-rights agent.
In the event the Company appoints one or more co-rights agents, the respective duties of the Rights Agent and any co-rights agents
shall be as the Company shall determine, and shall be provided in writing to the Rights Agent.


 


SECTION 3. Issue of Rights and Right Certificates.
\l 2 (a) One Right shall be associated with each Common Share outstanding on the Record Date, each additional Common Share that
shall become outstanding between the Record Date and the earliest of the Distribution Date, the Redemption Date and the Expiration
Date and each additional Common Share with which Rights are issued after the Distribution Date but prior to the earlier of the
Redemption Date and the Expiration Date as provided in Section 23, subject to adjustment as provided in this Rights Agreement.


 


(b) Until the Close of Business
on the earlier of (i) the tenth calendar day after the Share Acquisition Date and (ii) such date (prior to such time
as any Person becomes an Acquiring Person), if any, as may be designated by the Board following the commencement of, or first public
disclosure of an intent to commence, a tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company,
any employee benefit or compensation plan of the Company or of any of its Subsidiaries, or any Person organized, appointed or established
by the Company and holding Common Shares for or pursuant to the terms of any such employee benefit or compensation plan) for outstanding
Common Shares, if upon consummation of such tender or exchange offer such Person could be the Beneficial Owner of 4.99% or more
of the outstanding Common Shares (the earlier of such dates being herein referred to as the “Distribution Date”),
(x) the Rights shall, except as otherwise provided in Section 3(c), be evidenced by the certificates representing the
Common Shares registered in the names of the holders thereof, or, in the case of Common Shares held in uncertificated form, by
the transaction statement or other record of ownership of such Common Shares, and not by separate Right Certificates, and (y) the
Rights, including the right to receive Right Certificates, shall be transferable only in connection with the transfer of the underlying
Common Shares. As soon as practicable after the Distribution Date, the Company shall send written notice to Rights Agent of the
Distribution Date, and the Company shall prepare and execute, the Rights Agent shall countersign and the Company shall send or
cause to be sent (and the Rights Agent shall, if requested with written instructions from the Company, send) by first-class, postage-prepaid
mail, to each record holder of Common Shares as of the Close of Business on the Distribution Date (other than any Acquiring Person
or any Associate or Affiliate of an Acquiring Person), at the address of such holder shown on the records of the Company or the
transfer agent or registrar for the Common Shares, one or more Right Certificates evidencing one whole Right for each Common Share
held by such record holder, subject to the provisions of Section 15 and to adjustment as provided in this Rights Agreement.
As of and after the Distribution Date, the Rights shall be evidenced solely by such Right Certificates.


 






    	 



    	 	13



    

 


(c) As soon as practicable after
the Record Date, the Company will send a copy of a Summary of Rights to Purchase Preferred Shares, in substantially the form attached
hereto as Exhibit C (the “Summary of Rights”), by first-class, postage-prepaid mail, to each record holder
of Common Shares as of the Close of Business on the Record Date (other than any Acquiring Person or any Associate or Affiliate
of an Acquiring Person) at the address of such holder shown on the records of the Company or the transfer agent or registrar for
the Common Shares. With respect to any Common Shares outstanding as of the Record Date, and until the earliest of the Distribution
Date, the Redemption Date and the Expiration Date, (i) in the case of certificated shares, (A) the Rights associated with the Common
Shares represented by any certificate shall be evidenced by such certificate for the Common Shares with a copy of the Summary of
Rights attached thereto and the registered holders of the Common Shares shall also be the registered holders of the associated
Rights and (B) the surrender for transfer of any such certificate, even without a copy of the Summary of Rights attached thereto,
shall also constitute the transfer of the Rights associated with the Common Shares represented thereby, and (ii) in the case of
Common Shares held in uncertificated form, (A) the Rights associated with the Common Shares shall be evidenced by the balances
indicated in the book-entry account system of the transfer agent for such Common Shares and the registered holders of the Common
Shares shall also be the registered holders of the associated Rights and (B) the transfer of any Common Shares in the book-entry
account system of the transfer agent for such Common Shares shall also constitute the transfer of the Rights associated with such
Common Shares.


 






    	 



    	 	14



    

 


(d) In the case of certificated
Common Shares, certificates issued for Common Shares after the Record Date (including upon transfer or exchange of outstanding
Common Shares), but prior to the earliest of the Distribution Date, the Redemption Date and the Expiration Date, shall have printed
on, written on or otherwise affixed to them a legend in substantially the following form:


 


This certificate also evidences and
entitles the holder hereof to certain Rights as set forth in a Section 382 Rights Agreement dated as of March 27, 2014 (as it may
be amended from time to time (the “Rights Agreement”)), between Biofuel Energy
Corp. (the “Company”) and BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as Rights Agent (the “Rights Agent”),
the terms of which (including restrictions on the transfer of such Rights) are hereby incorporated herein by reference and a copy
of which is on file at the principal executive offices of the Company. Under certain circumstances, as set forth in the Rights
Agreement, such Rights shall be evidenced by separate certificates and shall no longer be evidenced by this certificate. The Company
shall mail to the holder of this certificate a copy of the Rights Agreement without charge after receipt of a written request therefor.
RIGHTS THAT ARE OR WERE, AT ANY TIME ON OR AFTER THE DATE AN ACQUIRING PERSON BECOMES SUCH, BENEFICIALLY OWNED BY SUCH ACQUIRING
PERSON OR ANY AFFILIATE OR ASSOCIATE OF SUCH ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND BY ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS ARE NULL AND VOID AND NONTRANSFERABLE.


 


Notwithstanding this Section 3(d), neither the omission
of a legend nor the inclusion of a legend that makes reference to a rights agreement other than the Rights Agreement shall affect
the enforceability of any part of this Rights Agreement or the rights of any holder of Rights.


 


(e) In the case of Common Shares
held in uncertificated form, the Company shall cause the confirmation and account statements sent to holders of Common Shares in
book-entry form (including upon transfer or exchange of outstanding Common Shares) prior to the earliest of the Distribution Date,
the Redemption Date and the Expiration Date to bear a legend in substantially the following form:


 






    	 



    	 	15



    

 


Each share of Common Stock, par value
$0.01 per share, of Biofuel Energy Corp. (the “Company”) entitles the
holder thereof to certain Rights as set forth in a Section 382 Rights Agreement dated as of March 27, 2014 (as it may be amended
from time to time (the “Rights Agreement”)), between the Company and BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as
Rights Agent (the “Rights Agent”), the terms of which (including restrictions on the transfer of such Rights) are hereby
incorporated herein by reference and a copy of which is on file at the principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights shall be evidenced by separate certificates and shall no longer
be evidenced by the shares to which this statement relates. The Company shall mail to the holder of shares to which this statement
relates a copy of the Rights Agreement without charge after receipt of a written request therefor. RIGHTS THAT ARE OR WERE, AT
ANY TIME ON OR AFTER THE DATE AN ACQUIRING PERSON BECOMES SUCH, BENEFICIALLY OWNED BY SUCH ACQUIRING PERSON OR ANY AFFILIATE OR
ASSOCIATE OF SUCH ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND BY ANY SUBSEQUENT HOLDER OF SUCH RIGHTS
ARE NULL AND VOID AND NONTRANSFERABLE.


 


Notwithstanding this Section 3(e), neither the omission
of a legend nor the inclusion of a legend that makes reference to a rights agreement other than the Rights Agreement shall affect
the enforceability of any part of this Rights Agreement or the rights of any holder of Rights.


 


With respect to such certificates containing
the foregoing legend, or any notice of the foregoing legend delivered to holders of Common Shares in book entry form, until the
Distribution Date, the Rights associated with the Common Stock represented by such certificates or Common Shares held in book entry
form shall be evidenced by such certificates or book entry shares alone, and the surrender for transfer of any such certificate
or book entry share, except as otherwise provided herein, shall also constitute the transfer of the Rights associated with the
Common Stock represented thereby. In the event that the Company purchases or otherwise acquires any Common Shares after the Record
Date but prior to the Distribution Date in connection with the instructions received from the Company, any Rights associated with
such Common Shares shall be deemed canceled and retired so that the Company shall not be entitled to exercise any Rights associated
with the Common Shares that are no longer outstanding.


 


SECTION 4. Form of Right Certificates.
The Right Certificates (and the form of election to purchase shares and form of assignment to be printed on the reverse side thereof)
shall be in substantially the form set forth as Exhibit B hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Rights Agreement, or as may be required to comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange or interdealer quotation system on which the Rights
may from time to time be listed or traded, or to conform to usage. Subject to the other provisions of this Rights Agreement (including
Sections 7, 11 and 24), the Right Certificates, whenever issued, shall be dated as of the Distribution Date and shall
entitle the holders thereof to purchase such number of Preferred Shares as shall be set forth therein for the Purchase Price set
forth therein, subject to adjustment as provided in this Rights Agreement.


 






    	 



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SECTION 5. Execution, Countersignature
and Registration.  (a) The Right Certificates shall be executed on behalf of the Company by (x) the Chief Executive
Officer, the President, the Chief Financial Officer or the General Counsel or (y) any two officers designated by the Board,
either manually or by facsimile signature. The Right Certificates shall be countersigned by the Rights Agent either manually or
by facsimile signature, and shall not be valid or obligatory for any purpose unless so countersigned. In the event that any officer
of the Company who shall have signed any of the Right Certificates shall cease to be such an officer of the Company before countersignature
by the Rights Agent and issuance and delivery by the Company, such Right Certificates may nevertheless be countersigned by the
Rights Agent and issued and delivered by the Company with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such an officer of the Company; and any Right Certificate may be signed on behalf of the Company
by any person who, at the actual date of execution of such Right Certificate, shall be a proper officer of the Company to sign
such Right Certificate, although at the date of execution of this Rights Agreement any such person was not such an officer of the
Company.


 


(b) Following the Distribution
Date, the Rights Agent shall keep or cause to be kept, at its office designated for such purpose, books for registration and transfer
of the Right Certificates issued hereunder. Such books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced by each of the Right Certificates, the certificate number of each of the Right Certificates
and the date of each of the Right Certificates.


 


SECTION 6. Transfer, Split-Up, Combination
and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates; Uncertificated Rights. (a)
Subject to Section 15, at any time after the Distribution Date, and at or prior to the Close of Business on the earlier of the
Redemption Date and the Expiration Date, any Right Certificate or Right Certificates (other than Right Certificates representing
Rights that have become null and void pursuant to Section 7(e)) may be transferred, split-up, combined or exchanged for another
Right Certificate or Right Certificates representing, in the aggregate, the same number of Rights as the Right Certificate or Right
Certificates surrendered then represented. The Right Certificates are transferable only on the registry books of the Rights Agent.
Any registered holder desiring to transfer, split-up, combine or exchange any Right Certificate or Right Certificates shall make
such request in writing delivered to the Company and the Rights Agent and shall surrender the Right Certificate or Right Certificates
to be transferred, split-up, combined or exchanged at the office of the Rights Agent designated for such purpose; provided,
however, that neither the Rights Agent nor the Company shall be obligated to take any action whatsoever with respect to
the transfer of any Right Certificate surrendered for transfer until the registered holder shall have properly completed and duly
signed the certification contained in the form of assignment on the reverse side of such Right Certificate and shall have provided
such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof
as the Company or the Rights Agent shall reasonably request. Thereupon the Rights Agent shall, subject to Sections 7(e) and 15,
countersign and deliver to the Person entitled thereto a Right Certificate or Right Certificates, as the case may be, as so requested.
The Company may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with
any transfer, split-up, combination or exchange of Right Certificates.


 






    	 



    	 	17



    

 


(b) Subject to Sections 7(e) and
15, upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them of the loss, theft, destruction
or mutilation of a valid Right Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory
to them, and, at the Company’s request, reimbursement to the Company and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancelation of the Right Certificate if mutilated, the Company shall execute
a new Right Certificate of like tenor and deliver such new Right Certificate to the Rights Agent for countersignature and delivery
to the registered owner in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.


 


(c) Notwithstanding any other
provision hereof, the Company and the Rights Agent may amend this Rights Agreement to provide for uncertificated Rights in addition
to or in place of Rights evidenced by Right Certificates, to the extent permitted by applicable law.


 


SECTION 7. Exercise of Rights; Expiration
Date of Rights.  (a) Subject to the other provisions of this Rights Agreement (including Section 7(e) and Section 11),
each Right shall entitle the registered holder thereof, upon exercise thereof as provided in this Rights Agreement, to purchase
for the Purchase Price one one-thousandth (1/1,000th) of a Preferred Share, subject to adjustment as provided in this Rights
Agreement, at any time after the Distribution Date and at or prior to the earliest of (i) the Final Expiration Date, (ii) the
Redemption Date, (iii) the Close of Business on the effective date of the repeal of Section 382 or any successor statute
if the Board determines that this Rights Agreement is no longer necessary or desirable for the preservation of NOLs or other Tax
Benefits, (iv) the Close of Business on the first day of a taxable year of the Company with respect to which the Board determines
that no NOLs or other Tax Benefits may be carried forward and (v) the Close of Business on March 26, 2015, if approval of
this Rights Agreement by a majority of votes cast by the stockholders present in person or by proxy and voting on the matter has
not been obtained by or on such date (the earliest of the events described in clauses (i), (iii), (iv) and (v) being herein
referred to as the “Expiration Date”).


