Exhibit
10.7

    


    FORM
OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

     

    This
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
dated as of __________, 20[__] is entered into by and among BioFuel Energy
Corp., a Delaware corporation (the “Company”),
and certain holders of securities of the Company party to this Agreement
(collectively, the “Investor
Parties”).

     

    A.           The
persons, including the Investor Parties, listed on Schedule A hereto
(the “Existing
Investors”) are party, with the Company, to a Registration Rights
Agreement dated as of June 19, 2007 (the “Existing
Registration Rights Agreement”), pursuant to which the Company is
obligated to register, subject to the terms and conditions set forth therein,
shares of common stock of the Company, par value $0.01 per share (the “Common
Stock”), held by such Existing Investors and their respective permitted
assignees or transferees, including shares of Common Stock deliverable or
delivered in exchange for units (the “Units”) of
BioFuel Energy, LLC, a Delaware limited liability company (“BFE LLC”),
each of which is exchangeable on a one-for-one basis for the same number of
shares of Common Stock, subject to the provisions of the LLC Agreement (defined
below) (all such outstanding or deliverable or delivered shares of Common Stock
constituting “Registrable Securities” under the Existing Registration Rights
Agreement, the “Existing
Registrable Securities”);

     

    B.           The
Investor Parties hold at least fifty percent (50%) of the outstanding Existing
Registrable Securities;

     

    C.           The
Investor Parties and the Company wish to amend and restate the Existing
Registration Rights Agreement, pursuant to Section 3.9 of the Existing
Registration Rights Agreement, to read as set forth herein;

     

    D.           In
addition to the Existing Registrable Securities, certain of the Existing
Investors (including certain of the Investor Parties) are holders, or will
become holders, of (i) shares of Series A Non-Voting Convertible Preferred Stock
of the Company (the “Series A
Preferred Stock”), which shall automatically convert into shares of
Common Stock as described in the Certificate of Designation (as defined below)
and (ii) warrants that, in the event that the Company fails to repay the Loan
(as defined in the Bridge Loan Agreement (as defined below)) at maturity, will
entitle the holders to a right to purchase shares of Common Stock as described
in the Loan Agreement (the “Warrant”);
and

     

    E.           The
Company desires to provide the Existing Investors with registration rights with
respect to the Existing Registrable Securities and the shares of Common Stock
underlying the Series A Preferred Stock and the Warrant.

     

    AGREEMENT

     

    NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises
hereinafter set forth, the Existing Registration Rights Agreement is amended and
restated to read, and the parties hereto agree, as follows:


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    ARTICLE
I

     

    CERTAIN
DEFINED TERMS

     

    Section
1.1      DEFINITIONS. For
purposes of this Agreement:

     

    (a)          “Affiliate”
means, with respect to any Person, (i) any other Person of which securities or
other ownership interests representing more than fifty percent (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.

     

    (b)         “Bridge Loan
Agreement” means the Bridge Loan Agreement, dated September 24, 2010, by
and among the Company, Greenlight APE, L.L.C. as administrative agent and the
lender parties identified therein, as amended, modified, supplemented or
restated from time to time.

     

    (c)          “Certificate of
Designation” means the Certificate of Designation of the Series A
Non-Voting Convertible Preferred Stock of BioFuel Energy Corp., duly executed as
of [___________], 20[10].

     

    (d)         “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.

     

    (e)          “FINRA”
means the Financial Industry Regulatory Authority, Inc.

     

    (f)          “Holder”
means a Person that (i) is a party to this Agreement (or a permitted transferee
under Section 2.11 hereof) or a party to the Existing Registration Rights
Agreement (or a permitted transferee under Section 2.11 thereof) and (ii) owns
Registrable Securities.

     

    (g)         “LLC
Agreement” means the BFE LLC Third Amended and Restated LLC Agreement,
dated [____________], 20[10] among the Company and the members of BFE LLC, as
the same may be amended, modified, supplemented or restated from time to
time.

     

    (h)         “Participating
Holders” means Holders participating, or electing to participate, in an
offering of Registrable Securities.

     

    (i)          “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.


    
      
         


      

      
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    (j)           “Registrable
Securities” means shares of Common Stock held by Holders, including
shares of Common Stock deliverable or delivered (i) in exchange for Units
pursuant to the LLC Agreement and the organizational documents of the Company,
(ii) upon conversion of the Series A Preferred Stock or (iii) upon
exercise of the Warrant; provided, however, that equity interests that are
considered to be Registrable Securities shall cease to be Registrable Securities
(A) upon the sale thereof pursuant to an effective registration statement, (B)
upon the sale thereof pursuant to Rule 144 (or successor rule under the
Securities Act), (C) when such securities cease to be outstanding or (D) when
such securities become eligible for sale under Rule 144 (or successor rule under
the Securities Act), without any volume limitations under such
Rule.

     

    (k)          “Registration
Expenses” mean all expenses (other than underwriting discounts and
commissions) arising from or incident to the performance of, or compliance with,
this Agreement, including, without limitation, (i) SEC, stock exchange, FINRA
and other registration and filing fees, (ii) all fees and expenses incurred in
connection with complying with any securities or blue sky laws (including fees,
charges and disbursements of counsel in connection with blue sky qualifications
of the Registrable Securities), (iii) all printing, messenger and delivery
expenses, (iv) the fees, charges and disbursements of counsel to the Company and
of its independent public accountants and any other accounting and legal fees,
charges and expenses incurred by the Company (including any expenses arising
from any special audits or “comfort letters” required in connection with or
incident to any registration), (v) the fees, charges and disbursements of any
special experts retained by the Company in connection with any registration
pursuant to the terms of this Agreement, (vi) all internal expenses of the
Company (including all salaries and expenses of its officers and employees
performing legal or accounting duties), (vii) the fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange and (viii) Securities Act liability insurance (if the Company elects to
obtain such insurance), regardless of whether any Registration Statement filed
in connection with such registration is declared effective.

     

    (l)           “Registration
Expenses” shall also include fees, charges and disbursements of one (1)
firm of counsel to all of the Participating Holders participating in any
underwritten public offering pursuant to Article II hereof (which shall be
selected by a majority, based on the number of Registrable Securities to be
sold, of the Participating Holders).

