ADOPTION AGREEMENT
Exhibit 10.2
ARTICLE
1
1.01
PLAN
INFORMATION
|
(a) |
Name
of Plan: |
This
is the The
Steak n Shake Company Non-Qualified Savings Plan (the
"Plan").
|
(b) |
Name
of Plan Administrator, if not the
Employer: |
|
Address: |
|
|
Phone
Number: |
The
Plan Administrator is the agent for service of legal process for the
Plan.
|
(c) |
Plan
Year End is
December 31. |
|
(d) |
Plan
Status (check
one): |
| (1) |
þEffective
Date of new Plan: 11/12/2004 |
| (2) |
¨Amendment
Effective Date: |
The
original effective date of the Plan:
1.02
EMPLOYER
|
(a)
The
Employer is: |
The
Steak n Shake Company |
|
Address: |
00
X. Xxxxxxxxxxxx Xxxxxx
Xxxxx
000 |
|
Xxxxxxxxxxxx,
XX 00000-0000 | |
|
Contact’s
Name: |
XxXxx
Xxxxxxxxxx |
|
Telephone
Number: |
000-000-0000 |
| (1) |
Employer’s
Tax Identification Number: 00-0000000 |
| (2) |
Business
form of Employer (check one): |
| (A) |
þCorporation
(Other than a Subchapter S corporation) |
| (B) | ¨Other (e.g., Subchapter S corporation, partnership, sole proprietor) |
| (3) |
Employer's
fiscal year end: Last
Wednesday in September |
|
(b) |
|
The
term "Employer" includes the following Related Employer(s)
|
(as
defined in Section 2.01(a)(24)):
|
Steak n
Shake Operations, Inc. |
|
Steak n
Shake L.P. |
17
1.03
COVERAGE
(a)
The
following Employees are eligible to participate in the
Plan:
| (1) |
¨Only
those Employees listed in Attachment A will be eligible to participate in
the Plan. |
| (2) |
þOnly
those Employees in the eligible class described below will be eligible to
participate in the Plan: |
Those
highly compensated management employees selected by the Personnel/Benefits
Committee of the Board of Directors of the Company
| (3) |
¨Only
those Employees described in the Board of Directors Resolutions attached
hereto and hereby made a part hereof will be eligible to participate in
the Plan. |
|
(b) |
The
Entry Date(s) shall be (check
one): |
| (1) |
¨each
January 1. |
| (2) |
¨each
January 1 and each July 1. |
| (3) |
¨each
January 1 and each April 1, July 1 and October
1. |
| (4) |
¨the
first day of each month. |
| (5) | þimmediate upon meeting the eligibility requirements specified in Subsection 1.03(a). |
1.04
COMPENSATION
For
purposes of determining Contributions under the Plan, Compensation shall be as
defined (check (a) or (b) below, as appropriate):
(a)
þ
in
Section 2.01(a)(8), (check
(1) or (2) below, if and as appropriate)):
| (1) |
þbut
excluding (check the appropriate box(es)): |
| (A) |
¨Overtime
Pay. |
| (B) |
¨Bonuses. |
| (C) |
¨Commissions. |
| (D) |
þThe
value of a qualified or a non-qualified stock option granted to an
Employee by the Employer to the extent such value is includable in the
Employee's taxable income. |
| (E) |
þThe
following: |
Severance
| (2) |
¨except
as otherwise provided below: |
(b)
¨ in
the Plan
maintained by the Employer to the extent it is in excess of the limit imposed
under Code
Section 401(a)(17).
1.05
CONTRIBUTIONS
(a) Employee
contributions (Complete all that apply)
(1)
þ Deferral
Contributions. The Employer shall make a Deferral Contribution in accordance
with,
and subject to,
Section 4.01 on behalf of each Participant who has an executed
salary reduction agreement in
effect with the Employer for the calendar year (or portion of the calendar
year) in question,
not to exceed 20%
of Compensation, exclusive of any Bonus.