 






    	 



    	 	18



    

 


(b) Subject to the other provisions
of this Rights Agreement (including Section 7(e)), the registered holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided in this Rights Agreement) in whole or in part at any time after the Distribution
Date and at or prior to the earlier of (i) the Expiration Date and (ii) the Redemption Date, upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof properly completed and duly executed, to the Rights
Agent at the office of the Rights Agent designated for such purpose, accompanied by payment of the Purchase Price for each one one-thousandth
(1/1,000th) of a Preferred Share (as such fraction may be adjusted as provided in this Rights Agreement) as to which the Rights
are exercised, together with an amount equal to any applicable transfer tax, in the manner required hereby.


 


(c) Subject to the other provisions
of this Rights Agreement (including Section 7(e)), upon receipt of a Right Certificate representing exercisable Rights, with
the form of election to purchase properly completed and duly executed, accompanied by payment of the Purchase Price for the Preferred
Shares to be purchased together with an amount equal to any applicable transfer tax, in lawful money of the United States of America,
in cash or by certified check or money order payable to the order of the Company, the Rights Agent shall thereupon promptly (i) either
(A) requisition from any transfer agent of the Preferred Shares (or make available, if the Rights Agent is the transfer agent
for such shares) certificates for the total number of Preferred Shares to be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests or (B) if the Company shall have elected to deposit the Preferred Shares
with a depositary agent under a depositary arrangement, requisition from the depositary agent depositary receipts representing
the number of one one-thousandths (1/1,000ths) of a Preferred Share (as such fraction may be adjusted as provided in this
Rights Agreement) to be purchased (in which case certificates for the Preferred Shares to be represented by such receipts shall
be deposited by the transfer agent with the depositary agent) and the Company shall direct the depositary agent to comply with
all such requests, (ii) when necessary to comply with this Rights Agreement (or otherwise when appropriate, as determined
by the Company with notice to the Rights Agent), requisition from the Company the amount of cash, if any, to be paid in lieu of
issuance of fractional shares in accordance with Section 15, (iii) after receipt of such certificates or depositary receipts,
cause the same to be delivered to or, upon the order of the registered holder of such Right Certificate, registered in such name
or names as may be designated by such holder and (iv) when necessary to comply with this Rights Agreement (or otherwise when
appropriate, as determined by the Company with notice to the Rights Agent), after receipt thereof, deliver such cash, if any, to
or upon the order of the registered holder of such Right Certificate.


 


(d) In case the registered holder
of any Right Certificate shall exercise fewer than all the Rights evidenced thereby, a new Right Certificate evidencing Rights
equivalent to the exercisable Rights remaining unexercised shall be issued by the Rights Agent and delivered to the registered
holder of such Right Certificate or to such holder’s duly authorized assigns, subject to the provisions of Section 15.


 






    	 



    	 	19



    

 


(e) Notwithstanding anything in
this Rights Agreement to the contrary, any Rights that are at any time Beneficially Owned by (i) an Acquiring Person or an
Affiliate or Associate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any Associate or Affiliate
of such Acquiring Person) who becomes a transferee after the Acquiring Person becomes such (a “Post Transferee”),
(iii) a transferee of an Acquiring Person (or of any Associate or Affiliate of such Acquiring Person) who becomes a transferee
prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person (or from such Affiliate or Associate) to holders of equity interests
in such Acquiring Person or to any Person with whom the Acquiring Person (or such Affiliate or Associate) has any continuing agreement,
arrangement or understanding (written or oral) regarding the transferred Rights or (B) a transfer that the Board has determined
is part of a plan, arrangement or understanding that has as a primary purpose or effect the avoidance of this Section 7(e)
(a “Prior Transferee”), or (iv) any subsequent transferee receiving transferred Rights from a Post Transferee
or a Prior Transferee, either directly or through one or more intermediate transferees (a “Further Subsequent Transferee”),
shall become null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect
to such Rights, whether under any provision of this Rights Agreement or otherwise. The Company shall use all reasonable efforts
to ensure that the provisions of this Section 7(e) are complied with, but shall have no liability to any holder of any Right
Certificate or any other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its
Affiliate or Associate, or any transferee thereof, hereunder.


 


(f) Notwithstanding anything in
this Rights Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder of any Right Certificates upon the occurrence of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) properly completed and duly signed the certificate contained in the form of election
to purchase set forth on the reverse side of the Right Certificate surrendered for such exercise and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.


 


SECTION 8. Cancelation and Destruction
of Right Certificates. All Right Certificates surrendered or presented for the purpose of exercise, transfer, split-up, combination
or exchange shall, and any Right Certificate representing Rights that have become null and void and nontransferable pursuant to
Section 7(e) surrendered or presented for any purpose shall, if surrendered or presented to the Company or to any of its agents,
be delivered to the Rights Agent for cancelation or in canceled form, or, if surrendered or presented to the Rights Agent, shall
be canceled by it, and no Right Certificates shall be issued in lieu thereof except as expressly permitted by this Rights Agreement.
The Company shall deliver to the Rights Agent for cancelation and retirement, and the Rights Agent shall so cancel and retire,
any Right Certificate purchased or acquired by the Company. The Rights Agent shall at the written request of the Company, destroy
or deliver such canceled Right Certificates, to the Company. Subject to applicable law and regulation, the Rights Agent shall maintain
in a retrievable database electronic records of all cancelled or destroyed Rights Certificates which have been canceled or destroyed
by the Rights Agent.   The Rights Agent shall maintain such electronic records for the time period required by applicable
law and regulation.  Upon written request of the Company (and at the expense of the Company), the Rights Agent shall
provide to the Company or its designee copies of such electronic records relating to Rights Certificates canceled or destroyed
by the Rights Agent and shall certify to the Company the accuracy of such records.


 






    	 



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SECTION 9. Reservation and Availability
of Preferred Shares.   (a) The Company shall cause to be reserved and kept available out of its authorized and unissued
Preferred Shares (or any authorized and issued Preferred Shares held in its treasury), free from preemptive rights or any right
of first refusal, a number of Preferred Shares sufficient to permit the exercise in full of all outstanding Rights.


 


(b) If there are not sufficient
Preferred Shares authorized but unissued (or authorized and issued Preferred Shares held by the Company in its treasury) to permit
the exercise of Rights in accordance with this Rights Agreement, the Company shall take all such action as may be necessary to
authorize additional Preferred Shares for issuance upon the exercise of Rights pursuant to this Rights Agreement; provided,
however, that if the Company is unable to cause the authorization of additional Preferred Shares then the Company shall,
or, if action by the Company’s stockholders is necessary to cause such authorization, in lieu of seeking any authorization,
the Company may, to the extent necessary and permitted by applicable law and any agreements or instruments to which it is a party
in effect prior to the Distribution Date, (i) upon surrender of a Right, pay cash equal to the Purchase Price in lieu of issuing
Preferred Shares and requiring payment therefor or (ii) upon due exercise of a Right and payment of the Purchase Price for
each Preferred Share as to which such Right is exercised, distribute cash, Preferred Shares (including fractions thereof), Common
Shares (including fractions thereof) or other equity or debt securities (or any combination of any of the foregoing) having an
aggregate value equal to the value of the Preferred Shares (including fractions thereof) that otherwise would have been issuable
pursuant to this Rights Agreement, which value shall be determined by a nationally recognized investment banking firm selected
by the Board or a duly constituted committee of Independent Directors. To the extent that any legal or contractual restrictions
(pursuant to agreements or instruments to which it is party in effect prior to the Distribution Date) prevent the Company from
paying the full amount payable in accordance with the foregoing sentence, the Company shall pay to holders of the Rights as to
which such payments are being made all amounts that are not then restricted on a pro rata basis as such payments are or become
permissible under such legal or contractual restrictions until such payments have been paid in full.


 






    	 



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(c) The Company shall take all
actions as may be necessary to ensure that all Preferred Shares and Common Shares delivered upon exercise or exchange of Rights
shall, at the time of delivery of the certificates for such Preferred Shares and Common Shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and nonassessable shares.


 


(d) The Company shall pay when
due and payable any and all Federal and state transfer taxes and charges which may be payable in respect of the issuance or delivery
of Right Certificates or of any Preferred Shares or Common Shares or other securities upon the exercise or exchange of the Rights.
The Company shall not, however, be required to pay any transfer tax which may be payable in respect of any transfer or delivery
of Right Certificates to a Person other than, or in respect of the issuance or delivery of certificates or depositary receipts
for the Preferred Shares or Common Shares or other securities, as the case may be, in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for exercise or exchange or to issue or deliver any certificates
or depositary receipts for Preferred Shares or Common Shares or other securities, as the case may be, upon the exercise or exchange
of any Rights until any such tax shall have been paid (any such tax being payable by the holder of such Right Certificate at the
time of surrender) or until it has been established to the Company’s satisfaction that no such tax is due.


 


(e) So long
as the Preferred Shares issuable upon the exercise of Rights may be listed or admitted to trading on any national securities exchange,
the Company shall use its reasonable best efforts to cause, from and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed or admitted to trading on such exchange upon official notice of issuance upon such exercise.


 


(f) From
and after such time as the Rights become exercisable, the Company shall use its reasonable best efforts, if then necessary to permit
the issuance of shares of Preferred Shares upon the exercise of Rights, to register and qualify such shares of Preferred Shares
under the Securities Act and any applicable state securities or “Blue Sky” laws (to the extent exemptions therefrom
are not available), cause such registration statement and qualifications to become effective as soon as possible after such filing
and keep such registration and qualifications effective (with a prospectus at all times meeting the requirements of the Securities
Act) until the earlier of the date as of which the Rights are no longer exercisable for such securities and the Expiration Date.
The Company may temporarily suspend, for a period of time not to exceed 120 days, the exercisability of the Rights in order to
prepare and file a registration statement under the Securities Act and permit it to become effective. Upon any such suspension,
the Company shall issue a written notice to the Rights Agent as well as a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a written notice to the Rights Agent and a public announcement at such time
as the suspension is no longer in effect. Notwithstanding any provision of this Rights Agreement to the contrary, the Rights shall
not be exercisable in any jurisdiction unless the requisite qualification in such jurisdiction shall have been obtained and until
a registration statement under the Securities Act shall have been declared effective, unless an exemption therefrom is available.


 






    	 



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SECTION 10. Preferred Shares Record Date.
Each Person in whose name any certificate for Preferred Shares or Common Shares or other securities is issued upon the exercise
or exchange of Rights shall for all purposes be deemed to have become the holder of record of the Preferred Shares or Common Shares
or other securities, as the case may be, represented thereby on, and such certificate shall be dated, the date on which the Right
Certificate evidencing such Rights was duly surrendered and payment of any Purchase Price (and any applicable transfer taxes) was
made; provided, however, that, if the date of such surrender and payment is a date upon which the transfer books
of the Company for the Preferred Shares or Common Shares or other securities, as the case may be, are closed, such Person shall
be deemed to have become the record holder of such Preferred Shares or Common Shares or other securities, as the case may be, on,
and such certificate shall be dated, the next succeeding Business Day on which the transfer books of the Company for the Preferred
Shares or Common Shares or other securities, as the case may be, are open. Prior to the exercise of the Rights evidenced thereby,
the holder of a Right Certificate shall not be entitled to any rights of a holder of Preferred Shares for which the Rights shall
be exercisable, including the right to vote or to receive dividends or other distributions, and shall not be entitled to receive
any notice of any proceedings of the Company, except as provided herein.


 


SECTION 11. Adjustments in Rights After
There Is an Acquiring Person; Exchange of Rights for Shares; Business Combinations.   (a) Subject to the other provisions
of this Rights Agreement (including Section 7(e)), upon the occurrence of the Share Acquisition Date, each holder of a Right
shall thereafter have a right to receive, upon exercise thereof for the Purchase Price in accordance with the terms of this Rights
Agreement, such number of one one-thousandths (1/1,000ths) of a Preferred Share (as such fraction may be adjusted as provided
in this Rights Agreement) as shall equal the result obtained by multiplying the Purchase Price by a fraction, the numerator of
which is the number of one one-thousandths (1/1,000ths) of a Preferred Share (as such fraction may be adjusted as provided
in this Rights Agreement) for which such Right is then exercisable and the denominator of which is 50% of the Market Value of the
Common Shares on such Share Acquisition Date.


 


(b) (i) The Board may, at its
option, at any time after the Share Acquisition Date, mandatorily exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that shall have become null and void and nontransferable pursuant to Section 7(e))
for consideration per Right consisting of one-half the Preferred Shares (or fractions thereof) that would be issuable at such
time upon the exercise of one Right in accordance with Section 11(a) (such consideration in this Section 11(b)(i) being
the “Exchange Consideration”). If the Board elects to exchange all the Rights for Exchange Consideration pursuant
to this Section 11(b)(i) prior to the physical distribution of the Right Certificates, the Company may distribute the Exchange
Consideration in lieu of distributing Right Certificates, in which case for purposes of this Rights Agreement holders of Rights
shall be deemed to have simultaneously received and surrendered for exchange Right Certificates on the date of such distribution.
The Company may elect to deposit such Preferred Shares with a depositary agent under a depositary arrangement, and, in such event
the Company shall cause the depositary agent to issue, in lieu of certificates for such Preferred Shares, depositary receipts representing
the number of such Preferred Shares (or fractions thereof) to be exchanged (in which case the certificates for such Preferred Shares
to be represented by such receipts shall be deposited by the transfer agent with the depositary agent). Notwithstanding the foregoing,
the Board may not effect such exchange at any time after any Person (other than the Company, any Subsidiary of the Company or any
employee benefit plan of the Company or any of its Subsidiaries or any Person holding Common Shares for or pursuant to the terms
of any such employee benefit or compensation plan), together with all Affiliates and Associates of such Person, becomes the Beneficial
Owner of more than 50% of the Common Shares then outstanding.