     

    (m)         “Registration
Statement” means any Registration Statement of the Company filed with the
SEC on the appropriate form pursuant to the Securities Act which covers any of
the Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.

     

    (n)          “Rights Offering
Letter Agreement” means the Rights Offering Letter Agreement, dated
September 24, 2010, by and among the Company and the lender parties identified
therein, as amended, modified, supplemented or restated from time to
time.


    
      
         


      

      
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    (o)         “SEC” means
the United States Securities and Exchange Commission.

     

    (p)         “Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.

     

    (q)         “Selling
Expenses” means the underwriting fees, discounts, selling commissions and
stock transfer taxes applicable to all Registrable Securities registered by the
Participating Holders.

     

    ARTICLE
II

     

    REGISTRATION
RIGHTS

     

    Section 2.1     
 DEMAND
REGISTRATION

     

    (a)           Request by
Holders.  Upon receipt of a written request from Holders that
hold at least twenty percent (20%) of the Registrable Securities then
outstanding (the “Requesting
Holders”) that the Company register Registrable Securities held by
Requesting Holders (a “Demand
Request”), then the Company shall, within ten (10) days after receipt of
such Demand Request, give written notice of such request (“Request
Notice”) to all Holders.  Each Demand Request shall (x) specify
the number of Registrable Securities that the Requesting Holders intend to sell
or dispose of, (y) state the intended method or methods of sale or disposition
of the Registrable Securities and (z) specify the expected price range (net of
underwriting discounts and commissions) acceptable to the Requesting Holders to
be received for such Registrable Securities.  Following receipt of a
Demand Request, the Company shall:

     

    (i)           cause
to be filed, as soon as practicable, but within ninety (90) days of the date of
delivery to the Company of the Demand Request, a Registration Statement covering
such Registrable Securities which the Company has been so requested to register
by the Requesting Holders and other Holders who request to the Company that
their Registrable Securities be registered within twenty (20) days of the
mailing of the Request Notice, providing for the registration under the
Securities Act of such Registrable Securities to the extent necessary to permit
the disposition of such Registrable Securities in accordance with the intended
method of distribution specified in such Demand Request;

     

    (ii)          use
its reasonable best efforts to have such Registration Statement declared
effective by the SEC as soon as practicable thereafter; and refrain from filing
any other Registration Statements, other than pursuant to a Registration
Statement on Form S-4 or S-8 (or similar or successor forms), with respect to
any other securities of the Company until such date which is ninety (90) days
following effectiveness of the Registration Statement filed in response to the
Demand Request.


    
      
         


      

      
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    (b)           Effective Registration
Statement. A registration requested pursuant to this Section 2.1 shall
not be deemed to have been effected (i) unless a Registration Statement with
respect thereto has become effective and remained effective in compliance with
the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement until such time as
all of such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the Holders thereof set forth in such
Registration Statement; (ii) if, after it has become effective, such
registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court and has not
thereafter become effective, or if the offering of Registrable Securities is not
consummated for any reason, including, without limitation, if the underwriters
of an underwritten public offering advise the Participating Holders that the
Registrable Securities cannot be sold at a net price per share equal to or above
the net price disclosed in the preliminary prospectus; (iii) if the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived; or (iv) if the
Requesting Holders are cut back to fewer than fifty percent (50%) of the
Registrable Securities requested to be registered.

     

    (c)           Selection of
Underwriters. In the event that the Company is required to file a
Registration Statement covering any Registrable Securities of any Requesting
Holders pursuant to Section 2.1(a) hereof and the proposed public offering is to
be an underwritten public offering, the managing underwriter shall be one or
more reputable nationally recognized investment banks selected by a majority in
interest of the Requesting Holders and reasonably acceptable to the Company,
which consent shall not be unreasonably withheld, delayed or
conditioned.

     

    (d)           Priority for Demand
Registration. Notwithstanding any other provision of this Agreement, if
the managing underwriter of an underwritten public offering determines and
advises the Participating Holders and the Company in writing that the inclusion
of all securities proposed to be included by the Company and any other Holders
in the underwritten public offering would materially and adversely interfere
with the successful marketing of the Requesting Holders’ Registrable Securities,
then the Company and other Holders shall not be permitted to include any
securities in excess of the amount, if any, of securities which the managing
underwriter of such underwritten public offering shall reasonably and in good
faith agree in writing to include in such public offering in addition to the
amount of Registrable Securities to be registered for the Requesting Holders.
The Company will be obligated to include in such Registration Statement, as to
each Holder, only a portion of the Registrable Securities such Holder has
requested be registered equal to the ratio which such Holder’s requested
Registrable Securities bears to the total number of Registrable Securities
requested to be included in such Registration Statement by all Holders who have
requested that their Registrable Securities be included in such Registration
Statement.  It is acknowledged by the parties hereto that pursuant to
the foregoing provision, the securities to be included in a registration
requested by the Requesting Holders pursuant to this Section 2.1 shall be
allocated: (i) first, to the Participating Holders, and (ii) second, to the
Company and any other holders of equity interests of the Company requesting
registration of securities of the Company.


    
      
         


      

      
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    (e)           Limitation on Demand
Registrations. The Company shall only be obligated to effect six (6)
Demand Requests pursuant to this Section 2.1.

     

    (f)           Cancellation of
Registration. A majority in interest of the Participating Holders shall
have the right to cancel a proposed registration of Registrable Securities
pursuant to this Section 2.1 when, (i) in their discretion, market conditions
are so unfavorable as to be seriously detrimental to an offering pursuant to
such registration or (ii) the request for cancellation is based upon material
adverse information relating to the Company that is different from the
information known to the Participating Holders at the time of the Demand
Request. Such cancellation of a registration shall not be counted as one of six
(6) Demand Requests and notwithstanding anything to the contrary in the
Agreement, the Company shall be responsible for the expenses of the
Participating Holders incurred in connection with the registration prior to the
time of cancellation.

     

    Section
2.2       PIGGYBACK
REGISTRATIONS.

