exv10w1



 






Exhibit 10.1




SUPPORT AGREEMENT




     THIS SUPPORT AGREEMENT (this “Agreement”), is entered into as of May 31, 2007, by and among US
BioEnergy Corporation, a South Dakota corporation (“Parent”), US Bio Acquisition Sub, LLC, a South
Dakota limited liability company and wholly owned subsidiary of Parent (“Merger Sub”), Farmers
Energy Millennium, LLC, an Ohio limited liability company (“Note Holder”), and REX Stores
Corporation, a Delaware corporation (“Rex”).



WITNESSETH:




     WHEREAS, concurrently with the execution of this Agreement, Parent, Merger Sub and Millennium
Ethanol, LLC, a South Dakota limited liability company (the “Company”), are entering into an
Agreement and Plan of Merger of even date herewith (the “Merger Agreement”), pursuant to which the
parties thereto have agreed, upon the terms and subject to the conditions set forth therein, to
merge Merger Sub with and into the Company (the “Merger”); and



     WHEREAS, Note Holder, a wholly-owned subsidiary of Rex, is the record and Beneficial Owner (as
defined hereinafter) of a secured promissory note (the
“Note”) issued pursuant to that certain Note
Purchase and Purchase Rights Agreement, dated as of March 17, 2006 as amended on the date hereof
(the “Note Agreement”); and



     WHEREAS, as an inducement and a condition to entering into the Merger Agreement, Parent has
required that Note Holder and Rex enter into this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and the mutual promises, representations,
warranties, covenants and agreements contained herein, the parties hereto, intending to be legally
bound hereby, agree as follows:



     Section 1. Certain Definitions. In addition to the terms defined elsewhere herein,
capitalized terms used and not defined herein have the respective meanings ascribed to them in the
Merger Agreement. For purposes of this Agreement:



          (a) “Beneficially Own” or “Beneficial Ownership” with respect to any securities means having
“beneficial ownership” of such securities as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). Without duplicative counting of the same
securities by the same holder, securities Beneficially Owned by a person include securities
Beneficially Owned by all other persons with whom such person would constitute a “group” within the
meaning of Section 13(d) of the Exchange Act with respect to the securities of the same issuer.














 








          (b) “Reoffer Prospectus” means the prospectus included in the Registration Statement, as
amended or supplemented by any prospectus supplement with respect of the terms of the offering of
any security of the Parent covered by such Registration Statement
and all other amendments or supplements to the prospectus, including post effective
amendments, and all material incorporated, or deemed to be incorporated, by reference in such
prospectus.




          (c) “Securities” means the Note together with any Class C Units issued upon the exercise of
the Purchase Rights in accordance with the Note Agreement.




     Section 2. Representations And Warranties of Note Holder. Each of Note Holder and Rex
hereby, jointly and severally, represents and warrants to Parent and Merger Sub as follows:



          (a) Ownership. As of the date hereof and at all times prior to the termination of
this Agreement, (i) Note Holder is and will be the record and Beneficial Owner of the Note (or the
Class C Units issuable upon the exercise of the Purchase Rights in accordance with the Note
Agreement) and (ii) Rex is the record and Beneficial Owner of all of the outstanding equity
interests of Note Holder. As of the date hereof, neither Rex nor Note Holder Beneficially Owns any
Securities of the Company, other than with respect to Note Holder, the Note and the Purchase
Rights. Note Holder is the successor to Rex Radio and Television, Inc. under the Note Related
Documents (as defined below) and has the full right, power and authority to amend, modify,
terminate, grant waivers and releases, and otherwise take any other actions with respect to such
documents.




          (b) Authority; Binding Agreement. Rex and Note Holder each has the corporate or
limited liability company power and authority to enter into and perform all of its obligations
under this Agreement. This Agreement has been duly and validly executed and delivered by each of
Rex and Note Holder and constitutes a valid and binding agreement of Rex and Note Holder,
enforceable against each of Rex and Note Holder in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors’ rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought.




          (c) No Filings; No Conflicts. No filing with, and no permit, authorization, consent
or approval of, any Governmental Entity is necessary for the execution of this Agreement by Rex and
Note Holder and the consummation by Rex and Note Holder of the transactions contemplated hereby.
None of the execution and delivery of this Agreement by



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each of Rex and Note Holder, the
consummation by each of Rex and Note Holder of the transactions contemplated hereby or compliance
by each of Rex and Note Holder with any of the provisions hereof shall (i) conflict with or result
in any breach of any provision of the respective certificates of incorporation or by-laws (or other
organizational documents) of Rex or Note Holder, (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a default) under any
note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise, concession, or other instrument or obligation to
which Rex or Note Holder is a party or by which Rex or Note Holder or any of their respective
properties or assets is bound or affected or (iii) conflict with or violate any Legal Requirement
applicable to Rex or Note Holder or any of their respective properties or assets.