(2)
þ Bonus
Contributions. The Employer requires Participants to enter into a special salary
reduction
agreement to make
Deferral Contributions of any percentage of Employer paid cash Bonuses, up to
100% of such
Bonuses. [The Compensation definition elected by the Employer in Section 1.04
must
include Bonuses if Bonus contributions are permitted.]
(b) þ Matching
Contributions (Choose (1) or (2) below, and (3) below, as applicable.)
(1) ¨
The
Employer shall make a Matching Contribution on behalf of each Participant in an
amount equal to
the following
percentage of a Participant’s Deferral Contributions during the Plan Year (check
one):
| (A) |
¨50% |
| (B) |
¨100% |
| (C) |
¨ % |
| (D) | ¨(Tiered Match) % of the first % of the Participant's Compensation contributed to the Plan |
| (E) | ¨The percentage declared for the year, if any, by a Board of Directors’ resolution. |
| (F) | ¨Other: |
18
(2)
þ
Matching
Contribution Offset. For each Participant who has made deferrals of at least the
maximum
amount allowed pursuant to Section 402(g) of the Code or the maximum allowed
under the Employer’s
plan listed below to such plan, the Employer shall make a Matching Contribution
in an amount equal to
(A) minus (B) below:
| (A) |
The
Matching Employer Contribution, as defined in the The
Steak N Shake 401k Savings Plan
that the Participant would have received under the The
Steak N Shake 401k Savings Plan
on the sum of the Deferral Contributions and the Participant’s deferrals
hereunder, as defined therein, that the Participant actually made to such
Plan, if no limits otherwise imposed by the Code, and regulations issued
thereunder, applied to such Matching Employer Contribution and the
Participant’s Deferral Contributions are deemed to have been made to the
Plan; |
| (B) |
The
Matching Employer Contributions actually made to such Participant under
the The
Steak N Shake 401k Savings Plan
for the Plan Year of the determination of the Matching Contribution
hereunder. |
(3)
¨ Matching
Contribution Limits (check the appropriate box(es)):
| (A) |
¨Deferral
Contributions in excess of
% of the Participant’s Compensation for the period in question shall not
be considered for Matching Contributions. |
Note:
If
the Employer elects a percentage limit in (A) above and requests the Trustee to
account separately for matched and unmatched Deferral Contributions, the
Matching Contributions allocated to each Participant must be computed, and the
percentage limit applied, based upon each period.
| (B) |
¨Matching
Contributions for each Participant for each Plan Year shall be limited to
$. |
(4) Eligibility
Requirement(s) for Matching Contributions.
A Participant who makes Deferral Contributions during
the
Plan Year under Section 1.05(a) shall be entitled to Matching Contributions for
that Plan Year if the Participant
satisfies the following requirement(s) (Check the appropriate box(es). Options
(B) and (C) may not be elected
together):
| (A) |
¨Is
employed by the Employer on the last day of the Plan
Year. |
| (B) |
¨Earns
at least 500 Hours of Service during the Plan
Year. |
| (C) |
¨Earns
at least 1,000 Hours of Service during the Plan Year.
|
| (D) |
¨Other:
|
| (E) |
þNo
requirements. |
Note:
If
option (A), (B) or (C) above is selected, then Matching Contributions can only
be made
by
the Employer after
the Plan Year ends. Any Matching Contribution made before Plan Year end shall
not be
subject to the eligibility requirements of this Section
1.05(b)(3)).
(c)
Employer
Contributions
| (1) |
¨Fixed
Employer Contributions.
The Employer shall make an Employer Contribution on behalf of each
Participant in an amount determined as described below (check at least
one): |
| (A) |
¨In
an amount equal to
% of each Participant’s Compensation each Plan
Year. |
| (B) | ¨In an amount determined and allocated as described below: |
| (C) | ¨In an amount equal to (check at least one): |
| (i.) |
¨Any
profit sharing contribution that the Employer would have made on behalf of
the Participant under the following qualified defined contribution plan
but for the limitations imposed by Code Section
401(a)(17): |
| (ii.) |
¨Any
contribution described in Code Section 401(m) that the Employer would have
made on behalf of the Participant under the following qualified defined
contribution plan but for the limitations imposed by Code Section
401(a)(17): |
19
| (2) |
þDiscretionary
Employer Contributions. The
Employer may make Employer Contributions to the accounts of Participants
in any amount, as determined by the Employer in its sole discretion from
time to time, which amount may be zero. |
| (3) |
Eligibility
Requirement(s) for Employer Contributions.