     

    (a)           Right to Include Registrable
Securities. Subject to the limitations contained in the last sentence of
this Section 2.2, each time that the Company proposes for any reason to register
any of its equity interests under the Securities Act, either for its own account
or for the account of equity interest holders exercising demand registration
rights, other than a Demand Request pursuant to Section 2.1 hereof, a rights
offering (other than the rights offering contemplated by the Rights Offering
Letter Agreement) or pursuant to a Registration Statement on Form S-4 or S-8 (or
similar or successor forms) (a “Proposed
Registration”), the Company shall promptly give written notice of such
Proposed Registration to all of the Holders of Registrable Securities (which
notice shall be given not less than thirty (30) days prior to the expected
effective date of the Company’s Registration Statement) and shall offer such
Holders the right to request inclusion of any of such Holder’s Registrable
Securities in the Proposed Registration. No registration pursuant to this
Section 2.2 shall relieve the Company of its obligation to register Registrable
Securities pursuant to a Demand Request, as contemplated by Section 2.1 hereof.
The rights to piggyback registration may be exercised on an unlimited number of
occasions.

     

    (b)           Piggyback Procedure.
Each Holder of Registrable Securities shall have twenty (20) days from the date
of receipt of the Company’s notice referred to in Section 2.2(a) above to
deliver to the Company a written request specifying the number of Registrable
Securities such Holder intends to sell and such Holder’s intended method of
disposition. Any Holder shall have the right to withdraw such Holder’s request
for inclusion of such Holder’s Registrable Securities in any Registration
Statement pursuant to this Section 2.2 by giving written notice to the Company
of such withdrawal; provided, however, that the Company may ignore a notice of
withdrawal made within twenty-four (24) hours of the time the Registration
Statement is to become effective. Subject to Section 2.2(d) below, the Company
shall use its commercially reasonable efforts to include in such Registration
Statement all such Registrable Securities so requested to be included therein;
provided, however, that the Company may at any time withdraw or cease proceeding
with any such Proposed Registration if it shall at the same time withdraw or
cease proceeding with the registration of all other Registrable Securities
originally proposed to be registered. In the event that the Proposed
Registration by the Company is, in whole or in part, an underwritten public
offering of securities of the Company, any request under this Section 2.2(b)
shall specify that the Registrable Securities be included in the underwriting on
the same terms and conditions as the securities, if any, otherwise being sold
through underwriters under such registration.


    
      
         


      

      
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    (c)           Selection of
Underwriters. The managing underwriter for any Proposed Registration that
involves an underwritten public offering shall be one or more reputable
nationally recognized investment banks selected by the Company and reasonably
acceptable to a majority in interest of the Holders, which consent shall not be
unreasonably withheld, delayed or conditioned.

     

    (d)           Priority for Piggyback
Registration. Notwithstanding any other provision of this Agreement, if
the managing underwriter of an underwritten public offering determines and
advises the Company and the Holders in writing that the inclusion of all
Registrable Securities proposed to be included by the Holders of Registrable
Securities in the underwritten public offering would materially and adversely
interfere with the successful marketing of the Company’s securities, then the
Holders of Registrable Securities shall not be permitted to include, in the
aggregate, any Registrable Securities in excess of the amount, if any, of
Registrable Securities which the managing underwriter of such underwritten
public offering shall reasonably and in good faith agree in writing to include
in such public offering in addition to the amount of securities to be registered
for the Company (the “Maximum Offering
Amount”). The Company will be obligated to include in such Registration
Statement only a portion of the Registrable Securities such Holder has requested
be registered equal to the ratio which such Holder’s requested Registrable
Securities bears to the total number of Registrable Securities requested to be
included in such Registration Statement by all Holders who have requested that
their Registrable Securities be included in such Registration Statement. It is
acknowledged by the parties hereto that pursuant to the foregoing provision, the
securities to be included in a registration initiated by the Company shall be
allocated:

     

    (i)          first,
to the Company;

     

    (ii)         second,
pari passu to the Holders; and

     

    (iii)        third,
to any others requesting registration of securities of the Company.

     

    If as a
result of the provisions of this Section 2.2(d), any Holder shall not be
entitled to include more than fifty percent (50%) of its Registrable Securities
in a registration that such Holder has requested to be so included, such Holder
may withdraw such Holder’s request to include Registrable Securities in such
Registration Statement.

     

    (e)           Underwritten
Offering. In the event that the Proposed Registration by the Company is,
in whole or in part, an underwritten public offering of securities of the
Company, any request under this Section 2.2 shall specify that the Registrable
Securities be included in the underwriting on the same terms and conditions as
the securities, if any, otherwise being sold through underwriters under such
registration.


    
      
         


      

      
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    Section
2.3      FORM S-3
REGISTRATION. Any Holder or group of Holders holding at least ten percent
(10%) of the Registrable Securities (an “Initiating Form
S-3 Holder”) may request at any time following the date hereof that the
Company file a Registration Statement under the Securities Act on Form S-3 (or
similar or successor form) covering the sale or other distribution of all or any
portion of the Registrable Securities held by such Initiating Form S-3 Holder
pursuant to Rule 415 under the Securities Act (“Form S-3
Demand”) if the Company is a registrant qualified to use Form S-3 (or any
similar or successor form) to register such Registrable Securities. If such
condition is met, the Company shall use its reasonable best efforts to register
under the Securities Act on Form S-3 (or any similar or successor form) at the
earliest practicable date, for sale in accordance with the method of disposition
specified in the Form S-3 Demand, the number of Registrable Securities specified
in such Form S-3 Demand.  In connection with a Form S-3 Demand, the
Company agrees to include in the prospectus included in any Registration
Statement on Form S-3, such material describing the Company and intended to
facilitate the sale of securities being so registered as is reasonably requested
for inclusion therein by the Initiating Form S-3 Holders, whether or not the
rules applicable to preparation of Form S-3 require the inclusion of such
information. Form S-3 Demands will not be deemed to be Demand Requests as
described in Section 2.1 hereof and Holders shall have the right to request an
unlimited number of Form S-3 Demands. Notwithstanding the foregoing, the Company
shall not be obligated to file more than four (4) Registration Statements on
Form S-3 pursuant to this Section 2.3 in any given twelve (12) month
period.

