EX-10.1






Exhibit 10.1



SEPARATION AND GENERAL RELEASE AGREEMENT


 


THIS SEPARATION AND GENERAL RELEASE AGREEMENT (“Agreement”) is voluntarily entered into on
this 3rd day of July, 2012 by and between Richard A. Navarre (“Executive”) and Peabody
Energy Corporation, a Delaware corporation (the “Company”).

 


WHEREAS, until June 30, 2012, Executive was employed by the Company as its President Americas
pursuant to an Employment Agreement entered into between the Company and Executive, dated as of May
19, 1998, which agreement was subsequently restated as of December 31, 2008 (the “Employment
Agreement”); and

 


WHEREAS, the Company and Executive have mutually agreed to conclude their employment
relationship on an amicable basis and have reached agreement regarding Executive’s separation from
the Company’s employ, and the parties wish to enter into this Agreement in order to memorialize
their agreement and to further define the obligations that the parties have to one another.

 


NOW, THEREFORE, in consideration of the mutual understandings, covenants, and the releases
contained herein, and for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto hereby voluntarily agree as follows:



1. Separation and Effective Dates. Executive’s employment with the Company and, to the
extent applicable, with its direct and indirect subsidiaries and affiliates (the “Company
Affiliates”), terminated effective June 30, 2012 (the “Separation Date”). Executive understands and
agrees that from and after the Separation Date he was not, and continues to not be, authorized to
incur any expenses, obligations or liabilities on behalf of the Company or the Company Affiliates.
Executive and the Company agree that (a) for purposes of the Employment Agreement, the termination
described in this Paragraph 1 hereof shall be considered a termination by Executive for a
reason other than Good Reason, Disability or death (as described Section 6.3(a)(ii) of the
Employment Agreement), and (b) the terms hereof satisfy all provisions of the Employment Agreement.
Executive and the Company have waived any and all rights and obligations to provide or receive
notice of termination of Executive’s employment under the Employment Agreement.



2. No Claims. Executive represents and agrees that he has not filed any notices,
claims, complaints, charges, or lawsuits of any kind whatsoever against the Executive Releasees (as
defined in Paragraph 10 hereof) with any court, any governmental agency, any regulatory
body or any other third party with respect to any matter related to the Company, a Company
Affiliate or any Executive Releasee, or arising out of his employment with and/or separation from
the Company.



3. Payment of Amounts Owed. Executive and the Company acknowledge that the Company
will promptly pay all remuneration owed to Executive as a result of his employment with and
separation from the Company related to (a) his salary through the Separation Date, (b) all business
expenses incurred by him through the Separation Date as a result of his employment with the
Company, provided that such expenses are authorized under and consistent with the expense
reimbursement policies of the Company, and (c) all unused current vacation and the value of his
banked vacation as of the Separation Date. Except as specifically provided for in Paragraphs
3, 5 and 9 hereof, Executive shall not be entitled to receive any compensation
or benefits of employment from the Company or any Company Affiliate following the Separation Date
(other than benefits to which Executive is entitled by law, such as vested benefits under any
qualified retirement plan of the Company and the right to continue coverage under certain welfare
plans of the Company pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended).



4. Non-Admission of Liability and Acknowledgement of Compliance. This Agreement and
the fact that it was offered are not and shall not in any way be construed as admissions by the
Company that it violated any federal, state or local law, statute or regulation, or that it acted
wrongfully with respect to Executive or to any other person or entity in any manner. The Company
specifically disclaims any liability to, or wrongful acts against, Executive or any other person or
entity. Further, Executive acknowledges and agrees that it is the policy of the Company to comply
with all applicable federal, state and local laws and regulations.



5. Consideration.




(a) In exchange for the promises and agreements made by Executive contained in this
Agreement (including, but not limited to, the release provided pursuant to Paragraph
10 hereof), the Company will:




(i) cause the 41,356 shares of restricted stock of the Company granted to
Executive on January 3, 2012 (the “Shares”) to become fully vested and
non-forfeitable as of the day immediately following the expiration of the revocation
period described in Paragraph 19 hereof; and




(ii) pay Executive an amount equal to $630,000.00, which will be paid in a lump
sum cash payment on the regular payroll date of the Company next following
expiration of the revocation period described in Paragraph 19 hereof.