 






    	 



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(ii) If the Board elects to mandatorily exchange
any Rights under Section 11(b)(i), the Board may, at its option and without limiting any rights the Company may have under Section
26, cause the Company to enter into such arrangements or implement such procedures as it deems necessary or appropriate, in its
sole discretion, for the purpose of ensuring that the Exchange Consideration is not received by holders of Rights that have become
null and void pursuant to Section 7(e), including entering into a Trust Agreement in such form and with such terms as the Board
shall then approve (the “Trust Agreement”). If the Board so directs, the Company shall enter into the Trust
Agreement and shall issue to the trust created by such agreement (the “Trust”) all or a portion (as designated
by the Board) of the Exchange Consideration distributable pursuant to the exchange, and all holders of Rights entitled to receive
such Exchange Consideration pursuant to the exchange shall be entitled to receive such Exchange Consideration (and any dividends
paid or distributions made with respect to any securities constituting such Exchange Consideration after the date on which such
securities are deposited in the Trust) only from the Trust and solely upon compliance with the relevant terms and provisions of
the Trust Agreement. Prior to effecting an exchange and distributing such Exchange Consideration, the Company may require (or cause
the trustee of the Trust to require), as a condition thereof, that any holder of Rights provide evidence, including the identity
of the Beneficial Owners thereof and their Affiliates and Associates (or former Beneficial Owners thereof and their Affiliates
and Associates) as the Company shall reasonably request in order to determine if such Rights are null and void. If any Person shall
fail to comply with such request, the Company shall be entitled conclusively to deem the Rights formerly held by such Person to
be null and void pursuant to Section 7(e) hereof and not transferable, exercisable or exchangeable in connection herewith. Any
securities issued at the direction of the Board in connection herewith shall be validly issued, fully paid and nonassessable securities,
and the Company shall be deemed to have received as consideration for such issuance a benefit having a value that is at least equal
to the aggregate par value of the securities so issued.


 






    	 



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(iii) Any action of the Board ordering the
exchange of any Rights pursuant to Section 11(b)(i) shall be irrevocable and, immediately upon the taking of such action and
without any further action and without any notice, the right to exercise any such Right so exchanged pursuant to Section 11(a)
shall terminate and the only right thereafter of a holder of such Right shall be to receive the Exchange Consideration in exchange
for each such Right held by such holder or, if the Exchange Consideration shall not have been paid or issued, to exercise any such
Right pursuant to Section 11(c)(i). The Company shall promptly give public notice of any such exchange; provided, however,
that the failure to give, or any defect in, such notice shall not affect the validity of such exchange. The Company shall promptly
mail a notice of any such exchange to all holders of the Rights to be exchanged at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice that is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of exchange shall state the method by which the exchange of the Rights for the
Exchange Consideration will be effected and, in the event of any partial exchange, the number of Rights to be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other than Rights that shall have become null and void and nontransferable
pursuant to the provisions of Section 7(e)) held by each holder of Rights.


 


(c) (i) In the event that, directly
or indirectly, any transactions specified in the following clause (A) or (B) of this Section 11(c)(i) (each such
transaction being a “Business Combination”) shall be consummated:


 


(A) the Company shall consolidate
with, merge with and into, or effect a share exchange with any Acquiring Person or any Affiliate or Associate of an Acquiring Person,
any Acquiring Person or any Affiliate or Associate of an Acquiring Person shall merge with and into the Company or the Company
shall otherwise effect any business combination or similar transaction with any Acquiring Person or any Affiliate or Associate
of an Acquiring Person;


 


(B) the Company shall sell, lease,
exchange or otherwise transfer or dispose of (or one or more of its Subsidiaries shall sell, lease, exchange or otherwise transfer
or dispose of), in one or more transactions, the Major Part of the assets of the Company and its Subsidiaries to any Acquiring
Person or any Affiliate or Associate of an Acquiring Person,


 


then, in each such case, proper provision shall be made so that
each holder of a Right, except as provided in Section 7(e), shall thereafter have the right to receive, upon the exercise
thereof for the Purchase Price in accordance with the terms of this Rights Agreement, the securities specified below (or, at such
holder’s option, the securities specified in Section 11(a) if the Company is the surviving corporation in such Business
Combination):


 


(1) if the Principal Party in
such Business Combination has Registered Common Shares outstanding, each Right shall thereafter represent the right to receive,
upon the exercise thereof for the Purchase Price in accordance with the terms of this Rights Agreement, such number of Registered
Common Shares of such Principal Party, free and clear of all liens, encumbrances or other adverse claims, as shall have an aggregate
Market Value as of the time of exercise thereof equal to the result obtained by multiplying the Purchase Price by two;


 






    	 



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(2) if the Principal Party in
such Business Combination does not have Registered Common Shares outstanding, each Right shall thereafter represent the right to
receive, upon the exercise thereof for the Purchase Price in accordance with the terms of this Rights Agreement, at the election
of the holder of such Right at the time of the exercise thereof, any of:


 


(i) if the Principal Party in
such Business Combination has Common Shares listed or admitted to trading on any recognized foreign stock exchange, such number
of Common Shares of such Principal Party, free and clear of all liens, encumbrances or other adverse claims, as shall have an aggregate
Market Value as of the time of exercise thereof equal to the result obtained by multiplying the Purchase Price by two;


 


(ii) such number of Common Shares
of the Surviving Person in such Business Combination (if the Principal Party is also the Surviving Person in such Business Combination)
as shall have an aggregate Book Value immediately after giving effect to such Business Combination equal to the result obtained
by multiplying the Purchase Price by two;


 


(iii) such number of Common Shares
of the Principal Party in such Business Combination (if the Principal Party is not also the Surviving Person in such Business Combination)
as shall have an aggregate Book Value immediately after giving effect to such Business Combination equal to the result obtained
by multiplying the Purchase Price by two; or


 


(iv) if the Principal Party in
such Business Combination is an Affiliate of one or more Persons that has Registered Common Shares outstanding, such number of
Registered Common Shares of whichever of such Affiliates of the Principal Party has Registered Common Shares with the greatest
aggregate Market Value on the date of consummation of such Business Combination as shall have an aggregate Market Value on the
date of such Business Combination equal to the result obtained by multiplying the Purchase Price by two.


 


(ii) The Company shall not consummate any
Business Combination unless each issuer of Common Shares for which Rights may be exercised, as set forth in this Section 11(c),
shall have sufficient authorized Common Shares that have not been issued or reserved for issuance (and which shall, when issued
upon exercise thereof in accordance with this Rights Agreement, be validly issued, fully paid and nonassessable and free of preemptive
rights, rights of first refusal or any other restrictions or limitations on the transfer or ownership thereof) to permit the exercise
in full of the Rights in accordance with this Section 11(c) and unless prior thereto:


 






    	 



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(A) a registration statement under
the Securities Act on an appropriate form, with respect to the Rights and the Common Shares of such issuer purchasable upon exercise
of the Rights, shall be effective under the Securities Act; and


 


(B) the Company and each such issuer
shall have:


 


(1) executed and delivered to
the Rights Agent a supplemental agreement providing for the assumption by such issuer of the obligations set forth in this Section 11(c)
(including the obligation of such issuer to issue Common Shares upon the exercise of Rights in accordance with the terms set forth
in Sections 11(c)(i) and 11(c)(iii)) and further providing that such issuer, at its own expense, shall use its best efforts
to:


 


(i) cause a registration statement
under the Securities Act on an appropriate form, with respect to the Rights and the Common Shares of such issuer purchasable upon
exercise of the Rights, to remain effective (with a prospectus at all times meeting the requirements of the Securities Act) until
the Expiration Date;


 


(ii) qualify or register the
Rights and the Common Shares of such issuer purchasable upon exercise of the Rights under the blue sky or securities laws of such
jurisdictions as may be necessary or appropriate; and


 


(iii) list the Rights and the
Common Shares of such issuer purchasable upon exercise of the Rights on each national securities exchange on which the Common Shares
were listed prior to the consummation of the Business Combination or, if the Common Shares were not listed on a national securities
exchange prior to the consummation of the Business Combination, on a national securities exchange;


 


(2) furnished to the Rights Agent
a written opinion, reasonably acceptable to the Rights Agent, of independent counsel stating that such supplemental agreement is
a valid, binding and enforceable agreement of such issuer; and


 






    	 



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(3) filed with the Rights Agent
a certificate of a nationally recognized firm of independent accountants setting forth the number of Common Shares of such issuer
that may be purchased upon the exercise of each Right after the consummation of such Business Combination.


 


(iii) After consummation of any Business Combination,
(A) each issuer of Common Shares for which Rights may be exercised as set forth in this Section 11(c) shall be liable
for, and shall assume, by virtue of such Business Combination, all the obligations and duties of the Company pursuant to this Rights
Agreement, (B) the term “Company” shall thereafter be deemed to refer to such issuer, (C) each such
issuer shall take such steps in connection with such consummation as may be necessary to assure that the provisions of this Rights
Agreement (including Sections 11(a) and 11(c)) shall thereafter be applicable, as nearly as reasonably may be, in relation
to its Common Shares thereafter deliverable upon the exercise of the Rights, (D) the number of Common Shares of each such
issuer thereafter receivable upon exercise of any Right shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions of Sections 11 and 12 and (E) the other provisions of this
Rights Agreement (including Sections 7, 9 and 10) with respect to the Preferred Shares shall apply, as nearly as reasonably
may be, on like terms to any such Common Shares.


 


(d) Upon the occurrence of the
Share Acquisition Date (but not if a Business Combination has occurred and the Company is not the surviving corporation) and solely
in the event that an insufficient number of authorized but unissued shares of Class B Common Stock are available to give effect
to Section 7.11(e) of the LLC Agreement (or any successor provision thereof) or otherwise, the Company will offer each holder of
LLC Units (other than a holder that is the Acquiring Person) the option to purchase, at a purchase price equal to the par value
thereof, such number of one one-thousandths (1/1,000ths) of a Preferred Share equal to the number of Preferred Units (as defined
in the LLC Agreement) such holder would have been entitled to receive under the first sentence of Section 7.11(e) of the LLC Agreement
(or any successor provision thereof) but for the absence of available authorized shares of Class B Common Stock (and only to the
extent such Preferred Units could not be issued because of such absence).


 


SECTION 12. Certain Adjustments. \l
2 (a) To preserve the actual or potential economic value of the Rights, if at any time after the date of this Rights Agreement
there shall be any change in the Common Shares or the Preferred Shares, including any change in the number of Common Shares or
Preferred Shares outstanding, whether by reason of stock dividends, stock splits, reclassifications, recapitalizations, mergers,
consolidations, combinations or exchanges of securities, split-ups, split-offs, spin-offs, liquidations, other similar changes
in capitalization, any distribution or issuance of cash, assets, evidences of indebtedness or subscription rights, options or warrants
to holders of Common Shares, or Preferred Shares, as the case may be (other than distribution of the Rights or regular quarterly
cash dividends), or otherwise, then, in each such event the Board shall make such appropriate adjustments in the number of Preferred
Shares (or the number and kind of other securities) issuable upon exercise of each Right, the Purchase Price and Redemption Price
in effect at such time and the number of Rights outstanding at such time (including the number of Rights or fractional Rights associated
with each Common Share) such that following such adjustment such event shall not have had the effect of reducing or limiting the
benefits the holders of the Rights would have had absent such event.


 






    	 



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(b) If, as a result of an adjustment
made pursuant to Section 12(a), the holder of any Right thereafter exercised shall become entitled to receive any securities
other than Preferred Shares, thereafter the number of such securities so receivable upon exercise of any Right shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions of Sections 11
and 12 and the other provisions of this Rights Agreement (including Sections 7, 9 and 10) with respect to the Preferred
Shares shall apply, as nearly as reasonably may be, on like terms to any such other securities.


 


(c) All Rights originally issued
by the Company subsequent to any adjustment made to the amount of Preferred Shares or other securities relating to a Right shall
evidence the right to purchase, for the Purchase Price, the adjusted number and kind of securities purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as provided in this Rights Agreement.


 


(d) Irrespective of any adjustment
or change in the Purchase Price or the number of Preferred Shares or number or kind of other securities issuable upon the exercise
of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the terms that were expressed in
the initial Right Certificates issued hereunder.


 


(e) In any case in which action
taken pursuant to Section 12(a) requires that an adjustment be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record
date the Preferred Shares and/or other securities, if any, issuable upon such exercise over and above the Preferred Shares and/or
other securities, if any, issuable before giving effect to such adjustment; provided, however, that the Company shall
deliver to such holder a due bill or other appropriate instrument evidencing such holder’s right to receive such additional
securities upon the occurrence of the event requiring such adjustment.


 


SECTION 13. Certificate of Adjustment.
Whenever an adjustment is made or any event occurs affecting the Rights or their exercisability (including an event that causes
the Rights to become null and void) as provided in Section 11 or 12, the Company shall (a) promptly prepare a certificate
setting forth such adjustment or describing such event and a brief, reasonably detailed statement of the facts, computations and
methodology accounting for such adjustment, (b) promptly file with the Rights Agent and with each transfer agent for the Preferred
Shares, a copy of such certificate and (c) mail a brief summary thereof to each holder of a Right Certificate (or, if prior
to the Distribution Date, to each holder of Common Shares) in accordance with Section 25, provided that the failure to prepare,
file or mail such certificate or summary shall not affect the validity of such adjustment or the force or effect of the requirement
for such adjustment. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment therein
contained.