     

    Section
2.4      LOCK-UP AGREEMENTS.
If any registration of Registrable Securities shall be effected in connection
with an underwritten public offering, no Holder shall effect any public sale or
distribution, including any sale pursuant to Rule 144, of any shares of Common
Stock or other security of the Company (except as part of such underwritten
public offering) during the period beginning fourteen (14) days prior to the
effective date of the applicable Registration Statement until the earlier of:
(i) such time as the Company and the managing underwriter shall agree and (ii)
one hundred and eighty (180) days.

     

    Section
2.5       REGISTRATION
PROCEDURES.

     

    (a)           Obligations of the
Company. Whenever registration of Registrable Securities is required
pursuant to this Agreement, the Company shall use its reasonable best efforts to
effect the registration and sale of such Registrable Securities in accordance
with the intended method of distribution thereof as promptly as possible, and in
connection with any such request, the Company shall, as expeditiously as
possible:


    
      
         


      

      
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    (i)           Preparation of Registration
Statement;
Effectiveness. Prepare and file with the SEC (in any event not later than
ninety (90) days after receipt of a Demand Request to file a Registration
Statement with respect to Registrable Securities), a Registration Statement on
any form on which the Company then qualifies, which counsel for the Company
shall deem appropriate and pursuant to which such offering may be made in
accordance with the intended method of distribution thereof (except that the
Registration Statement shall contain such information as may reasonably be
requested for marketing or other purposes by the managing underwriter), and use
its reasonable best efforts to cause any registration required hereunder to
become effective as soon as practicable after the initial filing thereof and
remain effective for a period of not less than one hundred and eighty (180) days
(or such shorter period in which all Registrable Securities have been sold in
accordance with the methods of distribution set forth in the Registration
Statement); provided, however, that, in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such one hundred and eighty (180) day period shall
be extended, if necessary, to keep the Registration Statement effective until
all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Securities Act, permits an offering on a continuous or
delayed basis.  Notwithstanding the foregoing, the Company may (A)
defer the filing of a Registration Statement for a period of not more than 90
days (but not more than once in any twelve-month period) or (B) suspend the use
of a prospectus under a Registration Statement on Form S-3 for a period not to
exceed 30 days in any three-month period or an aggregate of 90 days in any
12-month period, in each case if the Board of Directors of the Company
determines in good faith that because of bona fide business reasons (not
including the avoidance of the Company’s obligations hereunder), including the
acquisition or divestiture of assets, pending corporate developments and similar
events, it is in the best interests of the Company to delay the filing of such
Registration Statement or to suspend the use of such prospectus, and prior to
delaying such filing or suspending such use, the Company provides the
Participating Holders with written notice of such delay or suspension, which
notice need not specify the nature of the event giving rise to such delay or
suspension;

     

    (ii)          Participation in
Preparation. Provide any Participating Holder, any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney, accountant or other agent retained by any Participating Holder or
underwriter (each, an “Inspector”
and, collectively, the “Inspectors”),
the opportunity to participate (including, but not limited to, reviewing,
commenting on and attending all meetings) in the preparation of such
Registration Statement, each prospectus included therein or filed with the SEC
and each amendment or supplement thereto;

     

    (iii)         Due Diligence. For a
reasonable period prior to the filing of any Registration Statement pursuant to
this Agreement, make available for inspection and copying by the Inspectors such
financial and other information and books and records, pertinent corporate
documents and properties of the Company and its subsidiaries and cause the
officers, directors, employees, counsel and independent certified public
accountants of the Company and its subsidiaries to respond to such inquiries and
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in Section 2.5(a)(ii), to
conduct a reasonable investigation within the meaning of the Securities
Act;


    
      
         


      

      
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    (iv)        General
Notifications. Promptly notify in writing the Participating Holders, the
sales or placement agent, if any, therefor and the managing underwriter of the
securities being sold, (A) when such Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to any such Registration Statement
or any post-effective amendment, when the same has become effective, (B) when
the SEC notifies the Company whether there will be a “review” of such
Registration Statement, (C) of any comments (oral or written) by the SEC and by
the blue sky or securities commissioner or regulator of any state with respect
thereto and (D) of any request by the SEC for any amendments or supplements to
such Registration Statement or the prospectus or for additional
information;

     

    (v)         10b-5 Notification.
Promptly notify in writing the Participating Holders, the sales or placement
agent, if any, therefor and the managing underwriter of the securities being
sold pursuant to any Registration Statement at any time when a prospectus
relating thereto is required to be delivered under the Securities Act upon
discovery that, or upon the happening of any event as a result of which, any
prospectus included in such Registration Statement (or amendment or supplement
thereto) contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made,
and the Company shall promptly prepare a supplement or amendment to such
prospectus and file it with the SEC (in any event no later than ten (10) days
following notice of the occurrence of such event to each Participating Holder,
the sales or placement agent and the managing underwriter) so that after
delivery of such prospectus, as so amended or supplemented, to the purchasers of
such Registrable Securities, such prospectus, as so amended or supplemented,
shall not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made;

     

    (vi)        Notification of Stop Orders;
Suspensions of Qualifications and Exemptions. Promptly notify in writing
the Participating Holders, the sales or placement agent, if any, therefor and
the managing underwriter of the securities being sold of the issuance by the SEC
of (A) any stop order issued or threatened to be issued by the SEC or (B) any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and the Company agrees to use its reasonable best efforts to (x)
prevent the issuance of any such stop order, and in the event of such issuance,
to obtain the withdrawal of any such stop order and (y) obtain the withdrawal of
any order suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in such
Registration Statement for sale in any jurisdiction at the earliest practicable
date;


    
      
         


      

      
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    (vii)       Amendments and Supplements;
Acceleration. Prepare and file with the SEC such amendments, including
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period required hereunder and, if applicable, file any Registration Statements
pursuant to Rule 462(b) under the Securities Act; cause the related prospectus
to be supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or in such prospectus as so
supplemented. If a majority in interest of the Participating Holders so request,
request acceleration of effectiveness of the Registration Statement from the SEC
and any post-effective amendments thereto, if any are filed; provided that at
the time of such request, the Company does not in good faith believe that it is
necessary to amend further the Registration Statement in order to comply with
the provisions of this subparagraph. If the Company wishes to further amend the
Registration Statement prior to requesting acceleration, it shall have five (5)
days to so amend prior to requesting acceleration;

