EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE
EMPLOYMENT AGREEMENT (this “Agreement”)
is made and entered into as of the 31st day of August, 2010 (the “Effective
Date”) by and between BioFuel Energy, LLC (the “Company”)
and Xxxxx X. Xxxxxxx (“Executive”).
PRELIMINARY
STATEMENTS
A. The
Company desires to employ Executive as Executive Vice President and Chief
Financial Officer, and Executive desires to be employed by the Company in said
capacity; and
B. Each
party desires to set forth in writing the terms and conditions of their
understandings and agreements.
NOW, THEREFORE, in
consideration of the mutual covenants and obligations contained herein, the
Company hereby agrees to employ Executive and Executive hereby accepts such
employment upon the terms and conditions set forth in this
Agreement:
STATEMENT
OF AGREEMENT
1. Position.
(a) The
Company agrees to employ Executive in the position of Executive Vice President
and Chief Financial Officer. Executive shall serve and perform the
duties which may from time to time be assigned to him by the President and Chief
Executive Officer (the “President”)
of the Company, or as otherwise assigned by the Board of Directors (the “Board”) of
BioFuel Energy, Corp., the sole managing Member of the Company (“Parent”).
(b) Executive
agrees to serve as Executive Vice President and Chief Financial Officer and
agrees that he will devote his best efforts and substantially all of his
business time and attention to the Company. Executive agrees that he
will faithfully and diligently carry out the duties of the Executive Vice
President and Chief Financial Officer. Executive further agrees to
comply with all Company policies in effect from time to time and to comply with
all laws, rules and regulations, including, but not limited to, those applicable
to the Company.
(c) Executive
agrees to travel as necessary to perform his duties under this
Agreement.
(d) Nothing
herein shall preclude Executive from (i) engaging in charitable and
community activities; (ii) participating in industry and trade organization
activities; (iii) managing his and his family’s personal investments and
affairs; and (iv) delivering lectures, fulfilling speaking engagements or
teaching at educational institutions; provided, that such activities do not
(x) materially interfere with the regular performance of his duties and
responsibilities under this Agreement or (y) constitute activities that
compete with the business of the Company.
2. Term. The
initial term of this Agreement shall be two (2) years from the date stated above
(“Initial
Term”), unless otherwise terminated pursuant to Section 4 of this
Agreement. This Agreement shall automatically renew for successive
one (1) year terms unless either party gives written notice of its or his intent
not to renew this Agreement at least sixty (60) days prior to the expiration of
the then-current term. Executive’s continued employment after the
expiration of the Initial Term shall be in accordance with and governed by this
Agreement, unless modified by the parties to this Agreement in
writing.
3. Compensation and
Benefits.
(a) Base
Salary. The Company shall pay Executive a base salary of not
less than $245,000 per year (“Base
Salary”).
(b) Bonus
Opportunities. For each calendar year during the Term
Executive shall be eligible to receive incentive compensation (an “Annual
Bonus”) from the Company, with a target bonus opportunity of fifty-five
percent (55%) of Base Salary. The parameters under which Executive’s
Annual Bonus for each year during the Term will be payable shall be determined
by the President in consultation with the Board. Such parameters
shall be set forth in a written notice delivered to Executive contemporaneously
with the Effective Date and thereafter within seventy-five (75) days after the
start of each calendar year during the term of this
Agreement. Executive’s Annual Bonus for any year shall be payable in
cash no later than thirty (30) days after completion of the Company’s audit
relating to such fiscal year.
(c) Payment. Payment
of all compensation to Executive hereunder shall be made in accordance with the
terms of this Agreement and applicable Company policies in effect from time to
time, including normal payroll practices, and shall be subject to all applicable
withholdings and taxes.
(d) Benefits
Generally. The Company shall make available to Executive,
throughout the term of this Agreement, benefits as are generally provided by the
Company to its executive officers, which may presently be in effect or which may
hereafter be adopted by the Company for its executive officers and key
management personnel; provided, however, that nothing herein contained shall be
deemed to require the Company to adopt or maintain any particular plan or
policy.
(e) Vacation. Executive
shall be entitled to paid vacation for up to four weeks during each calendar
year, consistent with the policies then applicable to executive
officers.
(f) Holidays. Executive
shall further be entitled to paid holidays, personal days, and sick days
consistent with the policies then applicable to executive officers.
(g) Reimbursement of
Expenses. The Company shall reimburse Executive for all
business expenses, which are reasonable and necessary and are incurred by
Executive while performing his duties under this Agreement, upon presentation of
expense statements, receipts and/or vouchers, or such other information and
documentation as the Company may reasonably require. Executive shall,
upon reasonable request, provide the Company with an explanation of the purpose
of any particular business expense and an estimate of the cost of the same,
prior to incurring any expense related to the same. The Company
reserves the right to reject any unreasonable business expense.
