JOINDER AGREEMENT
Exhibit 99.1
JOINDER
AGREEMENT dated May 19, 2008 by and between Xxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxx
(the “Joined Party”).
W I T N E
S S E T H
WHEREAS,
Xxxxxx Xxxxxxx and certain other stockholders (collectively, the “Existing
Stockholders”) of The Steak n Shake Company (the “Company”) are parties to that
certain Agreement dated as of April 15, 2008 (the “Agreement”), a copy of which
is attached hereto as Exhibit A, pursuant
to which the Existing Stockholders have formed a “group” (as contemplated by
Section 13(d) of the Securities Exchange Act of 1934, as amended) for the
purpose of acting in concert with one another in their capacities as
stockholders of the Company; and
WHEREAS,
the Joined Party, a stockholder of the Company, desires to join the group formed
by the Existing Stockholders and has agreed to conduct his activities with
respect to his investment in the Company in accordance with the terms of the
Agreement.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements of the parties herein contained, the parties hereby agree as
follows:
Section
1. Joinder. Effective
immediately, the Joined Party is joined as a party to the Agreement and as a
member of The Committee to Enhance Steak n Shake (the
“Committee”). The Joined Party agrees to be bound by the terms and
conditions of the Agreement applicable to the members of the
Committee.
Section
2. Securities
Ownership. All Securities (as that term is defined in the
Agreement) of the Company beneficially owned by the Joined Party as of the date
hereof are set forth on Schedule I attached
hereto. All references to Schedule I in the
Agreement shall refer to Schedule I hereto
with respect to the ownership and notice information of the Joined
Party.
Section
3. Power of
Attorney. Simultaneously with the execution of this Joinder
Agreement, the Joined Party shall sign a power of attorney, the form of which is
attached hereto as Exhibit B, appointing
Xxxxxx Xxxxxxx as his true and lawful attorney-in-fact to take specified action
in connection with the Joined Party’s investment in the Company.
Section
4. General. This
Joinder Agreement may not be assigned by any party without the prior written
consent of the other party hereto. This Joinder Agreement may be
executed and delivered (including by facsimile or other electronic transmission)
through the use of separate signature pages or in any number of counterparts and
all such counterparts shall be deemed one and the same instrument.
Section
5. Choice
of Law. Notwithstanding the place where this Joinder Agreement
may be executed by any of the parties hereto, the parties expressly agree that
all of the terms and provisions hereof shall be construed in accordance with the
laws of the State of Texas. In the event of any dispute arising out
of the provisions of this Joinder Agreement, the parties hereto consent and
submit to the exclusive jurisdiction of the Federal and State Courts located in
the City of San Antonio, Texas.
Section
6. Consultation with
Counsel. The Joined Party represents that he has consulted
with counsel of his own choosing in connection with the negotiation and
execution of this Joinder Agreement or has knowingly chosen not to do
so.
Section
7. Sophisticated
Investor. The Joined Party hereby acknowledges that he is a
sophisticated investor, has adequate information concerning the business and
financial condition of the Company and has independently, and without reliance
upon any assurances by the Biglari Stockholders (as that term is defined in the
Agreement), made his own analysis and decision to enter into this Joinder
Agreement and to be subject to the restrictions set forth in the
Agreement. The Joined Party acknowledges that he has not been given
advice or assurances by the Biglari Stockholders as to whether his decision to
enter into this Joinder Agreement is prudent and understands that the activities
contemplated by the Agreement may not necessarily result in the appreciation of
his investment in the Company.
Section
8. Severability. If
any term or other provision of this Joinder Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Joinder Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provisions is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Joinder Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
Section
9. Specific
Performance. The parties hereto agree that irreparable damage
would occur in the event any of the provisions of this Joinder Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Joinder Agreement
and to enforce specifically the terms and provisions of this Joinder Agreement,
this being in addition to any other remedy to which such party is entitled at
law or in equity.
