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Exhibit 10.5
SEPARATION, CONSULTING AND
MUTUAL RELEASE AGREEMENT
THIS SEPARATION, CONSULTING AND MUTUAL
RELEASE AGREEMENT (the “Agreement”) is between BioFuel
Energy Corp., a Delaware corporation, together with its
subsidiaries (the “Company”) and Eric D. Streisand
(“Streisand”) (collectively, the
“Parties”).
I. COVENANTS
In consideration of the mutual
promises and covenants contained herein, and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is hereby agreed by and between the
parties, as follows:
A. Separation . The Parties mutually agree that Streisand will
cease all of his duties as an officer and employee with the Company
as of 5:00 P.M., Mountain Standard Time on August 31, 2007 (the
“Effective Date”).
(1) As a result of this separation,
Streisand shall be legally-entitled to receive:
(a) Payment for all unpaid, accrued
salary, net of applicable taxes and withholdings, earned by
Streisand in connection with his employment with the Company
through the Effective Date.
(b) Payment for thirteen (13) accrued,
unused vacation days, net of applicable taxes and withholdings
through the Effective Date.
(c) After the Effective Date,
Streisand shall be eligible for continuation of medical and dental
insurance coverage for eighteen (18) months or such longer period
as covered under the Consolidated Omnibus Budget Reconciliation
Act, as amended (“COBRA”) or similar applicable state
laws and the insurance policies and rules applicable to the
Company. If Streisand does not elect to continue medical and dental
coverage under COBRA, Streisand’s current coverage elections
will end on August 31, 2007 and Streisand will not be eligible to
receive insurance or any other form of benefit from the Company
after the Effective Date. Provided that Streisand elects to
continue medical and dental coverage under COBRA, Streisand’s
current coverage elections will be continued and paid for by the
Company through a date no later than June 30, 2008 (such date to be
determined under Section C below) and may be continued at
Streisand’s expense thereafter until the end of
Streisand’s eligibility under COBRA.
(2) All other benefits provided by the
Company, including 401(k) plan, life insurance, AD & D
insurance, LTD insurance and any other benefit offered by the
Company, will terminate as of the Effective Date. All unvested
options under the Company’s 2007 Equity Incentive
Compensation Plan as of the Effective Date shall be terminated,
forfeited and/or cancelled, and Streisand shall have no right to
compensation, remuneration, distributions or dividends with respect
to such unvested options.
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B. Consulting Agreement.
(1) The Company agrees to engage
Streisand to provide consulting services to the Company from
September 1, 2007 through December 31, 2007 (the “Consultancy
Period”) and to pay him in connection therewith the total sum
of an amount equal to four (4) months’ salary (the
“Consultancy Payment”) to be paid in equal monthly
installments on the last day of each month through the end of the
Consultancy Period;
(2) During the Consultancy Period,
Streisand agrees to make himself available, upon reasonable notice,
to assist the Company with discrete tasks which it may reasonably
request on an as-needed basis;
(3) During the Consultancy Period, the
Company agrees to permit Streisand to continue the use of his
Company e-mail account to receive incoming messages to be forwarded
to Streisand’s personal e-mail account;
(4) During the Consultancy Period, the
Company agrees to permit Streisand to continue the use of a Company
voicemail account at the Denver office with a mutually agreed upon
outgoing message;
(5) During the Consultancy Period, the
Company agrees to permit Streisand to continue the use of his
Company laptop;
(6) Streisand may terminate the
Consultancy Period at any time for any reason by providing the
Company with two (2) days written notice of his intent to do so;
the Company may terminate the Consultancy Period at any time for
any reason by providing Streisand with thirty (30) days written
notice of its intent to do so; and
(7) Should the Consultancy Period be
terminated by Streisand, only any unpaid balance of the Consultancy
Payment through the date of the termination shall be paid to
Streisand; should the Consultancy Period be terminated by the
Company, the unpaid balance of the total Consultancy Payment
remaining at the time of termination shall be paid to Streisand;
all payments hereunder shall be made as soon as administratively
practicable following any such termination.
C. COBRA Payment. The Company agrees to pay the COBRA premium for
Streisand through a date no later than June 30, 2008 (the
“COBRA Payment”) subject to the following: if Streisand
accepts other employment prior to June 30, 2008 which provides
medical and dental benefits, then the COBRA Payment will cease as
of the date Streisand becomes covered under the new health
policy.
D. Nondisparagement. Streisand agrees not to disparage the Company or
its officers, directors, shareholders, or employees, and the
Company agrees not to disparage Streisand, in any matter likely to
be harmful to the other party or their personal or business
reputation. The parties
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further agree that notwithstanding
this non-disparagement agreement, each party shall respond
accurately and fully to any question, inquiry, or request for
information required by legal or administrative process, or, in the
case of the Company, to fulfill any standard or legally required
reporting or disclosure requirements. In response to any request
concerning employment references for Streisand or any written or
verified background check regarding Streisand, the Company shall
provide the following information if requested: (i)
Streisand’s dates of employment; (ii) Streisand’s rate
of compensation at Two Hundred and Forty Thousand Dollars and No
Cents ($240,000.00) per year; (iii) eligibility for receipt of an
annual cash bonus; and (iv) Streisand’s last job title, Vice
President-Corporate Development. Streisand authorizes, and the
Company designates, Thomas J. Edelman, Scott H. Pearce and David J.
Kornder to respond to any request concerning employment references
for Streisand or any background check into Streisand’s
employment.
E. Public Statements . The Parties agree that the language set forth on
Exhibit A will be filed by the Company on a Form 8-K to disclose
Streisand’s separation from the Company.
F. Release of All Claims by Streisand.
In consideration of the promises and
covenants made herein, Streisand, on behalf of Streisand and
Streisand’s heirs, executors, administrators, personal
representatives and assigns, does hereby RELEASE, ACQUIT AND
FOREVER DISCHARGE the Company and its past, present and future
affiliates, parents, subsidiaries and successors, and each of their
past, present and future officers, directors, shareholders,
employees, agents, representatives, attorneys, insurers and their
respective successors and assigns (all of whom are hereinafter
collectively referred to as “Releasees”) from any and
all actions, causes of action, claims, demands, cost and expenses,
including attorneys’ fees and liabilities of any kind or and
nature whatsoever, in law or equity, whether known or unknown,
accrued or to accrue hereafter, which Streisand ever had, now has
or may hereafter have against Releasees, as of the date of this
Agreement and through the Effective Date, arising out of any act,
omission, transaction or occurrence, including, without limitation,
those related to Streisand’s employment by the Company or the
termination thereof. Without limiting the generality of the
foregoing, it is understood and agreed that this Release
constitutes a release of any claim or cause of action (i) in tort,
including but not limited to claims for slander, libel, negligence,
gross negligence, negligent supervision or training, conspiracy,
intentional or negligent infliction of emotional distress, mental
anguish, invasion of privacy, assault, battery, false imprisonment,
tortious interference with contractual relations, wrongful
discharge, pain and suffering, breach of covenant of good faith and
fair dealing, invasion of privacy and (ii) for breach of any
employment or other agreement existing between Streisand and the
Company or (iii) otherwise related, in any way, to
Streisand’s employment by the Company, including claims under
Title VII of the Civil Rights Act of 1964 (and all of its
amendments), the Age Discrimination in Employment Act, the Older
Workers Benefit P
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