     

    (viii)      Copies. Furnish as
promptly as practicable to each Participating Holder and Inspector prior to
filing a Registration Statement or any supplement or amendment thereto, copies
of such Registration Statement, supplement or amendment as it is proposed to be
filed, and after such filing such number of copies of such Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in such Registration Statement
(including each preliminary prospectus) and such other documents as each such
Participating Holder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Participating Holder;

     

    (ix)         Blue Sky. Use its
reasonable best efforts to, prior to any public offering of the Registrable
Securities, register or qualify (or seek an exemption from registration or
qualifications) such Registrable Securities under such other securities or blue
sky laws of such jurisdictions as any Participating Holder or underwriter may
request, and to continue such qualification in effect in each such jurisdiction
for as long as is permissible pursuant to the laws of such jurisdiction, or for
as long as a Participating Holder or underwriter requests or until all of such
Registrable Securities are sold, whichever is shortest, and do any and all other
acts and things which may be reasonably necessary or advisable to enable any
Participating Holder to consummate the disposition in such jurisdictions of the
Registrable Securities;

     

    (x)          Other Approvals. Use
its reasonable best efforts to obtain all other approvals, consents, exemptions
or authorizations from such governmental agencies or authorities as may be
necessary to enable the Participating Holders and underwriters to consummate the
disposition of Registrable Securities;


    
      
         


      

      
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    (xi)         Agreements. Enter
into customary agreements (including any underwriting agreements in customary
form), and take such other actions as may be reasonably required in order to
expedite or facilitate the disposition of Registrable Securities;

     

    (xii)        “Cold Comfort”
Letter. Obtain a “cold comfort” letter from the Company’s independent
public accountants in customary form and covering such matters of the type
customarily covered by “cold comfort” letters as the managing underwriter may
reasonably request, and reasonably satisfactory to a majority in interest of the
Participating Holders;

     

    (xiii)       Legal Opinion.
Furnish, at the request of any underwriter of Registrable Securities on the date
such securities are delivered to the underwriters for sale pursuant to such
registration, an opinion, dated such date, of counsel representing the Company
for the purposes of such registration, addressed to the Holders, and the
placement agent or sales agent, if any, thereof and the underwriters, if any,
thereof, covering such legal matters with respect to the registration in respect
of which such opinion is being given as such underwriter may reasonably request
and as are customarily included in such opinions, and reasonably satisfactory to
a majority in interest of the Participating Holders;

     

    (xiv)       SEC Compliance; Earnings
Statement. Use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC and make available to its shareholders, as soon
as reasonably practicable, but no later than fifteen (15) months after the
effective date of any Registration Statement, an earnings statement covering a
period of twelve (12) months beginning after the effective date of such
Registration Statement, in a manner which satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;

     

    (xv)        Certificates;
Closing. Provide officers’ certificates and other customary closing
documents;

     

    (xvi)       FINRA. Cooperate with
each Participating Holder and each underwriter participating in the disposition
of such Registrable Securities and underwriters’ counsel in connection with any
filings required to be made with FINRA;

     

    (xvii)      Road Show. Cause
appropriate officers as are requested by a managing underwriter to participate
in a “road show” or similar marketing effort being conducted by such underwriter
with respect to an underwritten public offering;

     

    (xviii)     Listing. Use its
reasonable best efforts to cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed and if not so listed, to be listed on the NASDAQ automated quotation
system;


    
      
         


      

      
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    (xix)       Transfer Agent, Registrar
and CUSIP. Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto and a CUSIP number for all such
Registrable Securities, in each case, no later than the effective date of such
registration;

     

    (xx)        Private Sales. Use
its reasonable best efforts to assist a Holder in facilitating private sales of
Registrable Securities by, among other things, providing officers’ certificates
and other customary closing documents reasonably requested by a Holder;
and

     

    (xxi)       Reasonable Best
Efforts. Use its reasonable best efforts to take all other actions
necessary to effect the registration of the Registrable Securities contemplated
hereby.

     

    (b)          Seller Information.
The Company may require each Participating Holder as to which any registration
of such Holder’s Registrable Securities is being effected to furnish to the
Company such information regarding such Holder and such Holder’s method of
distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing. If a Holder refuses to provide the Company with
any of such information on the grounds that it is not necessary to include such
information in the Registration Statement, the Company may exclude such
Participating Holder’s Registrable Securities from the Registration Statement if
the Company provides such Participating Holder with an opinion of counsel to the
effect that such information must be included in the Registration Statement and
such Participating Holder continues thereafter to withhold such information. The
exclusion of a Participating Holder’s Registrable Securities shall not affect
the registration of the other Registrable Securities to be included in the
Registration Statement.

     

    (c)          Notice to
Discontinue. Each Participating Holder whose Registrable Securities are
covered by a Registration Statement filed pursuant to this Agreement agrees
that, upon receipt of written notice from the Company of the happening of any
event of the kind described in Section 2.5(a)(v), such Participating Holder
shall forthwith discontinue the disposition of Registrable Securities until such
Participating Holder’s receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.5(a)(v) or until it is advised in writing
by the Company that the use of the prospectus may be resumed and has received
copies of any additional or supplemental filings which are incorporated by
reference into the prospectus, and, if so directed by the Company in the case of
an event described in Section 2.5(a)(v), such Participating Holder shall deliver
to the Company (at the Company’s expense) all copies, other than permanent file
copies then in such Participating Holder’s possession, of the prospectus
covering such Registrable Securities which is current at the time of receipt of
such notice. If the Company shall give any such notice, the Company shall extend
the period during which such Registration Statement is to be maintained
effective by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 2.5(a)(v) to and including the
date when the Participating Holder shall have received the copies of the
supplemented or amended prospectus contemplated by, and meeting the requirements
of, Section 2.5(a)(v).

     

    
      
         


      

      
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    Section
2.6          REGISTRATION
EXPENSES. Except as otherwise provided herein, all Registration Expenses
shall be borne by the Company. All Selling Expenses relating to Registrable
Securities registered shall be borne by the Participating Holders of such
Registrable Securities pro rata on the basis of the number of Registrable
Securities so registered.