          (d) No Encumbrance. The Note is now and, at all times prior to the termination of
this Agreement, the Securities will be, held by Note Holder free and clear of any proxy, voting
restriction or other Lien (except for any such Lien arising hereunder, restrictions upon transfer
imposed under securities laws and the restrictions on transfer set forth in the
Operating Agreement of the Company, dated as of September 30, 2005 (the “Operating Agreement”)).




     Section 3. Representations And Warranties of Parent And Merger Sub. Each of Parent
and Merger Sub hereby, jointly and severally, represents and warrants to Note Holder and Rex as
follows:



          (a) Authority; Binding Agreement. Parent and Merger Sub each has the corporate or
limited liability company power and authority to enter into and perform all of its obligations
under this Agreement. This Agreement has been duly and validly executed and delivered by each of
Parent and Merger Sub and constitutes a valid and binding agreement of Parent and Merger Sub,
enforceable against each of Parent and Merger Sub in accordance with its terms, except that (i)
such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors’ rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor may be brought.




          (b) No Conflicts. Except as contemplated by the Merger Agreement, no filing with, and
no permit, authorization, consent or approval of, any Governmental Entity is necessary for the
execution of this Agreement by Parent and Merger Sub and the consummation by Parent and Merger Sub
of the transactions contemplated hereby, and none of the execution and delivery of this Agreement
by each of Parent and Merger Sub, the consummation by each of Parent and Merger Sub of the
transactions contemplated hereby or compliance by each of Parent and Merger Sub with any of the
provisions hereof shall (i) conflict with or result in any breach of



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any provision of the
respective certificates of incorporation or by-laws (or other organizational documents) of Parent
and Merger Sub, (ii) result in any breach of or constitute a default (or an event that with notice
or lapse of time or both would become a default) under any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise, concession, or other instrument or
obligation to which Parent or Merger Sub is a party or by which Parent or Merger Sub or any of
their respective properties or assets is bound or affected or (iii) conflict with or violate any
Legal Requirement applicable to Parent or Merger Sub or any of their respective properties or
assets.




     Section 4. Disclosure. Each of Rex and Note Holder hereby agrees to permit Parent to
publish and disclose in the Registration Statement and the Prospectus/Proxy Statement (including
all documents and schedules filed with the Securities and Exchange Commission), and any press
release or other disclosure document which Parent determines to be necessary in connection with the
Merger and any transactions related thereto, each of Rex and Note Holder’s identity and ownership
of any Securities and the nature of Rex’s and Note Holder’s commitments, arrangements and
understandings under this Agreement.



     Section 5. Transfer And Other Restrictions. Prior to the termination of this
Agreement, each of Rex and the Note Holder, jointly and severally, agrees not to, directly or
indirectly:



          (a) offer for sale, sell, transfer, tender, gift, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or understanding with respect
to or consent to the offer for sale, sale, transfer, gift, tender, pledge, encumbrance, assignment
or other disposition of any or all of the Securities or any interest therein (Rex acknowledges that
this restriction applies to any direct or indirect transfer of equity interests in Note Holder);




          (b) grant any proxy, power of attorney, consent or other authorization, deposit any of the
Securities into a voting trust or enter into a voting agreement or arrangement with respect to the
Securities;




          (c) take any other action for the purpose of making any representation or warranty of Note
Holder or Rex contained herein untrue or incorrect or preventing, limiting or impeding Note Holder
or Rex from performing its obligations under this Agreement; or




          (d) amend or otherwise modify the Note Agreement, the Note or any agreement, arrangement or
understanding entered into in connection with the Note Agreement, including, without limitation,
the Security Agreement, the Right of First Offer Agreement and the Registration Rights Agreement
(collectively, the “Note Related Agreements”).




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     Section 6. Purchase Rights. Note Holder agrees to, and Rex agrees to cause Note Holder
to, fully exercise the Purchase Rights through the conversion of the Note and the payment of the
balance of the purchase price for the Purchase Rights in accordance with the Note Agreement. Note
Holder agrees that the exercise of the Purchase Rights shall occur immediately prior to the
Effective Time, but only after the required vote of members of the Company in favor of the Merger
and the transactions contemplated by the Merger Agreement. Except as provided above, Note Holder
agrees not to, and Rex agrees to cause Note Holder not to, otherwise exercise the Purchase Rights
prior to the termination of the Merger Agreement.



