Unassociated Document


     

    THE
STEAK N SHAKE NON-QUALIFIED SAVINGS PLAN


    


    Amended
and Restated as of March 15, 2010

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    TABLE OF
CONTENTS

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	 
      	 
      	 
      	
                                          Page

                                        
	
                                          ARTICLE
      I

                                        	
                                          RESTATEMENT
      AND PURPOSE

                                        	
                                          1

                                        
	 
      	
                                          Section
      1.01

                                        	
                                          History
      and Restatement

                                        	
                                          1

                                        
	 
      	
                                          Section
      1.02

                                        	
                                          Purpose

                                        	
                                          1

                                        
	 
      	
                                          Section
      1.03

                                        	
                                          Grantor
      Trust

                                        	
                                          1

                                        
	
                                          ARTICLE
      II

                                        	
                                          DEFINITIONS
      AND INTERPRETATION

                                        	
                                          1

                                        
	 
      	
                                          Section
      2.01

                                        	
                                          Definitions

                                        	
                                          1

                                        
	 
      	
                                          Section
      2.02

                                        	
                                          Rules
      of Interpretation.

                                        	
                                          6

                                        
	
                                          ARTICLE
      III

                                        	
                                          PARTICIPATION

                                        	
                                          6

                                        
	
                                          ARTICLE
      IV

                                        	
                                          DEFERRAL
      AND DISTRIBUTION ELECTIONS

                                        	
                                          6

                                        
	 
      	
                                          Section
      4.01

                                        	
                                          Deferral
      of Compensation

                                        	
                                          6

                                        
	 
      	
                                          Section
      4.02

                                        	
                                          Initial
      Deferral Election

                                        	
                                          7

                                        
	 
      	
                                          Section
      4.03

                                        	
                                          Annual
      Deferral Elections

                                        	
                                          7

                                        
	 
      	
                                          Section
      4.04

                                        	
                                          Elections
      to Defer Performance-based Bonus Payouts

                                        	
                                          7

                                        
	 
      	
                                          Section
      4.05

                                        	
                                          Election
      of Form and Timing of Payment

                                        	
                                          7

                                        
	 
      	
                                          Section
      4.06

                                        	
                                          Election
      Changes

                                        	
                                          7

                                        
	
                                          ARTICLE
      V

                                        	
                                          PARTICIPANT
      ACCOUNTS

                                        	
                                          8

                                        
	 
      	
                                          Section
      5.01

                                        	
                                          Establishment
      of Accounts

                                        	
                                          8

                                        
	 
      	
                                          Section
      5.02

                                        	
                                          Crediting
      of Deferrals

                                        	
                                          8

                                        
	 
      	
                                          Section
      5.03

                                        	
                                          Crediting
      of Matching Contributions

                                        	
                                          8

                                        
	 
      	
                                          Section
      5.04

                                        	
                                          Crediting
      of Employer Discretionary Contributions

                                        	
                                          9

                                        
	 
      	
                                          Section
      5.05

                                        	
                                          Investment
      Options

                                        	
                                          9

                                        
	 
      	
                                          Section
      5.06

                                        	
                                          Allocation
      of Earnings, Gains, Losses and Expenses

                                        	
                                          9

                                        
	 
      	
                                          Section
      5.07

                                        	
                                          Charge
      for Distributions

                                        	
                                          9

                                        
	
                                          ARTICLE
      VI

                                        	
                                          RIGHT
      TO BENEFITS

                                        	
                                          9

                                        
	 
      	
                                          Section
      6.01

                                        	
                                          Retirement

                                        	
                                          9

                                        
	 
      	
                                          Section
      6.02

                                        	
                                          Death

                                        	
                                          9

                                        
	 
      	
                                          Section
      6.03

                                        	
                                          Separation
      from Service

                                        	
                                          10

                                        
	 
      	
                                          Section
      6.04

                                        	
                                          Forfeitures

                                        	
                                          10

                                        
	
                                          ARTICLE
      VII

                                        	
                                          DISTRIBUTION
      OF ACCOUNTS

                                        	
                                          10

                                        
	 
      	
                                          Section
      7.01

                                        	
                                          Distribution
      of Deferral Contributions

                                        	
                                          10

                                        
	 
      	
                                          Section
      7.02

                                        	
                                          Distribution
      of Matching and Employer Discretionary Credits

                                        	
                                          10

                                        
	 
      	
                                          Section
      7.03

                                        	
                                          Distribution
      Upon Death

                                        	
                                          10

                                        
	 
      	
                                          Section
      7.04

                                        	
                                          Distribution
      on Account of Unforeseeable Emergency

                                        	
                                          11

                                        
	 
      	
                                          Section
      7.05

                                        	
                                          Delay
      in Payment for Specified Employees

                                        	
                                          11

                                        


                                