 






    	 



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SECTION 14. Additional Covenants.
 (a) Notwithstanding any other provision of this Rights Agreement, no adjustment to the number of Preferred Shares (or fractions
of a share) or other securities for which a Right is exercisable or the number of Rights outstanding or associated with each Common
Share or any similar or other adjustment shall be made or be effective if such adjustment would have the effect of reducing or
limiting the benefits the holders of the Rights would have had absent such adjustment, including the benefits under Sections 11
and 12, unless the terms of this Rights Agreement are amended so as to preserve such benefits.


 


(b) The Company covenants and
agrees that, after the Distribution Date, except as permitted by Section 26, it shall not take (or permit any Subsidiary of
the Company to take) any action if at the time such action is taken it is intended or reasonably foreseeable that such action will
reduce or otherwise limit the benefits the holders of Rights would have had absent such action, including the benefits under Sections 11
and 12. Any action taken by the Company during any period after any Person becomes an Acquiring Person but prior to the Distribution
Date shall be null and void unless such action could be taken under this Section 14(b) from and after the Distribution Date.
The Company shall not consummate any Business Combination if any issuer of Common Shares for which Rights may be exercised after
such Business Combination in accordance with Section 11(c) shall have taken any action that reduces or otherwise limits the
benefits the holders of Rights would have had absent such action, including the benefits under Sections 11 and 12.


 


SECTION 15. Fractional Rights and Fractional
Shares. (a) The Company may, but shall not be required to (except prior to the Distribution Date in accordance with Section
12(a)), issue fractions of Rights or distribute Right Certificates that evidence fractional Rights. In lieu of such fractional
Rights, the Company may pay to the registered holders of the Right Certificates with regard to which such fractional Rights would
otherwise be issuable an amount in cash equal to the same fraction of the current market value of a whole Right. For purposes of
this Section 15(a), the current market value of a whole Right shall be the closing price of the Rights (as determined pursuant
to the second sentence of the definition of Market Value contained in Section 1) for the Trading Day immediately prior to
the date on which such fractional Rights would have been otherwise issuable.


 


(b) With respect to one one-thousandths
(1/1,000ths) of a Preferred Share (as such fraction may be adjusted as provided in this Rights Agreement), or any integral multiple
thereof, represented by one or more whole Rights immediately prior to their exercise, the Company shall be required and, with respect
to other fractions of a Preferred Share the Company may, but shall not be required, to (i) issue fractions of Preferred Shares
upon exercise of the Rights or distribute certificates that evidence such fractional Preferred Shares or (ii) utilize a depositary
arrangement as provided by the terms of this Rights Agreement and the Preferred Shares. Except with respect to one one-thousandths
(1/1,000ths) of a Preferred Share (as such fraction may be adjusted as provided in this Rights Agreement), or any integral multiple
thereof, represented by one or more whole Rights immediately prior to their exercise, the Company, in lieu of issuing fractional
shares, may elect to pay to the registered holders of Right Certificates at the time such Rights are exercised as herein provided
an amount in cash equal to the same fraction of the current market value of one Preferred Share, if any are outstanding and publicly
traded (or the same fraction of the current market value of one Common Share times the Formula Number (as defined in the Certificate
of Designation) if the Preferred Shares are not outstanding and publicly traded). For purposes of this Section 15(b), the
current market value of a Preferred Share (or Common Share) shall be the closing price of a Preferred Share (or Common Share) (as
determined pursuant to the second sentence of the definition of Market Value contained in Section 1) for the Trading Day immediately
prior to the date of such exercise. If, as a result of an adjustment made pursuant to Section 12(a), the holder of any Right
thereafter exercised shall become entitled to receive any securities other than Preferred Shares, the provisions of this Section 15(b)
shall apply, as nearly as reasonably practicable, on like terms to such other securities.


 






    	 



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(c) The Company may, but shall
not be required to, issue fractions of Common Shares upon exchange of Rights pursuant to Section 11(b), or to distribute certificates
that evidence fractional Common Shares. In lieu of such fractional Common Shares, the Company may pay to the registered holders
of the Right Certificates with regard to which such fractional Common Shares would otherwise be issuable an amount in cash equal
to the same fraction of the current Market Value of one Common Share as of the date on which a Person became an Acquiring Person.


 


(d) Each holder of a Right by
the acceptance of such Right expressly waives its right to receive any fractional Rights or any fractional shares upon exercise
or exchange of a Right except as provided in this Section 15.


 


SECTION 16. Rights of Action. All rights
of action in respect of this Rights Agreement, excepting the rights of action given to the Rights Agent under Sections 19 and 21,
are vested in the respective registered holders of the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right Certificate (or, prior to the Distribution Date, of the Common
Shares), without the consent of the Rights Agent or of the holder of any other Right Certificate (or, prior to the Distribution
Date, of the Common Shares) may, on such holder’s own behalf and for such holder’s own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the Company to enforce, or otherwise act in respect of, such holder’s
right to exercise the Rights evidenced by such Right Certificate (or, prior to the Distribution Date, such Common Shares) in the
manner provided in such Right Certificate and in this Rights Agreement. Without limiting the foregoing or any remedies available
to the holders of Rights, it is specifically acknowledged that the holders of Rights would not have an adequate remedy at law for
any breach of this Rights Agreement and shall be entitled to specific performance of the obligations of any Person under, and injunctive
relief against actual or threatened violations of the obligations of any Person subject to, this Rights Agreement. Notwithstanding
anything in this Rights Agreement to the contrary, the Company shall not have any liability to any holder of a Right or other Person
as a result of its inability to perform any of its obligations under this Rights Agreement by reason of any preliminary or permanent
injunction or other order, judgment, decree or ruling (whether interlocutory or final) issued by a court of competent jurisdiction
or by a governmental, regulatory, self-regulatory or administrative agency or commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining performance of such obligation;
provided, however, the Company must use reasonable efforts to have any such injunction, order, judgment, decree or
ruling lifted or otherwise overturned as soon as possible.


 






    	 



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SECTION 17. Transfer and Ownership of Rights
and Right Certificates.  (a) Prior to the Distribution Date, the Rights shall be transferable only in connection with
the transfer of the Common Shares and the Right associated with each such Common Share shall be automatically transferred upon
the transfer of each such Common Share.


 


(b) After the Distribution Date,
the Right Certificates shall be transferable, subject to Section 7(e), only on the registry books of the Rights Agent if surrendered
at the principal office of the Rights Agent, duly endorsed or accompanied by a proper instrument of transfer and with the appropriate
forms and certificates properly completed and duly executed.


 


(c) The Company and the Rights
Agent may deem and treat the Person in whose name a Right Certificate (or, prior to the Distribution Date, the associated Common
Shares certificate or book entry shares in respect of the Common Stock) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Right Certificates or the associated certificate
for Common Shares (or notices provided to holders of book entry shares of Common Shares) made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent shall be affected by any notice
to the contrary.


 


SECTION 18. Right Certificate Holder Not
Deemed a Stockholder. No holder, as such, of any Right Certificate shall be entitled to vote or receive dividends or other
distributions or be deemed, for any purpose, the holder of the Preferred Shares or of any other securities of the Company which
may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right Certificate, as such, any of the rights of a stockholder of the
Company, including any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders,
or to receive dividends or other distributions or subscription rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions hereof.


 






    	 



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SECTION 19. Concerning the Rights Agent. (a) The Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees and other disbursements incurred in the administration
and execution of this Rights Agreement and the exercise and performance of its duties hereunder, including any taxes or governmental
charges imposed as a result of the action taken by it hereunder (other than any taxes on the fees payable to it).


 


(b) The Rights Agent shall be
protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with its
acceptance and administration of this Rights Agreement and the exercise and performance of its duties hereunder in reliance upon
any (i) written or oral instructions, representations or certifications received from any person it believes in good faith to be
an officer, authorized agent, employee, Rights Certificate Holder or Stockholder of the Company, (ii) any Right Certificate or
certificate for the Common Shares, or for other securities of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or other paper or document believed by it to
be genuine and to be signed, executed and, where necessary, verified, guaranteed or acknowledged, by the proper Person or Persons.


 


(c) The provisions of this Section
19 and Section 21 hereof shall survive the termination of this Rights Agreement, the exercise or expiration of the Rights and the
resignation, replacement or removal of the Rights Agent.


 


SECTION 20. Merger or Consolidation or
Change of Rights Agent. (a) Any Person into which the Rights Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any Person succeeding to the corporate trust or stockholder services business of the Rights Agent
or any successor Rights Agent, shall be the successor to the Rights Agent under this Rights Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto; provided, however, that such Person
would be eligible for appointment as a successor Rights Agent under the provisions of Section 22. In case, at the time such
successor Rights Agent shall succeed to the agency created by this Rights Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the countersignature of the predecessor Rights Agent
and deliver such Right Certificates so countersigned; and, in case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such Right Certificates shall have the full force provided
in the Right Certificates and in this Rights Agreement.


 






    	 



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(b) In case at any time the name
of the Rights Agent shall be changed and at such time any of the Right Certificates shall have been countersigned but not delivered,
the Rights Agent may adopt the countersignature under its prior name and deliver Right Certificates so countersigned; and, in case
at that time any of the Right Certificates shall not have been countersigned, the Rights Agent may countersign such Right Certificates
either in its prior name or in its changed name; and in all such cases such Right Certificates shall have the full force provided
in the Right Certificates and in this Rights Agreement.


 


SECTION 21. Duties of Rights Agent.
The Rights Agent undertakes to perform the duties and obligations imposed by this Rights Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates (or, prior to the Distribution Date, of the Common
Shares), by their acceptance thereof, shall be bound:


 


(a) The Rights Agent may consult
with legal counsel (who may be legal counsel for the Company), and the written or oral advice or opinion of such counsel shall
be full and complete authorization and the Company shall fully indemnify, subject to clause (k) hereof, the Rights Agent as to
any action taken, suffered or omitted by it in good faith and in accordance with such opinion.


 


(b) Whenever in the performance
of its duties under this Rights Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including
the identity of any Acquiring Person) 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 shall be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by the Chief Executive Officer, the President, the Chief
Financial Officer or the General Counsel of the Company and delivered to the Rights Agent; and such certificate shall be full authorization
to the Rights Agent for any action taken, suffered or omitted by it in good faith under the provisions of this Rights Agreement
in reliance upon such certificate.


 


(c) The Rights Agent shall be
liable hereunder to the Company and any other Person only for its own gross negligence, bad faith or willful misconduct.


 


(d) The Rights Agent shall not
be liable for or by reason of any of the statements of fact or recitals contained in this Rights Agreement or in the Right Certificates
(except as to its countersignature thereof) or be required to verify the same, and all such statements and recitals are and shall
be deemed to have been made by the Company only.


 


(e) The Rights Agent shall not
be under any responsibility in respect of the validity of this Rights Agreement or the execution and delivery hereof (except the
due execution and delivery hereof by the Rights Agent) or in respect of the validity or execution of any Right Certificate (except
its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained
in this Rights Agreement or in any Right Certificate; nor shall it be responsible for any adjustment required under the provisions
of Section 11 or 12 or responsible for the manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with respect to the exercise of Rights evidenced by Right Certificates
after actual notice of any such adjustment); nor shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any Preferred Shares or Common Shares to be issued pursuant to this Rights Agreement
or any Right Certificate or as to whether any Preferred Shares or Common Shares will, when so issued, be validly authorized and
issued, fully paid and nonassessable.


 






    	 



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(f) The Company agrees that it
shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further
and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing
by the Rights Agent of the provisions of this Rights Agreement.


 


(g) The Rights Agent is hereby
authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chief Executive
Officer, the President, the Chief Financial Officer or the General Counsel of the Company in connection with its duties and it
shall not be liable for any action taken, suffered or omitted by it in good faith in accordance with instructions of any such instruction.


 


(h) The Rights Agent and any stockholder,
member, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the Company or its Subsidiaries may be interested,
or contract with or lend money to the Company or its Subsidiaries or otherwise act as fully and freely as though it were not the
Rights Agent under this Rights Agreement. Nothing herein shall preclude the Rights Agent or any stockholder, member, affiliate,
director, officer or employee from acting in any other capacity for the Company or for any other Person.


 


(i) If, with respect to any Right
Certificate surrendered to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment or the
form of election to purchase set forth on the reverse side thereof, as the case may be, has either not been properly completed,
the certification set forth therein has been altered or any other change to such form has been made (other than with respect to
the information that the form requires the executor thereof to furnish in the blank spaces provided for such purpose), the Rights
Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.


 


(j) The Rights Agent may execute
and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerable or accountable for any act or for any loss to the Company resulting from
any such act, default, neglect or misconduct of any such attorneys or agents; provided that the Rights Agent did not act
with willful misconduct or gross negligence.


 






    	 



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(k) The Company shall indemnify
the Rights Agent for, and hold the Rights Agent harmless against, any loss, liability, damage or expense (including reasonable
fees and expenses of legal counsel) that the Rights Agent may incur resulting from its actions as Rights Agent pursuant to this
Rights Agreement; provided, however, that the Rights Agent shall not be indemnified or held harmless with respect
to any such loss, liability, damage or expense incurred by the Rights Agent as a result of, or arising out of, its own gross negligence,
bad faith or willful misconduct. In no case shall the Company be liable with respect to any action, proceeding, suit or claim against
the Rights Agent unless the Rights Agent shall have notified the Company in writing of the assertion of any action, proceeding,
suit or claim against the Rights Agent, promptly after the Rights Agent shall have notice of any such assertion of an action, proceeding,
suit or claim or have been served with the summons or other first legal process giving information as to the nature and basis of
the action, proceeding, suit or claim (it being understood that any failure to timely provide such notice shall not relieve Company
of its indemnification obligations except to the extent defense of any such claim is actually prejudiced as a result of such delay).
The Company shall be entitled to participate at its own expense in the defense of any such action, proceeding, suit or claim, and,
if the Company so elects, the Company shall assume the defense of any such action, proceeding, suit or claim. In the event that
the Company assumes such defense, the Company shall not thereafter be liable for the fees and expenses of any additional counsel
retained by the Rights Agent, so long as the Company shall retain counsel satisfactory to the Rights Agent, in the exercise of
its reasonable judgment, to defend such action, proceeding, suit or claim. The Rights Agent agrees not to settle any litigation
in connection with any action, proceeding, suit or claim with respect to which it may seek indemnification from the Company without
the prior written consent of the Company.


