Attached files
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| 8-K - Green Brick Partners, Inc. | v197952_8-k.htm |
EXHIBIT
10.1
BIOFUEL
ENERGY CORP.
1600
BROADWAY, SUITE 2200
DENVER,
COLORADO 80202
CONFIDENTIAL
AND PROPRIETARY
September
24, 2010
Greenlight
APE, LLC
as
Administrative Agent
Re: BioFuel Change of Control
Arrangements
Gentlemen:
We, the undersigned executive officers
(“Executives”)
of BioFuel Energy Corp. (“BioFuel Energy”),
understand that Greenlight APE, LLC is acting as administrative agent for
certain lenders under that certain Loan Agreement (the “Loan Agreement”),
dated as of September 24, 2010 (collectively as identified therein, the “Lenders”), pursuant
to which the Lenders are making a bridge loan (the “Bridge Loan”) to
BioFuel Energy, whereby as soon as reasonably practicable following the closing
of the Bridge Loan, BioFuel Energy will commence with a registered rights
offering pursuant to the appropriate registration statement whereby it will
offer Series A Convertible Preferred Stock (as defined in the Loan Agreement) to
its existing stockholders on a pro rata basis and use the proceeds raised in
connection with the rights offering to repay the Bridge Loan and certain other
indebtedness of BioFuel Energy, LLC (the “Rights Offering,”
together with the Bridge Loan, the “Transaction”).
BioFuel Energy and BioFuel Energy, LLC
(“BFE Energy,”
and together with BioFuel Energy, “BioFuel”) anticipate
that the Transaction would result in a “change of control” for purposes of
awards (“Equity
Awards”) held under the BioFuel Energy Corp. 2007 Equity Incentive
Compensation Plan (the “Equity Plan”) and the
vesting and payment provisions of the BioFuel Energy, LLC Change of Control Plan
(the “Change of
Control Plan,” and together with the Equity Plan, the “Plans”).
In consideration of the foregoing, and
in order to induce the Lenders to make the Bridge Loan and undertake the Rights
Offering, the Executives who are signatory hereto, severally and not jointly,
agree as follows:
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1.
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Notwithstanding
anything to the contrary contained in the Plans, the Transaction as
described above shall not constitute a “Change of Control” as defined
under the Plans; and
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2.
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Notwithstanding
anything to the contrary contained in those certain Executive Employment
Agreements dated August 31, 2010 by and between BFE Energy and each of
Scott H. Pearce and Kelly G. Maguire, respectively (the “Agreements”), the
Transaction as described above shall not constitute a “Change of Control”
as defined under the Agreements;
and
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Letter
Agreement re: BioFuel Change of Control Arrangements
Greenlight
APE, LLC
as
Administrative Agent
September
24, 2010
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3.
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Notwithstanding
anything to the contrary contained in those certain Offers of Continued
Employment dated August 31, 2010 by and between BFE Energy and each of
Doug Anderson and Mark Zoeller, respectively (the “Offers”), the
Transaction as described above shall not constitute a “Change of Control”
as defined under the offers.
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The
foregoing shall apply with respect to the Plans solely to the extent such Plans
provide benefits to the undersigned Executives, and not with respect to any
payments, acceleration of awards or any other benefits under the Plans that
might apply to any other employee of BioFuel.
This
letter agreement shall become effective only as of the completion of the
Transaction and, if the Transaction does not occur, this letter agreement shall
be void and of no force and effect. This letter agreement contains
the entire agreement among the parties concerning the subject matter hereof and
supersedes and nullifies all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the parties with
respect to the subject matter hereof. This letter agreement may be executed in
separate counterparts, each of which shall be considered binding and
enforceable, severally and not jointly, on the signatories hereto.
Acknowledged and agreed as of the date
first written above.
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By
Executives:
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/s/ Scott Pearce
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Scott
Pearce
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President
and CEO
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/s/ Kelly Maguire
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Kelly
Maguire
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Executive
Vice President and CFO
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/s/ Doug Anderson
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Doug
Anderson
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Vice
President of Operations
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/s/ Mark Zoeller
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Mark
Zoeller
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Vice
President and General Counsel
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