     

    Section
2.7          INDEMNIFICATION

     

    (a)           Indemnification by the
Company. The Company agrees, notwithstanding termination of this
Agreement, to indemnify and hold harmless to the fullest extent permitted by
law, each Holder, each of their directors, officers, employees, advisors, agents
and general or limited partners (and the directors, officers, employees,
advisors and agents thereof), their respective Affiliates and each Person who
controls (within the meaning of the Securities Act or the Exchange Act) any of
such Persons, and each underwriter and each Person who controls (within the
meaning of the Securities Act or the Exchange Act) any underwriter
(collectively, “Holder
Indemnified Parties”) from and against any and all losses, claims,
damages, expenses (including, without limitation, reasonable costs of
investigation and fees, disbursements and other charges of counsel, any amounts
paid in settlement effected with the Company’s consent, which consent shall not
be unreasonably withheld or delayed and any costs incurred in enforcing the
Company’s indemnification obligations hereunder) or other liabilities
(collectively, “Losses”)
to which any such Holder Indemnified Party may become subject under the
Securities Act, Exchange Act, any other federal law, any state or common law or
any rule or regulation promulgated thereunder or otherwise, insofar as such
Losses (or actions or proceedings, whether commenced or threatened, in respect
thereof) are resulting from or arising out of or based upon (i) any untrue, or
alleged untrue, statement of a material fact contained in any Registration
Statement, prospectus or preliminary prospectus (as amended or supplemented) or
any document incorporated by reference in any of the foregoing or resulting from
or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the circumstances
under which they were made), not misleading or (ii) any violation by the Company
of the Securities Act, Exchange Act, any other federal law, any state or common
law or any rule or regulation promulgated thereunder or otherwise incident to
any registration, qualification or compliance and in any such case, the Company
will promptly reimburse each such Holder Indemnified Party for any legal and any
other Losses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability, action or investigation or
proceeding (collectively, a “Claim”).
Such indemnity obligation shall remain in full force and effect regardless of
any investigation made by or on behalf of the Holder Indemnified Parties and
shall survive the transfer of Registrable Securities by such Holder Indemnified
Parties.


    
      
         


      

      
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    (b)           Indemnification by
Holders. In connection with any proposed registration in which a Holder
is participating pursuant to this Agreement, each such Holder shall furnish to
the Company in writing such information with respect to such Holder as the
Company may reasonably request or as may be required by law for use in
connection with any Registration Statement or prospectus or preliminary
prospectus to be used in connection with such registration and each Holder
agrees, severally and not jointly, to indemnify and hold harmless the Company,
any underwriter retained by the Company and their respective directors,
officers, partners, employees, advisors and agents, their respective Affiliates
and each Person who controls (within the meaning of the Securities Act or the
Exchange Act) any of such Persons to the same extent as the foregoing indemnity
from the Company to the Holder Indemnified Parties as set forth in Section
2.7(a) (subject to the exceptions set forth in the foregoing indemnity, the
proviso to this sentence and applicable law), but only with respect to any such
information furnished in writing by such Holder expressly for use therein;
provided, however, that the liability of any Holder under this Section 2.7(b)
shall be limited to the amount of the net proceeds received by such Holder in
the offering giving rise to such liability. Such indemnity obligation shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Holder Indemnified Parties (except as provided above) and shall
survive the transfer of Registrable Securities by such Holder.

     

    (c)           Conduct of Indemnification
Proceedings. Any Person entitled to indemnification hereunder (the “Indemnified
Party”) agrees to give prompt written notice to the indemnifying party
(the “Indemnifying
Party”) after the receipt by the Indemnified Party of any written notice
of the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing for which the Indemnified Party intends to claim
indemnification or contribution pursuant to this Agreement; provided, however,
that, the failure so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of any liability that it may have to the Indemnified Party
hereunder unless and to the extent such Indemnifying Party is materially
prejudiced by such failure. If notice of commencement of any such action is
given to the Indemnifying Party as above provided, the Indemnifying Party shall
be entitled to participate in and, to the extent it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably satisfactory
to such Indemnified Party. The Indemnified Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be paid by the Indemnified Party
unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying
Party fails to assume the defense of such action with counsel satisfactory to
the Indemnified Party in its reasonable judgment or (iii) the named parties to
any such action (including, but not limited to, any impleaded parties)
reasonably believe that the representation of such Indemnified Party and the
Indemnifying Party by the same counsel would be inappropriate under applicable
standards of professional conduct. In the case of clause (ii) above and (iii)
above, the Indemnifying Party shall not have the right to assume the defense of
such action on behalf of such Indemnified Party. No Indemnifying Party shall be
liable for any settlement entered into without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the written consent of the Indemnified Party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the Indemnified Party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (A) includes an unconditional release of the Indemnified
Party from all liability arising out of such action or claim and (B) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of any Indemnified Party. The rights afforded to any
Indemnified Party hereunder shall be in addition to any rights that such
Indemnified Party may have at common law, by separate agreement or
otherwise.


    
      
         


      

      
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    (d)           Contribution. If the
indemnification provided for in this Section 2.7 from the Indemnifying Party is
unavailable or insufficient to hold harmless an Indemnified Party in respect of
any Losses referred to herein, then the Indemnifying Party, in lieu of
indemnifying the Indemnified Party, shall contribute to the amount paid or
payable by the Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party and
the Indemnified Party, as well as any other relevant equitable considerations.
The relative faults of the Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, was made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
Indemnifying Party’s and Indemnified Party’s relative intent, knowledge, access
to information and opportunity to correct or prevent such action; provided,
however, that the liability of any Holder under this Section 2.7(d) shall be
limited to the amount of the net proceeds received by such Holder in the
offering giving rise to such liability. The amount paid or payable by a party as
a result of the Losses or other liabilities referred to above shall be deemed to
include, subject to the limitations set forth in Sections 2.7(a), 2.7(b) and
2.7(c), any legal or other fees, charges or expenses reasonably incurred by such
party in connection with any investigation or proceeding.  The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 2.7(d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution pursuant to this Section
2.7(d).

