RESIGNATION AGREEMENT AND COMPLETE GENERAL RELEASE
EXHIBIT
10.1
RESIGNATION
AGREEMENT AND COMPLETE GENERAL RELEASE
This
Resignation Agreement and Complete General Release (the “Agreement”) is entered
into effective this 23rd day of July, 2008 by and between Xxxxxx X. Xxxxxxxx
(“Xx. Xxxxxxxx”) and The Steak n Shake Company (“SNS”).
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1.
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Resignation.
In consideration for the representations, promises, and warranties
made
herein, Xx. Xxxxxxxx resigns his employment and his position as
an officer
of SNS and as a director or officer of any of its affiliates of
subsidiaries effective July 23, 2008 (the “Resignation Date”).
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2.
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Consideration
and Settlement Amount. In consideration of the mutual
promises and representations made herein by the parties, SNS will
provide
Xx. Xxxxxxxx with certain pay and benefits as set forth
below:
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A.
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SNS
shall pay to Xx. Xxxxxxxx an amount equal to ten months of his
current
salary ($257,500 annually) less applicable withholdings and deductions
authorized by law or Xx. Xxxxxxxx (the “Settlement
Amount”). The Settlement Amount shall be paid in a lump sum
within five (5) days after the expiration of all revocation periods
contained in this Agreement.
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B.
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SNS
shall retain Xx. Xxxxxxxx in its group health and medical plans
(collectively the “Medical Plan”) for up to one year or until Xx. Xxxxxxxx
is covered by another group insurance plan, whichever is shorter,
on the
same terms and conditions as he is currently covered. Should
SNS not be able to retain Xx. Xxxxxxxx as a participant in the
Plan then
it shall pay him an amount sufficient to allow him to pay the cost
of
COBRA or other continuation coverage on a basis that would equal
his
current out-of-pocket cost for the Plan’s coverage.
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C.
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Xx.
Xxxxxxxx may retain a company-owned automobile and operate it in
compliance with SNS’s automobile policy for up to six
months. SNS shall have no responsibility for gas, oil,
maintenance, insurance or other operating expenses associated with
the
automobile.
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Xx.
Xxxxxxxx
agrees and understands that the Settlement Amount and other consideration
provided pursuant to this Agreement constitute money and consideration to
which
he is not otherwise entitled, and he agrees that a portion of the Settlement
Amount is specifically allocable to the waiver of any claims under the Age
Discrimination in Employment Act and/or the Older Workers Benefits Protection
Act. Xx. Xxxxxxxx acknowledges that, except for the payments and
other benefits contemplated by this Agreement (and any equity incentive awards
fully vested as of the Resignation Date) the Company has paid him all
compensation to which he is entitled in connection with his employment with
SNS.
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3.
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Consultation
and Transition Services. Xx. Xxxxxxxx agrees to provide
up to eight (8) hours per week of consulting and transition services
at
mutually agreeable times through September 8, 2008, not including
the
period between July 30 and August 6,
2008.
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4.
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Confidentiality
and Non-Disparagement. Xx. Xxxxxxxx’x service at SNS
provided him with knowledge of certain financial, business, marketing
and
other information that constitutes confidential information of
a
proprietary nature to Steak n Shake and “Material Non Public Information”
as that term is defined under the Federal Securities laws (collectively
the “Confidential Information”). Xx. Xxxxxxxx agrees that he
will take all steps necessary to safeguard the Confidential Information
and that he will not, directly or indirectly use, disclose or disseminate
to any other person, entity, business or corporation or otherwise
share
any Confidential Information. Xx. Xxxxxxxx also agrees that he
will not communicate (verbally or non-verbally) anything that a
reasonable
person would perceive as having the effect of diminishing or injuring
the
goodwill and/or reputation of SNS, its officers, directors or
associates.
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No
officer or
other person authorized to act on behalf of the Company with regard to such
action will make any statements that would be reasonably likely to injure
Xx.