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4. Termination.
(a) Termination by the
Company. The Company may terminate this Agreement for any
reason immediately upon transmittal of written notice to Executive in accordance
with this Agreement. If the Company terminates this Agreement
pursuant to this provision without Cause or Executive terminates this Agreement
for Good Reason, the Company shall, after receipt of (i) an executed
release agreement between the Company and Executive, which will consist in
substance of the language attached as Exhibit A (and any other language
releasing specific claims, complaints, liabilities or obligations that are
identified by the Company) and (ii) a severance agreement in a form
provided by the Company that will (A) reflect the relevant related terms
and provisions of this Agreement and (B) contain only other provisions
required by applicable law required to give effect to the enforceability of the
terms and provisions of such agreement (collectively, the “Severance and
Release Documents”), pay Executive (1) all accrued but unpaid Base Salary
and any accrued but unpaid Annual Bonus from the previous fiscal year (“Accrued
Compensation”) (which shall be paid on the next payroll otherwise due in
accordance with the Company’s policies), (2) any unreimbursed expenses (in
accordance with Section 3(g) of this Agreement), (3) a severance payment
(“Severance
Payment”) equal to Executive’s then current Base Salary plus a portion of
Executive’s Annual Bonus for the year in which such termination occurs, which
amount shall be calculated pro
rata based on the target bonus opportunity for such year and the number
of weeks of such year that have lapsed prior to termination (“Pro Rata
Bonus”), and (4) continuing health benefit coverage for twelve (12)
months pursuant to COBRA. It is understood by the parties that the
Severance and Release Documents would not require Executive to (i) forfeit
any equity securities issued by the Company that are held by the Executive,
(ii) release any rights to receive distributions, or voting rights, under
the limited liability company agreement of the Company to the extent that any
such rights are held by Executive and result from Executive’s ownership of
equity securities issued by the Company, (iii) release any rights that he
may have under this Agreement to a Severance Payment or any other payments or
benefits described in clauses (1), (2) or (4) of the preceding sentence or
(iv) release any rights Executive has to indemnification pursuant to
Section 10 hereof or otherwise. Any Severance Payment will be
paid out in equal installments during the twelve (12) months following such
termination. Executive acknowledges and agrees that the Company may
revise the timing of any payments described in this Agreement to the extent
necessary to comply with Section 409A of the Internal Revenue Code of 1986,
as amended, and any regulations and/or guidance promulgated
thereunder.
(b) Termination by the Company
for Cause. The Company may terminate this Agreement at any
time for Cause. Upon termination of this Agreement by the Company for
Cause or by Executive without Good Reason, Executive shall only be entitled to
his accrued but unpaid Base Salary and any unreimbursed expenses (in accordance
with Section 3(g) of this Agreement) and shall have no entitlement to any
Severance Payment for the year of termination. “Cause”
means any of the following as determined by the Board:
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(i) Executive’s
commission of theft, embezzlement, any other act of dishonesty relating to his
employment with the Company, or any material violation of any law, rules, or
regulations by Executive to the extent that such law, rule or regulations are
applicable to the Company, including, but not limited to, those established by
the Securities and Exchange Commission, or any self-regulatory organization
having jurisdiction or authority over Executive or the Company or any failure by
Executive to inform the Company of any material violation, that Executive has
knowledge of, of any law, rule or regulation by the Company or one of its direct
or indirect subsidiaries;
(ii) Executive’s
conviction of, or pleading guilty or nolo contendere to, a felony or any lesser
crime having as its predicate element fraud, misappropriation of Company
(including any direct or indirect subsidiaries) property for personal profit, or
moral turpitude, or indictment for any crime involving moral turpitude or
fraud;
(iii) Executive
has failed to perform his material duties and obligations under this Agreement
(other than during any period of disability) or otherwise materially breaches
this Agreement or fails to follow any reasonable and lawful instructions of the
President or the Board, which failure to perform is not remedied within ten (10)
days after notice thereof to Executive by the Company;
(iv) Executive’s
appropriation or attempted appropriation of (A) a material business
opportunity of the Company or (B) any of the Company’s funds or property;
or
(v) Executive’s
commission of an act or acts in the performance of his duties under this
Agreement amounting to gross negligence or willful misconduct, including, but
not limited to, any breach of Sections 7 or 8 of this Agreement.
(vi) Executive
may be terminated for Cause after a hearing of the Board at which the
termination for Cause of Executive is considered; provided that Executive will
be provided with notice of such hearing and the opportunity to be heard at such
hearing, which shall be held within five days of the date of any such
notice.