     

    Section
2.8           RULE 144 AND RULE 144A;
OTHER EXEMPTIONS. With a view to making available to the Holders the
benefits of Rule 144 and Rule 144A promulgated under the Securities Act and
other rules and regulations of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration, the Company
covenants that it shall (i) file in a timely manner all reports and other
documents required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder and (ii) take
such further action as each Holder may reasonably request (including, but not
limited to, providing any information necessary to comply with Rule 144 and Rule
144A, if available with respect to resales of the Registrable Securities under
the Securities Act), at all times from and after the date hereof, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (x) Rule 144 and Rule 144A (if available with
respect to resales of the Registrable Securities) under the Securities Act, as
such rules may be amended from time to time or (y) any other rules or
regulations now existing or hereafter adopted by the SEC. Upon the written
request of a Holder, the Company shall deliver to the Holder a written statement
as to whether it has complied with such requirements.


    
      
         


      

      
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    Section
2.9         CERTAIN LIMITATIONS ON
REGISTRATION RIGHTS. No Holder may participate in any Registration
Statement hereunder unless such Holder completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents reasonably required under the terms of such underwriting
arrangements, and agrees to sell such Holder’s Registrable Securities on the
basis provided in any underwriting agreement approved by the Holder or Holders
entitled hereunder to approve such arrangements; provided, however, that no such
Holder shall be required to make any representations or warranties to the
Company or the underwriters in connection with any such registration other than
representations and warranties as to (i) such Holder’s ownership of its
Registrable Securities to be sold or transferred, (ii) such Holder’s power and
authority to effect such transfer and (iii) such matters pertaining to
compliance with applicable securities laws as may be reasonably requested. Such
Holders of Registrable Securities to be sold by such underwriters may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of the Company to and for the benefit of such
underwriters, shall also be made to and for the benefit of such Holders and that
any or all of the conditions precedent to the obligations of the underwriters
under the underwriting agreement be conditions precedent to the obligations of
the Holders.

     

    Section
2.10       LIMITATIONS ON SUBSEQUENT
REGISTRATION RIGHTS. The Company represents and warrants that other than
pursuant to the Existing Registration Rights Agreement it has not granted
registration rights prior to the date hereof and agrees that from and after the
date hereof, it shall not, without the prior written consent of the Holders of
at least fifty percent (50%) of the Registrable Securities then outstanding,
enter into any agreement (or amendment or waiver of the provisions of any
agreement) with any holder or prospective holder of any securities of the
Company that would grant such holder registration rights that are more
favorable, pari passu or senior to those granted to the Investors
hereunder.

     

    Section
2.11        TRANSFER OF REGISTRATION
RIGHTS. The rights of a Holder hereunder may be transferred or assigned
in connection with a transfer of Registrable Securities to (i) any Affiliate of
a Holder, (ii) any subsidiary, parent, partner, retired partner, limited
partner, shareholder or member of a Holder or (iii) any family member or trust
for the benefit of any Holder, or (iv) any transferee who, after such transfer,
holds at least one thousand (1,000) Registrable Securities (as adjusted for any
stock dividends, stock splits, combinations and reorganizations and similar
events). Notwithstanding the foregoing, such rights may only be transferred or
assigned provided that all of the following additional conditions are satisfied:
(a) such transfer or assignment is effected in accordance with applicable
securities laws; (b) such transferee or assignee agrees in writing to become
subject to the terms of this Agreement; and (c) the Company is given written
notice by such Holder of such transfer or assignment, stating  the
name and address of the transferee or assignee and identifying the Registrable
Securities with respect to which such rights are being transferred or
assigned.


    
      
         


      

      
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    ARTICLE
III

     

    GENERAL
PROVISIONS

     

    Section
3.1          SURVIVAL OF
AGREEMENTS. All covenants, agreements, representations and warranties
made in the LLC Agreement or any certificate or instrument delivered to the
Investors pursuant to or in connection with the LLC Agreement shall survive the
execution and delivery of the LLC Agreement and all statements contained in any
certificate or other instrument delivered by the Company hereunder or thereunder
or in connection herewith or therewith shall be deemed to constitute
representations and warranties made by the Company.

     

    Section
3.2         ENTIRE AGREEMENT.
This Agreement 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.

     

    Section
3.3         ASSIGNMENT; BINDING
EFFECT. Except as otherwise provided in Section 2.11, no party may assign
either this Agreement or any of its rights, interests or obligations hereunder
without the prior written approval of the other parties; provided that without
the consent of any other party hereto the rights of the Investors hereunder are
assignable to an assignee or transferee who acquires all of the Units held by an
Investor, as the case may be. All of the terms, agreements, covenants,
representations, warranties and conditions of this Agreement are binding upon,
and inure to the benefit of and are enforceable by, the parties and their
respective successors and permitted assigns.

     

    Section
3.4         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, to the address listed for each party in
the LLC Agreement (or to such other address as any party may give in a notice
given in accordance with the provisions hereof). 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.


    
      
         


      

      
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    Section
3.5         SPECIFIC PERFORMANCE;
REMEDIES. Each party acknowledges and agrees that the other parties would
be damaged irreparably if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. Accordingly, the
parties will be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
its provisions in any action or proceeding instituted in any state or federal
court sitting in New York City, New York having jurisdiction over the parties
and the matter, in addition to any other remedy to which they may be entitled,
at law or in equity. Except as expressly provided herein, the rights,
obligations and remedies created by this Agreement are cumulative and in
addition to any other rights, obligations or remedies otherwise available at law
or in equity. Except as expressly provided herein, nothing herein will be
considered an election of remedies.

     

    Section
3.6          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 shall only be brought in any state or
federal court sitting in New York City, New York, and each party consents to the
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
3.4 shall be deemed effective service of process on such party.

     

    (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 3.6(b).


    
      
         


      

      
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    Section
3.7          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
3.8          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
3.9         AMENDMENTS. This
Agreement may not be amended or modified without the written consent of the
Company and the Holders of at least fifty percent (50%) of the Registrable
Securities then outstanding; provided, however, that any amendment or
modification that adversely affects the rights of one or more Holders of
Registrable Securities under this Agreement, in their capacity as such, in a
manner that is materially different from the manner in which such amendment or
modification affects the rights of other Holders of Registrable Securities under
this Agreement, in their capacity as such, shall require the consent of each
such adversely affected Holder.

