RESIGNATION AGREEMENT AND COMPLETE GENERAL RELEASE
EXHIBIT
10.1
This
Resignation Agreement and Complete General Release (the “Agreement”) is entered
into effective this 11th
day of July, 2008 by and between Xxxxxxx X. Blade (“Mr. Blade”) and The Steak n
Shake Company and its corporate affiliates and subsidiaries (collectively
“SNS”).
1.
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Resignation.
In consideration for the representations, promises, and warranties
made
herein, Mr. Blade resigns his employment and his position as an officer
of
SNS effective July 11, 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
Mr. Blade with certain pay and benefits in accordance with this Paragraph
2:
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a.
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SNS
shall pay to Mr. Blade an amount equal to Mr. Blade’s gross annual salary
less applicable withholdings and deductions authorized by law or
Mr. Blade
(the “Settlement Amount”). The Settlement Amount shall be paid
in a lump sum within five (5) days after the expiration of any revocation
periods contained in this
Agreement.
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b.
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SNS
pay a provider of Mr. Blade’s choice to provide him with outplacement
services at a cost that shall not exceed $12,000 (the “Outplacement
Payment”). Should Mr. Blade not select a provider of
outplacement services within six (6) months of the date of this Agreement
SNS shall pay the Outplacement Payment to him in a lump sum, less
applicable withholdings and deductions authorized by law or Mr.
Blade.
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c.
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Mr.
Blade may retain and continue to use his company-owned automobile
in,
compliance with SNS’s automobile policy, for up to 60 days, or until he
obtains a personal vehicle, whichever is
sooner.
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Mr.
Blade
agrees and understands that the Settlement Amount, the Outplacement Payment
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 and Outplacement Payment is specifically
allocable to the waiver of any claims under the Age Discrimination in Employment
Act and/or the Older Workers Benefits Protection Act.
3.
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Confidentiality
and Non-Disparagement. Mr. Blade’s 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”). Mr. Blade 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. Mr. Blade 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 Mr.
Blade’s goodwill or reputation. If Mr. Blade 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.
4.
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Raiding
of Employees. Mr. Blade 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 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.
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5.
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Return
of SNS’s Property. Except
as set forth under Section 2.C. above, Mr. Blade will return to SNS
all of
its property, including copies thereof, in his possession by 5 p.m.
on the
Resignation Date. Notwithstanding the foregoing, Mr. Blade may
retain the Blackberry issued to him by SNS.
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6.
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Breach
of this Agreement. If Mr. Blade breaches any term or
condition of this Agreement, all of which are material terms, Mr.
Blade
agrees to repay to SNS the entire Settlement Amount and Outplacement
Payment, 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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7.
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Mr.
Blade’s Waiver of Claims. Mr. Blade, 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 Mr. Blade’s employment,
resignation from employment, or any other relationship with SNS,
whether
these claims are known or unknown. Mr. Blade 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
Mr. Blade
files or that is filed on Mr. Blade’s behalf, except as otherwise provided
by applicable law or regulation. Mr. Blade 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, Mr. Blade
specifically waives any rights that he has under the letter in which
SNS
offered him employment, dated on or 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 Mr. Blade entered with SNS during or prior to his employment
with
SNS. In addition to the foregoing, Mr. Blade 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, Mr. Blade
and SNS agree that Mr. Blade shall be entitled to elect continuation
of
his group health insurance benefits under the Consolidated Omnibus
Budget
Reconciliation Act.
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8.
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Right
to Revoke, Right to Review, and Right to Seek Legal
Advice. Mr. Blade 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, Mr. Blade must send written notice of
revocation to Xxxxx Xxxxxx at the Company’s corporate office. For
revocation to be effective, it must be received by Xx. Xxxxxx no later than
the
close of business on the seventh day after Mr. Blade signs this
Agreement. If Mr. Blade revokes this Agreement, it shall not be
effective or enforceable and Mr. Blade will not receive any of the benefits
or
the payments described herein and Mr. Blade shall return any payments made
hereunder.
9.
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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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10.
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Successors
and Assigns. This Agreement shall be binding upon Mr.
Blade and SNS, and upon their heirs, administrators, representatives,
executors, successors and assigns, and shall inure to the benefit
of Mr.
Blade and SNS, and to their heirs, administrators, representatives,
executors, successors and assigns.
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11.
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Venue,
Jurisdiction and Governing Law. Mr. Blade 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 Mr. Blade’s
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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12.
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Complete
Agreement. Mr. Blade 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 Mr. Blade 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:
Mr. Blade: | SNS (as defined in the first paragraph): |
/s/ Xxxxxxx X. Blade | By: /s/ Xxxxx X. Xxxxxx |
Dated: July 11, 2008 | Printed: Xxxxx X. Xxxxxx, Interim Chief Executive Officer |
Dated: July 11, 2008 |