A Participant shall only be entitled to Employer Contributions under
Section 1.05(c)(1) for a Plan Year if the Participant satisfies the
following requirement(s) (Check the appropriate box(es). Options (B) and
(C) may not be elected together): |
| (A) |
þIs
employed by the Employer on the last day of the Plan
Year. |
| (B) |
¨Earns
at least 500 Hours of Service during the Plan
Year. |
| (C) |
¨Earns
at least 1,000 Hours of Service during the Plan Year.
|
| (D) |
¨Other:
|
| (E) |
¨No
requirements. |
1.06 DISTRIBUTION DATES
Distribution
from a Participant’s Account pursuant to Section 8.02 shall begin upon the
following date(s) (check either (a) or (b); check (c), if desired):
(a) ¨
Non-Class
Year Accounting (complete (1) and (2)).
(1)
The
earliest of termination of employment with the Employer (see Plan Section 7.03)
and the following event(s) (check appropriate box(es); if none selected, all
distributions will be upon termination of employment):
| (A) |
¨Attainment
of Normal Retirement Age
(as defined in Section 1.07(f)). |
| (B) |
¨Attainment
of Early Retirement Age (as defined in Section
1.07(g)). |
| (C) |
¨The
date on which the Participant becomes disabled (as defined in Section
1.07(h)). |
(2)
Timing
of distribution (check either (A) or (B)).
| (A) |
¨The
distribution of the Participant’s Account will be begin in the month
following the event described in (a)(1) above; however, if the event is
termination of employment, then such distribution will begin as soon as
practicable on or after the 1st day of the seventh calendar month
following such separation if the Participant was a Key Employee.
|
| (B) |
¨The
distribution of the Participant’s Account will begin as soon as
administratively feasible in the calendar year following distribution
event described in (a)(1) above; provided however, that if the event is
termination of employment, in no event will such distribution begin
earlier than the 1st day of the seventh calendar month following such
separation if the Participant was a Key
Employee.. |
(b) þ
Class
Year Accounting (complete
(1) and (2)).
(1)
Upon
(check at least one; (A) must be selected if plan has contributions pursuant to
section 1.05(b) or (c)):
| (A) |
þTermination
of employment with the Employer (see Plan Section 7.03); provided however,
that if the event is termination of employment, in no event will such
distribution begin earlier than the 1st day of the seventh calendar month
following such separation if the Participant was a Key
Employee. |
| (B) |
þThe
date elected by the Participant, pursuant to Plan Section 8.02, and
subject to the restrictions imposed in Plan Section 8.02 with
respect to future Deferral Contributions, in which event such date of
distribution must be at least one year after the date such Deferral
Contribution would have been paid to the Participant in cash in the
absence of the election to make the Deferral Contribution
|
(2) Timing
of distribution subject to Subsection (b)(1)(A) above (check either (A) or
(B)).
| (A) |
þThe
Distribution of the Participant’s Account will begin 01/02
(specify month and day) following the event described in (b)(1)
above. |
| (B) |
¨The
Distribution of the Participant’s Account will begin
(specify month and day) of the calendar year following the event described
in (b)(1) above. |
(c) ¨
Upon
a Change of Control in accordance with Plan Section
7.08.
Note:
Internal Revenue Code Section 280G could impose certain, adverse tax
consequences on both Participants and the Employer as a result of the
application of this Section 1.06(c). The Employer should consult with its
attorney prior to electing to apply Section 1. 06(c).
