Exhibit 10.4
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STOCKHOLDERS AGREEMENT
BETWEEN
BIOFUEL ENERGY CORP.
AND
CARGILL BIOFUELS INVESTMENTS, LLC
DATED: June 19, 2007
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01.
Definitions......................................................1
SECTION 1.02. Other Defined
Terms..............................................3
SECTION 1.03. Rules of
Construction............................................3
ARTICLE II
Transfer Restrictions
SECTION 2.01. Prohibited
Parties...............................................3
SECTION 2.02. Termination
Procedures...........................................4
SECTION 2.03. Cargill Confidential
Information.................................4
ARTICLE III
Business Expansion Restrictions
SECTION 3.01. Change in Project
Scope..........................................4
ARTICLE IV
Miscellaneous
SECTION 4.01.
Notices..........................................................5
SECTION 4.02. Successors and Assigns; Third-Party
Beneficiaries................6
SECTION 4.03. Amendment and
Waiver.............................................6
SECTION 4.04.
Counterparts.....................................................6
SECTION 4.05. Specific
Performance.............................................7
SECTION 4.06.
Headings.........................................................7
SECTION 4.07.
Severability.....................................................7
SECTION 4.08. Entire
Agreement.................................................7
SECTION 4.09. Term of
Agreement................................................7
SECTION 4.10. Further
Assurances...............................................7
SECTION 4.11. Governing
Law....................................................7
SECTION 4.12. Other
Rights.....................................................7
SECTION 4.13. Consent to Jurisdiction; No Jury
Trial...........................7
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This STOCKHOLDERS AGREEMENT, dated as of
June 19, 2007,
is between BioFuel Energy Corp., a Delaware
corporation (the
"Company"), and Cargill Biofuels Investments,
LLC, a Delaware
limited liability company. Unless otherwise
provided in this
Agreement, capitalized terms used herein shall
have the
respective meanings given to them in Section
1.01.
WHEREAS, the parties hereto wish to set forth certain
understandings
regarding the relationship between the Company and Cargill (as
defined below);
and
WHEREAS, the parties hereto wish to provide for, among
other things,
restrictions on the acquisition of Voting Securities by a
Prohibited Party (each
as defined below).
NOW, THEREFORE, in consideration of the mutual
covenants and
agreements set forth herein and for good and valuable
consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto
agree as
follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this Agreement,
and unless the
context requires a different meaning, the following terms have the
meanings
indicated:
"affiliate" of any Person means another Person that
directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or
is under common control with, such first Person; provided that for
purposes of
this Agreement, neither the Company nor any of its Subsidiaries
shall be deemed
an affiliate of Cargill. For the purposes of this definition,
"control" when
used with respect to any Person, means the possession, directly or
indirectly,
of the power to direct or cause the direction of the management and
policies of
a Person, whether through the ownership of voting securities, by
contract, or
otherwise; and the terms "controlling" and "controlled" have
meanings
correlative to the foregoing.
"Agreement" means this Agreement as the same may be
amended,
supplemented or modified in accordance with the terms hereof.
"BioFuel Production" means the business of developing,
constructing,
owning and operating ethanol or biodiesel production and processing
plants,
engaging in commercial sales of ethanol, biodiesel and byproducts,
and engaging
in the mixing, transportation and storage of ethanol, biodiesel and
byproducts,
in each case.
"Board of Directors" means the Board of Directors of
the Company.
"Business Day" means any day other than Saturday,
Sunday and any day
that is a legal holiday in New York, New York or a day on which
banking
institutions in New York, New York are authorized by law or other
governmental
action to close.
2
"Business Expansion" means an expansion of the
Company's business
beyond BioFuel Production.
"Business Expansion Response Period" has the meaning
set forth in
Section 3.01(a).
"Cargill" means Cargill Biofuels Investments, LLC, a
Delaware
limited liability company, and any of its affiliates, so long as
such affiliate
is also a controlled affiliate of Cargill, Incorporated, a Delaware
corporation.
"Cargill Arrangements" means the arrangements among
Cargill Parent
or one or more of its controlled affiliates, on the one hand, and
the Company or
one or more of its Subsidiaries, on the other hand, pertaining to
(i) grain
elevator leases, (ii) corn supply, (iii) ethanol marketing, (iv)
distilled dried
grains marketing, (v) corn risk management, (vi) energy risk
management and
(vii) natural gas supply, to the extent any such arrangements are
in place from
time to time.
"Cargill Parent" means Cargill, Incorporated, a
Delaware
corporation.
"Certificate" means the certificate of incorporation,
as may be
amended from time to time, of the Company.
"Class B Stock" has the meaning set forth in the LLC
Agreement.
"Common Stock" means the shares of common stock of the
Company, par
value $0.01 per share.
"knowledge", as it relates to the Company or Cargill,
means with
respect to any matter in question, that any officer of the Company
or Cargill
has actual knowledge of such matter after reasonable inquiry and
investigation.
"LLC Agreement" means the Second Amended and Restated
Limited
Liability Company Agreement of BioFuel Energy, LLC, a Delaware
limited liability
company, dated June 19, 2007.
"Members" has the meaning set forth in the LLC
Agreement.
"Person" means any individual, corporation,
partnership, limited
liability company, joint venture, association, joint-stock company,
trust,
unincorporated organization, government or any agency or political
subdivision
thereof or any other entity.
"Prohibited Party" means any one of the Persons listed
on Schedule A
attached hereto, which may be updated by Cargill on an annual
basis, and
affiliates of such Persons; provided that in no event may there be
more than
five (5) Prohibited Parties at any time (excepting affiliates of
such Prohibited
Parties).
"Subsidiary" means, with respect to any Person, any
corporation,
limited liability company, partnership, association or business
entity of which
(i) if a corporation,
3
a majority of the total voting power of shares of stock entitled
(without regard
to the occurrence of any contingency) to vote in the election of
directors,
managers or trustees thereof is at the time owned or controlled,
directly or
indirectly, by that Person or one or more of the other Subsidiaries
of that
Person or a combination thereof or (ii) if a limited liability
company,
partnership, association or other business entity (other than a
corporation), a
majority of partnership or other similar ownership interest thereof
is at the
time owned or controlled, directly or indirectly, by any Person or
one or more
Subsidiaries of that Person or a combination thereof. For purposes
hereof, a
Person or Persons shall be deemed to have a majority ownership
interest in a
limited liability company, partnership, association or other
business entity
(other than a corporation) if such Person or Persons shall be
allocated a
majority of limited liability company, partnership, association or
other
business entity gains or losses or shall be or control any managing
director or
general partner of such limited liability company, partnership,
association or
other business entity. For purposes hereof, references to a
"Subsidiary" of any
Person shall be given effect only at such times that such Person
has one or more
Subsidiaries.
"U
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