     

    Section
3.10       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.

     

    Section
3.11        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
3.12        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. For purposes of determining whether a party
has signed this Agreement or any document contemplated hereby or any amendment
or waiver hereof, only a handwritten original signature on a paper document or a
facsimile copy of such a handwritten original signature shall constitute a
signature, notwithstanding any law relating to or enabling the creation,
execution or delivery of any contract or signature by electronic
means.


    
      
         


      

      
        20

        
          

        

      

      
         


      

    


    Section
3.13        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. Time is of the essence in the performance of
this Agreement.

     

    Section
3.14        ATTORNEYS’ FEES. If
any dispute among any parties arises in connection with this Agreement, the
prevailing party in the resolution of such dispute in any action or proceeding
will be entitled to an order awarding full recovery of reasonable attorneys’
fees and expenses, costs and expenses (including experts’ fees and expenses and
the costs of enforcing this Section 3.14) incurred in connection therewith,
including court costs, from the non-prevailing party.

     

    Section
3.15        ADJUSTMENTS FOR STOCK
SPLITS, ETC. Wherever in this Agreement there is a reference to a
specific number of shares of the Company’s capital stock of any class or series,
then, upon the occurrence of any subdivision, combination or stock dividend of
such class or series of stock, the specific number of shares so referenced in
this Agreement will automatically be proportionally adjusted to reflect the
effect of such subdivision, combination or stock dividend on the outstanding
shares of such class or series of stock.

     

    [SIGNATURE
PAGES FOLLOW]


    
      
         


      

      
        21

        
          

        

      

      
         


      

    

     

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

     

    
      
        
          
            
              
                
                  	
                          BIOFUEL
      ENERGY CORP.

                        
	 
      
	
                          By:

                        	 
      
	
                          Name:

                        	 
      
	
                          Title:

                        	 
      
	 
      	 
      
	
                          GREENLIGHT
      CAPITAL, LP

                        
	 
      
	
                          By:

                        	
                          Greenlight
      Capital, LLC, its general partner

                        
	 
      	 
      
	 
      	
                          By:   

                        	 
      
	 
      	 
      	
                          Daniel
      Roitman

                        
	 
      	 
      	
                          Chief
      Operating Officer

                        
	 
      	 
      
	
                          GREENLIGHT
      CAPITAL QUALIFIED, L.P.

                        
	 
      
	
                          By:

                        	
                          Greenlight
      Capital, LLC, its general partner

                        
	 
      	 
      
	 
      	
                          By:

                        	 
      
	 
      	 
      	
                          Daniel
      Roitman

                        
	 
      	 
      	
                          Chief
      Operating
Officer

                        


                

              

            

          

        

      

    

     

    Signature
Pages to Amended and Restated Registration Rights
Agreement
 

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        
          
            
              
                	
                        GREENLIGHT
      REINSURANCE, LTD.

                      
	 
      	 
      
	
                        By:    

                      	
                        DME
      Advisors, L.P., its investment

                      
	 
      	
                        manager

                      
	 
      	 
      
	 
      	
                        By:    

                      	 
      
	 
      	 
      	
                        Daniel
      Roitman

                      
	 
      	 
      	
                        Chief
      Operating Officer

                      
	 
      	 
      
	
                        GREENLIGHT
      CAPITAL OFFSHORE PARTNERS

                      
	 
      
	
                        By:

                      	
                        Greenlight
      Capital, Inc., its

                      
	 
      	
                        investment
      manager

                      
	 
      	 
      
	 
      	
                        By:

                      	 
      
	 
      	 
      	
                        Daniel
      Roitman

                      
	 
      	 
      	
                        Chief
      Operating Officer

                      
	 
      	 
      
	
                        GREENLIGHT
      CAPITAL (GOLD), LP

                      
	 
      
	
                        By:

                      	
                        DME
      Management GP, LLC, its general partner

                      
	 
      	 
      
	 
      	
                        By:

                      	 
      
	 
      	 
      	
                        Daniel
      Roitman

                      
	 
      	 
      	
                        Chief
      Operating Officer

                      
	 
      	 
      
	
                        GREENLIGHT
      CAPITAL OFFSHORE MASTER (GOLD), LTD.

                      
	 
      
	
                        By:

                      	
                        DME
      Capital Management, LP, its investment manager

                      
	 
      	 
      
	 
      	
                        By:

                      	 
      
	 
      	 
      	
                        Daniel
      Roitman

                      
	 
      	 
      	
                        Chief
      Operating
Officer

                      


              

            

          

        

      

    

     

    Signature
Pages to Amended and Restated Registration Rights Agreement


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        
          
            
              
                
                  
                    	
                            THIRD
      POINT PARTNERS LP

                          
	 
      
	
                            By:     

                          	
                            Third
      Point Advisors, L.L.C., its general partner

                          
	 
      	 
      
	 
      	
                            By:    

                          	 
      
	 
      	 
      	
                            Justin
      Nadler

                          
	 
      	 
      	
                            Authorized
      Person

                          
	 
      	 
      
	
                            THIRD
      POINT PARTNERS QUALIFIED, L.P.

                          
	 
      
	
                            By:

                          	
                            Third
      Point Advisors, L.L.C., its general partner

                          
	 
      	 
      
	 
      	
                            By:

                          	 
      
	 
      	 
      	
                            Justin
      Nadler

                          
	 
      	 
      	
                            Authorized
      Person

                          
	 
      	 
      
	
                            THIRD
      POINT LOAN LLC

                          
	 
      
	
                            By:

                          	 
      
	
                            Name:

                          	 
      
	
                            Title:

                          	 
      


                  

                

              

            

          

        

      

    

    


    
      
        	 
      
	
                Daniel
      S. Loeb

              
	 
      
	 
      
	
                Lawrence
      J. Bernstein

              


      

    

     

    Signature
Pages to Amended and Restated Registration Rights Agreement


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    
 

    Schedule
A

     

    [Parties
to Existing Registration Rights Agreement]