     Section 7. Parent Common Stock. Each of Rex and Noteholder hereby agrees that, for a
period beginning on the date hereof and ending on, and including, the date of the Company Members’
Meeting (as defined in the Merger Agreement), they will not (and will not
permit any of their respective affiliates to), without the prior written consent of Parent,
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, and the rules and regulations of the Commission
promulgated thereunder with respect to any Parent Common Stock or securities convertible into or
exchangeable or exercisable for Parent Common Stock, or warrants or other rights to purchase Parent
Common Stock or any such securities, (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership of Parent Common
Stock or any securities convertible into or exchangeable or exercisable for Parent Common Stock, or
warrants or other rights to purchase Parent Common Stock or any such securities, whether any such
transaction is to be settled by delivery of Parent Common Stock or such other securities, in cash
or otherwise, or (iii) publicly announce an intention to effect any transaction specified in clause
(i) or (ii) above.



     Section 8. Registration Rights.



          (a) Registration. Parent shall use its reasonable best efforts to (i) (subject to
receipt of the required information from Note Holder) cause the Registration Statement to include a
reoffer prospectus relating to the offer and sale by Note Holder after the Effective Time of the
shares of Parent Common Stock received by Note Holder in the Merger (the “Registrable Securities”)
(or at Parent’s option file a registration statement on Form S-1 for the offer and sale of such
shares by Note Holder (which shall then be considered the “Registration Statement” for purposes of
this Section 8)) and (ii) to cause the Registration Statement to remain effective until the earlier
of (A) the date when all Registrable Securities covered by the Registration Statement have been
sold or (B) 45 days from the effective date of the Registration Statement.




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          (b) Suspension. (i) Upon the issuance by the SEC of a stop order suspending the
effectiveness of a Registration Statement or the initiation of proceedings with respect to a
Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) if the Registration
Statement shall contain any 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, or any
Reoffer Prospectus forming a part of the Registration Statement shall contain any untrue statement
of a material fact or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (including, in any such case,
as a result of the non-availability of financial statements), or (iii) upon the occurrence or
existence of any development, event, fact, situation or circumstance relating to Parent that, in
the sole discretion of Parent, makes it appropriate to suspend the availability of such
Registration Statement and the related Reoffer Prospectus,
(A)(1) in the case of clause (ii) above,
subject to the next sentence, Parent shall as promptly as practicable prepare and file a post
effective amendment to such Registration Statement or a supplement to the related Reoffer
Prospectus so that such Registration Statement does not contain any 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, and such Reoffer Prospectus does not contain any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and,
in the case of a post effective amendment to a Registration Statement, subject to the next
sentence, use reasonable best efforts to cause it to be declared effective as promptly as is
reasonably practicable and (2) in the case of clause (i) above, use reasonable best efforts to cause
such stop order to be lifted, and (B) give notice to the Note Holder that the availability of such
Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice,
the Note Holder agrees that it shall not sell any Registrable Securities pursuant to the
Registration Statement until the Note Holder receives copies of the supplemented or amended Reoffer
Prospectus provided for in clause (A) above and/or is notified of the effectiveness of the
post-effective amendment to the Registration Statement provided for in clause (A) above, or until
it is advised in writing by Parent that the Reoffer Prospectus may be used. In connection with
development covered by clause (iii) above, Parent shall be entitled to exercise its rights pursuant
to this Section 8(b) to suspend the availability of a Registration Statement or any Reoffer
Prospectus (the “Deferral Period”) for no more than 25 days. The Company shall not be required to
specify in the written notice to the Note Holder the nature of the event giving rise to the
Deferral Period. In the event that Parent shall exercise its rights hereunder, the applicable time
period during which the Registration Statement is to remain effective pursuant to Section 8(a)
shall be extended by a period of time equal to the duration of the Deferral Period.




          (c) Registration Expenses. All expenses incident to Parent’s performance of this
Section 8 including without limitation, all registration and filing fees, fees



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and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for Parent and all independent certified public accountants,
underwriters (excluding discounts and commissions and transfer taxes, if any, attributable to the
sale of Registrable Securities) and other persons retained by Parent, shall be borne by Parent, and
Parent shall pay its internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expense of any annual audit
or quarterly review, the expense of any liability insurance and the expenses and fees for listing
the securities to be registered on each securities exchange on which similar securities issued by
Parent are then listed. Note Holder shall pay those registration expenses incurred by it and not
required to be paid by Parent pursuant to the preceding sentence.




          (d) Indemnity.