20
1.07
VESTING
SCHEDULE
(a)
The
Participant’s vested percentage in Matching Contributions elected in Section
1.05(b) shall be based upon the schedule(s) selected
below.
| (1) |
¨
N/A - No Matching Contributions |
| (2) |
¨
100% Vesting immediately |
| (3) |
¨
3 year cliff (see C below) |
| (4) |
¨
5 year cliff (see D below) |
| (5) |
þ
6 year graduated (see E below) |
| (6) |
¨
7 year graduated (see F below) |
| (7) |
¨
G below |
| (8) |
¨
Other (Attachment "B") |
|
Years
of |
Vesting
Schedule |
||||
|
Service
for |
|||||
|
Vesting |
C |
D |
E |
F |
G |
|
0 |
0% |
0% |
0% |
0% |
|
|
1 |
0% |
0% |
0% |
0% |
|
|
2 |
0% |
0% |
20% |
0% |
|
|
3 |
100% |
0% |
40% |
20% |
|
|
4 |
100% |
0% |
60% |
40% |
|
|
5 |
100% |
100% |
80% |
60% |
|
|
6 |
100% |
100% |
100% |
80% |
|
|
7 |
100% |
100% |
100% |
100% |
100% |
(b)
The
Participant’s vested percentage in Employer Contributions elected in Section
1.05(c) shall be based upon the schedule(s) selected
below.
| (1) |
¨
N/A - No Employer Contributions |
| (2) |
¨
100% Vesting immediately |
| (3) |
¨
3 year cliff (see C below) |
| (4) |
¨
5 year cliff (see D below) |
| (5) |
þ
6 year graduated (see E below) |
| (6) |
¨
7 year graduated (see F below) |
| (7) |
¨
G below |
| (8) |
¨
Other (Attachment "B") |
|
Years
of |
Vesting
Schedule |
||||
|
Service
for |
|||||
|
Vesting |
C |
D |
E |
F |
G |
|
0 |
0% |
0% |
0% |
0% |
|
|
1 |
0% |
0% |
0% |
0% |
|
|
2 |
0% |
0% |
20% |
0% |
|
|
3 |
100% |
0% |
40% |
20% |
|
|
4 |
100% |
0% |
60% |
40% |
|
|
5 |
100% |
100% |
80% |
60% |
|
|
6 |
100% |
100% |
100% |
80% |
|
|
7 |
100% |
100% |
100% |
100% |
100% |
(c)
¨
Years
of Service for Vesting shall exclude (check
one):
| (1) |
¨for
new plans, service prior to the Effective Date as defined in Section
1.01(d)(1). |
| (2) |
¨for
existing plans converting from another plan document, service prior to the
original Effective Date as defined in Section
1.01(d)(2). |
(d)
¨
A
Participant will forfeit his Matching Contributions and Employer Contributions
upon the occurrence of the following
event
(s):
(i)
a Participant’s willful breach of any applicable confidentiality or
non-competition agreement with the Employer, (ii) a Participant’s willful
dishonesty, fraud or misconduct with respect to the business or affairs of the
Employer or an affiliate which materially and adversely affects the operations
or reputation of the Employer or an affiliate (monetarily or otherwise); or
(iii) a Participant’s conviction of a felony crime, a crime involving moral
turptitude or a crime involving property of the Company, or entry of a plea of
nolo contender thereof.
21
|
(e)
þ |
A Participant will be 100% vested in his Matching Contributions and
Employer Contributions upon (check the
appropriate box(es), if any; if 1.06(c) is selected, Participants will
automatically vest upon Change of Control as defined
in Section 1.12): |
| (1) |
þNormal
Retirement Age (as defined in Section
1.07(f)). |
| (2) |
¨Early
Retirement Age (as defined in Section
1.07(g)). |
| (3) |
þDeath. |
| (4) |
þThe
date on which the Participant becomes disabled, as determined under
Section 1.07(h) of the Plan. |
(f) Normal
Retirement Age under
the Plan is (check
one):
| (1) |
¨age
65. |
| (2) |
þage
55
(specify from 55 through 64). |
| (3) |
¨the
later of age
(cannot exceed 65) or the fifth anniversary of the Participant’s
Commencement Date. |
If
no box is checked in this Section 1.07(f), then Normal Retirement Age is
65.
