EXHIBIT
10.3

     

    EXECUTION
VERSION

    


    VOTING
AGREEMENT

     

    This
VOTING AGREEMENT (this
“Agreement”)
dated September 24, 2010, is entered into by and among Biofuel Energy Corp., a
Delaware corporation (the “Company”),
and each of the Persons listed on Schedule I attached
hereto (including, with their permitted transferees or assigns, collectively,
the “Stockholders”).  This
Agreement shall become effective as of the Closing (as defined therein) of that
certain proposed registered rights offering for Series A Convertible Preferred
Stock of the Company (or depository interests in respect thereof) (the “Rights
Offering”) as further described in that certain Loan Agreement and Rights
Offering Letter Agreement, each dated as of even date herewith by and among the
Company, each of the Stockholders and the other signatories thereto (the “Loan
Agreement” and the “Rights Offering
Letter Agreement”, respectively).

     

    AGREEMENT

     

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

     

    ARTICLE
I.


     

    VOTING

     

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

     

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

     

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

     

    ARTICLE
II.


     

    BOARD
OF DIRECTORS

     

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

    


    
      
        
           


        

        
          1

          
            

          

        

        
           


        

      

    

     

    Section
2.2     Election of Non-Affiliated
Directors.  Subject
to the provisions of the Restated Certificate and By-Laws, effective as of the
date of the consummation of the Rights Offering, each Stockholder agrees that at
each annual meeting of the Company’s stockholders, at any other meeting of the
Company’s stockholders at which members of the Board are to be elected, and
whenever members of the Board are to be elected by written consent, such
Stockholder shall vote or act with respect to all of its Shares so as to elect
Director nominees that are not Affiliates of any or all of the Stockholders such
that at least two (2) directors are not Affiliates of any or all of the
Stockholders; provided that the Company
nominates one or more Director nominees that are not Affiliates of any or all of
the Stockholders; and provided further that there are at
least five directors on the Board.

     

    Section
2.3     Approval of Increase in
Authorized but Unissued Shares of Common Stock.Each
Stockholder agrees that at a meeting of the Company’s stockholders at which the
Company, if ever, proposes to amend its Restated Certificate so as to increase
the number of authorized but unissued shares of Common Stock up to an amount of
shares sufficient to enable the Company to convert all Series A Convertible
Preferred Stock issuable pursuant to the (i) Rights Offering, (ii) the
warrant(s) contemplated by the Loan Agreement and (iii) each other transaction
contemplated by the Loan Agreement, including the “Cargill Acknowledgement
Letter” described in Section 10 of the Rights Offering Letter Agreement), which
shares of Common Stock shall rank pari passu with the existing shares of Common
Stock, in favor of such proposal.

     

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

     

    ARTICLE
III.


     

    CERTAIN
REPRESENTATIONS, WARRANTIES AND COVENANTS

     

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

     

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

     

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

    


    
      
        
           


        

        
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    Section
3.4      Covenants of the
Company.

     

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

     

    ARTICLE
IV.


     

    MISCELLANEOUS

     

    Section
4.1      Term.  This
Agreement shall terminate and be of no further force or effect upon the earliest
to occur of (a) at such time as the Company's Common Stock is no longer traded
on a national securities exchange, (b) five (5) years from the date of this
Agreement, (c) the date as of which the parties hereto terminate this Agreement
by the written consent of the holders of a majority of the Stockholder
Shares then outstanding on the one hand, and the Company, on the other hand; and
(d) the Stockholder Shares represent less than 15% of the Company’s issued and
outstanding voting capital stock.

     

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

     

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

     

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

     

    If to a
Stockholder:

     

    Greenlight
Capital, Inc.

    140 E. 45
Street – 24fl.

    New York,
New York  10017

    Phone:   (212)
973-1900

    Fax:  212-973-9219

    Attn:  Daniel
Roitman

    


    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

     

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

     

    Akin Gump
Strauss Hauer & Feld LLP

    One
Bryant Park

    New York,
New York  10036

    Phone:  (212)
872-1095

    Fax:  (212)
872-1002

    Attn:  Kerry
E. Berchem, Esq.

     

    If to the
Company:

     

    BioFuel
Energy Corp.

    1600
Broadway, Suite 2200

    Phone:
(303) 640-6500

    Fax:
(303) 592-8117

    Attn:
President

     

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

     

    Cravath,
Swaine & Moore LLP

    825
Eighth Avenue

    New York,
New York 10019

    Phone:
(212) 474-1000

    Fax:
(212) 474-3700

    Attn:
Craig F. Arcella

     

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

     

    Section
4.5      Submission to Jurisdiction;
Waiver of Jury Trial.