(b) The amounts and benefits described in Paragraph 5(a) hereof shall
collectively be referred to herein as the “Severance Payment.”




(c) Prior to the Separation Date, the Company caused the forfeiture of the Shares that,
pursuant to the applicable equity plan of the Company, would have occurred automatically as
of the Separation Date, to be held in abeyance for thirty (30) days following the Separation
Date such that, as of the date hereof, the Shares remain outstanding but unvested. If this
Agreement is revoked pursuant to Paragraph 19 hereof, the Shares shall automatically
be forfeited by Executive on the date of such revocation. So long as this agreement is not
so revoked, the provisions of Paragraph 5(a)(i) shall control with respect to the
Shares.




(d) Executive and the Company agree that Executive will not be entitled to any
Severance Payment, including any amount already paid, if he revokes any part of the release
contained in Paragraph 10 hereof (which revocation may only be accomplished pursuant
to Paragraph 19 hereof).




(e) Executive acknowledges that (i) he is not entitled to receive any of the payments
or benefits described in Sections 6.2, 6.4 or 6.5 of the Employment Agreement, (ii) all or a
portion of the monies and benefits set forth in this Paragraph 5 constitute
additional consideration above and beyond anything to which Executive is already entitled,
in exchange for his execution of this Agreement and the non-revocation of the release
provided in Paragraph 10 hereof, and (iii) except as specifically set forth in this
Paragraph 5, all of Executive’s awards outstanding under equity plans of the Company
shall remain subject to the terms thereof and are not amended hereby.



6. Return of Company Property. Executive represents, warrants and covenants that he
will promptly comply with the requirements of Section 6.7 of the Employment Agreement and will
promptly return to the Company all of its property and all confidential information that is in
Executive’s possession, custody, or control, including, but not limited to, all originals and
copies of any keys, access cards, security badges, credit cards, telephone cards, telephones and
other equipment, computer hardware (including, but not limited to, all computers, mobile phone
devices, and personal data assistants), all contents of all such hardware, all passwords and codes
needed to obtain access to or operate effectively all or part of any such hardware, all electronic
storage devices (including, but not limited to, all hard drives, disk drives, diskettes, CDs,
CD-ROMs, DVDs, and DVD-ROMs, and flash or “thumb” drives), all contents of all such electronic
storage devices, all passwords and codes needed to obtain access to or operate effectively all or
part of any such electronic storage device, and all computer software and programs, financial
information, accounting records, computer printouts, manuals, flow charts, policies, customer
information, customer lists, client lists, vendor information and lists, consultant lists, data,
materials, papers, books, files, documents, records, policies, marketing information,
specifications, plans, database information and lists, mailing lists, and notes, and all materials
describing or containing any such confidential information (whether those materials are on paper or
electronically stored).  Executive agrees not to keep any originals, copies, or embodiments of any
such property or information in any form, and not to disclose any of their contents to any other
person. So long as Executive does not violate any other part of this Agreement, nothing in this
Paragraph 6 precludes Executive from retaining (a) documents describing any benefits to
which he may be entitled as a former employee of the Company, and (b) a copy of Executive’s contact
lists that were stored on the mobile telephone and laptop computer issued to Executive by the
Company (which lists shall not be deleted prior to returning said telephone and computer to the
Company).



7. Confidential Information, Non-Competition, Non-Solicitation and Survival of Employment
Agreement. The parties to this Agreement hereby reaffirm the provisions of Section 13 of the
Employment Agreement and agree to abide by the terms thereof. For the purpose of clarity, the
parties hereto (a) agree that the termination of the employment of Executive as described in
Paragraph 1 hereof shall constitute a termination of the Employment Agreement effective as
of the Separation Date, and (b) acknowledge that the survival provisions set forth in Section 20 of
the Employment Agreement continue to apply and the surviving provisions of the Employment Agreement
shall remain in full force and effect except as specifically provided herein or amended hereby.
Executive’s compliance with these obligations is a material term of this Agreement, and in the
event Executive breaches any such obligations, in addition to any remedies and enforcement
mechanisms set forth in the Employment Agreement and any other remedies available to the Company
(including equitable and injunctive remedies), Executive shall forfeit any additional payments
owing, and shall be obligated to promptly return to the Company (within two (2) business days of
any breach) the full gross value of the Severance Payment, as reported on Executive’s 2012 Form W-2
(the “Severance Value”).