 


(l) The Rights Agent’s aggregate
liability for any and all damages arising from or relating to any and all claims and causes of action arising in connection with
this Rights Agreement, shall not exceed the lesser of: (i) the amount of actual damages incurred by the Company; and (ii) an amount
equal to the fees paid by the Company to the Rights Agent with respect to those services giving rise to such claim or cause of
action during the twelve (12) month period (or such lesser period if those services have been provided for less than twelve (12)
months) immediately preceding the date of occurrence of the event upon which a claim is asserted, less any amounts previously paid
by the Rights Agent in satisfaction or settlement of other claims applicable to those services giving rise to such claim or cause
of action, regardless of the basis on which the Company is entitled to claim damages (including, without limitation breach, negligence,
misrepresentation, or other contract or tort claim) and shall constitute the Company’s sole monetary remedy.


 






    	 



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(m) IN NO EVENT WILL RIGHTS AGENT
BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS RIGHTS AGREEMENT
(INCLUDING LOST PROFITS, DAMAGE TO REPUTATION OR LOST SAVINGS), EVEN IF FORESEEABLE OR EVEN IF RIGHTS AGENT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.


 


SECTION 22. Change of Rights Agent.
The Rights Agent or any successor Rights Agent may resign and be discharged from its duties under this Rights Agreement upon 30 days’
notice in writing mailed to the Company and, in the event that the Rights Agent or one of its Affiliates is not also the transfer
agent for the Company, to each transfer agent of the Common Shares and the Preferred Shares, in each case by registered or certified
mail. In the event the transfer agency relationship in effect between the Company and the Rights Agent terminates, the Rights Agent
will be deemed to have resigned automatically and be discharged from its duties under this Rights Agreement as of the effective
date of such termination, and the Company shall be responsible for providing notice of such resignation to each transfer agent
of the Common Shares and the Preferred Shares. The Company may remove the Rights Agent or any successor Rights Agent upon 30 days’
notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer agent of the
Common Shares and the Preferred Shares by registered or certified mail, and to the holders of the Right Certificates (or, prior
to the Distribution Date, of the Common Shares) by first-class mail. If the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor to the Rights Agent. If the Company shall fail to make such appointment
within a period of 30 days after giving notice of such removal or after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Rights Agent, then the registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares) may apply to any court of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the Company or by such a court, shall be (a) a Person organized and doing
business under the laws of the United States or of the State of New York (or of any other state of the United States so long as
such entity is authorized to do business as a banking institution in the State of New York), in good standing, which is authorized
under such laws to exercise corporate trust or stockholder services powers and is subject to supervision or examination by Federal
or state authority and which has at the time of its appointment as Rights Agent a combined capital and surplus of at least $50,000,000
or (b) any Affiliate of a Person described in clause (a) of this sentence. After appointment, the successor Rights Agent shall
be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment, the Company shall mail notice thereof in writing to the predecessor
Rights Agent and each transfer agent of the Common Shares and the Preferred Shares, and mail a notice thereof in writing to the
registered holders of the Right Certificates (or, prior to the Distribution Date, of the Common Shares). Failure to give any notice
provided for in this Section 22, however, or any defect therein shall not affect the legality or validity of the resignation
or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.


 






    	 



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SECTION 23. Issuance of Additional Rights
and Right Certificates. Notwithstanding any of the provisions of this Rights Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in such forms as may be approved by the Board to reflect
any adjustment or change made in accordance with the provisions of this Rights Agreement. In addition, in connection with the issuance
or sale of Common Shares following the Distribution Date and prior to the earlier of the Redemption Date and the Expiration Date,
the Company (a) shall, with respect to Common Shares so issued, granted or sold pursuant to the exercise of stock options
or under any employee plan or arrangement (whether or not subject to vesting or other restrictions), or upon the exercise, conversion
or exchange of securities, notes or debentures issued by the Company, and (b) may, in any other case, if deemed necessary
or appropriate by the Board, issue Right Certificates representing the appropriate number of Rights in connection with such issuance
or sale; provided, however, that (i) no such Right Certificate shall be issued if, and to the extent that, the
Company shall be advised by counsel that such issuance would create a significant risk of material adverse tax consequences to
the Company or the Person to whom such Right Certificate would be issued, (ii) no such Right Certificate shall be issued if,
and to the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance thereof and (iii) no
such Right Certificate shall be issued to an Acquiring Person or an Affiliate or Associate of an Acquiring Person.


 


SECTION 24. Redemption and Termination. (a) The Board may, at its option, at any time prior to the earlier of (i) the Share Acquisition Date and (ii) the
Expiration Date, order the redemption of all, but not fewer than all, the then outstanding Rights at the Redemption Price (the
date of such redemption being the “Redemption Date”), and the Company, at its option, may pay the Redemption
Price either in cash or Common Shares or other securities of the Company deemed by the Board, in the exercise of its sole discretion,
to be at least equivalent in value to the Redemption Price.


 


(b) Immediately upon the action
of the Board ordering the redemption of the Rights (or at such later time as the Board may establish for the effectiveness of such
redemption), and without any further action and without any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the Redemption Price. Promptly after the action of the Board ordering
the redemption of the Rights (or at such later time as the Board may establish for the effectiveness of such redemption), the Company
shall give written notice of such redemption to the Rights Agent and the holders of the then outstanding Rights by mailing such
notice to all such holders at their last addresses as they appear upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for the Common Shares. Each such notice of redemption shall state
the method by which payment of the Redemption Price will be made. The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been duly given, whether or not the holder of Rights receives such notice. In any case, failure to
give such notice by mail, or any defect in the notice, to any particular holder of Rights shall not affect the sufficiency of the
notice to other holders of Rights. Neither the Company nor any of its Affiliates or Associates may redeem, acquire or purchase
for value any Rights at any time in any manner except as specifically set forth in this Section or in Section 11(b) or in
connection with the purchase of Common Shares prior to the Distribution Date.


 






    	 



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SECTION 25. Notices. Notices or demands
authorized by this Rights Agreement to be given or made by the Rights Agent or by the holder of a Right Certificate (or, prior
to the Distribution Date, of the Common Shares) to or on the Company shall be sufficiently given or made if sent by overnight delivery
service or first-class mail, postage-prepaid, addressed (until another address is filed in writing with the Rights Agent) as follows:


 


BioFuel Energy Corp.

1600 Broadway, Suite 2200


Denver, Colorado 80202


Attention: Chief Executive Officer


 


Subject to the provisions of Section 22, any notice or
demand authorized by this Rights Agreement to be given or made by the Company or by the holder of a Right Certificate (or, prior
to the Distribution Date, of the Common Shares) to or on the Rights Agent shall be sufficiently given or made if sent by overnight
delivery service or first-class mail, postage-prepaid, addressed (until another address is filed in writing with the Company) as
follows:


 


Broadridge Corporate Issuer Solutions, Inc.

1717 Arch St., Suite 1300


Philadelphia, PA 19103


Attention: Reorganization Department


 


Notices or demands authorized by this Rights Agreement to be
given or made by the Company or the Rights Agent to any holder of a Right Certificate (or, prior to the Distribution Date, of the
Common Shares) shall be sufficiently given or made if sent by first-class mail, postage-prepaid, addressed to such holder at the
address of such holder as shown on the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books
of the transfer agent for the Common Shares.


 


SECTION 26. Supplements and Amendments.
At any time prior to the Distribution Date, and subject to the last sentence of this Section 26, the Company may, and
the Rights Agent shall if the Company so directs, supplement or amend any provision of this Rights Agreement in any manner (provided
such change does not in any way impact the Rights Agent’s obligations hereunder without the approval of the Rights Agent)
that the Company may deem necessary or desirable (including the date on which the Distribution Date or Expiration Date shall occur,
the amount of the Purchase Price, the definition of “Acquiring Person” or the time during which the Rights may be
redeemed pursuant to Section 24) without the approval of any holder of the Rights. From and after the Distribution Date,
and subject to applicable law, the Company may, and the Rights Agent shall if the Company so directs, amend this Rights Agreement
without the approval of any holders of Right Certificates only (a) to cure any ambiguity or to correct or supplement any
provision contained herein that may be defective or inconsistent with any other provision of this Rights Agreement or (b) to
otherwise supplement or amend any other provision or provisions in this Rights Agreement in any manner that the Company may deem
necessary or desirable and that does not (x) adversely affect the interests of the holders of Right Certificates (other
than an Acquiring Person, an Affiliate or Associate of an Acquiring Person, a Post Transferee, a Prior Transferee or a Further
Subsequent Transferee), (y) cause this Rights Agreement again to become amendable other than in accordance with this sentence
or (z) in any way impact the Rights Agent’s obligations hereunder (other than with the approval of the Rights Agent). Any
supplement or amendment adopted during any period after any Person has become an Acquiring Person but prior to the Distribution
Date shall be null and void unless such supplement or amendment could have been adopted under the prior sentence from and after
the Distribution Date. All supplements and amendments shall be in writing and must be authorized
by the Board. Upon the delivery of a certificate from the Chief Executive Officer, the President, the Chief Financial Officer
or the General Counsel of the Company that states that the proposed supplement or amendment is in compliance with the terms of
this Section 26, the Rights Agent shall execute such supplement or amendment; provided, that any supplement or amendment
that does not amend Section 2, 19, 20, 21 or 22 or this Section 26 in a manner adverse to the Rights Agent shall become effective
immediately upon execution by the Company, whether or not also executed by the Rights Agent. In addition, notwithstanding anything
to the contrary contained in this Rights Agreement, no supplement or amendment to this Rights Agreement shall be made which reduces
the Redemption Price (except as required by Section 12(a)).


 






    	 



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SECTION 27. Successors. All the covenants
and provisions of this Rights Agreement by or for the benefit of the Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.


 


SECTION 28. Benefits of Rights Agreement;
Determinations and Actions by the Board, etc.   (a) Nothing in this Rights Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date,
of the Common Shares) any legal or equitable right, remedy or claim under this Rights Agreement; but this Rights Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, of the Common Shares).


 


(b) Except as explicitly otherwise
provided in this Rights Agreement, the Board shall have the exclusive power and authority to administer this Rights Agreement and
to exercise all rights and powers specifically granted to the Board or to the Company, or as may be necessary or advisable, in
the administration of this Rights Agreement, including the right and power to (i) interpret the provisions of this Rights
Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Rights Agreement (including
a determination to redeem or not redeem the Rights or to amend this Rights Agreement and a determination of whether there is an
Acquiring Person). For all purposes of this Rights Agreement, any calculation of the number of Common Shares outstanding at any
particular time, including for purposes of determining the particular percentage of such outstanding Common Shares of which any
Person is the Beneficial Owner, will be made in accordance with, as the Board deems to be applicable, the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act or the provisions of Section 382.


 






    	 



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(c) Nothing contained in this
Rights Agreement shall be deemed to be in derogation of the obligation of the Board to exercise its fiduciary duty. Without limiting
the foregoing, nothing contained herein shall be construed to suggest or imply that the Board shall not be entitled to reject any
tender offer or other acquisition proposal, or to recommend that holders of Common Shares reject any tender offer or other acquisition
proposal, or to take any other action (including the commencement, prosecution, defense or settlement of any litigation and the
submission of additional or alternative offers or other proposals) with respect to any tender offer or other acquisition proposal
that the Board believes is necessary or appropriate in the exercise of such fiduciary duty.


 


SECTION 29. Process to Seek Exemption.
Any Person who desires to effect any acquisition of securities that would, if consummated, result in such Person becoming an Acquiring
Person (a “Requesting Person”) may, prior to such time and in accordance with this Section 29, request that
the Board grant an exemption with respect to such acquisition under this Rights Agreement so that such Person would be deemed to
be an “Exempt Person” as defined in Section 1 for purposes of this Rights Agreement (an “Exemption Request”).
An Exemption Request shall be in proper form and shall be delivered by overnight delivery service or first-class mail, postage-prepaid,
to the Secretary of the Company at the principal executive office of the Company. The Exemption Request shall be deemed made upon
receipt by the Secretary of the Company. To be in proper form, an Exemption Request shall set forth (a) the name and address of
the Requesting Person, (b) the number and percentage of Common Shares then Beneficially Owned by the Requesting Person, together
with all Affiliates and Associates of the Requesting Person, and (c) a reasonably detailed description of the transaction or transactions
by which the Requesting Person would propose to become an Acquiring Person and the maximum number and percentage of Common Shares
that the Requesting Person proposes to acquire. The Board, or a duly constituted committee of Independent Directors, shall make
a determination whether to grant an exemption in response to an Exemption Request as promptly as practicable (and, in any event,
within ten Business Days) after receipt thereof; provided, that the failure of the Board (or any such committee) to make
a determination within such period shall be deemed to constitute the denial by the Board of the Exemption Request. The Requesting
Person shall respond promptly to reasonable and appropriate requests for additional information from the Board and its advisors
to assist the Board in making its determination. The Board, or a duly constituted committee of Independent Directors, shall only
grant an exemption in response to an Exemption Request if the Board determines in its sole discretion, or such committee determines
in its sole discretion, that the acquisition of Beneficial Ownership of Common Shares by the Requesting Person, considered alone
or with other transactions (including past transactions or contemplated transactions), (i) will not jeopardize or endanger the
availability to the Company of its NOLs or other Tax Benefits, taking into account such facts and circumstances as the Board (or
any such committee) reasonably deems relevant or (ii) is otherwise in the best interests of the Company. Any exemption granted
hereunder may be granted in whole or in part, and may be subject to limitations or conditions (including a requirement that the
Requesting Person agree that it will not acquire Beneficial Ownership of Common Shares in excess of the maximum number and percentage
of shares approved by the Board), in each case as and to the extent the Board, or a duly constituted committee of Independent Directors,
shall determine necessary or desirable to provide for the protection of the NOLs and other Tax Benefits or as is otherwise in the
best interests of the Company. Any Exemption Request may be submitted on a confidential basis and, except to the extent required
by applicable law, the Company shall maintain the confidentiality of such Exemption Request and the Board’s (or any such
committee’s) determination with respect thereto, unless the information contained in the Exemption Request or the Board’s
determination with respect thereto otherwise becomes publicly available. The Exemption Request shall be considered and evaluated
by the Board, or a duly constituted committee of Independent Directors, and the action of a majority of such directors (or such
committee) shall be deemed to be the determination of the Board for purposes of such Exemption Request.