(c) Termination by Executive for
Good Reason. Executive may terminate this Agreement for Good
Reason if, after providing ten (10) days written notice to the Company, which
identifies the Good Reason for Executive’s termination, such “Good Reason” is
not remedied. “Good
Reason” means any of the following reasons:
(i) Executive’s
removal from his position as Executive Vice President and Chief Financial
Officer, other than for Cause or by death or disability, as set forth in
Section 4 of this Agreement, during the term of this
Agreement;
(ii) Any
material and detrimental alteration or change in Executive’s authority, duties,
responsibilities or status (including offices, titles, reporting requirements
and supervisory functions) from those in effect at the time of execution of this
Agreement without Executive’s prior written consent;
(iii) Any
reduction in Executive’s Base Salary or any material reduction in Executive’s
Annual Bonus opportunity, as set forth in Section 3 of this
Agreement;
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(iv) the
required relocation of Executive’s place of employment to a location in excess
of twenty-five (25) miles from Executive's place of employment at the time of
execution of this Agreement, Denver, CO; or
(v) The
Company fails to make any payment to Executive required to be made under the
terms of this Agreement, if the breach is not cured within twenty (20) days
after Executive provides written notice to the Company that provides in
reasonable detail the nature of the payment.
(d) Disability. The
Company may terminate this Agreement at any time Executive shall be deemed by
the Company to have sustained a “disability.” Executive shall be deemed to have
sustained a “disability” if he shall have been unable to perform his duties for
more than thirty (30) days in any six (6) month period. Upon
termination of this Agreement for disability, the Company shall pay Executive
his Accrued Compensation, any unreimbursed expenses (in accordance with
Section 3(g) of this Agreement) and the Base Salary for a period of the
lesser of (i) ninety (90) days or (ii) the commencement of payments
under any disability insurance policy.
(e) Death. This
Agreement will terminate automatically upon Executive’s death. Upon
termination of this Agreement because of Executive’s death, the Company shall
pay Executive’s estate his Accrued Compensation and any unreimbursed expenses
(in accordance with Section 3(g) of this Agreement).
(f) Employment. Upon
termination of this Agreement for any reason, including, but not limited to,
expiration of the Initial Term or any additional term of this Agreement, written
notice of intent not to renew this Agreement pursuant to Section 2, or a
termination for a reason specified in this Section 5, Executive’s
employment shall also terminate and cease.
(g) Transition
Period. Upon termination of this Agreement, and for a period
of thirty (30) days thereafter (the “Transition
Period”), Executive agrees to make himself available to assist the
Company with transition projects assigned to him by the
President. Executive will be paid at an agreed upon reasonable hourly
rate for any work performed for the Company during the Transition
Period.
5. Change of Control.
(a) In
the event Executive’s employment is terminated by the Company without Cause
within one year following the occurrence of a Change of Control (as defined
below), or if Executive terminates his employment with the Company for Good
Reason within one year following the occurrence of a Change of Control, in
addition to any other amounts that may be or become payable to Executive under
this Agreement, the Company shall pay to Executive, in addition to the Severance
Payment set forth in Section 4(a), an amount equal to Executive’s then current
Base Salary. Such payment shall be made concurrently with, and
subject to the same terms and conditions relating to, any other Severance
Payment payable to Executive under this Agreement. For purposes of
clarity, the foregoing payment shall be in lieu of any payment otherwise due to
Executive under the Company’s Change of Control Plan dated November 10,
2006.
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(b) “Change of Control” means the
occurrence any of the following, with respect to either the Company or the
Parent:
(i) a
merger or consolidation of the Company or the Parent with any other entity,
unless the proposed merger or consolidation would result in the voting
securities of the Company or the Parent (whichever is party to such merger or
consolidation) outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 60% of the total voting power represented by the
voting securities of the Company or the Parent, as the case may be, or such
surviving entity outstanding immediately after such merger
consolidation;
(ii) a
plan of complete liquidation of the Company or the Parent shall have been
adopted or the holders of voting securities of the Company or the Parent shall
have approved an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all of the
Company’s assets;
(iii) any
“person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (“1934 Act”)) shall become the “beneficial owner” (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 10% or
more of the combined voting power of the Company’s or the Parent’s (or any
combination thereof, taken together) then outstanding securities, other than any
holders of the Company or the Parent (or any combination thereof, taken
together) which held in excess of 10% of the combined voting power on the date
this Agreement was entered into;
(iv) during
any period of two consecutive years, members who at the beginning of such period
constituted the Board shall have ceased for any reason to constitute a majority
thereof, unless the election, or nomination for election by the Parent’s equity
holders, of each director shall have been approved by the vote of at least
two-thirds of the directors then still in office and who were directors at the
beginning of such period (so long as such director was not nominated by a person
who has expressed an intent to effect a Change of Control or engage in a proxy
or other control contest); or
(v) the
occurrence of any other Change of Control of a nature that would be required to
be reported in accordance with Form 8-K pursuant to Sections 13 or 15(d) of the
1934 Act or in the Parent’s proxy statement in accordance with Schedule 14A of
Regulation 14A promulgated under the 1934 Act, or in any successor forms or
regulations to the same effect.