     

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

    


    
      
        
           


        

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

     

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

     

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

     

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

     

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

    


    
      
        
           


        

        
          5

          
            

          

        

        
           


        

      

    

     

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

     

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

     

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

     

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

     

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

    


    
      
        
           


        

        
          6

          
            

          

        

        
           


        

      

    

    


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

     

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

     

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

     

    [SIGNATURE
PAGE FOLLOWS]

    


    
      
        
           


        

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

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      GREENLIGHT
      CAPITAL OFFSHORE PARTNERS

                                    
	 	 
	
                                      By:

                                    	
                                      Greenlight
      Capital, Inc., its general partner

                                    
	 
      	 
      	 
      
	 
      	
                                      By:

                                    	
                                      /s/ Daniel
      Roitman

                                    
	 
      	 
      	
                                      Daniel
      Roitman

                                    
	 
      	 
      	
                                      Chief
      Operating Officer

                                    
	 
      	 
      	 
      
	
                                      GREENLIGHT
      CAPITAL, LP

                                    
	 	 
	
                                      By:

                                    	
                                      Greenlight
      Capital, LLC, its general partner

                                    
	 
      	 
      	 
      
	 
      	
                                      By:

                                    	
                                      /s/ Daniel
      Roitman

                                    
	 
      	 
      	
                                      Daniel Roitman

                                    
	 
      	 
      	
                                      Chief Operating Officer

                                    
	 
      	 
      	 
      
	
                                      GREENLIGHT
      CAPITAL QUALIFIED, L.P.

                                    
	 
      	 
      
	
                                      By:

                                    	
                                      Greenlight
      Capital, LLC, its general partner

                                    
	 
      	 
      	 
      
	 
      	
                                      By:

                                    	
                                      /s/ Daniel
      Roitman

                                    
	 
      	 
      	
                                      Daniel Roitman

                                    
	 
      	 
      	
                                      Chief Operating Officer

                                    
	 
      	 
      	 
      
	
                                      GREENLIGHT
      REINSURANCE, LTD.

                                    
	 
      	 
      	 
      
	
                                      By:

                                    	
                                      DME
      Advisor, LP, its general partner

                                    
	 
      	 
      	 
      
	 
      	
                                      By:

                                    	
                                      /s/ Daniel
      Roitman

                                    
	 
      	 
      	
                                      Daniel Roitman

                                    
	 
      	 
      	
                                      Chief Operating
  Officer

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    
      
        
          
            
              
                
                  
                    
                      	
                              GREENLIGHT
      CAPITAL (GOLD), LP

                            
	 	 
	
                              By:

                            	
                              DME
      Management GP, LLC, its general
      partner

                            
	 
      	 
      	 
      
	 
      	
                              By:

                            	
                              /s/ Daniel
      Roitman

                            
	 
      	 
      	
                              Daniel Roitman

                            
	 
      	 
      	
                              Chief Operating Officer

                            
	 
      	 
      	 
      
	
                              GREENLIGHT
      CAPITAL OFFSHORE MASTER
      (GOLD), LTD.

                            
	 	 
	
                              By:

                            	
                              DME
      Capital Management, LP, its general
      partner

                            
	 
      	 
      	 
      
	 
      	
                              By:

                            	
                              /s/ Daniel
      Roitman

                            
	 
      	 
      	
                              Daniel Roitman

                            
	 
      	 
      	
                              Chief Operating
  Officer

                            


                    

                  

                

              

            

          

        

      

    

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    SCHEDULE
I

     

    STOCKHOLDER

     

    Greenlight
Capital, L.L.C.

     

    Greenlight
Capital, Inc.

     

    Greenlight
Capital, L.P.

     

    Greenlight
Capital Qualified, L.P.

     

    Greenlight
Capital Offshore Partners

     

    DME
Advisors GP, L.L.C.

     

    DME
Advisors, L.P.

     

    
      Schedule
I


    

    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT
A

     

    ADOPTION
AGREEMENT

     

    This
Adoption Agreement (“Adoption
Agreement”) is executed by the undersigned (the “Affiliated Transferee”)
pursuant to the terms of that certain Voting Agreement dated as of [__________ ___, 200_]
(the “Agreement”)
by and among the Company and certain of its stockholders.  Capitalized
terms used but not defined herein shall have the respective meanings ascribed to
such terms in the Agreement.  By the execution of this Adoption
Agreement, the Transferee agrees as follows:

     

    
      	
               
      

            	
              (a)

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

            


    

     

    
      	
               
      

            	
              (b)

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

            


    

     

    
      	
               
      

            	
              (c)

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

            


    

     

    EXECUTED
AND DATED this ______ day of _____________, 2010.

     

    
      
        
          
            
              	
                      AFFILIATED
      TRANSFEREE:

                    
	 
      
	 
      
	
                      Name:

                    	 
      
	
                      Title:

                    	 
      
	
                      Address:

                    	 
      
	
                      Facsimile:

                    	 
      


            

          

        

      

    

    


    
      
        
          
            
              
                
                  	
                          Accepted
      and Agreed:

                        
	 
      	 
      
	
                          BIOFUEL
      ENERGY CORP.

                        
	 
      	 
      
	
                          By:

                        	 
      
	
                          Name:

                        	 
      
	
                          Title:

                        	 
      


                

              

            

          

        

      

    

    


    
      
        
           


        

        
          A-1