Unassociated Document


    EXHIBIT
10.1

     

    BIOFUEL
ENERGY CORP.

    1600
BROADWAY, SUITE 2200

    DENVER,
COLORADO 80202

     

    CONFIDENTIAL
AND PROPRIETARY

     

    September
24, 2010

     

    Greenlight
APE, LLC

    as
Administrative Agent

    


     

    Re:  BioFuel Change of Control
Arrangements

     

    Gentlemen:

     

    We, the undersigned executive officers
(“Executives”)
of BioFuel Energy Corp. (“BioFuel Energy”),
understand that Greenlight APE, LLC is acting as administrative agent for
certain lenders under that certain Loan Agreement (the “Loan Agreement”),
dated as of September 24, 2010 (collectively as identified therein, the “Lenders”), pursuant
to which the Lenders are making a bridge loan (the “Bridge Loan”) to
BioFuel Energy, whereby as soon as reasonably practicable following the closing
of the Bridge Loan, BioFuel Energy will commence with a registered rights
offering pursuant to the appropriate registration statement whereby it will
offer Series A Convertible Preferred Stock (as defined in the Loan Agreement) to
its existing stockholders on a pro rata basis and use the proceeds raised in
connection with the rights offering to repay the Bridge Loan and certain other
indebtedness of BioFuel Energy, LLC  (the “Rights Offering,”
together with the Bridge Loan, the “Transaction”).

     

    BioFuel Energy and BioFuel Energy, LLC
(“BFE Energy,”
and together with BioFuel Energy, “BioFuel”) anticipate
that the Transaction would result in a “change of control” for purposes of
awards (“Equity
Awards”) held under the BioFuel Energy Corp. 2007 Equity Incentive
Compensation Plan (the “Equity Plan”) and the
vesting and payment provisions of the BioFuel Energy, LLC Change of Control Plan
(the “Change of
Control Plan,” and together with the Equity Plan, the “Plans”).

     

    In consideration of the foregoing, and
in order to induce the Lenders to make the Bridge Loan and undertake the Rights
Offering, the Executives who are signatory hereto, severally and not jointly,
agree as follows:

     

    
      	
               
      

            	
              1.

            	
              Notwithstanding
      anything to the contrary contained in the Plans, the Transaction as
      described above shall not constitute a “Change of Control” as defined
      under the Plans; and

            


    

     

    
      	
               
      

            	
              2.

            	
              Notwithstanding
      anything to the contrary contained in those certain Executive Employment
      Agreements dated August 31, 2010 by and between BFE Energy and each of
      Scott H. Pearce and Kelly G. Maguire, respectively (the “Agreements”), the
      Transaction as described above shall not constitute a “Change of Control”
      as defined under the Agreements;
and

            


    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

    Letter
Agreement re: BioFuel Change of Control Arrangements

    Greenlight
APE, LLC

    as
Administrative Agent

    September
24, 2010


    


     

    
      	
               
      

            	
              3.

            	
              Notwithstanding
      anything to the contrary contained in those certain Offers of Continued
      Employment dated August 31, 2010 by and between BFE Energy and each of
      Doug Anderson and Mark Zoeller, respectively (the “Offers”), the
      Transaction as described above shall not constitute a “Change of Control”
      as defined under the offers.

            


    

     

    The
foregoing shall apply with respect to the Plans solely to the extent such Plans
provide benefits to the undersigned Executives, and not with respect to any
payments, acceleration of awards or any other benefits under the Plans that
might apply to any other employee of BioFuel.

     

    This
letter agreement shall become effective only as of the completion of the
Transaction and, if the Transaction does not occur, this letter agreement shall
be void and of no force and effect.  This letter agreement contains
the entire agreement among the parties concerning the subject matter hereof and
supersedes and nullifies all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the parties with
respect to the subject matter hereof. This letter agreement may be executed in
separate counterparts, each of which shall be considered binding and
enforceable, severally and not jointly, on the signatories hereto.

     

    Acknowledged and agreed as of the date
first written above.


    
      
         


      

      
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              By
      Executives:

            	 
      
	 
      	 
      
	 
      	 
      
	
              /s/ Scott Pearce

            	 
      
	
              Scott
      Pearce

            	 
      
	
              President
      and CEO

            	 
      
	 
      	 
      
	 
      	 
      
	
              /s/ Kelly Maguire

            	 
      
	
              Kelly
      Maguire

            	 
      
	
              Executive
      Vice President and CFO

            	 
      
	 
      	 
      
	 
      	 
      
	
              /s/ Doug Anderson

            	 
      
	
              Doug
      Anderson

            	 
      
	
              Vice
      President of Operations

            	 
      
	 
      	 
      
	 
      	 
      
	
              /s/ Mark Zoeller

            	 
      
	
              Mark
      Zoeller

            	 
      
	
              Vice
      President and General Counsel

            	 
      


    

     

    
      
         


      

      
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