          (i) The Company agrees to indemnify the Note Holder and each person, if any, who
controls the Note Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all loss, liability, claim and damage arising
out of any untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto) or the omission therefrom of a material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading or
arising out of any untrue statement of a material fact included in any preliminary
prospectus or any Reoffer Prospectus (or any amendment or supplement thereto) or the
omission therefrom of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided,
however, that this indemnity shall not apply to any loss, liability, claim or damage
to the extent arising out of any untrue statement or omission made in reliance upon and in
conformity with information furnished to Parent in writing by or on behalf of the Note
Holder or its Affiliates expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or Reoffer Prospectus (or any amendment or
supplement thereto).




          (ii) The Note Holder agrees to indemnify Parent, and each person, if any, who controls
Parent within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, liability, claim and damage described in the
indemnity contained in subsection (d)(i) of this Section 8 but only with respect to untrue
statements or omissions made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or Reoffer Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished in writing to Parent by or on
behalf of the Note Holder or its Affiliates for use



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in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or Reoffer Prospectus (or any amendment or
supplement thereto) expressly for use therein.




          (iii) Each indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is not
prejudiced as a result thereof. In case any such action shall be brought against any
indemnified party, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, such indemnifying
party shall not be liable to such indemnified party under this Section 8 for any legal
expenses of other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution is sought under this Section
8 (whether or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of each
indemnified party
from all liability arising out of such litigation, investigation, proceeding or claim
and (ii) 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. No indemnified party shall,
without the prior written consent of the indemnifying party, effect any settlement of any
commenced or threatened litigation, investigation, proceeding or claim in respect of which
any indemnification is sought hereunder.




          (iv) If the indemnification provided for in Section 8(d) from the indemnifying party is
unavailable to an indemnified party hereunder in respect of any losses, claims, damages or
liabilities referred to in Section 8(d), the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations.



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The relative fault of such indemnifying party, on
the one hand, and the indemnified party, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.




          (v) No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.




          (vi) The obligations of Parent and the Note Holder under this Section 8 shall survive
the completion of any offering of Registrable Securities pursuant to any Registration
Statement under this Agreement.



          (e) Information. Note Holder shall report to Parent all sales or other distributions
of Registrable Securities pursuant to the Registration Statement.




     Section 9. Acquisition Proposals; Non-Solicitation. Prior to the termination of this
Agreement, each of Rex and Note Holder covenants and agrees that it shall not, directly or
indirectly, (i) solicit, initiate, encourage, knowingly facilitate or induce any inquiry with
respect to, or the making, submission or announcement of, any Acquisition Proposal, (ii)
participate in any discussions or negotiations regarding, or furnish to any person any nonpublic
information with respect to, or take any other action to facilitate any inquiries or the making of
any proposal
that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii)
engage in discussions with any person with respect to any Acquisition Proposal, (iv) approve,
endorse or recommend any Acquisition Proposal, (v) enter into any letter of intent or similar
document or any contract, agreement or commitment contemplating or otherwise relating to any
Acquisition Proposal or transaction contemplated thereby; provided, however, that nothing herein
shall prevent any employee of Note Holder or Rex, acting in his or her capacity as an officer or
manager of the Company from taking any action in such capacity, but only in either such case as and
to the extent permitted by Section 4.2 of the Merger Agreement. Rex and Note Holder shall
immediately cease participating in any discussions or negotiations with any parties that may be
ongoing with respect to an Acquisition Proposal.



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     Section 10. Public Announcement. Without the prior written consent of Parent, neither
Rex nor Note Holder shall make any public announcement relating to this Agreement, the Merger
Agreement or the Merger or other transactions contemplated by the Merger Agreement.



     Section 11. Termination. This Agreement shall terminate on the earliest of (a)
termination of the Merger Agreement pursuant to its terms, (b) the agreement of the parties hereto
to terminate this Agreement, or (c) the consummation of the Merger; provided,
however, that termination of this Agreement shall not prevent any party hereunder from
seeking any remedies (at law or in equity) against any other party hereto for such party’s breach
of any of the terms of the Agreement. Notwithstanding the foregoing, Section 12 of this Agreement
shall survive the termination of this Agreement. The representations and warranties made herein
shall not survive the termination of this Agreement.



     Section 12. Miscellaneous.



          (a) Entire Agreement; Third Party Beneficiaries. This Agreement and the documents and
instruments and other agreements among the parties hereto as contemplated by or referred to herein
(i) constitute the entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, and (ii) are not intended to confer upon any other person any
rights or remedies hereunder.




          (b) Successors and Assigns. This Agreement shall not be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior written consent of the
other parties, Without relieving any party hereto of any obligation hereunder, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.




          (c) Amendment and Modification. This Agreement may not be amended, altered,
supplemented or otherwise modified or terminated except upon the execution and delivery of a
written agreement executed by the parties hereto.