8. No Disparagement or Encouragement of Claims. Neither Executive nor the Company
shall, at any time following the Separation Date, make statements or representations, or otherwise
communicate in writing, orally or otherwise, or take any action which may disparage or be damaging
to (a) Executive (or Executive’s family members, heirs or legal beneficiaries) if any such
statement, representation or communication is the Company, or (b) the Company, any Company
Affiliate or the Executive Releasees if any such statement, representation or communication is by
Executive; provided, that nothing in this Paragraph 8 shall preclude Executive or
any executive officer or director of the Company from making truthful statements or disclosures
that are required by applicable law, regulation or legal process. In furtherance of the foregoing
obligations, (i) Executive agrees that he will advise all persons or entities seeking employment
verification to direct those inquiries to Company’s Human Resources Department, and (ii) the
Company agrees that it will respond to all such inquiries directed its Human Resources Department
by providing only Executive’s dates of employment and job title and will state that it is limiting
its response to these items in accordance with Company’s policy.



9. Cooperation. For purposes of transitioning Executive’s duties as the Company’s
President Americas, Executive hereby agrees to consult with the Company on an as-needed basis
during the sixty (60) day period following the Separation Date. While performing such consulting
services, Executive will be acting as an independent contractor, and not an employee, of the
Company. In exchange for providing such consulting services, and so long as Executive does not
revoke this Agreement as provided in Paragraph 19 hereof, the Company shall pay to
Executive two (2) payments, each in the amount of $75,000.00 (the aggregate amount thereof, the
“Consulting Payments”), the first of which shall be payable on July 31, 2012, and the second of
which shall be paid on August 31, 2012. In addition, in the event of any pending or threatened
legal action against the Company or the Company Affiliates, Executive acknowledges and agrees that
he will promptly and diligently cooperate as requested in the investigation, preparation,
prosecution, or defense of the Company’s or the Company Affiliate’s case, including, but not
limited to, meeting with and fully answering the questions of the Company or the Company Affiliates
or its or their attorneys, representatives or agents; preparing, reviewing and executing documents,
including subpoenas; and testifying and preparing to testify at any deposition, trial, or other
proceeding without subpoena. Reasonable out-of-pocket expenses related to such assistance will be
reimbursed by the Company, if the Company’s written approval is obtained in advance. Nothing in
this Paragraph 9 should be construed as suggesting or implying that Executive should
testify in any way other than truthfully or provide anything other than accurate, truthful
information. Executive further agrees to provide truthful and timely answers to any reasonable
questions the Company may have from time to time about the work Executive performed during his
employment. A failure on the part of Executive to reasonably cooperate with the Company shall
constitute and be treated as a material breach of this Agreement.



10. Executive’s General Release, Discharge of All Executive Claims and Agreement Not to
Sue. In consideration of the payments referred to in Paragraph 5 hereof from the
Company to Executive as set forth herein and other consideration the receipt and sufficiency of
which is hereby acknowledged, except as provided in Paragraph 11 hereof, Executive, on
behalf of himself, his dependents, heirs, executors, administrators, assigns, predecessors and
successors, and each of them hereby:




(a) knowingly, irrevocably, unconditionally voluntarily and forever releases and
forever discharges the Company, the Company Affiliates, and associated organizations, past
and present, and each of them, as well as its and their trustees, directors, officers,
agents, attorneys, employees, contractors, insurers, representatives assigns, predecessors
and successors, past and present, of each of them (hereinafter the “Executive Releasees”),
with respect to and from any and all legally waivable claims, wages, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations, debts,
costs, expenses, attorneys’ fees, damages, judgments, orders, liabilities, complaints, and
promises whatsoever, in law or equity, known or unknown, suspected or unsuspected, and
whether or not concealed or hidden (collectively, the “Executive Claims”), which he now owns
or holds or he has at any time heretofore owned or held or may in the future hold as against
any or all said Executive Releasees, arising on or before the date this Agreement is
executed, including, but not limited to, any Executive Claim arising out of or in any way
connected with his employment with and/or separation from the Company, any Executive Claim
arising under the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”), Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Civil Rights Act of 1866, the Age
Discrimination in Employment Act of 1967 (the “ADEA”), Older Workers Benefit Protection Act
of 1991 (“OWBPA”), the Americans with Disabilities Act, the Family and Medical Leave Act of
1993, the Fair Labor Standards Act, the False Claims Act, the Employee Retirement Income
Security Act of 1974, Missouri civil rights laws and regulations, Missouri wage/hour laws
and regulations, or any other federal, state or local law, regulation, ordinance or public
policy, and any Executive Claim for severance pay, bonus pay, sick leave, holiday pay,
vacation pay, life insurance, health, medical or disability insurance or any other fringe
benefit or the common law of any state relating to employment contracts, wrongful discharge,
defamation or any other matter; and




(b) agrees not to sue any or all of the Executive Releasees with respect to any matter
released or discharged herein, except that Executive may seek a determination of the
validity of the waiver of his rights under the ADEA.



Nothing in this Agreement is intended to reflect any party hereto’s belief that the waiver of
Executive’s claims under the ADEA is invalid or unenforceable, it being the intent of the parties
hereto that such claims are waived.



11. Exclusions from Executive’s General Release and Discharge. Notwithstanding the
provisions of Paragraph 10 hereof, Executive does not release and discharge (a) any right
to continue his group health insurance coverage pursuant to applicable law; (b) any vested benefits
in any qualified retirement plan; (c) any claim for breach of this Agreement; (d) any right he may
have to insurance coverage under the Company’s directors and officers or other insurance policies
and self-insurance programs for acts or omissions during his period of employment; (e) any right he
may have to indemnification by the Company pursuant to (i) the indemnification agreement between
him and the Company dated December 5, 2002, (ii) the Company’s Third Amended and Restated
Certificate of Incorporation, or (iii) the Amended and Restated By-Laws of the Company; and (f) any
claim that cannot be released by law, including, but not limited to, the right to file a charge
with or participate in an investigation by the Equal Employment Opportunity Commission (“EEOC”).
Executive does, however, hereby waive any right to recover any money should the EEOC or any other
agency or individual pursue any claims on his behalf.



12. The Company’s General Release, Discharge of All Company Claims and Agreement Not to
Sue. In consideration of Executive’s release provided pursuant to Paragraph 10 hereof
and other consideration the receipt and sufficiency of which is hereby acknowledged, except as
provided in Paragraph 13 hereof, the Company, on behalf of itself and the Company
Affiliates hereby:




(a) knowingly, irrevocably, unconditionally voluntarily and forever releases and
forever discharges Executive, his heirs, executors, administrators, assigns, predecessors
and successors, (hereinafter, the “Company Releasees”), with respect to and from any and all
legally waivable claims, demands, rights, liens, agreements, contracts, covenants, actions,
suits, causes of action, obligations, debts, costs, expenses, attorneys’ fees, damages,
judgments, orders, liabilities, complaints, and promises whatsoever, in law or equity, known
or unknown, suspected or unsuspected, and whether or not concealed or hidden (collectively,
the “Company Claims”), which the Company or any Company Affiliate now owns or holds or has
at any time heretofore owned or held or may in the future hold as against any or all said
Company Releasees, arising on or before the date this Agreement is executed, including, but
not limited to, any Company Claim arising out of or in any way connected with his employment
with and/or separation from the Company, any Company Claim arising under any federal, state
or local law, regulation, ordinance or public policy, and any Company Claim for any other
matter; and




(b) agrees not to sue any or all of the Company Releasees with respect to any matter
released or discharged herein.