(c) Notwithstanding
the foregoing, in no event shall a Change of Control be deemed to occur upon the
occurrence of either of the following: (i) any acquisition of the Company’s or
the Parent’s equity interests or shares by the Company or the Parent, or (ii)
any acquisition of the Company’s or the Parent’s equity interests or shares by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or the Parent, or any entity controlled thereby.
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6. Release. Notwithstanding
any other provision in this Agreement to the contrary, as a condition precedent
to receiving any Severance Payment set forth in this Agreement, Executive agrees
to execute (and not revoke) the Severance and Release Documents. If
Executive fails to execute and deliver the Severance and Release Documents, or
revokes the Severance and Release Documents, Executive agrees that he shall not
be entitled to receive the Severance Payment. For purposes of this
Agreement, the Severance and Release Documents shall be considered to have been
executed by Executive if it is signed by his legal representative in the case of
legal incompetence or on behalf of Executive’s estate in the case of his
death. For purposes of clarity, the Severance and Release Documents
would not require Executive to waive claims against the Company that may arise
after the date of execution of the Severance and Release Documents.
7. Nondisclosure.
(a) The
Company shall provide Executive with some or all of the Company’s various trade
secrets and confidential or proprietary information, including information he
has not received before, consisting of, but not limited to, information relating
to: (a) business operations and methods; (b) existing and
proposed investments and investment strategies; (c) financial performance;
(d) compensation, severance arrangements and amounts (whether relating to
the Company or to any of its employees, including Executive);
(e) contractual relationships (including the terms of this Agreement);
(f) business partners and relationships; (g) limited partners and
prospective limited partners of the Company’s funds; (h) marketing
strategies; (i) intellectual property and technology, software, systems,
methods, apparatuses, inventions, discoveries, improvements, designs,
techniques, code, procedures, development tools, formulas, research,
developments, objects, agents and components thereof, subroutines and other
programs and (j) lists with information related to existing or prospective
customers, partners or investors, including, but not limited to particular
investments, investment strategies, investment patterns and amounts
(collectively, “Confidential
Information”). Confidential Information shall not
include: (i) information that Executive may furnish to third
parties regarding his obligations under Sections 7 and 8; (ii) information
that becomes generally available to the public by means other than Executive’s
breach of Section 7 (for example, not as a result of Executive’s
unauthorized release of marketing materials); or (iii) information that
Executive is required by law, regulation, court order or discovery demand to
disclose; provided, however, that in the case of clause (iii), Executive gives
the Company reasonable notice prior to the disclosure of the Confidential
Information and the reasons and circumstances surrounding such disclosure to
provide the Company an opportunity to seek a protective order or other
appropriate request for confidential treatment of the applicable Confidential
Information.
(b) Executive
agrees that all Confidential Information, whether prepared by Executive or
otherwise coming into his possession prior to or during the term of Executive’s
employment by the Company, shall remain the exclusive property of the Company
during Executive’s employment with the Company. Executive further
agrees that Executive shall not, without the prior written consent of the
Company, use or disclose to any third party any of the Confidential Information
described herein, directly or indirectly, either during Executive’s employment
with the Company, except as permitted by the Company, or at any time following
the termination of Executive’s employment with the Company.
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(c) Upon
termination of this Agreement, Executive agrees that all Confidential
Information and other files, documents, materials, records, notebooks, customer
lists, business proposals, contracts, agreements and other repositories
containing information concerning the Company or the business of the Company
(including all copies thereof) in Executive’s possession, custody or control,
whether prepared by Executive or others, shall remain with or be returned to the
Company promptly (within twenty-four (24) hours) after the termination
date.
8. Noncompete and
Nonsolicitation.
(a) Business Relationships and
Goodwill. Executive acknowledges and agrees that, as the
Executive Vice President and Chief Financial Officer of the Company, Executive
will be given Confidential Information and that his services are unique and
extraordinary. Executive acknowledges and agrees that this creates a
special relationship of trust and confidence between the Company, Executive and
the Company’s current and prospective customers, members, and
investors. Executive further acknowledges and agrees that there is a
high risk and opportunity for any person given such responsibility, specialized
training, and Confidential Information to misappropriate the relationship and
goodwill existing between the Company and the Company’s current and prospective
customers, members, vendors and investors. Executive therefore
acknowledges and agrees that it is fair and reasonable for the Company to take
steps to protect itself from the risk of such
misappropriation. Consequently, Executive agrees to the following
noncompetition and nonsolicitation covenants.
(b) Scope of Noncompetition
Obligation.