                              

                            

                             

                            
                              
                                
                                

                              

                              
                                i

                                
                                  

                                

                              

                              
                                
                                

                              

                            

                             

                            
                              
                                	 
      	
                                        Section
      7.06

                                      	
                                        Designating
      a Beneficiary

                                      	
                                        11

                                      
	 
      	
                                        Section
      7.07

                                      	
                                        Payment
      of Small Account Balances

                                      	
                                        11

                                      
	 
      	
                                        Section
      7.08

                                      	
                                        Delay
      of Distribution

                                      	
                                        11

                                      
	 
      	
                                        Section
      7.09

                                      	
                                        Notice
      to Trustee

                                      	
                                        12

                                      
	 
      	
                                        Section
      7.10

                                      	
                                        Forfeiture
      of Matching and Employer Discretionary Contributions

                                      	
                                        12

                                      
	
                                        ARTICLE
      VIII

                                      	
                                        ADMINISTRATION
      OF PLAN

                                      	
                                        12

                                      
	 
      	
                                        Section
      8.01

                                      	
                                        Powers
      and Responsibilities of the Administrator.

                                      	
                                        12

                                      
	 
      	
                                        Section
      8.02

                                      	
                                        Indemnification

                                      	
                                        13

                                      
	 
      	
                                        Section
      8.03

                                      	
                                        Claims
      and Claims Review Procedure.

                                      	
                                        13

                                      
	
                                        ARTICLE
      IX

                                      	
                                        AMENDMENT
      AND TERMINATION

                                      	
                                        14

                                      
	
                                        ARTICLE
      X

                                      	
                                        MISCELLANEOUS

                                      	
                                        14

                                      
	 
      	
                                        Section
      10.01

                                      	
                                        Obligations
      of Biglari Holdings Inc

                                      	
                                        14

                                      
	 
      	
                                        Section
      10.02

                                      	
                                        Employment
      Rights

                                      	
                                        15

                                      
	 
      	
                                        Section
      10.03

                                      	
                                        Non-Alienation

                                      	
                                        15

                                      
	 
      	
                                        Section
      10.04

                                      	
                                        Tax
      Withholding

                                      	
                                        15

                                      
	 
      	
                                        Section
      10.05

                                      	
                                        Other
      Plans

                                      	
                                        15

                                      
	 
      	
                                        Section
      10.06

                                      	
                                        Liability
      of Affiliated Employers

                                      	
                                        15

                                      
	 
      	
                                        Section
      10.07

                                      	
                                        Facility
      of Payment

                                      	
                                        15

                                      
	 
      	
                                        Section
      10.08

                                      	
                                        Plan
      Records

                                      	
                                        15

                                      
	 
      	
                                        Section
      10.09

                                      	
                                        USERRA

                                      	
                                        15

                                      


                              

                            

                             

                            
                              
                                 


                              

                              
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    ARTICLE
I

    RESTATEMENT
AND PURPOSE

     

    Section
1.01 History and
Restatement.  The Steak n Shake Company established The Steak n
Shake Company Non-Qualified Savings Plan ("Plan") effective November 12, 2004
and has amended and/or restated the Plan on multiple occasions since that
time.  The Steak n Shake Company most recently restated the Plan,
effective January 1, 2008, to comply with the requirements of Code Section 409A
and the guidance thereunder.  Effective March 15, 2010, by action of
its board of directors, Biglari Holdings Inc. (formerly The Steak n Shake
Company) transferred sponsorship and administration of the Plan and all related
corresponding duties and responsibilities to its wholly-owned subsidiary, Steak
n Shake Operations, Inc.  Biglari Holdings Inc., however, maintains
the obligation to pay benefits accrued under the terms and conditions of the
Plan and has established a rabbi trust for purposes of holding the assets
representing the obligations accrued under the Plan.  By this
restatement, which is generally effective as of March 15, 2010, Steak n Shake
Operations, Inc. amends the Plan to change the name of the Plan to The Steak n
Shake Non-Qualified Savings Plan and to make certain other revisions to the
Plan.  The Plan is intended to comply with Code Section 409A and the
guidance thereunder.

     

    Section
1.02 Purpose.  The Plan
is intended to constitute an unfunded plan maintained by the Employer primarily
for the purpose of providing deferred compensation for a select group of
management or highly compensated employees within the meaning of Sections 201,
301, and 401 of ERISA.

     

    Section
1.03 Grantor
Trust.  Biglari Holdings Inc. has established a grantor rabbi
trust to hold assets for the provision of benefits under the
Plan.  Assets of the Trust are subject to the claims of the general
creditors of Biglari Holdings Inc., and no Participant shall have any interest
in any assets of the Trust or an Employer other than as a general creditor of
Biglari Holdings Inc. and/or the Employer.

