Unassociated Document
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): August 31, 2010
BioFuel
Energy Corp.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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001-33530
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20-5952523
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(State
or Other Jurisdiction
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(Commission
File Number)
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(IRS
Employer
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of
Incorporation)
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Identification
Number)
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1600
Broadway, Suite 2200
Denver,
CO 80202
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(Address
of Principal Executive Offices) (Zip
Code)
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Registrant’s
telephone number, including area code: (303) 640-6500
(Former
Name or Former Address, if Changed Since Last Report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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o
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Written communications pursuant
to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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2
Item
1.01. Entry into a Material
Definitive Agreement
Please
see the disclosure provided in Item 5.02 below, which is incorporated herein by
reference.
Item
5.02 Departure of Directors
or Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangement of Certain Officers
(e) On
August 31, 2010, the Company entered into executive employment agreements with
Scott H. Pearce, its President and Chief Executive Officer, and Kelly G.
Maguire, its Executive Vice President and Chief Financial Officer, and written
terms of employment with Doug M. Anderson, its Vice President, Operations and
Mark L. Zoeller, its Vice President, General Counsel and Corporate
Secretary.
The
agreement with Mr. Pearce provides that he will serve as President and Chief
Executive Officer for an initial term of two years. The agreement will
automatically renew for successive one year terms, unless either party provides
notice of its intent not to renew the agreement at least 60 days prior to the
end of any term. The agreement provides for a base salary of not less than
$350,000 per year and an annual incentive target bonus of 85% of Mr. Pearce’s
base salary. The agreement also provides that if the Company terminates Mr.
Pearce’s employment without “cause” or he terminates his employment for ‘‘good
reason’’ (as such terms are defined in the agreement), and upon execution of a
severance agreement and a customary release of future claims, the Company will
pay Mr. Pearce all accrued unpaid base salary and bonus from the previous year,
un-reimbursed expenses and a severance payment equal to 12 months of his
then-current base salary plus a pro rata portion of his
target bonus based on the number of weeks of the year that have lapsed prior to
such termination. The agreement also provides that if the Company
terminates Mr. Pearce’s employment without cause or he terminates his employment
for good reason within one year following a “change of control” (as defined in
the agreement), the Company will pay Mr. Pearce an additional severance payment
equal to 12 months of his then-current base salary plus a pro rata portion of his
target bonus.
The
agreement with Mr. Maguire provides that he will serve as Executive Vice
President and Chief Financial Officer for an initial term of two years. The
agreement will automatically renew for successive one year terms, unless either
party provides notice of its intent not to renew the agreement at least 60 days
prior to the end of any term. The agreement provides for a base salary of not
less than $245,000 per year and an annual incentive target bonus of 55% of Mr.
Maguire’s base salary. The agreement also provides that if the Company
terminates Mr. Maguire’s employment without cause or he terminates his
employment for good reason, and upon execution of a severance agreement and a
customary release of future claims, the Company will pay Mr. Maguire all accrued
unpaid base salary and bonus from the previous year, un-reimbursed expenses and
a severance payment equal to 12 months of his then-current base salary plus a
pro rata portion of his
target bonus. The agreement also provides that if the Company
terminates Mr. Maguire’s employment without cause or he terminates his
employment for good reason within one year following a change of control, the
Company will pay Mr. Maguire an additional severance payment equal to 12 months
of his then-current base salary.
3
Under the
terms of their respective agreements, Mr. Pearce and Mr. Maguire have each
agreed to maintain the Company’s confidential information in strictest
confidence and not to use or disclose to any third party such confidential
information, except as the Company may permit from time to time. Each
has also agreed not to compete with the Company during his employment, and if
the agreement expires or terminates for any reason, for a period of one year
following the termination or expiration date of the agreement. During
the non-compete period, each has agreed not to solicit or persuade any of the
Company’s employees to leave the Company or hire any employee whose employment
has been terminated. Mr. Pearce and Mr. Maguire have each also agreed
that, during the non-compete period, he will not divert any business away from
the Company or from its customers. The agreement also provides that the Company
will indemnify each of them against any claims or judgments that result by
reason of his employment. In addition, during their respective term of
employment, and for a period of three years following employment, the Company
must maintain officers’ and Directors’ liability insurance for Mr. Pearce and
Mr. Maguire at least equal to the coverage provided for any other present or
former senior executive or Director.
