SEVERANCE AND GENERAL RELEASE AGREEMENT
EXHIBIT
10.32
SEVERANCE
AND GENERAL RELEASE AGREEMENT
This
Severance and General Release Agreement ("Agreement") is entered into this
17th
day of September, 2007, by and between The Steak n Shake Company and its
subsidiaries or related companies (collectively, the "Company") and Xxxx Xxxxxx
("Employee").
Recitals
A. Employee
was employed by the Company until his employment terminated on September 17,
2007 (the "Separation Date").
B. Employee
understands and agrees that his coverage under Company’s insurance plans
including, but not limited to, health insurance, life insurance, dental
insurance, short-term disability insurance and long-term disability insurance,
and participation in Company’s group medical plan, group life insurance plan,
employee stock purchase plan, 401k plan, and any other Company-sponsored
benefits plan (collectively, the “Benefit Plans”) shall all terminate on the
Separation Date.
C. Employee's
employment relationship with the Company is covered by numerous state and
federal statutes and common laws, including the Age Discrimination in Employment
Act of 1967, as amended (29 U.S.C. § 621 etseq.), and
other anti-discrimination laws, which prohibit, among other things,
discrimination on the basis of age, race, sex, religion, national origin, color,
disability and citizenship status (collectively, the "Age and Other
Discrimination Laws").
D. To
obtain
certain special benefits upon termination of employment with the Company,
Employee wishes to waive any and all rights or claims against the Company that
have arisen or may arise on or before the date Employee executes this Agreement,
to release and discharge the Company from any and all possible liability and
to
covenant not to xxx the Company. To obtain Employee's waiver and
release and covenant not to xxx, the Company is prepared to provide certain
special benefits to him.
Agreement
In
consideration of the foregoing and the following mutual undertakings, and
subject to the terms and conditions of this Agreement, Employee and the Company agree as follows:
1. Benefits
The
Company agrees to provide Employee with the following severance
benefits:
(a) The
Company will pay Employee a severance benefit equal to a total of fifty-two
(52)
weeks of salary (the “Severance Amount”). Each week of salary equals
the weekly compensation regularly paid to Employee immediately prior to
Employee's termination of employment, excluding any bonuses. All
payments to Employee will be subject to all applicable payroll withholdings
and
deductions. Employee warrants that all monies and/or benefits payable
under this Agreement are monies and/or benefits to which Employee is not
otherwise entitled. The Severance Amount will be paid to Employee in
equal installments on Company’s normal and customary paydays until the Severance
Amount is paid in full.
(b) Within
ten (10) days of the end of the revocation period, the Company will
pay Employee an additional severance benefit, in a lump sum amount, equal to
One
Hundred and Seven Thousand One Hundred Seventy Dollars ($107,170), reduced
by
applicable payroll withholdings and deductions (the “Lump Sum
Amount”).
(c) Employee’s
eligibility to collect the Severance Amount and the Lump Sum Amount will begin
upon expiration of the revocation period described in Section 4
below.
(d) Company
will not contest Employee’s pursuit of unemployment benefits. Company
makes no representation of any kind regarding Employee’s eligibility for such
benefits.
(e) Company
will provide Employee “executive job outplacement” services through Right
Management (or a comparable outplacement service) for a period of six (6)
months.
(f) Company
will provide Employee with an explanation of coverage available pursuant to
the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and any other
applicable state or federal law.
(g) Employee
may use his Company vehicle in accordance with the current terms for the ninety
(90) day period following the Separation Date.
All
payments or provision of benefits to Employee will be subject to and reduced
by
all applicable payroll withholdings and deductions.