(i) Executive
acknowledges and agrees that the period commencing with the date of this
Agreement and ending one (1) year following the termination or expiration of
this Agreement for any reason will constitute the non-compete, non-solicit and
non-divert period (the “Non-Interference
Period”). Notwithstanding the foregoing, in the event the
Company does not pay the Severance Payment to Executive that is otherwise due to
Executive under Section 4(a) or Section 5(a) of this Agreement for any reason
constituting a breach of this Agreement, the Non-Interference Period shall
terminate on the date such Severance Payment would otherwise have been
due.
(ii) During
his employment and during the Non-Interference Period, Executive will not,
directly or indirectly, participate in the ownership, management, operation,
financing or control of, or be employed by or consult for or otherwise render
services to, any Competitor in the States of New York, Colorado, Minnesota, or
Nebraska, or in any other state within the United States of America, or in any
country in the world. The term “Competitor”
means any person or entity who is engaged in the business that the Company or
any subsidiary of the Company engages in at or preceding the time of termination
of employment, including building and operating facilities to be used for the
production of corn ethanol and engaging in commercial sales of corn
ethanol.
(iii) Executive
agrees that he shall not at any time during his employment divert away or
attempt to divert away any business from the Company to another company,
business, or individual. Additionally, Executive shall not, during
the Non-Interference Period, solicit, divert away or attempt to divert away
business from any Company Customer, either directly or indirectly. “Company
Customer” is defined as any person, company, or business that Executive
has on behalf of the Company contacted, solicited, serviced, or had access to
Confidential Information about. “Solicit”
is defined as soliciting, inducing, attempting to induce, or assisting any other
person, firm, entity, business or organization, whether direct or indirect, in
any such solicitation, inducement or attempted inducement, in all cases
regardless of whether the initial contact was by Executive, the Company
Customer, or any other person, firm, entity, business, or
organization.
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(iv) Executive
further agrees that, during the Non-Interference Period, he will not directly or
indirectly: (a) solicit, entice, persuade or induce any
employee, agent or representative of the Company, who was an employee, agent or
representative of the Company upon the termination or expiration of this
Agreement, to terminate such person’s relationship with the Company or to become
employed by any business or person other than the Company; (b) approach any
such person for any of the foregoing purposes; (c) authorize, solicit or
assist in the taking of such actions by any third party; or (d) hire or
retain any such person, in each instance other than any (x) employee whose
employment was terminated by the Company or any direct or indirect subsidiary of
the Company or (y) employee, agent, representative or other person who
independently responded to a general solicitation for employment by Executive or
any third party which was not specifically targeted to or reasonably expected to
target the Company.
(c) Acknowledgement. Executive
acknowledges that the compensation, specialized training, and the Confidential
Information provided to Executive pursuant to his employment with the Company
give rise to the Company’s interest in restraining Executive from competing with
the Company, that the noncompetition and nonsolicitation covenants are designed
to enforce such consideration and that any limitations as to time, geographic
scope and scope of activity to be restrained as defined herein are reasonable
and do not impose a greater restraint than is necessary to protect the goodwill
or other business interest of the Company.
(d) Survival of
Covenants. Sections 7 and 8 shall survive the expiration or
termination of this Agreement for any reason. Executive agrees not to
challenge the enforceability or scope of Sections 7 and 8. Executive
further agrees to notify all future persons or businesses with which he becomes
affiliated or employed, of the restrictions set forth in Sections 7 and 8, prior
to the commencement of any such affiliation or employment.
(e) Permitted Ethanol
Investments. Notwithstanding anything herein to the contrary,
during his employment Executive may own a passive equity interest of less than
one percent in any public ethanol companies; provided, that Executive does not
participate in the management of such ethanol company in any capacity
(including, but not limited to, director, officer or manager). No
such ownership restrictions shall apply to investments in companies that are not
engaged in the manufacture of ethanol or any other line of business in which the
Company is engaged at the time of such investment, so long as such Executive
does not participate in the management of such company in any
capacity. Executive may also participate in any ethanol investment
opportunities that are approved in advance by the Board.
9. Severability and
Reformation. If any one or more of the terms, provisions,
covenants or restrictions of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions shall remain in full force and
effect, and the invalid, void or unenforceable provisions shall be deemed
severable. Moreover, if any one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, it shall be reformed by
limiting and reducing it to the minimum extent necessary, so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
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10. Indemnification.