Section
10. Entire
Agreement. This Joinder Agreement and the Agreement embody the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and supersedes any prior understandings, agreements, or
representations by or among the parties, written or oral, to the extent they
have related in any way to the subject matter hereof.
[signature
page follows]
2
IN
WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement to be
executed as of the day and year first above written.
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/s/
Xxxxxx Xxxxxxx
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XXXXXX
XXXXXXX
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/s/
Xxxxxx X. Xxxxxxx
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XXXXXX
X. XXXXXXX
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Schedule
I
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Stockholder
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Notice
Information
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Shares
Beneficially Owned
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Derivative
Securities
Owned
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Xxxxxx
X. Xxxxxxx
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209,752
(143,000 shares held in
the
Xxxxxx X. Xxxxxxx Living
Trust)
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0
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Exhibit
A
Exhibit
B
POWER
OF ATTORNEY
Know all
by these presents, that the undersigned hereby constitutes and appoints Xxxxxx Xxxxxxx, signing
singly, the undersigned’s true and lawful attorney-in-fact to take any and all
action in connection with the investment by the undersigned and the other
members of the Group (defined below) in the securities of The Steak N Shake
Company (“Steak N Shake”), including, without limitation, all filings on
Schedule 13D (as defined below) to the extent required under applicable law, all
filings on Forms 3, 4 and 5 (as defined below) to the extent required under
applicable law, all filings and notices under the Indiana Business Corporation
Law to the extent required, and all other matters related, directly or
indirectly, to Steak N Shake (together, the “Investment”). Such
action shall include, but not be limited to:
1. executing
for and on behalf of the undersigned all Schedules 13D (“Schedule 13D”) required
to be filed under Section 13(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and the rules thereunder in connection with the
Investment;
2. executing
for and on behalf of the undersigned all Forms 3, 4 and 5 (“Forms 3, 4 and 5”)
required to be filed under Section 16(a) of the Exchange Act and the rules
thereunder in connection with the Investment;
3. executing
for and on behalf of the undersigned all authentication documents required to be
submitted to the United States Securities and Exchange Commission (the “SEC”) in
connection with obtaining the electronic Form ID required to generate the
undersigned’s XXXXX access codes;
4. performing
any and all acts for and on behalf of the undersigned that may be necessary or
desirable to complete and execute any such document, complete and execute any
amendment or amendments thereto, and timely file such form with the SEC and any
stock exchange or similar authority; and
5. taking
any other action of any type whatsoever in connection with the Investment which,
in the opinion of such attorney-in-fact, may be of benefit to, in the best
interest of, or legally required by, the undersigned, it being understood that
the documents executed by such attorney-in-fact on behalf of the undersigned
pursuant to this Power of Attorney shall be in such form and shall contain such
terms and conditions as such attorney-in-fact may approve in such
attorney-in-fact’s discretion.
The
undersigned hereby grants to such attorney-in-fact full power and authority to
do and perform any and every act and thing whatsoever requisite, necessary or
proper to be done in the exercise of any of the rights and powers herein
granted, as fully to all intents and purposes as the undersigned might or could
do if personally present, with full power of substitution or revocation, hereby
ratifying and confirming all that such attorney-in-fact, or such
attorney-in-fact’s substitute or substitutes, shall lawfully do or cause to be
done by virtue of this Power of Attorney and the rights and powers herein
granted. The undersigned acknowledges that the foregoing
attorney-in-fact, in serving in such capacity at the request of the undersigned,
is not assuming any of the undersigned’s responsibilities to comply with Section
13(d), Section 16 or Section 14 of the Exchange Act.
This
Power of Attorney shall remain in full force and effect until the 10th
business day following termination of the Agreement dated April 15, 2008, by and
among The Lion Fund, L.P., Western Sizzlin Corp., Biglari Capital Corp., Western
Acquisitions L.P., Western Investments Inc., Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx and
certain other stockholders of Steak N Shake (the “Group”), as may be amended
from time to time.
IN
WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be
executed as of this 19 day of May, 2008.
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/s/
Xxxxxx X. Xxxxxxx
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