|
(g) ¨ |
Early Retirement Age is the first day of the month after the Participant
attains age
(specify 55 or greater) and completes
Years of Service for Vesting. |
(h) þ
A
Participant is considered disabled when that Participant (check
one):
| (1) |
þis
unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or can be expected to last for a continuous period of
not less than 12 months. |
| (2) |
¨is,
by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income replacement
benefits for a period ofnot less than 3 months under an accident and
health plan covering employees of the Employer .
|
1.08
PREDECESSOR
EMPLOYER SERVICE
¨ Service
for purposes of vesting in Section 1.07(a) and (b) shall include service with
the following employer(s):
1.09
UNFORESEEABLE
EMERGENCY WITHDRAWALS
| (a) |
þwill
be allowed in accordance with Section 7.07, subject to a $
1,000.00
minimum
amount. (Must be at least
$1,000) |
| (b) |
¨will
not
be allowed. |
1.10 DISTRIBUTIONS
Subject
to Articles 7 and 8 distributions under the Plan are always available as a lump
sum. Check below to allow distributions in installment
payments:
þ under
a systematic withdrawal plan (installments) not to exceed 10 years which (check
one if box for this
Section is
selected):
(a)
¨ will
not be accelerated, regardless of the Participant’s Account
balance.
(b)
þ
will
be accelerated to a lump sum distribution in accordance with Section
8.03.
22
1.11
INVESTMENT
DECISIONS
|
(a) |
Investment
Directions |
Investments
in which the Accounts of Participants shall be treated as invested and
reinvested shall be directed (check one):
| (1) |
¨by
the Employer
among the options listed in (b) below. |
| (2) |
þby
each Participant
among the options listed in (b) below. |
| (3) |
¨in
accordance with investment directions provided by each Participant for all
contribution sources in a Participant’s Account except the following
sources shall be invested as directed by the Employer (check (A) and/or
(B)): |
(A)
¨
Nonelective
Employer Contributions
(B)
¨
Matching
Employer Contributions
The
Employer must direct the applicable sources among the same investment options
made available for Participant directed sources listed in the Service
Agreement.
|
(b)
|
Plan
Investment Options |
Participant
Accounts will be treated as invested among the Investment Funds listed in the
Service Agreement from time to time pursuant to Participant and/or Employer
directions, as applicable.
Note:
The method and frequency for change of investments will be determined under the
rules applicable to the selected funds. Information will be provided regarding
expenses, if any, for changes in investment options.
1.12
RELIANCE
ON PLAN
An
adopting Employer may not rely solely on this Plan to ensure that the Plan is
"unfunded and maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees"
with respect to the Employer's particular situation. This Agreement must be
reviewed by the Employer’s attorney before it is executed.
This
Adoption Agreement may be used only in conjunction with the CORPORATEplan for
Retirement Executive Plan Basic Plan Document.
23
EXECUTION
PAGE
(Fidelity's
Copy)
IN
WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be executed
this ________day of _______________, 20_______.
Employer
By
Title
Employer
By
Title
24
EXECUTION
PAGE
(Employer's
Copy)
IN
WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be executed
this ________day of _______________, 20______.
Employer
By
Title
Employer
By
Title
25
Attachment
A
Pursuant
to Section 1.03(a), the following are the Employees who are eligible to
participate in the Plan:
Employer
______________________________________
By
_______________________________________
Title
_______________________________________
Date
_______________________________________
Note:
The
Employer must revise Attachment A to add Employees as they become eligible or
delete Employees who are no longer eligible. Attachment A should be signed and
dated every time a change is made.
26
Attachment
B
| (a) |
¨ The
Participant’s vested percentage in Matching Contributions elected in
Section 1.05(b) shall be based upon the following
schedule: |
| (b) |
¨ The
Participant’s vested percentage in Employer Contributions elected in
Section 1.05(c) shall be based upon the following schedule:
|