(a) The
Company agrees that (i) if Executive is made a party, or is threatened to
be made a party, to any threatened or actual action, suit or proceeding, whether
civil, criminal, administrative, investigative, appellate or other (each, a
“Proceeding”)
by reason of the fact that he is or was a director, officer, employee, agent,
manager, consultant or representative of the Company or is or was serving at the
request of the Company as a director, officer, member, employee, agent, manager,
consultant or representative of another entity or (ii) if any claim,
demand, request, investigation, dispute, controversy, threat, discovery request
or request for testimony or information (each, a “Claim”) is
made, or threatened to be made, that arises out of or relates to Executive’s
service in any of the foregoing capacities, then Executive shall promptly be
indemnified and held harmless by the Company to the fullest extent legally
permitted or authorized by the Company’s certificate of formation, limited
liability company agreement or resolutions of the Board or, if greater, by the
laws of the State of Delaware, against any and all reasonable costs, expenses,
liabilities and losses (including, without limitation, attorney’s fees,
judgments, interest, expenses of investigation, penalties, fines, or penalties
and amounts paid or to be paid in settlement) incurred or suffered by Executive
in connection therewith, and such indemnification shall continue as to Executive
even if he has ceased to be a director, member, employee, agent, manger,
consultant or representative of the Company or other entity and shall inure to
the benefit of Executive’s heirs, executors and administrators. The
Company shall advance to Executive all costs and expenses incurred by him in
connection with any such Proceeding or Claim within fifteen (15) days after
receiving written notice requesting such an advance, provided that if he is
ultimately determined by a court of competent jurisdiction not to be entitled to
indemnification for such Proceeding and Claim Executive will promptly repay the
amount advanced.
(b) Neither
the failure of the Company (including the Board, independent legal counsel or
stockholders) to have made a determination in connection with any request for
indemnification or advancement under Section 10(a) that Executive has
satisfied any applicable standard of conduct, nor a determination by the Company
(including the Board, independent legal counsel or stockholders) that Executive
has not met any applicable standard of conduct, shall create a presumption that
Executive has not met an applicable standard of conduct.
(c) During
the term of Employment and for a period of three (3) years thereafter, the
Company shall keep in place a directors and officers’ liability insurance policy
or (policies) providing comprehensive coverage to Executive at least equal to
the coverage that the Company provides for any other present or former senior
executive or director of the Company.
11. Entire
Agreement. This Agreement sets forth the entire agreement
between the parties hereto and fully supersedes any and all prior agreements or
understandings, written or oral, between the parties hereto pertaining to the
subject matter hereof.
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12. Notices. All
notices and other communications required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally, mailed by certified mail (return receipt requested) or sent by
overnight delivery service, or electronic mail, or facsimile transmission (with
electronic confirmation of successful transmission) to the parties at the
addresses specified for each party on the signature page hereto, or at such
other addresses as shall be specified by the parties by like notice, in order of
preference of the recipient.
Notice so
given shall, in the case of mail, be deemed to be given and received on the
fifth calendar day after posting, in the case of overnight delivery service, on
the date of actual delivery and, in the case of facsimile transmission, telex or
personal delivery, on the date of actual transmission or, as the case may be,
personal delivery.
13. Governing Law and
Venue. This Agreement will be governed by and construed in
accordance with the laws of the State of Colorado, without regard to any
conflict of laws rule or principle which might refer the governance or
construction of this Agreement to the laws of another
jurisdiction. Any action or arbitration in regard to this Agreement
or arising out of its terms and conditions, pursuant to Sections 25 and 26,
shall be instituted and litigated only in Denver, CO.
14. Assignment. This
Agreement is personal to Executive and the Company and may not be assigned in
any way without the prior written consent of the other party
hereto.
15. Executive Not to Act; Board
Actions. Executive agrees that Executive is not entitled to,
and will not, exercise any rights of the Company under this Agreement or act for
or on behalf of the Company under this Agreement. In addition, all
actions to be taken, or rights to be exercised, by the Board pursuant to this
Agreement will be taken by a special committee of the Board consisting solely of
directors other than (i) Executive or any of Executive’s immediate family
members, (ii) directors that are employees or officers of the Company or
its subsidiaries, and (iii) directors that are employees, officers,
directors, partners, members, managers or shareholders of any affiliate of
Executive.
16. Counterparts. This
Agreement may be executed in counterparts, each of which will take effect as an
original, and all of which shall evidence one and the same
Agreement.
17. Amendment. This
Agreement may be amended only in writing signed by Executive and by a duly
authorized representative of the Company (other than Executive).
18. Construction. The
headings and captions of this Agreement are provided for convenience only and
are intended to have no effect in construing or interpreting this
Agreement. The language in all parts of this Agreement shall be in
all cases construed in accordance to its fair meaning and not strictly for or
against the Company or Executive.
19. Non-Waiver. The
failure by either party to insist upon the performance of any one or more terms,
covenants or conditions of this Agreement shall not be construed as a waiver or
relinquishment of any right granted hereunder or of any future performance of
any such term, covenant or condition, and the obligation of either party with
respect hereto shall continue in full force and effect, unless such waiver shall
be in writing signed by the Company (other than by Executive) and
Executive.