Xxxxxxxx’x goodwill or reputation. If Xx. Xxxxxxxx becomes aware of
such a statement being made he shall notify the Company’s Senior Vice President,
Human Resources or General Counsel, who shall investigate and use their best
efforts to cure any statement made in violation of this provision within
five
(5) business days of their receipt of such notice.
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5.
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Raiding
of Employees. Xx. Xxxxxxxx agrees that for a period of
one (1) year after the date of this Agreement he will not directly
or
indirectly, on his own behalf or on behalf of any other person
or
entity: (1) hire, solicit, recruit, or otherwise attempt to hire or
enter into any employment, consulting or contractual relationship
with any
individual employed by SNS, (2) share the names, addresses, telephone
numbers, e-mail addresses or other means of contacting any SNS
employee
with any other person or entity, or (3) share information regarding
the
salaries, benefits or other renumeration paid by SNS to any of
its
employees with any other person or
entity.
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6.
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Return
of SNS’s Property. Except
as set forth under Section 2.C. above, Xx. Xxxxxxxx will return
to SNS all
of its property, including his current car, in his possession by
5 p.m. on
August 6, 2008.
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7.
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Breach
of this Agreement. If Xx. Xxxxxxxx breaches any term or
condition of this Agreement, all of which are material terms, Xx.
Xxxxxxxx
agrees to repay to SNS the entire Settlement Amount, and to indemnify
and
reimburse SNS for any other costs, expenses and attorneys fees
reasonably
incurred in defending against any such lawsuit, or in enforcing
the terms
of this Agreement.
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8.
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Xx.
Xxxxxxxx’x Waiver of Claims. Xx. Xxxxxxxx, in
consideration of the mutual promises and benefits contained herein,
knowingly and voluntarily waives, releases, discharges and holds
SNS and
its directors, officers, agents, insurers and employees harmless
(on
behalf of himself and his family, heirs, executors, successors
and
assigns) from any and all complaints, causes of action and any
other
claims, costs, damages, expenses, liabilities, taxes, judgments,
compensation, attorneys’ fees, or any other relief or costs arising out of
Xx. Xxxxxxxx’x employment, resignation from employment, or any other
relationship with SNS, whether these claims are known or
unknown. Xx. Xxxxxxxx specifically waives any right he may have
to pursue and/or recover monetary, pecuniary, punitive, or any
other
personal benefits of any kind pursuant to any lawsuit, claim, charge
or
other cause of action of any kind that Xx. Xxxxxxxx files or that
is filed
on Xx. Xxxxxxxx’x behalf, except as otherwise provided by applicable law
or regulation. Xx. Xxxxxxxx agrees to waive any and all rights
or claims to pursue and/or recover monetary, pecuniary, punitive
or any
other personal benefits of any kind he may have against SNS arising
out of
the Indiana Civil Rights Act, (or its equivalent), The Equal Pay
Act, any
Payment of Wages Act, The Americans with Disabilities Act, Title
VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq, the
1866 Civil Rights Act, The Civil Rights Act of 1991, The Federal
Rehabilitation Act of 1973, the Employee Retirement Income Security
Act,
The Age Discrimination in Xxxxxxxxxx Xxx, 00 X.X.X. §000 et seq, the Older
Workers Benefits Protection Act, the Fair Labor Standards Act,
the Family
and Medical Leave Act, the Indiana Worker’s Compensation Act (or its
equivalent), and any other applicable federal, state and/or local
civil
rights law, regulation or statute, and any common law claims and/or
tort
claims. In addition to the foregoing, Xx. Xxxxxxxx specifically
waives any rights that he has under the letter in which SNS offered
him
employment, dated on our about February 2, 2004, a “Change in Control
Benefits Agreement” dated on or about November 7, 2007 and any amendments
thereto, as well as any other contracts or agreements into which
Xx.