 






    	 



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SECTION 30. Tax Benefits Review. In
addition to the review and evaluation otherwise contemplated by this Rights Agreement, the Board, or a duly constituted committee
of Independent Directors, shall review the calculation for determining whether an ownership change has occurred under Section 382
once per year (or with such greater frequency as the Board (or any such committee), in its sole discretion, shall determine is
advisable). The Board (or any such committee) shall determine after such review whether maintenance of this Rights Agreement continues
to be advisable in order to preserve the value of the NOLs and other Tax Benefits, taking into account such facts and circumstances
as the Board (or any such committee) reasonably deems relevant.


 


SECTION 31. Severability. If any term,
provision, covenant or restriction of this Rights Agreement is held by a court of competent jurisdiction or other authority to
be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Rights Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.


 


SECTION 32. Governing Law. This Rights
Agreement and each Right Certificate issued hereunder shall be deemed to be a contract made under the law of the State of Delaware
and for all purposes shall be governed by and construed in accordance with the law of such State applicable to contracts to be
made and performed entirely within such State.


 






    	 



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SECTION 33. Counterparts; Effectiveness.
This Rights Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Rights
Agreement transmitted electronically shall have the same authority, effect and enforceability as an original signature. This Rights
Agreement shall be effective as of the Close of Business on the date hereof.


 


SECTION 34. Descriptive Headings. Descriptive
headings of the several Sections of this Rights Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions of this Rights Agreement.


 


[Signature Page Follows]


 




    	 



    	 	 



    

 


IN WITNESS WHEREOF, the parties hereto have
caused this Rights Agreement to be duly executed as of the day and year first above written.






 


	 	Biofuel Energy Corp.,
	 	 
	 	By  	 /s/ Scott H. Pearce
	 	 	 
	 	 	Name:Scott H. Pearce
	 	 	Title:Chief Executive Officer


 




    	 



    	 



    

 


	 	BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as Rights Agent,
	 	 
	 	By  	 /s/ Mark Kopelman
	 	 	 
	 	 	Name:Mark Kopelman
	 	 	Title:Vice President



 



    	 



    	 	 



    

 


EXHIBIT A


 


Form of


 


CERTIFICATE OF DESIGNATION


 


OF


 


SERIES B JUNIOR PARTICIPATING PREFERRED
STOCK


 


OF


 


BIOFUEL ENERGY CORP.


 


Pursuant to Section 151 of the General
Corporation Law of the State of Delaware


 


BIOFUEL ENERGY CORP.,
a corporation organized and existing under the laws of the State of Delaware (the “Corporation”) in accordance
with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:


 


That pursuant to the
authority vested in the Board of Directors of the Corporation (the “Board of Directors”) in accordance with
the provisions of the Amended and Restated Certificate of Incorporation of the said Corporation (the “Certificate of Incorporation”),
the said Board of Directors on March 27, 2014 adopted the following resolution creating a series of 100,000 shares of
Preferred Stock designated as “Series B Junior Participating Preferred Stock”:


 


RESOLVED, that pursuant to the authority
vested in the Board of Directors in accordance with the provisions of the Certificate of Incorporation, the Board of Directors
hereby authorizes a series of preferred stock, par value $0.01 per share, of the Corporation to be, and such series of preferred
stock hereby is, created, and that the number of shares thereof and the voting powers, designations, preferences and relative,
participating, optional or other special rights of the shares of such series and the qualifications, limitations and restrictions
thereof are as follows:


  


SECTION 1. Designation and Amount.
There shall be a series of Preferred Stock that shall be designated as “Series B Junior Participating Preferred Stock,”
and the number of shares constituting such series shall be 100,000. Such number of shares may be increased or decreased by resolution
of the Board of Directors; provided, however, that no decrease shall reduce the number of shares of Series B Junior
Participating Preferred Stock to less than the number of shares then issued and outstanding plus the number of shares issuable
upon exercise of outstanding rights, options or warrants or upon conversion of outstanding securities issued by the Corporation.


 






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SECTION 2. Dividends or Distributions.
(a)  Subject to the prior and superior rights of the holders of shares of any other series of preferred stock of the
Company or other class of capital stock of the Company ranking prior and superior to the shares of Series B Junior Participating
Preferred Stock with respect to dividends, the holders of shares of Series B Junior Participating Preferred Stock, in preference
to the holders of shares of any class or series of stock of the Corporation ranking junior to the Series B Junior Participating
Preferred Stock in respect thereof, shall be entitled to receive, when, as and if declared by the Board of Directors, out of the
assets of the Company legally available therefor, (1) quarterly dividends payable in cash on the last day of each fiscal quarter
in each year, or such other dates as the Board of Directors shall approve (each such date being referred to herein as a “Quarterly
Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share
or a fraction of a share of Series B Junior Participating Preferred Stock, in the amount of $10.00 per whole share (rounded
to the nearest cent) less the amount of all cash dividends declared on the Series B Junior Participating Preferred Stock pursuant
to the following clause (2) since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a share of Series B Junior Participating Preferred
Stock (the total of which shall not, in any event, be less than zero) and (2) dividends payable in cash on the payment date for
each cash dividend declared on the shares of Common Stock, par value $0.01 per share, of the Corporation (the “Common
Stock”) in an amount per whole share (rounded to the nearest cent) equal to (x) the Formula Number (as hereinafter defined)
then in effect times (y) the cash dividends then to be paid on each share of Common Stock. In addition, if the Corporation shall
pay any dividend or make any distribution on the Common Stock payable in assets, securities or other forms of noncash consideration
(other than dividends or distributions solely in shares of Common Stock), then, in each such case, the Corporation shall simultaneously
pay or make on each outstanding whole share of Series B Junior Participating Preferred Stock a dividend or distribution in like
kind equal to the Formula Number then in effect times such dividend or distribution on each share of Common Stock. As used herein,
the “Formula Number” shall be 1,000; provided, however, that, if at any time after March 27, 2014,
the Corporation shall (i) declare or pay any dividend on the Common Stock payable in shares of Common Stock or make any distribution
on the Common Stock in shares of Common Stock, (ii) subdivide (by a stock split or otherwise) the outstanding shares of Common
Stock into a larger number of shares of Common Stock or (iii) combine (by a reverse stock split or otherwise) the outstanding shares
of Common Stock into a smaller number of shares of Common Stock, then in each such event the Formula Number shall be adjusted to
a number determined by multiplying the Formula Number in effect immediately prior to such event by a fraction, the numerator of
which is the number of shares of Common Stock that are outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that are outstanding immediately prior to such event (and rounding the result to the nearest
whole number); and provided further that, if at any time after March 27, 2014, the Corporation shall issue any shares
of its capital stock in a merger, reclassification, or change of the outstanding shares of Common Stock, then in each such event
the Formula Number shall be appropriately adjusted to reflect such merger, reclassification or change so that each share of Series
B Junior Participating Preferred Stock continues to be the economic equivalent of a Formula Number of shares of Common Stock prior
to such merger, reclassification or change.


 






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(b) The Corporation shall declare a cash dividend
on the Series B Junior Participating Preferred Stock as provided in Section 2(a)(2) immediately prior to or at the same time it
declares a cash dividend on the Common Stock; provided, however, that, in the event no cash dividend shall have been
declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment Date, during the period between the first issuance of any
share or fraction of a share of Series B Junior Participating Preferred Stock, a dividend of $10.00 per whole share on the Series
B Junior Participating Preferred Stock shall nevertheless accrue on such subsequent Quarterly Dividend Payment Date or the first
Quarterly Dividend Payment Date, as the case may be. The Board of Directors may fix a record date for the determination of holders
of shares of Series B Junior Participating Preferred Stock entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding dividend or distribution on the Common Stock.


 


(c) Whether or not declared, dividends shall
begin to accrue and be cumulative on outstanding shares of Series B Junior Participating Preferred Stock from and after the Quarterly
Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue and be
cumulative from and after the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of shares of Series B Junior Participating Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from and after such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series B Junior Participating Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding.


 


(d) So long as any shares of Series B Junior
Participating Preferred Stock are outstanding, no dividends or other distributions shall be declared, paid or distributed, or set
aside for payment or distribution, on the Common Stock unless, in each case, the dividend required by this Section 2 to be
declared on the Series B Junior Participating Preferred Stock shall have been declared and set aside.


 


(e) The holders of shares of Series B Junior
Participating Preferred Stock shall not be entitled to receive any dividends or other distributions except as herein provided.


 






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SECTION 3. Voting Rights. The holders
of shares of Series B Junior Participating Preferred Stock, in addition to the voting rights provided by law, shall have the following
voting rights:


 


(a) Each holder of Series B Junior Participating
Preferred Stock shall be entitled to a number of votes on each matter on which holders of the Common Stock and Class B Common Stock
or stockholders generally are entitled to vote equal to the Formula Number then in effect, for each share of Series B Junior Participating
Preferred Stock held of record, multiplied by the maximum number of votes per share which any holder of Common Stock, any holder
of Class B Common Stock or stockholders generally then have with respect to such matter (assuming, if applicable, any holding period
or other requirement to exercise such maximum voting rights is satisfied).


 


(b) Except as otherwise herein provided
or by applicable law, the holders of shares of Series B Junior Participating Preferred Stock and the holders of shares of Common
Stock and the holders of shares of Class B Common Stock shall vote together as one class for the election of directors of the Corporation
and on all other matters submitted to a vote of stockholders of the Corporation.


 


(c) Except as otherwise herein provided
or by applicable law, holders of Series B Junior Participating Preferred Stock shall have no voting rights.


 


SECTION 4. Certain Restrictions. (a)
Whenever quarterly dividends or other dividends or distributions payable on the Series B Junior Participating Preferred Stock as
provided in Section 3 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared,
on shares of Series B Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation shall not:


 


(i) declare or pay dividends on,
make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the Series B Junior Participating Preferred Stock other
than (A) such redemptions or purchases that may be deemed to occur upon the exercise of stock options, warrants or similar rights
or grant, vesting or lapse of restrictions on the grant of any other performance shares, restricted stock, restricted stock units
or other equity awards to the extent that such shares represent all or a portion of (x) the exercise or purchase price of such
options, warrants or similar rights or other equity awards and (y) the amount of withholding taxes owed by the recipient of such
award in respect of such grant, exercise, vesting or lapse of restrictions; (B) the repurchase, redemption, or other acquisition
or retirement for value of any such shares from employees, former employees, directors, former directors, consultants or former
consultants of the Corporation or their respective estate, spouse, former spouse or family member, pursuant to the terms of the
agreements pursuant to which such shares were acquired;


 






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(ii) declare or pay dividends
on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Series B Junior Participating Preferred Stock, except dividends paid ratably on the Series B Junior Participating
Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;


 


(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series B Junior Participating Preferred Stock; provided, however, that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series B Junior Participating Preferred Stock;
or


 


(iv) purchase or otherwise acquire
for consideration any shares of Series B Junior Participating Preferred Stock, or any shares of stock ranking on a parity with
the Series B Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the respective series or classes.


 


(b) The Corporation shall not permit any subsidiary
of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under Section 4(a), purchase or otherwise acquire such shares at such time and in such manner.


 


SECTION 5. Liquidation Rights. Upon
the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, no distribution shall be made
(1) to the holders of any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series B Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Series B Junior Participating
Preferred Stock shall have received an amount per share equal to the accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, plus an amount per share equal to the greater of (x) $1,000 per whole share
and (y) an aggregate amount per share equal to the Formula Number then in effect times the aggregate amount to be distributed per
share to holders of Common Stock or (2) to the holders of any shares of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series B Junior Participating Preferred Stock, except distributions made
ratably on the Series B Junior Participating Preferred Stock and all other such parity stock in proportion to the total amounts
to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up.


 






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SECTION 6. Consolidation, Merger, etc.
(a) In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash or any other property, then in any such case the
then outstanding shares of Series B Junior Participating Preferred Stock shall at the same time be similarly exchanged or changed
into an amount per share equal to the Formula Number then in effect times the aggregate amount of stock, securities, cash or any
other property (payable in kind), as the case may be, into which or for which each share of Common Stock is exchanged or changed.
In the event both this Section 6 and Section 2 appear to apply to a transaction, this Section 6 will control.


 


(b) Neither the merger
or consolidation of the Corporation into or with another entity nor the merger or consolidation of any other entity into or with
the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section
6.