11
20. Use of Name, Likeness and
Biography. Company shall have the right (but not the
obligation) to use, publish and broadcast, and to authorize others to do so, the
name, approved likeness and approved biographical material of Executive to
advertise, publicize and promote the business of Company and its affiliates, but
not for the purposes of direct endorsement without Executive’s
consent. This right shall terminate upon the termination of this
Agreement. An “approved likeness” and “approved biographical
material” shall be, respectively, any photograph or other depiction of
Executive, or any biographical information or life story concerning the
professional career of Executive, as approved by Executive from time to
time.
21. Right to
Insure. Company shall have the right to secure, in its own
name or otherwise, and at its own expense, life, health, accident or other
insurance covering Executive, and Executive shall have no right, title or
interest in and to such insurance. Executive shall assist Company in
procuring such insurance by submitting to reasonable examinations and by signing
such applications and other reasonable instruments as may be required by the
insurance carriers to which application is made for any such
insurance.
22. Assistance in
Litigation. Executive shall reasonably cooperate with the
Company in the defense or prosecution of any claims or actions now in existence
or that may be brought in the future against or on behalf of the Company that
relate to events or occurrences that transpired while Executive was employed by
the Company. Executive’s cooperation in connection with such claims
or actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. Executive also shall
cooperate fully with the Company in connection with any investigation or review
by any federal, state, or local regulatory authority as any such investigation
or review relates to events or occurrences that transpired while Executive was
employed by the Company. The Company will pay Executive a reasonable
hourly rate for Executive’s cooperation pursuant to this
Section 22.
23. No Inconsistent
Obligations. Executive represents and warrants that to his
knowledge he has no obligations, legal, in contract, or otherwise, inconsistent
with the terms of this Agreement or with his undertaking employment with the
Company to perform the duties described herein. Executive will not
disclose to the Company, or use, or induce the Company to use, any confidential,
proprietary, or trade secret information of others. Executive
represents and warrants that to his knowledge he has returned all property and
confidential information belonging to all prior employers, if he is obligated to
do so.
24. Binding
Agreement. This Agreement shall inure to the benefit of and be
binding upon Executive, his heirs and personal representatives, and the Company
and its successors.
12
25. Remedies. The
parties recognize and affirm that in the event of a breach of Sections 7 and 8
of this Agreement, money damages would be inadequate and the Company would not
have an adequate remedy at law. Accordingly, the parties agree that
in the event of a breach or a threatened breach of Sections 7 and 8, the Company
may, in addition and supplementary to other rights and remedies existing in its
favor, apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or other
security). In addition, Executive agrees that in the event a court of
competent jurisdiction or an arbitrator finds that Executive violated Sections 7
or 8, the time periods set forth in those Sections shall be tolled until such
breach or violation has been cured. Executive further agrees that the
Company shall have the right to offset the amount of any damages awarded to the
Company resulting from a breach by Executive of Sections 7 or 8 against any
payments due Executive under this Agreement. The parties agree that
if Executive is the prevailing party in any action brought under this Section
25, the Company will be required to pay Executive’s reasonable
attorneys’ fees.
26. Arbitration. Other
than as stated in Section 25, the parties agree that any controversy or
claim arising out of or relating to this Agreement, or the breach thereof, shall
be resolved by arbitration administered by the American Arbitration Association
(“AAA”)
under its Commercial Arbitration Rules. The arbitration will take
place in Denver, Colorado. All disputes shall be resolved by a one
(1) arbitrator chosen by agreement of the parties in accordance with the
Commercial Arbitration Rules of the AAA. The arbitrator will have the
authority to award the same remedies, damages, and costs that a court could
award and, in addition, shall award to the prevailing party reimbursement of
such party’s reasonable attorney’s fees. The arbitrator shall issue a
reasoned award explaining the decision, the reasons for the decision, and any
damages awarded. The arbitrator’s decision will be final and
binding. The judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitration
proceedings, any record of the same, and the award shall be considered
Confidential Information under this Agreement. This provision and any
decision and award hereunder can be enforced under the Federal Arbitration
Act.
27. Voluntary
Agreement. Each party to this Agreement has read and fully
understands the terms and provisions hereof, has had an opportunity to review
this Agreement with legal counsel, has executed this Agreement based upon such
party’s own judgment and advice of counsel (if any), and knowingly, voluntarily,
and without duress, agrees to all of the terms set forth in this
Agreement. The parties have participated jointly in the negotiation
and drafting of this Agreement. If an ambiguity or question of intent
or interpretation arises, this Agreement will be construed as if drafted jointly
by the parties and no presumption or burden of proof will arise favoring or
disfavoring any party because of authorship of any provision of this
Agreement. Except as expressly set forth in this Agreement, neither
the parties nor their affiliates, advisors and/or their attorneys have made any
representation or warranty, express or implied, at law or in equity with respect
of the subject matter contained herein. Without limiting the
generality of the previous sentence, the Companies, their affiliates, advisors,
and/or attorneys have made no representation or warranty to Executive concerning
the state or federal tax consequences to Executive regarding the transactions
contemplated by this Agreement.
