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RESIGNATION
AGREEMENT AND COMPLETE GENERAL RELEASE
This
Resignation Agreement and Complete General Release (the
“Agreement”) is entered into effective this 16th day of
February, 2009 by and between David C. Milne (“Mr.
Milne”) 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, Mr. Milne 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 Mr.
Milne shall work on normal business hours to transition his work to
his successor(s) and for thirty (30) days thereafter Mr. Milne
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
Mr. Milne for any out of pocket costs incurred in such work and
coordinate any meetings or other contact around any other work
obligations Mr. Milne has in the future.
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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. Milne with certain pay
and benefits as set forth below:
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Salary.
SNS
shall pay to Mr. Milne an amount equal to twelve months of his
current salary ($215,000 annually) less applicable withholdings and
deductions authorized by law or Mr. Milne (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 Mr. Milne is paid by a
subsequent employer. Mr. Milne 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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Bonus.
Mr.
Milne 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 Mr. Milne 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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Insurance
Continuation. For
up to twelve (12) months following the Resignation Date Mr. Milne
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 Mr. Milne as a participant in any insurance plan,
SNS shall pay to Mr. Milne the amount of SNS’s contribution
for such coverage so that Mr. Milne 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 Mr. Milne is eligible to
participate in any group health plan offered by a subsequent
employer.
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Automobile.
Mr.
Milne 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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Outplacement
Services. Within
the first twelve (12) months following the Resignation Date SNS
shall, upon request, either pay for directly or reimburse Mr. Milne
for up to $15,000 for outplacement services provided on his
behalf.
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Mr.
Milne 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. Mr. Milne 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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Confidentiality
and Non-Disparagement. Mr.
Milne’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. Milne 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. Milne
also agrees that he will not communicate (verbally or non-verbally)
anything that a reasonable person would perceive as having the
effect
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