          (d) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial delivery service, or sent via
telecopy (receipt confirmed) to the parties at the following addresses or telecopy numbers (or at
such other address or telecopy numbers for a party as shall be specified by like notice):



(a) if to Parent or Merger Sub:




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US BioEnergy Corporation

5500 Cenex Drive

Inver Grove Heights, MN 55077

Attention: General Counsel

Telephone: (651) 355-8328

Facsimile: (866) 908-1375



with a copy to:



Skadden, Arps, Slate, Meagher & Flom LLP

333 West Wacker Drive

Chicago, Illinois 60606

Attention: Brian W. Duwe

                   Richard C. Witzel, Jr.

Telephone: (312) 407-0700

Facsimile: (312) 407-0411



(b) if to Rex or Note Holder:



Zafar Rizvi

Farmers Energy Millennium, LLC

2875 Needmore Road

Dayton, OH 45414



with a copy to:



Edward M. Kress, Esq.

Chernesky, Heyman & Kress P.L.L.

1100 Courthouse Plaza, SW

Dayton, Ohio 45402

Telephone: (937) 449-2830

Facsimile: (937) 463-4947




          (e) Severability. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal,
void or unenforceable, the remainder of this Agreement will continue in full force and effect
and the application of such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and enforceable provision that will



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achieve, to the extent possible, the economic, business and other purposes of such void or
unenforceable provision.




          (f) Other Remedies; Specific Performance. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the
exercise by a party of any one remedy will not preclude the exercise of any other remedy. The
parties hereto agree that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.




          (g) No Waiver; Remedies Cumulative. No failure or delay on the part of any party
hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver
of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will
any single or partial exercise of any such right preclude other or further exercise thereof or of
any other right. All rights and remedies existing under this Agreement are cumulative to, and not
exclusive to, and not exclusive of, any rights or remedies otherwise available.




          (h) Governing Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Dakota, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law thereof.




          (i) Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.




          (j) Descriptive Heading. The descriptive headings used herein are for reference
purposes only and will not affect in any way the meaning or interpretation of this Agreement.




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          (k) Expenses. All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such expenses.




          (l) Counterparts. This Agreement may be executed in two or more counterparts, and by
facsimile, all of which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and delivered to the other
party, it being understood that all parties need not sign the same counterpart.




          (m) Further Actions. Each of Rex and Note Holder agrees that it will do all things
necessary or desirable as reasonably requested by Parent to effectuate this Agreement. Neither Rex
nor Note Holder shall enter into any agreement, arrangement or understanding with any person the
effect of which would be inconsistent with or violative of any term or provision of this Agreement.




          (n) Rules of Construction. The parties hereto agree that they have been represented
by counsel during the negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing that ambiguities in
an agreement or other document will be construed against the party drafting such agreement or
document.




     (o) Merger Agreement Termination Fee. In the event that (a) the Merger Agreement
is terminated by the Company pursuant to Section 7.1(b) and (b) no action or failure to act on the
part of Rex or Noteholder was a principal cause of or resulted in the failure of the Merger to
occur on or before the End Date and such action or failure to act constitutes a material breach of
this Agreement; the Parent will pay Rex One Million Six Hundred Seventy Thousand Dollars
($1,670,000) in immediately available funds promptly, but in no event later than two (2) business
days after such termination. Upon payment of such fee, neither Parent nor any of its affiliates
shall have any further liability to Noteholder, Rex or any of their respective affiliates with
respect to this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby.





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     IN WITNESS WHEREOF, Parent, Merger Sub, Rex and Note Holder have caused this Agreement to be
duly executed as of the day and year first written above.




	 	 	 	 	 
	 	US BIOENERGY CORPORATION	 
	 
	 
	 	By:  	/s/ Gregory S. Schlicht	 
	 	 	Name:  	Gregory S. Schlicht	 
	 	 	Title:  	Vice President, General Counsel and Corporate Secretary	 
	 
	 	US BIO ACQUISITION SUB, LLC

 	 
	 	By:  	/s/ Gregory S. Schlicht	 
	 	 	Name:  	Gregory S. Schlicht	 
	 	 	Title:  	Manager	 
	 
	 	FARMERS ENERGY MILLENNIUM, LLC

 	 
	 	By:  	/s/ Zafar Rizvi	 
	 	 	Name:  	Zafar Rizvi	 
	 	 	Title:  	President	 
	 
	 	REX STORES CORPORATION

 	 
	 	By:  	/s/ Zafar Rizvi	 
	 	 	Name:  	Zafar Rizvi	 
	 	 	Title:  	President	 



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