13. Exclusions from the Company’s General Release and Discharge; Indemnification.
Notwithstanding the provisions of Paragraph 12 hereof, the Company does not release and
discharge (a) any Company Claim for breach of this Agreement (specifically including, but not
limited to, Paragraph 7 hereof); (b) any Company Claim arising under Sarbanes Oxley, or the
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010; (c) any Company Claim for fraud
against the Company, theft or conversion of Company property or assets, or other Company Claim
alleging deliberate dishonesty in dealing with the Company’s property or assets; and (d) any claim
that cannot be released by law.  In addition, (i) Executive hereby agrees to indemnify the Company
and hold the Company harmless against any claim by a third party alleging conduct which, if proven,
would be a violation of provisions of the Company’s Code of Business Conduct and Ethics relating to
conduct toward employees of the Company; however, in no event shall Executive’s liability pursuant
to this clause (i) exceed the sum of the Severance Value and Consulting Payments; and (ii)
notwithstanding the provisions of Paragraph 12 hereof, the Company does not release and
discharge any right to the indemnity provided by Executive pursuant to the foregoing clause (i).



14. No Representation. Executive represents and acknowledges that in executing this
Agreement he does not rely and has not relied on any representation or statement by the Company or
its agents, representatives or attorneys with regard to the subject matter, basis or effect of this
Agreement.



15. No Assignment.




(a) By Executive. Executive represents that he has not heretofore assigned or
transferred, or purported to assign or transfer, to any person or entity, any Executive
Claim or any portion thereof or interest therein, and Executive agrees to indemnify, defend
and hold harmless each and all of the Executive Releasees against any and all disputes based
on, arising out of, or in connection with any such transfer or assignment, or purported
transfer or assignment, of any Executive Claim or any portion thereof or interest therein
which were otherwise released pursuant to Paragraph 10 hereof.




(b) By the Company. The Company represents that it has not heretofore assigned
or transferred, or purported to assign or transfer, to any person or entity, any Company
Claim or any portion thereof or interest therein, and the Company agrees to indemnify,
defend and hold harmless each and all of the Company Releasees against any and all disputes
based on, arising out of, or in connection with any such transfer or assignment, or
purported transfer or assignment, of any Company Claim or any portion thereof or interest
therein which were otherwise released pursuant to Paragraph 12 hereof.



16. Severability. If any provision of this Agreement or the application thereof is
held invalid, the invalidity shall not affect other provisions or applications of this Agreement
which can be given their intended effect without the invalid provisions or applications, and to
this end the provisions of this Agreement are declared to be severable. If, however, a court of
competent jurisdiction finds that any release by Executive or the Company in Paragraph 10
or 12 hereof is illegal, void, or unenforceable, then Executive or the Company, as
applicable, agrees to promptly sign a release, waiver, and/or agreement that is legal and
enforceable to the greatest extent permitted by law.



17. No Continuing Employment Relationship. Executive and the Company acknowledge that
any employment relationship between Executive and the Company was terminated as of the Separation
Date and that they have no further employment relationship. Executive waives any right or claim to
reinstatement as an employee of the Company.



18. Voluntary Execution of Agreement and Consultation with Counsel. Executive
acknowledges that he has been advised by the Company to consult, and has consulted, with an
attorney prior to executing this Agreement. Executive represents, warrants and agrees that he has
carefully read this Agreement and understands its meaning and has sought independent legal advice
from an attorney of his choice with respect to the advisability of this Agreement and is signing
this Agreement, knowingly, voluntarily and without any coercion or duress. Executive further
acknowledges that he has been given a period of twenty-one (21) days within which to consider
whether to sign this Agreement. Executive may execute this Agreement at any time within the
twenty-one (21) day period and by doing so Executive waives any right to the remaining days.



19. Revocability of Agreement. Executive has the right to revoke this Agreement,
solely with respect to his release of claims under the ADEA and the OWBPA, for up to seven (7) days
after Executive signs it. In order to revoke this Agreement, Executive must sign and send a written
notice of the decision to do so, following the notice provisions set forth in Paragraph 20
hereof, which must be received no later than the eighth (8th) day after Executive
executes this Agreement. If Executive revokes this Agreement pursuant to this Paragraph 19,
Executive will not be entitled to the consideration from the Company described herein (including,
but not limited to, the Severance Payment or the release provided pursuant to Paragraph 12
hereof, which, upon such revocation by Executive, shall be immediately, and without the requirement
of any action on the part of the Company, null and void and of no further force or effect).