 


SECTION 7. No Redemption; No Sinking Fund.
(a)  The shares of Series B Junior Participating Preferred Stock shall not be subject to redemption by the Corporation
or at the option of any holder of Series B Junior Participating Preferred Stock; provided, however, that, subject
to Section 4(a)(iv), the Corporation may purchase or otherwise acquire outstanding shares of Series B Junior Participating
Preferred Stock in the open market or by offer to any holder or holders of shares of Series B Junior Participating Preferred Stock.


 


(b) The shares of Series B Junior Participating
Preferred Stock shall not be subject to or entitled to the operation of a retirement or sinking fund.


 


SECTION 8. No Purchase Fund. The shares
of Series B Junior Participating Preferred Stock shall not be subject to or entitled to the operation of a purchase fund.


 


SECTION 9. No Conversion; No Exchange.
The shares of Series B Junior Participating Preferred Stock shall not be convertible into, or exchangeable for, shares of any other
class or series.


 


SECTION 10. Ranking. The Series B Junior
Participating Preferred Stock shall rank junior to all other series of preferred stock of the Corporation unless the Board of Directors
shall specifically determine otherwise in fixing the powers, preferences and relative, participating, optional and other special
rights of the shares of such series and the qualifications, limitations and restrictions thereof.


 


SECTION 11. Fractional Shares. The
Series B Junior Participating Preferred Stock shall be issuable upon exercise of the Rights issued pursuant to the Rights Agreement
in whole shares or in any fraction of a share that is one one-thousandth of a share (as such fraction may be adjusted as provided
in the Rights Agreement) or any integral multiple of such fraction which shall entitle the holder, in proportion to such holder’s
fractional shares, to receive dividends, participate in distributions and to have the benefit of all other rights of holders of
Series B Junior Participating Preferred Stock. In lieu of any fractional shares, the Corporation may elect (a) to make a cash payment
as provided in the Rights Agreement for fractions of a share, other than those one one-thousandths (1/1,000ths) of a Preferred
Share (as such fraction may be adjusted as provided in the Rights Agreement), or any integral multiple thereof, represented by
one or more whole Rights immediately prior to such exercise, or (b) to issue depositary receipts evidencing fractional shares
of Series B Junior Participating Preferred Stock pursuant to an appropriate agreement between the Corporation and a depository
selected by the Corporation; provided, however, that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to which they are entitled as holders of the Series B Junior Participating
Preferred Stock.


 






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SECTION 12. Reacquired Shares. Any
shares of Series B Junior Participating Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their retirement and cancelation
become authorized but unissued shares of Series B Junior Participating Preferred Stock without designation as to series until such
shares are once more designated as part of a particular series by the Board pursuant to the provisions of the Certificate of Incorporation.


 


SECTION 13. Amendment. So long as any
shares of Series B Junior Participating Preferred Stock shall be outstanding, (i) none of the voting power, preferences and
relative, participating, optional or other special rights or privileges and the qualifications, limitations and restrictions of
the Series B Junior Participating Preferred Stock as herein provided shall be amended in any manner which would alter or change
the voting powers, preferences and relative, participating, optional or other special rights or privileges of the holders of Series
B Junior Participating Preferred Stock and any qualifications, limitations or restrictions thereof so as to affect them adversely
without the affirmative vote of the holders of two-thirds of the outstanding shares of Series B Junior Participating Preferred
Stock and (ii) no amendment, alteration or repeal of the Certificate of Incorporation or of the Amended and Restated Bylaws
of the Corporation shall be effected so as to affect adversely any of such voting power, preferences and relative, participating,
optional or other special rights or privileges.


 




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EXHIBIT B


 


[Form of Right Certificate]


 





	Certificate No. [R]-	___________ Rights







 


NOT EXERCISABLE AFTER, 2014, OR EARLIER IF REDEEMED
BY THE COMPANY OR OTHERWISE EXPIRED PURSUANT TO THE RIGHTS AGREEMENT. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $0.01 PER RIGHT, ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR
AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND BY ANY SUBSEQUENT HOLDER
OF SUCH RIGHTS ARE NULL AND VOID AND NONTRANSFERABLE.


 


Right Certificate


 


BIOFUEL ENERGY CORP.


 


This certifies that                     ,
or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Section 382 Rights Agreement dated as of March 27, 2014, as it may be amended
from time to time (the “Rights Agreement”), between BIOFUEL ENERGY CORP., a Delaware corporation (the “Company”),
and BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as Rights Agent (the “Rights Agent”), unless the Rights evidenced
hereby shall have been previously redeemed or exchanged by the Company, to purchase from the Company at any time after the Distribution
Date (as defined in the Rights Agreement) and prior to 5:00 p.m., New York City time on the earliest of (a) March 27,
2017, (b) the effective date of the repeal of Section 382 or any successor statute if the Board determines that the Rights
Agreement is no longer necessary or desirable for the preservation of NOLs or other tax benefits, (c) the first day of a taxable
year of the Company with respect to which the Board determines that no NOLs or other tax benefits may be carried forward and (d)
March 26, 2015, if approval of this Rights Agreement by a majority of votes cast by the stockholders present in person or by proxy
and voting on the matter has not been obtained by or on such date, unless earlier redeemed or exchanged by the Company as described
below (the earliest of the events described in clauses (a), (b), (c), and (d) being referred to as, the “Expiration Date”),
at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-thousandth
(1/1,000th) of a fully paid, nonassessable share of Series B Junior Participating Preferred Stock, par value $0.01 per share, of
the Company (the “Preferred Shares”), at a purchase price per one one-thousandth (1/1,000th) of a share equal
to $13.50 (the “Purchase Price”) payable in cash, upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase duly executed.


 






    	B-1



    	 	 



    

 


The Purchase Price and the number and kind
of shares that may be purchased upon exercise of each Right evidenced by this Right Certificate, as set forth above, are the Purchase
Price and the number and kind of shares that may be so purchased as of March 27, 2014. As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares which may be purchased upon the exercise of each Right evidenced by this Right
Certificate are subject to modification and adjustment upon the happening of certain events.


 


If the Rights evidenced by this Right Certificate
are at any time beneficially owned by an Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such terms are
defined in the Rights Agreement), such Rights shall be null and void and nontransferable and the holder of any such Right (including
any purported transferee or subsequent holder) shall not have any right to exercise or transfer any such Right.


 


This Right Certificate is subject to all the
terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein
by reference and made a part hereof and to which reference to the Rights Agreement is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of
the Right Certificates. Copies of the Rights Agreement are on file at the above-mentioned office of the Rights Agent and are also
available from the Company upon written request.


 


This Right Certificate, with or without other
Right Certificates, upon surrender at the office of the Rights Agent designated for such purpose, may be exchanged for another
Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate
number and kind of shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender
hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised.


 


Subject to the provisions of the Rights Agreement,
the Rights evidenced by this Right Certificate may be redeemed by the Company at its option at a redemption price (in cash or shares
of Common Stock, par value $0.01 per share, of the Company or other securities of the Company deemed by the Board of Directors
of the Company (the “Board”) to be at least equivalent in value) of $0.01 per Right (which amount shall be subject
to adjustment as provided in the Rights Agreement) at any time prior to the earlier of (i) the Distribution Date and (ii) the
Expiration Date.


 


With respect to one one-thousandths (1/1,000ths)
of a Preferred Share (as such fraction may be adjusted as provided in the Rights Agreement), or any integral multiple thereof,
represented by one or more whole Rights immediately prior to their exercise, the Company shall be required and, with respect to
other fractions of a Preferred Share the Company may, but shall not be required, to (i) issue fractions of Preferred Shares upon
exercise of the Rights or distribute certificates that evidence such fractional Preferred Shares or (ii) utilize a depositary arrangement
as provided by the terms of the Rights Agreement and the Preferred Shares. Except with respect to one one-thousandths (1/1,000ths)
of a Preferred Share (as such fraction may be adjusted as provided in this Rights Agreement), or any integral multiple thereof,
represented by one or more whole Rights immediately prior to their exercise, the Company, in lieu of issuing fractional shares,
may elect to make a cash payment as provided in the Rights Agreement for fractions of a share.


 






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No holder of this Right Certificate shall
be entitled to vote or receive dividends or be deemed for any purpose the holder of the Preferred Shares or of any other securities
of the Company which may at any time be issuable on the exercise or exchange hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company,
including any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders
(except as provided in the Rights Agreement), or to receive dividends or other distributions or subscription rights, or otherwise,
until the Right or Rights evidenced by this Right Certificate shall have been exercised or exchanged as provided in accordance
with the provisions of the Rights Agreement.


 


This Right Certificate shall not be valid
or obligatory for any purpose until it shall have been countersigned by an authorized signatory of the Rights Agent.


 


WITNESS the facsimile signature of the proper
officers of the Company.


 


Dated as of:


 


 





	 	Biofuel Energy Corp.,
	 	 	 
	 	by  	 
	 	 	 
	 	 	Name:
	 	 	Title:







 


Attest:


 





	 	 
	Name:	 
	Title:	 










 


Date of countersignature:


 


Countersigned:


 


BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC.,

as Rights Agent,


 





	by  	 	 
	 	 	 
	 	Authorized Signatory	 







 




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[On Reverse Side of Right Certificate]




FORM OF ELECTION TO PURCHASE


 


(To be executed by the registered holder if

 such holder desires to exercise the Rights

 represented by this Right Certificate.)


 


To the Rights Agent:


 


The undersigned hereby irrevocably elects
to exercise            Rights represented by this Right Certificate to
purchase the Preferred Shares (or other shares) issuable upon the exercise of such Rights and requests that certificates for such
shares be issued in the name of:


 


Please insert social security

or other identifying number


 





 


(Please print name and address)


 


If such number of Rights shall not be all
the Rights evidenced by this Right Certificate, a new Right Certificate for the balance remaining of such Rights shall be registered
in the name of and delivered to:


 


Please insert social security

or other identifying number


 





(Please print name and address)



 





	Dated:             ,	 	 
	 	 	 
	 	Signature	 









Signature Medallion Guaranteed:


 


Signatures must be guaranteed by a participant
in the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc.
Medallion Signature Program.


 


The undersigned hereby certifies that (1) the Rights evidenced
by this Right Certificate are not being exercised by or on behalf of a person who is or was an Acquiring Person or an Affiliate
or Associate thereof (as such terms are defined in the Rights Agreement) and (2) after due inquiry and to the best knowledge
of the undersigned, the undersigned did not acquire the Rights evidenced by this Right Certificate from any person who is or was
an Acquiring Person or an Affiliate or Associate thereof.


 






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	Dated: ______________________, ____	 	 
	 	 	 
	 	Signature	 







 


Signature Medallion Guaranteed:


 


Signatures must be guaranteed by a participant in the Securities
Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature
Program.


 




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FORM OF ASSIGNMENT


 


(To be executed by the registered holder
if such

holder desires to transfer the Right Certificate.)


 








FOR VALUE RECEIVED
_______________________________ hereby sells, assigns and transfer unto  __________________________
 





 

















 





(Please print name and address of transferee)


 


 





 


this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ______________ Attorney, to transfer the within Right Certificate on
the books of the within-named Corporation, with full power of substitution.


 


Dated: ____________, ____


 


______________________________

Signature


 


Signature Medallion Guaranteed:


 


Signatures must be guaranteed by a participant in the Securities
Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature
Program.


 


The undersigned hereby certifies that (1) the
Rights evidenced by this Right Certificate are not being sold, assigned or transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate thereof (as such terms are defined in the Rights Agreement), (2) this Right
Certificate is not being sold, assigned or transferred to or on behalf of any such Acquiring Person, Affiliate or Associate and
(3) after inquiry and to the best knowledge of the undersigned, the undersigned did not acquire the Rights evidenced by this
Right Certificate from any Person who is or was an Acquiring Person or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement).


 


______________________________

Signature


 




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NOTICE


 


The signature on the foregoing Form of Election
to Purchase or Form of Assignment must correspond to the name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.


 




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EXHIBIT C


 


RIGHTS BENEFICIALLY OWNED BY ANY ACQUIRING PERSONS OR THEIR
AFFILIATES OR ASSOCIATES AND BY ANY SUBSEQUENT HOLDER OF SUCH RIGHTS ARE NULL AND VOID AND NONTRANSFERABLE.


 


SUMMARY OF RIGHTS TO PURCHASE


 


SERIES B JUNIOR PARTICIPATING PREFERRED
STOCK


 


OF BIOFUEL ENERGY CORP.


 


On March 27, 2014 (the “Rights Dividend
Declaration Date”), the Board of Directors (the “Board”) of BIOFUEL ENERGY CORP., a Delaware corporation (the
“Company”), declared a dividend of one right (collectively, the “Rights”) for each outstanding
share of Common Stock, par value $0.01 per share, of the Company (the “Common Shares”). The Rights will
be issued to the holders of record of Common Shares outstanding at April 7, 2014 (the “Record Date”) and with
respect to Common Shares issued thereafter until the Distribution Date (as defined below). Each Right, when it becomes exercisable
as described below, will entitle the registered holder to purchase from the Company one one-thousandth (1/1,000th) of
a share of Series B Junior Participating Preferred Stock, par value $0.01 per share, of the Company (the “Preferred
Shares”) at a price of $13.50, subject to adjustment (the “Purchase Price”). The description and terms
of the Rights are set forth in a Section 382 Rights Agreement dated as of March 27, 2014, as it may be amended from time to time
(the “Rights Agreement”), between the Company and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent
(the “Rights Agent”).


