Exhibit 10.1
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 Michael N. Stefanoudakis
(“Executive”) (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
Executive will cease all of his duties as an officer and employee
with the Company as of 5:00 P.M., Mountain Standard Time on
April 18, 2008 (the “Effective Date”).
(1)
As a result of this
separation, Executive shall be legally-entitled to
receive:
(a)
Payment for all unpaid,
accrued salary, net of applicable taxes and withholdings, earned by
Executive in connection with his employment with the Company
through the Effective Date.
(b)
Payment for any unused vacation days, net of applicable taxes and
withholdings through the Effective Date.
(c)
After the Effective Date,
Executive 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 Executive does not elect to continue medical and
dental coverage under COBRA, Executive’s current
coverage elections will end on April 30, 2008 and Executive
will not be eligible to receive insurance or any other form of
insurance benefit from the Company after the Effective Date.
Provided that Executive elects
to continue medical and dental coverage under COBRA,
Executive’s current coverage elections will be continued and
paid for by the Company through a date no later than
October 31, 2008 (such date to be determined under
Section C below) and may be continued at Executive’s
expense thereafter until the end of Executive’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, provided however, that
Executive will remain a participant under the Company’s 2007
Equity Incentive Compensation Plan (the “Plan”) through
the Consulting Period (defined below).
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B.
Consulting Agreement.
(1)
The Company agrees to engage Executive to provide consulting
services to the Company from April 19, 2008 through
October 18, 2008 (the “Consulting Period”) and to
pay him in connection therewith the total sum of an amount equal to
$56,250 (the “Consultancy Payment”) to be paid in six
equal installments on the last day of each month in the Consulting
Period;
(2)
During the Consulting Period, Executive agrees to make himself
available, upon reasonable notice, to answer questions as the
Company may reasonably request on an as-needed basis to assist the
Company with the transition of his duties;
(3)
During the Consulting Period, the Company agrees to permit
Executive to continue the use of his Company e-mail and voicemail
accounts as well as his Company blackberry and laptop.
C.
COBRA Payment. The Company agrees to pay
the COBRA premium for Executive through a date no later than
October 31, 2008 (the “COBRA Payment”) subject to
the following: if Executive accepts other employment prior to
October 31, 2008 which provides medical and dental benefits,
then he shall notify the Company promptly and the COBRA Payment
will cease as of the date Executive becomes covered under the new
health policy.
D.
Nondisparagement.
Executive agrees not to
disparage the Company or its officers, directors, shareholders, or
employees, and the Company agrees not to disparage Executive, in any
matter likely to be harmful to the other party or their personal or
business reputation. The parties 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. Executive authorizes,
and the Company designates, Thomas J. Edelman, Scott H. Pearce, Daniel
Simon and David J. Kornder to respond to any request concerning
employment references for Executive or any background check into
Executive’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 Executive’s separation from the
Company.
F.
Release of All Claims by
Executive.
In consideration of the promises and covenants made herein,
Executive, on behalf of Executive and Executive’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’
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fees and liabilities of any kind or and nature
whatsoever, in law or equity, whether known or unknown, accrued or
to accrue hereafter, which Executive 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 Executive’s employment by the Company or the
termination thereof, other than Executive’s rights under the
2007 Equity Incentive Compensation Plan, and the Second Amended and
Restated Limited Liability Company Agreement, the Tax Benefit
Sharing Agreement and the Registration Right Agreement of BioFuel
Energy, LLC, each dated as of June 19, 2007 (the
“Excluded Agreements”). 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 Executive and the
Company or (iii) otherwise related, in any way, to
Executive’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 Protection Act, the Americans with Disabilities
Act, as amended, the Fair Credit Reporting Act, the Sarbanes-Oxley
Act, the Colorado Civil Rights Act, the Colorado Wage Act, and any
other statute or regulation governing the employment relationship
or Executive’s rights, or the Company’s obligations, in
connection therewith. This Release also includes a release of
any right to bring an administrative claim or charge against the
Company regarding any matter relating to the Company, its business
operations, or Executive’s employment to the maximum extent
permitted by law. Executive agrees that this legal release is
intended to be interpreted in the broadest possible manner in favor
of the Company, to include all actual or potential legal claims
that Executive may have against the Company, except as
speci
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