Under the
written terms entered into with Mr. Anderson, he will receive an annual base
salary of $225,000 per year. Mr. Anderson will also be eligible to
participate in the Company’s annual bonus program in an amount of up to 65% of
his base salary. The terms and conditions, including the amount, of
the bonus are to be determined in the sole discretion of the Company’s board of
directors. Mr. Anderson will also be eligible to participate in the
Company’s employee stock incentive program, subject to such grants as the board
may approve. Mr. Anderson will also be entitled to receive insurance
and additional employee benefits. In the event Mr. Anderson is
terminated without cause or for good reason, Mr. Anderson will be entitled to
severance equal to six months of his base salary and a pro rata portion of his
target bonus, and his health benefits will be continued by the Company pursuant
to COBRA for a period of six months. As a condition to receiving such severance
payments, Mr. Anderson would be required to execute a general release and enter
into a non-competition agreement with the Company for a duration of six months.
In the event his employment is terminated following a change of control, Mr.
Anderson will be entitled to the greater of the foregoing severance or the
amount he would be entitled to under the Company’s Change of Control Plan dated
November 10, 2006.
Under the
written terms entered into with Mr. Zoeller, he will receive an annual base
salary of $225,000 per year. Mr. Zoeller will also be eligible to
participate in the Company’s annual bonus program in an amount of up to 40% of
his base salary. The terms and conditions, including the amount, of
the bonus are to be determined in the sole discretion of the Company’s board of
directors. Mr. Zoeller will also be eligible to participate in the
Company’s employee stock incentive program, subject to such grants as the board
may approve. Mr. Zoeller will also be entitled to receive insurance
and additional employee benefits. In the event Mr. Zoeller is
terminated without cause or for good reason, Mr. Zoeller will be entitled to
severance equal to six months of his base salary and a pro rata portion of his
target bonus, and his health benefits will be continued by the Company pursuant
to COBRA for a period of six months. As a condition to receiving such severance
payments, Mr. Zoeller would be required to execute a general release and enter
into a non-competition agreement with the Company for a duration of six
months. In the event his employment is terminated following a change of
control, Mr. Zoeller will be entitled to the greater of the foregoing severance
or the amount he would be entitled to under the Company’s Change of Control Plan
dated November 10, 2006.
A copy of
the executive employment agreements with Mr. Pearce and Mr. Maguire are filed as
Exhibit 10.1 and Exhibit 10.2, respectively, and the written terms of employment
with Mr. Anderson and Mr. Zoeller are filed as Exhibit 10.3 and Exhibit 10.4,
respectively, to this current report on Form 8-K and are incorporated
herein by reference. The foregoing descriptions of the executive
employment agreements and written terms of employment are qualified in their
entirety by reference to the full text of those agreements and
terms.
4
Item
9.01. Financial Statements and
Exhibits
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Exhibit
No.
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Description
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10.1
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Executive
Employment Agreement dated as of August 31, 2010 between BioFuel Energy,
LLC and Scott H. Pearce.
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10.2
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Executive
Employment Agreement dated as of August 31, 2010 between BioFuel Energy,
LLC and Kelly G. Maguire.
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10.3
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Offer
of Continued Employment dated as of August 31, 2010 between BioFuel
Energy, LLC and Doug Anderson.
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10.4
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Offer
of Continued Employment dated as of August 31, 2010 between BioFuel
Energy, LLC and Mark
Zoeller.
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5
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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BIOFUEL
ENERGY CORP.
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Date:
September 2, 2010
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By:
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/s/ Scott Pearce
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Name:
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Scott H. Pearce
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Title:
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President and CEO
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6
Exhibit
Index
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Exhibit No.
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Description
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10.1
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Executive
Employment Agreement dated as of August 31, 2010 between BioFuel Energy,
LLC and Scott H. Pearce.
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10.2
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Executive
Employment Agreement dated as of August 31, 2010 between BioFuel Energy,
LLC and Kelly G. Maguire.
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10.3
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Offer
of Continued Employment dated as of August 31, 2010 between BioFuel
Energy, LLC and Doug Anderson.
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10.4
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Offer
of Continued Employment dated as of August 31, 2010 between BioFuel
Energy, LLC and Mark
Zoeller.
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