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2. General
Release and Covenant Not To Xxx
By
signing this Agreement, Employee generally, irrevocably and unconditionally
releases and forever discharges and covenants not to xxx the Company and all
of
its affiliated entities and all of its present and former employees, partners,
officers, directors, employee benefit plans, trustees, administrators,
fiduciaries, agents, and all persons acting for or on behalf of the Company,
both individually and in their representative capacities (collectively,
including the Company, the "Released Parties") from any and all claims, charges,
complaints, demands, liabilities, obligations, injuries, actions or rights
of
action of any nature whatsoever (including claims for attorneys' fees, interest
and costs), whether known or unknown, disclosed or undisclosed, administrative
or judicial, suspected or unsuspected, arising out of or in any manner connected
with any act, omission or event occurring in whole or in part on or before
the
date Employee signs this Agreement, including but not limited to any and all
claims arising from Employee's employment with the Company or the termination
of
Employee's employment with the Company and specifically includes, but is not
limited to, and constitutes a complete waiver of, any and all possible claims
under the Age and Other Discrimination Laws through the date Employee signs
this
Agreement. The Company and Employee agree that the foregoing
release/covenant not to xxx is to be construed as broadly as possible and is
meant to include all possible claims of any kind that Employee may have against
any of the Released Parties as of the date Employee signs this
Agreement.
3. Return
of Company Property
Employee
represents and agrees that he has delivered, or immediately will deliver, to
the
Company all property and materials belonging to the Company which are in
Employee's possession or subject to Employee's control, including, but not
limited to, any equipment, keys, access cards, files, computer disks and all
other documents and materials supplied by or belonging to the
Company.
4. Knowing
and Voluntary Waiver
Because
the arrangements discussed in this Agreement affect important rights and
obligations, the Company advises Employee to consult with an attorney before
he
agrees to the terms of this Agreement and Employee acknowledges that he has
been
so advised.
Employee
acknowledges that the Company provided him with this Agreement on September
17,
2007. Employee is advised that he has up to forty-five (45) days from
the date he receives this Agreement within which to consider it, and Employee
may take as much of that time as he wishes before signing. If
Employee decides to accept this Agreement, he must sign this Agreement and
return it to Human Resources Senior Vice President Xxx Xxxxxxx at the Company
on
or before the expiration of the forty-five (45) days.
Employee
is advised that if he signs this Agreement, thereby accepting its terms and
conditions, Employee will have a period of seven (7) days following the date
Employee signs this Agreement to change his mind and revoke this
Agreement. If Employee decides to revoke this Agreement, then
Employee must deliver written notice of such revocation to Human Resources
Senior Vice President Xxx Xxxxxxx at the Company within such 7-day
period. This Agreement will not become binding and enforceable until
the 7-day revocation period has expired.
Employee's
employment is being terminated as part of an employment termination
program. Employee acknowledges that the Company has informed Employee
of the group of individuals covered by the program, the eligibility factors
for
the program and the time limits within which Employee may participate in the
program. A list of the job titles and ages of employees who are
eligible and who are not eligible for the benefits of this program is attached
as Exhibit A for Employee's review.
5. Non-Reliance
Employee
acknowledges that in entering this Agreement he has not relied on any
representations or statements made by the Company or any of the Released Parties
other than those specifically stated in this Agreement.
6. Representations
and Indemnification
Employee
represents that, as of the date of execution of this Agreement, he has not
filed
with any agency or court any charges, complaints or legal actions against the
Released Parties.
Employee
agrees that he will not, directly or indirectly, file or pursue any charge,
complaint or legal action against the Released Parties based on any acts,
omissions or events occurring up through the date Employee signs this
Agreement. Should any administrative agency or other person bring a
complaint, charge or legal action on Employee's behalf against any of the
Released Parties based on any acts, omissions or events occurring up through
the
date Employee executes this Agreement, Employee will notify such agency or
person promptly that the matter has been resolved to his satisfaction and that
he does not wish to have the matter pursued. If such agency or other
person independently determines to initiate or pursue a complaint, charge or
legal action on Employee's behalf against any of the Released Parties based
on
any acts, omissions or events occurring up through the date Employee signs
this
Agreement, Employee hereby waives any rights to, and will not accept, any remedy
obtained through the efforts of such agency or person.
