RESIGNATION AGREEMENT AND COMPLETE GENERAL RELEASE
EXHIBIT
10.1
This
Resignation Agreement and Complete
General Release (the “Agreement”) is entered into effective this 16th day of
February, 2009 by and between Xxxxx X. Xxxxx (“Xx. Xxxxx”) and The Steak n Shake
Company (“SNS”).
1.
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Resignation.
In consideration for the representations, promises, and warranties
made
herein, Xx. Xxxxx 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 February 17, 2009 (the “Resignation
Date”). Notwithstanding the foregoing, for the seven days
following the Resignation Date Xx. Xxxxx shall work on normal business
hours to transition his work to his successor(s) and for thirty
(30) days
thereafter Xx. Xxxxx shall cooperate with SNS and make himself
available
at reasonable times and locations to provide information regarding
any
matters pending in his department, issues that arise in the course
of
transitioning his work to others. SNS shall reimburse Xx. Xxxxx
for any out of pocket costs incurred in such work and coordinate
any
meetings or other contact around any other work obligations Xx.
Xxxxx has
in the future.
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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. Xxxxx with certain pay and benefits as set forth
below:
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A.
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Salary. SNS
shall pay to Xx. Xxxxx an amount equal to twelve months of his
current
salary ($215,000 annually) less applicable withholdings and deductions
authorized by law or Xx. Xxxxx (the “Settlement Amount”). The
Settlement Amount shall be paid in equal installments on SNS’s normal and
customary pay days, beginning after any revocation period contained
herein
has lapsed. The Settlement Amount shall be reduced by the net
amount of any cash compensation Xx. Xxxxx is paid by a subsequent
employer. Xx. Xxxxx agrees to notify the Company’s General
Counsel within five (5) days of the date he obtains subsequent
employment
and inform him/her of the amount of compensation he is receiving
from such
employer.
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B.
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Bonus. Xx.
Xxxxx shall be paid a lump sum payment equal to any bonus to which
he
would have been entitled under the Incentive Bonus Plan or any
other cash
or other bonus plan, had all requirements for earning a bonus been
satisfied, multiplied by a fraction, the denominator of which will
be the
number of days in any such computation period and the numerator
of which
shall be the number of days during the computation period Xx. Xxxxx
was
employed by the Company. Should the calculation of the bonus
not be ascertainable at the Resignation date then the payment required
hereunder shall be made within 20 days of the date the computation
herein
is first able to be made by Company.
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C.
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Insurance
Continuation. For up to twelve (12) months following the
Resignation Date Xx. Xxxxx shall be entitled to continue participation
in
any Company-provided group medical insurance plan in which he was
enrolled
on the Resignation Date. If SNS is prevented by law or contract
from retaining Xx. Xxxxx as a participant in any insurance plan,
SNS shall
pay to Xx. Xxxxx the amount of SNS’s contribution for such coverage so
that Xx. Xxxxx may continue his coverage under COBRA or acquire
similar
coverage in the market at the same financial obligation as he would
have
if he had remained a employed. SNS’s obligations under this
sub-paragraph shall end on the date that Xx. Xxxxx is eligible
to
participate in any group health plan offered by a subsequent
employer.
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D.
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Automobile. Xx.
Xxxxx may retain his company-owned automobile and operate it in
compliance
with SNS’s automobile policy for up to 60 days hereafter on the same terms
and conditions as he currently uses it.
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E.
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Outplacement
Services. Within the first twelve (12) months following
the Resignation Date SNS shall, upon request, either pay for directly
or
reimburse Xx. Xxxxx for up to $15,000 for outplacement services
provided
on his behalf.
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Xx.
Xxxxx
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. Xxxxx 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.
3.
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Confidentiality
and Non-Disparagement. Xx. Xxxxx’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. Xxxxx 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. Xxxxx 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. Xxxxx’x goodwill or reputation. If Xx. Xxxxx becomes aware
of such a statement being made he shall notify the Company’s General Counsel,
who shall investigate and use his best efforts to cure any statement made
in
violation of this provision within five (5) business days of the receipt
of such
notice.
4.
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Raiding
of Employees. Xx. Xxxxx 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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5.
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Return
of SNS’s Property. Except as set forth
in
Section 2.D. above Xx. Xxxxx will return to SNS all of its property
in his
possession by 5 p.m. on February 24, 2009. Notwithstanding the
foregoing, Xx. Xxxxx may retain his Blackberry telephone device
and laptop
computer for 60 days following the Resignation
Date.
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6.
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Breach
of this Agreement. If Xx. Xxxxx breaches any term or
condition of this Agreement, all of which are material terms, Xx.
Xxxxx
agrees to repay to SNS the entire Settlement Amount and Outplacement
Services 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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Waiver
of Claims. Xx. Xxxxx, 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. Xxxxx’x employment, resignation from
employment, or any other relationship with SNS, whether these claims
are
known or unknown. Xx. Xxxxx 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. Xxxxx files or that
is filed
on Xx. Xxxxx’x behalf, except as otherwise provided by applicable law or
regulation. Xx. Xxxxx 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. Xxxxx 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. Xxxxx
entered with SNS during or prior to his employment with SNS. In
addition to the foregoing, Xx. Xxxxx 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. Xxxxx and SNS
agree that Xx. Xxxxx shall be entitled to elect continuation of
his group
health insurance benefits under the Consolidated Omnibus Budget
Reconciliation Act. Further, SNS agrees that it will not
contest any claim for unemployment compensation benefits Xx. Xxxxx
makes
after the last payment of the Severance Amount is
made.
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SNS
hereby waives releases, discharges and holds Xx. Xxxxx and his heirs, executors
and assigns harmless 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. Xxxxx’x
employment, resignation from employment or any other relationship with SNS,
whether these claims are known or unknown.
8.
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Right
to Revoke, Right to Review, and Right to Seek Legal
Advice. Xx. Xxxxx 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. Xxxxx must send written notice of
revocation to the Company’s General Counsel at the Company’s corporate
office. For revocation to be effective, it must be received by the
General Counsel no later than the close of business on the seventh day after
Xx.
Xxxxx signs this Agreement. If Xx. Xxxxx revokes this Agreement, it
shall not be effective or enforceable, Xx. Xxxxx will not receive any of
the
benefits or the payments described herein and Xx. Xxxxx 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 Xx.
Xxxxx and SNS, and upon their heirs, administrators, representatives,
executors, successors and assigns, and shall inure to the benefit
of Xx.
Xxxxx 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. Xx. Xxxxx 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. Xxxxx’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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12.
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Complete
Agreement. Xx. Xxxxx 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. Xxxxx 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:
Xxxxx X. Xxxxx: | The Steak n Shake Company: |
________________________ | By: _______________________ |
Dated: _______________________ | Printed: _______________________ |
Dated: _______________________ |