Item 1.01. Entry into a Material Definitive Agreement.
Pursuant to the terms and subject to the conditions of the Agreement, the Company will acquire JBGL for
To fund a portion of the cash consideration, the Company will conduct a registered offering of rights (the "Rights Offering"), to the holders of its Common Stock as of a record date to be determined, to purchase additional shares of Common Stock to raise gross proceeds (together with the proceeds of Greenlight's purchase of shares of Common Stock pursuant to the Voting Agreement as well as any increase in the debt financing, each as described below) of at least
In connection with the Acquisition, the Company will amend its charter (the "Charter Amendment") to, among other things, change its name, increase its authorized share capital and add customary ownership limitations regarding preservation of the Company's net operating loss carryforwards ("NOLs").
The Agreement contains customary representations and warranties from both the Company and JBGL, and also contains customary covenants. The Company has agreed to use its reasonable best efforts to maintain the listing of its Common Stock on the
In addition, the Company has agreed to take all action necessary, including causing its current directors to resign, in order for
The Agreement restricts the Company's ability to solicit third party offers for the Company to purchase more than 50% of the equity interests in another entity or provide information to or engage in discussions or negotiations with third parties that have made or that might make such an offer. The Agreement allows the Company, under certain circumstances and in compliance with certain obligations, to provide information and participate in discussions and negotiations with respect to unsolicited offers.
The Agreement contains certain termination rights and provides that, upon termination of the Agreement under specified circumstances, including a change in the recommendation of the Board prior to the stockholders' meeting to adopt the Agreement, the Company will pay Sellers a cash termination fee of
The completion of the Acquisition is subject to certain customary conditions, including, among other things, (i) the adoption of the Agreement and the approval of the related transactions by the Company's stockholders (including an affirmative vote of holders of a majority of the outstanding shares of Common Stock and any Class B Common Stock present and voting at the stockholders' meeting, as well as an affirmative vote of holders of a majority of the outstanding shares of Common Stock and any Class B Common Stock excluding the shares of Common Stock and any Class B Common Stock held by Greenlight) and the approval of the Charter Amendment by holders of a majority of the outstanding shares of Common Stock and any Class B Common Stock, (ii) the consummation of the Rights Offering such that the Company receives in gross proceeds (together with the proceeds of Greenlight's purchase of shares of Common Stock pursuant to the Voting Agreement as described below as well as any increase in the debt financing) of at least
The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the Agreement, a copy of which is attached hereto as Exhibit 2.1 and incorporated by reference herein. The Agreement has been included solely to provide stockholders with information regarding its terms. It is not intended to be a source of financial, business or operational information about JBGL, Sellers, the Company or their respective subsidiaries or affiliates. The representations and warranties contained in the Agreement are made only for purposes of the Agreement and are made as of specific dates; are solely for the benefit of the parties; may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of the Agreement, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties instead of establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to stockholders. Stockholders should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of JBGL, Sellers, the Company or their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Agreement, which subsequent information may or may not be fully reflected in public disclosures.
Cautionary Statement Regarding Forward-Looking Statements
Any statements in this communication about the Company's expectations, beliefs, plans, objectives, prospects, financial condition, assumptions or future events or performance, including statements regarding the proposed acquisition of JBGL by the Company, the expected timetable for completing the transaction and benefits of the transaction and future opportunities for the combined company and products and securities, that are not historical facts are forward-looking statements. These statements are often, but not always, made through the use of words or phrases such as "believe," "anticipate," "should," "intend," "plan," "will," "expect(s)," "estimate(s)," "project(s)," "positioned," "strategy," "outlook" and similar expressions. Accordingly, all such forward-looking statements involve estimates and assumptions that are subject to risks, uncertainties and other factors that could cause actual results to differ materially from the results expressed in the statements. Among the key factors that could cause actual results to differ materially from those projected in the forward-looking statements are the following: the parties' ability to consummate the transaction? the conditions to the completion of the transaction, including the receipt of certain stockholder approvals; the parties' ability to meet expectations regarding the timing, completion and accounting and tax treatments of the transaction; operating costs, customer loss and business disruption may be greater than expected following the transaction; and general economic conditions that are less favorable than expected. Additional factors that could cause actual results to differ from those anticipated are discussed in our Annual Report on Form 10-K filed with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit Description Number 2.1 Transaction Agreement, dated as of
June 10, 2014, by and among BioFuel Energy Corp., JBGL Capital L.P., JBGL Exchange (Offshore), LLC, JBGL Willow Crest (Offshore), LLC, JBGL Hawthorne (Offshore), LLC, JBGL Inwood (Offshore), LLC, JBGL Chateau (Offshore), LLC, JBGL Castle Pines (Offshore), LLC, JBGL Lakeside (Offshore), LLC, JBGL Mustang (Offshore), LLC, JBGL Kittyhawk (Offshore), LLC, JBGL Builder Finance (Offshore), LLC, Greenlight Onshore Investments, LLC, JBGL Exchange, LLC, JBGL Willow Crest, LLC, JBGL Hawthorne, LLC, JBGL Inwood, LLC, JBGL Chateau, LLC, JBGL Castle Pines, LP, JBGL Castle Pines Management, LLC, JBGL Lakeside, LLC, JBGL Mustang, LLC, JBGL Kittyhawk, LLC, JBGL Builder Finance, LLCand Brickman Member Joint Venture.* 10.1 Voting Agreement, dated as of June 10, 2014, by and among BioFuel Energy Corp., Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., Greenlight Capital Offshore Partners, Greenlight Reinsurance, Ltd., Greenlight Capital (Gold), LPand Greenlight Capital Offshore Master (Gold), Ltd.10.2 Commitment Letter, dated as of June 10, 2014, between BioFuel Energy Corp.and Greenlight Capital, Inc., on behalf of its affiliated funds and managed accounts.
* The Company hereby undertakes to furnish supplementally a copy of any omitted schedule or exhibit to such agreement to the