[Signature
page follows]
13
IN
WITNESS WHEREOF, the Company and Executive have executed this Agreement,
effective as of the day and year first above written.
|
BIOFUEL
ENERGY, LLC
|
||
|
Dated:
August 31, 2010
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Person
|
|
|
Address
for Notices:
|
||
|
BioFuel
Energy, LLC
|
||
|
0000
Xxxxxxxx, Xxxxx 0000
|
||
|
Xxxxxx,
XX 00000
|
||
|
EXECUTIVE
|
||
|
Dated:
August 31, 2010
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxx
X. Xxxxxxx
|
||
|
Address
for Notices:
|
||
|
Last
home address in Executive’s
employment file with BioFuel Energy Corp. |
||
14
EXHIBIT A1
1. Release.
(a) General
Release. As a material inducement for the Company to enter
this Agreement, Executive does hereby agree to release and forever discharge the
Company and all of their respective current and former affiliates, subsidiaries,
predecessors, successors, divisions, other related entities, assigns, agents,
attorneys, officers, directors, managers, members, stockholders, employees and
heirs (hereinafter referred to “Releasees”)
from any and all claims, complaints, liabilities or obligations of any kind
whatsoever, whether known or unknown, arising in tort or contract, which
Executive may have, now has, or has ever had arising from Executive’s employment
with the Company or any predecessor or the termination of that employment, or
any other matter or event which may have occurred as of the date of this
Agreement (“Released
Claims”). Executive understands and agrees that the Released
Claims include, but are not limited to, any and all claims, complaints,
liabilities or obligations under applicable federal, state or local law,
including, but not limited to, Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991, the Americans With Disabilities Act,
the Employee Retirement Income Security Act, the Age Discrimination in
Employment Act (“ADEA”),
and the Older Worker Benefit Protection Act (“OWBPA”).
(b) Waiver of Right to Bring
Released Claims. Executive further agrees not to bring any
Released Claims against the Releasees, either individually or collectively;
provided however, that Executive may file a lawsuit to challenge the validity of
the release of her ADEA claims under this Agreement, including the knowing and
voluntary nature of the ADEA release under the OWBPA. Nothing in this
Paragraph 1(b) shall interfere with Executive’s right to file a charge
with, or cooperate or participate in an investigation or proceeding conducted
by, the Equal Employment Opportunity Commission (“EEOC”) or
other federal or state regulatory or law enforcement agency. However,
the consideration provided to Executive in this Agreement shall be the sole
relief provided for the Released Claims and Executive will not be entitled to
recover and Executive agrees to waive any monetary benefits or recovery against
the Releasees in connection with any such charge or proceeding without regard to
who has brought such charge or proceeding.
(c) Costs of
Enforcement. Executive agrees that if Executive breaches this
Agreement and brings a Released Claim against any of the Releasees or otherwise
breaches this Agreement, Executive shall be liable for any and all expenses
incurred by the person or entity who has to defend the action, including
reasonable attorney’s fees; provided however, that this Paragraph 1(c)
shall not apply to charges filed by Executive with the EEOC or other federal or
state regulatory or law enforcement agency or to claims initiated by Executive
to challenge the validity of the release of ADEA claims under this Agreement,
including the knowing and voluntary nature of the ADEA release under the
OWBPA.
1 For
purposes of clarity, the contents of this Exhibit A will not be affected by
whether the Company, at the relevant time, is privately-held or
publicly-traded.
(d) Equity Interests and
Severance Payments. It is understood by the parties that this
Agreement does not require Executive to (i) forfeit any equity securities
issued by the Company that are held by Executive, (ii) release any rights
to receive distributions, or voting rights, under the limited liability company
agreement of the Company to the extent that any such rights are held by
Executive and result from Executive’s ownership of equity securities issued by
the Company, (iii) release any rights that Executive may have, under the
second sentence of Section 5(a) of the Executive Employment Agreement, made
and entered into as of the ____ day of April, 2010 (the “Employment
Agreement”) by and between the Company and the Executive, as may be
amended from time to time, or (iv) release any rights Executive has to
indemnification pursuant to Section 10 of the Employment Agreement or
otherwise.
(e) Non-Disparagement. Executive
agrees that Executive shall not make any disparaging, derogatory or detrimental
comments about the Company or any of its affiliates or any of their directors,
officers, employees, partners, members, managers or shareholders, or any
investor or other person or entity having a business relationship with the
Company. Executive also acknowledges that the terms of this
Exhibit A and the other Severance and Release Documents (as defined in the
Employment Agreement) constitute Confidential Information (as defined in the
Employment Agreement).
Page 2 of
Exhibit A