20. Notice. All notices, requests, demands and other communications hereunder to
either party to this Agreement shall be in writing and shall be delivered, either by hand, by
facsimile, by overnight courier or by certified mail, return receipt requested, duly addressed as
indicated below or to such changed address as the party may subsequently designate:




To the Company:




Executive Vice President and Chief Administrative Officer


Peabody Energy Corporation


701 Market Street, Suite 1400


St. Louis, Missouri 63101-1826




With a copy to:




Katten Muchin Rosenman LLP


525 W. Monroe


Suite 1900


Chicago, Illinois 60661


Attention: David R. Shevitz and Daniel B. Lange



To Executive:




At the most recent address set forth in the Company’s personnel records (unless
Executive notifies the Company at the address above of a different address to be
used for notice purposes hereunder).




With a copy to:



	 	 	 
	Miner, Marnhill & Galland, P.C.

	14 W. Erie Street

	 	

	Chicago, Illinois 60654

	Attention:

	 	George F. Galland, Jr.






21. Tax and Section 409A. All amounts payable to Executive hereunder which are
considered compensation shall be subject to all withholding by the Company required under
applicable law. It is intended that the Severance Payments not be considered compensation deferred
under a “non-qualified deferred compensation plan” within the meaning of Section 409A of the
Internal Revenue Code of 1986 (“Section 409A”). It is further intended that any income or payments
to Executive pursuant to this Agreement (any such income or payments being referred to as
“Payments”) will not be subject to the additional tax and interest (a “Section 409A Tax”) under
Section 409A. The provisions of this Agreement will be interpreted and construed in favor of
complying with any applicable requirements of Section 409A necessary in order to avoid the
imposition of a Section 409A Tax. Notwithstanding the foregoing, Executive agrees and acknowledges
that, to the extent a Section 409A Tax becomes due with respect to any Payment, the liability for
any such tax and interest, and any additional amounts related thereto, shall be the sole
responsibility of Executive.



22. Governing Law. This Agreement is made and entered into in the State of Missouri
and shall be interpreted, enforced and governed under Missouri law, without regard to its conflict
of laws principles.



23. Dispute Resolution. The parties hereto agree that the provisions of Section 15 of
the Employment Agreement shall govern any dispute arising under this Agreement.



24. Binding Effect. This Agreement shall be binding upon Executive and upon his
dependents, heirs, representatives, executors, administrators, successors and assigns, and shall
inure to the benefit of the Company and others released in this Agreement, and to their respective
dependents, heirs, representatives, executors, administrators, successors and assigns.



25. No Presumption. This Agreement shall be construed and interpreted as if all of its
language were prepared jointly by Executive and the Company. No language in this Agreement shall be
construed against a party hereto on the ground that such party drafted or proposed that language.



26. Waiver. No waiver by Executive or the Company of the breach of any term or
covenant contained in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of any other term or covenant contained in this Agreement. 



27. Headings; References to Law. The headings in this Agreement are included solely
for convenience of reference and shall not be construed as limiting or in any other way modifying
the text of the Agreement. All references to any law hereunder shall be deemed a reference to such
law as it may be amended, updated or superseded from time to time.



28. Execution of Counterparts. This Agreement may be executed in counterparts, but
shall be construed as if signed in one document.



29. Entire Agreement; Amendment. This Agreement constitutes and contains the entire
agreement and understanding concerning Executive’s employment with and separation from the Company
and the other subject matters addressed herein between the parties hereto, and supersedes and
replaces all prior negotiations and all agreements proposed or otherwise, whether written or oral,
concerning the subject matters hereof, except for the portions of the Employment Agreement which
remain in effect, but subject to any amendment thereof resulting from the terms hereof. Executive
represents and agrees that no promises, statements or inducements have been made to him which
caused him to sign this Agreement other than those which are expressly stated in this Agreement.
This is an integrated document and may not be altered except by written agreement signed by a
properly authorized officer of the Company and Executive.



[Signature Page Follows]





1






IN WITNESS WHEREOF, the Company and Executive have entered into this Separation and General
Release Agreement effective as of the date first written above.



/s/ Richard A. Navarre


     


Richard A. Navarre



PEABODY ENERGY CORPORATION



	 	 	 
	By:

Name:

Title:
	 	/s/ Sharon Fiehler

     

Sharon Fiehler

Executive Vice President and Chief

Administrative Officer








2