Employee
agrees to indemnify the Released Parties from all claims, costs and expenses,
including all attorneys' fees, arising out of any misrepresentation made by
Employee in this Agreement. In the event Employee initiates, pursues
or maintains any claim, charge, complaint, action or proceeding against any
of
the Released Parties based on any claim, charge, complaint, action, injury
or
right of action for which Employee has released and agreed not to xxx the
Released Parties in this Agreement, or in the event Employee otherwise breaches
any term or condition of this Agreement, all of which are material terms and
conditions, then in such event Employee agrees to repay to Company the entire
Severance Amount and Lump Sum Amount and, to the fullest extent permitted by
law, to pay all costs and attorneys' fees incurred by any of the Released
Parties in defending any claim, charge, complaint, action or proceeding that
Employee pursues.
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7. Nondisparagement
Employee
understands and agrees that this Agreement is a confidential agreement between
himself and the Company. Employee agrees that, except as required by
law or provided herein, Employee shall keep the terms and subject matter of
this
Agreement strictly confidential and shall not disclose any term or condition
of
the Agreement to any other individual or organization unless there is a breach
of the Agreement in which event the Agreement may be disclosed solely for the
purposes of enforcement. Employee agrees that Employee will not do or
say anything that a reasonable person would expect at the time would have the
effect of diminishing or injuring the goodwill and reputation of the Released
Parties.
8. Raiding
of Employees
Employee
agrees that for a period of two (2) years after the date of this Agreement,
Employee will not directly or indirectly, on his own behalf or on behalf of
any
other person or entity, do any of the following: (1) hire, solicit, recruit,
or
otherwise attempt to hire or enter into any employment relationship with any
individual employed by the Company, (2) share the names, addresses, telephone
numbers, e-mail addresses or other means of contacting any Company employee
with
any other person or entity, or (3) share information regarding the salaries,
benefits or other renumeration paid by the Company to any of its employees
with
any other person or entity.
9. Non-Admission
Neither
this Agreement nor any action pursuant to it constitutes an admission by any
of
the Released Parties of any wrongdoing or of any liability to Employee arising
under any law, including the Age and Other Discrimination Laws.
10. Successors
and Assigns
This
Agreement shall be binding upon Employee and the Company, and upon their heirs,
administrators, representatives, executors, successors and assigns, and shall
inure to the benefit of Employee and the Company, and to their heirs,
administrators, representatives, executors, successors and assigns.
11. Language
Construed as a Whole
The
language of this Agreement shall in all cases be construed as a whole, according
to its fair meaning, and not strictly for or against any of the
parties.
12. Applicable
Law; Choice of Forum
This
Agreement shall be construed and enforced in accordance with the laws of the
State of Indiana. The Company and Employee agree that any legal
action relating to this Agreement shall be commenced and maintained exclusively
before an appropriate state court of record in Xxxxxx County, Indiana or in
the
United States District Court for the Southern District of Indiana, Indianapolis
Division, and the parties hereby submit to the jurisdiction of such courts
and
waive any right to challenge or otherwise raise questions of personal
jurisdiction or venue in any action commenced or maintained in such
courts.
13. Entire
Agreement
This
Agreement
constitutes the entire agreement between the parties with respect to the
subjects addressed in this Agreement and supersedes any prior agreements,
understandings or representations, oral or written, on the subjects addressed
in
this Agreement.
IN
WITNESS WHEREOF, the Company and Employee have executed this Agreement on the
dates indicated below, intending it to become effective on the eighth (8th) day after
the
date Employee signs the Agreement.
"EMPLOYEE" "COMPANY"
/s/
Xxxx
Xxxxxx
By:
/s/ Xxxx X.
Xxxxxx
Xxxx
Xxxxxx
Xxxx
X. Xxxxxx,
Interim Chief Executive Officer
Printed
Name
|
September
17,
2007
|
September
17,
2007
|
Date Date
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