 


The Board adopted the Rights Agreement in
an effort to protect shareholder value by attempting to protect against a possible limitation on the Company’s ability to
use its net operating loss carryforwards (the “NOLs”) and other tax benefits to reduce potential future United
States Federal income tax obligations. The Company has experienced substantial operating losses, and under the Internal Revenue
Code of 1986, as amended (the “Code”), and rules promulgated thereunder, the Company may “carry forward”
these NOLs and other tax benefits in certain circumstances to offset any current and future earnings and thus reduce the Company’s
federal income tax liability, subject to certain requirements and restrictions. To the extent that the NOLs and other tax benefits
do not otherwise become limited, the Company believes that it will be able to carry forward a significant amount of NOLs and other
tax benefits arising in the future, and therefore these NOLs and other tax benefits could be a substantial asset to the Company.
However, if the Company experiences an “Ownership Change,” as defined in Section 382 of the Code, its ability to use
the NOLs and other tax benefits will be substantially limited, including that the timing of the usage of the NOLs and other tax
benefits could be substantially delayed, which could therefore significantly impair the value of those assets.


 






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Until the earlier of 5:00 p.m. New York City
time on (a) the tenth calendar day after such date as the Company learns that a person or group (including any affiliate or
associate of such person or group), has acquired, or obtained the right to acquire, beneficial ownership of 4.99% or more of the
outstanding Common Shares (any such person or group being called an “Acquiring Person”) (subject to exceptions),
and (b) such date, if any, as may be designated by the Board following the commencement of, or first public disclosure of
an intention to commence, a tender or exchange offer for outstanding Common Shares which could result in such person or group becoming
the beneficial owner of 4.99% or more of the outstanding Common Shares (the earlier of such dates being called the “Distribution
Date”), the Rights will be evidenced by certificates for Common Shares registered in the names of the holders thereof,
or, in the case of Common Shares held in uncertificated form, by the transaction statement or other record of ownership of such
Common Shares, and not by separate Right Certificates. Generally, the Rights Agreement provides that any person or group (including
any affiliate or associate of such person or group) (a “Grandfathered Person”) which beneficially owned (as
disclosed in public filings with the Securities and Exchange Commission) 4.99% or more of the outstanding Common Shares as of the
Rights Dividend Declaration Date (the percentage of such ownership, the “Grandfathered Percentage”) will not
be deemed an “Acquiring Person” unless such Grandfathered Person exceeds its Grandfathered Percentage by 0.5% or more
of the outstanding shares of Common Stock. If any Grandfathered Person shall sell, transfer or otherwise dispose of any outstanding
Common Shares after the Rights Dividend Declaration Date, the related Grandfathered Percentage shall then mean the lesser of (a) the
Grandfathered Percentage as in effect immediately prior to such sale, transfer or disposition and (b) the percentage of outstanding
Common Shares of the Company that such Grandfathered Person beneficially owns immediately following such sale, transfer or disposition;
provided, however, if at any time after the Rights Dividend Declaration Date, such Grandfathered Person is the beneficial
owner of less than 4.99% of the outstanding Common Shares, then such person or group (including any affiliate or associate of such
person or group) will cease to be a Grandfathered Person. Additionally, the Rights Agreement includes procedures whereby the Board,
or a duly constituted committee of Independent Directors, will consider requests to exempt (a) any person or group (including
any affiliate or associate of such person or group) (an “Exempt Person”) that would otherwise be an “Acquiring
Person”, or (b) any transaction (an “Exempt Transaction”) resulting in the beneficial ownership of
Common Shares, prior to the consummation of such transaction, from the Acquiring Person trigger, in each case if the Board, or
a duly constituted committee of Independent Directors, determines in its sole discretion either that such person or group (including
any affiliate or associate of such person or group) or such transaction (i) will not jeopardize or endanger the availability of
the NOLs or other tax benefits to the Company or (ii) is otherwise in the best interest of the Company; provided that, (A) in
the case of an Exempt Person, if the Board, or a duly constituted committee of Independent Directors, later makes a contrary determination
with respect to the effect of such person or group’s (including any affiliate or associate of such person or group) beneficial
ownership with respect to the availability to the Company of its NOLs or other tax benefits, such person or group (including any
affiliate or associate of such person or group) shall cease to be an Exempt Person and (B) in the case of an Exempt Person
or Exempt Transaction, the Board, or a duly constituted committee of Independent Directors, may require the applicable person or
group (including any affiliate or associate of such person or group) to make certain representations or undertakings, the violation
or attempted violation of which will be subject to such consequences as the Board, or a duly constituted committee of Independent
Directors, may determine it its sole discretion, including that such person or group (including any affiliate or associate of such
person or group) shall become an “Acquiring Person”. The Rights Agreement provides that an exchange by any holder of
the LLC Units held by it on the Rights Dividend Declaration Date for Common Shares pursuant to its rights under the limited liability
company agreement of BioFuel Energy, LLC (the “LLC Agreement”) then in effect shall be an “Exempt Transaction”.


 






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With respect to any Common Shares outstanding
as of the Record Date, until the earliest of the Distribution Date, the Redemption Date and the Expiration Date (as defined below),
(a) in the case of certificated shares, the Rights associated with the Common Shares represented by a certificate shall be evidenced
by such certificate along with a copy of this Summary of Rights, and the surrender for transfer of any such certificate shall also
constitute the transfer of the Rights associated with the Common Shares represented thereby, and (b) in the case of Common Shares
held in uncertificated form, the Rights associated with the Common Shares shall be evidenced by the balances indicated in the book-entry
account system of the transfer agent for the Common Shares, and the transfer of any Common Shares in the book-entry account system
of the transfer agent for such Common Shares shall also constitute the transfer of the Rights associated with such Common Shares.
Therefore, until the Distribution Date, the Rights may be transferred with and only with the underlying Common Shares.


 


As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights (“Right Certificates”) will be mailed to holders of record
of the Common Shares as of the close of business on the Distribution Date, and such separate Right Certificates alone will thereafter
evidence the Rights.


 


The Rights are not exercisable until the Distribution
Date and will expire at 5:00 p.m., New York City time, on the earliest of (a) March 27, 2017, (b) the effective
date of the repeal of Section 382 or any successor statute if the Board determines that the Rights Agreement is no longer
necessary or desirable for the preservation of NOLs or other tax benefits, (c) the first day of a taxable year of the Company
to which the Board determines that no NOLs or other tax benefits may be carried forward and (d) March 26, 2015, if approval of
this Rights Agreement by a majority of votes cast by the stockholders present in person or by proxy and voting on the matter has
not been obtained by or on such date (the earliest of the events described in clauses (a), (b), (c), and (d) being referred to
as, the “Expiration Date”), unless earlier redeemed or exchanged by the Company as described below.


 






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The number of Preferred Shares or other securities
issuable upon exercise of the Rights is subject to adjustment by the Board in the event of any change in the Common Shares or Preferred
Shares, whether by reason of stock dividends, stock splits, reclassifications, recapitalizations, mergers, consolidations, combinations
or exchanges of securities, split-ups, split-offs, spin-offs, liquidations, other similar changes in capitalization, any distribution
or issuance of cash, assets, evidences of indebtedness or subscription rights, options or warrants to holders of Common Shares
or Preferred Shares or otherwise. The Purchase Price and the number of Preferred Shares or other securities issuable upon exercise
of the Rights are subject to adjustment from time to time in the event of the declaration of a stock dividend on the Common Shares
payable in Common Shares or a subdivision or combination of the Common Shares prior to the Distribution Date.


 


The Preferred Shares are authorized to be
issued in fractions which are an integral multiple of one one-thousandth (1/1,000th) of a Preferred Share and, unless
represented by depositary receipts pursuant to a depositary arrangement (as provided by the terms of the Preferred Shares), shall
be so issued. The foregoing sentence notwithstanding, the Company may, in lieu of issuing fractional shares (other than fractional
shares represented by one or more whole Rights immediately prior to their exercise), make a cash payment for such shares based
on the market price of such shares on the first trading date prior to the date of exercise.


 






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Subject to the right of the Board to redeem
or exchange the Rights as described below, on the first date of public announcement by the Company or an Acquiring Person that
a Person has become an Acquiring Person, or such earlier date as a majority of the Board of Directors shall become aware of the
existence of an Acquiring Person, the holder of each Right will thereafter have the right to receive, upon exercise thereof, for
the Purchase Price, that number of one one-thousandths (1/1,000ths) of a Preferred Share equal to the number of Common
Shares which at the time of such transaction would have a market value of twice the Purchase Price. Any Rights that are or were
beneficially owned by an Acquiring Person will become null and void and will not be subject to this “flip-in” provision.
In addition, on such date (but not if the “flip-over” provision applies as described below) and solely in the event
that an insufficient number of authorized but unissued shares of Class B Common Stock are available to give effect to Section 7.11(e)
of the LLC Agreement (or any successor provision thereof) or otherwise, the Corporation will offer each holder of LLC Units (other
than a holder that is an Acquiring Person) the option to purchase, at a purchase price equal to the par value thereof, such number
of one one-thousandths (1/1,000ths) of a Preferred Share equal to the number of Preferred Units (as defined in the LLC Agreement)
such holder would have been entitled to receive under the first sentence of Section 7.11(e) of the LLC Agreement (or any successor
provision thereof) but for the absence of available authorized shares of Class B Common Stock (and only to the extent such Preferred
Units could not be issued because of such absence).


 






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In the event the Company is acquired by, or
otherwise engages in a merger, share exchange or other business combination with, an Acquiring Person that has common shares publicly
traded in the United States or 50% or more of the Company’s assets or assets representing 50% or more of the Company’s
earning power are sold, leased, exchanged or otherwise transferred (in one or more transactions) to an Acquiring Person that has
common shares publicly traded in the United States, proper provision must be made so that each Right will entitle its holder to
purchase, for the Purchase Price, that number of common shares of such entity which at the time of the transaction would have a
market value of twice the Purchase Price. In the event the Company is acquired in a merger or other business combination by an
Acquiring Person that does not have common shares publicly traded in the United States or 50% or more of the Company’s assets
or assets representing 50% or more of the earning power of the Company are sold, leased, exchanged or otherwise transferred (in
one or more transactions) to an Acquiring Person that does not have common shares publicly traded in the United States, proper
provision must be made so that each Right will entitle its holder to purchase, for the Purchase Price, at such holder’s option,
(a) if such entity has common shares publicly traded outside the United States, that number of common shares of such entity
which at the time of the transaction would have a market value of twice the Purchase Price, (b) that number of common shares of
the surviving corporation in the transaction with such entity which at the time of the transaction would have a book value of twice
the Purchase Price, (c) that number of common shares of such entity which at the time of the transaction would have a book
value of twice the Purchase Price or (d) if such entity has an affiliate which has common shares publicly traded in the United
States, that number of common shares of such affiliate which at the time of the transaction would have a market value of twice
the Purchase Price. This “flip-over” provision only applies to a merger or similar business combination with an Acquiring
Person.


 


ANY RIGHTS THAT ARE OR WERE, AT ANY TIME ON
OR AFTER THE DATE AN ACQUIRING PERSON BECOMES SUCH, BENEFICIALLY OWNED BY SUCH ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE OF
SUCH ACQUIRING PERSON (OR A TRANSFEREE THEREOF) WILL BECOME NULL AND VOID AND ANY HOLDER OF ANY SUCH RIGHT (INCLUDING ANY SUBSEQUENT
HOLDER) WILL BE UNABLE TO EXERCISE ANY SUCH RIGHT.


 


The Rights are redeemable by the Board at
a redemption price of $0.0001 per Right (the “Redemption Price”) any time prior to the earlier of (a) the
Distribution Date and (b) the Expiration Date (the date of such redemption being the “Redemption Date”).
Immediately upon the action of the Board electing to redeem the Rights, and without any further action and without any notice,
the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price.


 


After there is an Acquiring Person the Board
may elect to exchange each Right (other than Rights owned by an Acquiring Person) for consideration per Right consisting of one-half
of the securities that would be issuable at such time upon the exercise of one Right pursuant to the terms of the Rights Agreement.
Notwithstanding the foregoing, the Board is not empowered to effect such exchange at any time after any person (other than the
Company, any subsidiary of the Company, any employee benefit plan of the Company or any such subsidiary, or any entity holding
Common Shares for or pursuant to the terms of any such plan), together with all affiliates and associates of such person, becomes
the beneficial owner of 50% or more of the Common Shares then outstanding.


 






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If the Board elects to mandatorily exchange
any Rights, the Board may, at its option and without limiting any rights the Company may have under the Rights Agreement, cause
the Company to enter into one or more arrangements it deems necessary or appropriate to implement and give effect to such mandatory
exchange in the manner contemplated by the Rights Agreement, including by establishing one or more trusts or other mechanisms for
the proper and orderly distribution of the securities and/or cash to be exchanged therefor.


 


At any time prior to the date the Company
learns that a person or group (including any affiliate or associate of such person or group) has become an Acquiring Person (subject
to exceptions), the Company may, without the approval of any holder of the Rights, supplement or amend any provision of the Rights
Agreement (including the date on which the Distribution Date will occur, the amount of the Purchase Price or the definition of
“Acquiring Person”), except that no supplement or amendment may be made that reduces the Redemption Price or adversely
affects the holders of Rights (other than an Acquiring Person, an affiliate or associate of an Acquiring Person and certain transferees).


 


Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder of the Company, including the right to vote or to receive dividends.


 


A copy of the Rights Agreement, including
the terms of the Preferred Shares, will be filed with the Securities and Exchange Commission as an Exhibit to a Registration Statement
on Form 8-A. A copy of the Rights Agreement is available free of charge from the Company upon written request. This summary
description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement,
which is incorporated herein by reference.





 








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