Xxxxxxxx entered with SNS during or prior to his employment with
SNS. In addition to the foregoing, Xx. Xxxxxxxx acknowledges
that SNS has not (a) discriminated against him, (b) breached any
contract
with him, (c) committed any civil wrong against him, or (d) otherwise
acted unlawfully toward him. Notwithstanding the foregoing, Xx.
Xxxxxxxx and SNS agree that Xx. Xxxxxxxx shall be entitled to elect
continuation of his group health insurance benefits under the Consolidated
Omnibus Budget Reconciliation
Act.
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9.
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Right
to Revoke, Right to Review, and Right to Seek Legal
Advice. Xx. Xxxxxxxx is hereby advised that:
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A.
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He
has up to 21 days to review and consider this Agreement, and the
Agreement
may not be withdrawn during his period of review;
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B.
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After
he executes this Agreement he has seven (7) days to revoke his
execution
thereof, in which case this Agreement shall be null and
void;
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C.
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He
has the right to seek legal counsel to review this Agreement and
his
decision to do so shall not result in the withdrawal of this Agreement
by
SNS.
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To
revoke
this Agreement after signing it, Xx. Xxxxxxxx must send written notice of
revocation to Xxx Xxxxxxx at the Company’s corporate office. For
revocation to be effective, it must be received by Xx. Xxxxxxx no later than
the
close of business on the seventh day after Xx. Xxxxxxxx signs this
Agreement. If Xx. Xxxxxxxx revokes this Agreement, it shall not be
effective or enforceable and Xx. Xxxxxxxx will not receive any of the benefits
or the payments described herein and Xx. Xxxxxxxx shall return any payments
made
hereunder.
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10.
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Modification
and
Waiver. This Agreement may only be modified by a
written document signed by both parties hereto. The failure to
enforce this Agreement or the waiver of any breach of this Agreement
shall
not constitute the waiver of any future breach or any other rights
contained herein.
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11.
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Successors
and Assigns. This Agreement shall be binding upon Xx.
Xxxxxxxx and SNS, and upon their heirs, administrators, representatives,
executors, successors and assigns, and shall inure to the benefit
of Xx.
Xxxxxxxx and SNS, and to their heirs, administrators, representatives,
executors, successors and assigns.
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12.
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Venue,
Jurisdiction and Governing Law. Xx. Xxxxxxxx and SNS
agree that any suit or claim arising out of this Agreement, seeking
to
remedy a breach of this Agreement, or otherwise arising out of
Xx.
Xxxxxxxx’x employment with SNS shall only be brought in the Federal
District Court for the Southern District of Indiana, Indianapolis
Division
or the Indiana state courts located in Xxxxxx County,
Indiana. This Agreement shall be construed only under the laws
of the State of Indiana, notwithstanding any conflict of laws provisions
or decision. In the event that a court finds that a provision
of this Agreement is not enforceable, the court shall strike the
offending
provision and the remainder of this Agreement shall be fully enforceable.
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13.
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Complete
Agreement. Xx. Xxxxxxxx agrees that this written
Agreement is the complete and entire agreement between himself
and SNS and
that it completely supersedes any and all other agreements between the
parties. Notwithstanding the foregoing or anything else
contained herein the Indemnity Agreement into which Xx. Xxxxxxxx
entered
with SNS on or around October 7, 2007 shall remain in full force
and
effect.
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THIS
AGREEMENT IS ENTERED INTO AS OF THE DATE ABOVE WRITTEN AND THE PARTIES AGREE
TO
BE BOUND TO ITS TERMS BY SIGNING BELOW:
| Xx. Xxxxxxxx: | SNS (as defined in the first paragraph): |
| /s/ Xxxxxx X. Xxxxxxxx | By: /s/ Xxxxxx Xxxxxxx |
| Dated: July 25, 2008 | Printed: Xxxxxx Xxxxxxx, Executive Chairman |
| Dated: July 25, 2008 |