     

    ARTICLE
II

    DEFINITIONS
AND INTERPRETATION

     

    Section
2.01 Definitions.  When
the first letter of a word or the words in a phrase are capitalized herein, the
word or phrase shall have the meaning specified below:

     

    (a)           "Account"
means the bookkeeping account established to reflect a Participant's interest
under the Plan attributable to Deferral Contributions, Matching Contributions
and Employer Discretionary Contributions and the Account Adjustments
thereon.  The Administrator shall maintain a separate Account with
respect to amounts deferred pursuant to each deferral election and any related
Matching Contributions and/or any Employer Discretionary
Contributions.  Where the context so permits, the term "Account" means
the amount credited to such bookkeeping account.

     

    (b)           "Account
Adjustment" means, with respect to an Account, the amounts credited or debited
to the Account (for earnings, losses, gains, dividends, expenses, etc.) pursuant
to Section 5.06.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (c)           "Administrator"
means the committee or such other person that the Board designates as
Administrator.  To the extent that the Administrator delegates a duty
or responsibility to an agent, the term "Administrator" shall include such
agent.  To the extent the Board does not designate an Administrator,
the Company shall be the Administrator.

     

    (d)           "Affiliated
Employer" means a member of a controlled group of corporations (as defined in
Code Section 414(b)) of which the Company is a member or an unincorporated trade
or business under common control (as defined in Code Section 414(c)) with the
Company designated as eligible by the Administrator to participate in the Plan,
and any successor thereto that adopts this Plan.  As of the effective
date of this restatement, the Affiliated Employers are Biglari Holdings Inc. and
Steak n Shake Enterprises, Inc.

     

    (e)           "Alternate
Payee" has the meaning set out in ERISA Section 206(d)(3)(K).

     

    (f)           "Applicable
Form" means a form provided by the Administrator for making an election or
designation under the Plan.  To the extent permitted by the
Administrator, an Applicable Form may be provided and/or an election or
designation made electronically.

     

    (g)           "Beneficiary"
means the person or persons entitled to receive a Participant's remaining
Accounts, if any, after his death.  A Participant's Beneficiary shall
be determined as provided in Section 7.06.

     

    (h)           "Benefit
Claim" means a request or claim for a benefit under the Plan, including a claim
for greater benefits than have been paid.

     

    (i)           "Board"
or "Board of Directors" means the Company's Board of Directors or, where the
context so permits, its designee.

     

    (j)           "Break
in Service" means a Period of Severance of at least 12 consecutive
months.

     

    (k)           "Change
in Control" means a change in control with respect to the applicable
corporation, as defined in 26 CFR section 1.409A-3(i)(5).  For
purposes of this definition "applicable corporation" means:

     

    (1)           The
corporation for which the Participant is performing services at the time of the
change in control event;

     

    (2)           The
corporation(s) liable for payment hereunder (but only if either the accrued
benefit hereunder is attributable to the performance of service by the
Participant for such corporation(s) or there is a bona fide business purpose for
such corporation(s) to be liable for such payment and, in either case, no
significant purpose of making such corporation(s) liable for such benefit is the
avoidance of Federal income tax); or

     

    (3)           A
corporate majority shareholder of one of the corporations described (1) or (2)
above or any corporation in a chain of corporations in which each corporation is
a majority shareholder of another corporation in the chain, ending in a
corporation identified in (1) or (2) above.

     

    
      
         


      

      
        - 2
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    (l)           "Code"
means the Internal Revenue Code of 1986, as amended from time to
time.

     

    (m)           "Company"
means Steak n Shake Operations, Inc.

     

    (n)           "Compensation"
means:

     

    (1)           Wages
as defined in Code Section 3401(a) and all other payments of compensation to an
Eligible Employee by the Employer (in the course of the Employer's trade or
business) for which the Employer is required to furnish the Eligible Employee a
written statement under Code Sections 6041(d) and 6051(a)(3), excluding (i)
Performance-based Bonuses, (ii) the value of a qualified or non-qualified stock
option granted to an Employee by the Employer to the extent such value is
includable in the Employee's taxable income, (iii) severance pay, (iv)
reimbursements or other expense allowances, (v) fringe benefits (cash and
non-cash), (vi) moving expenses, (vii) deferred compensation, and (viii) welfare
benefits, but including amounts that are not includible in the gross income of
the Eligible Employee under a salary reduction agreement by reason of the
application of Code Sections 125, 132(f)(4), 402(e)(3), 402(h) or
403(b).    Compensation shall be determined without regard
to any rules under Code Section 3401(a) that limit the remuneration included in
wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in Code Section
3401(a)(2)); and

     

    (2)           Any
and all monetary remuneration paid to the Director by the Employer, including,
but not limited to, meeting fees and annual retainers, and reported on a Form
1099.

     

    For
purposes of this subsection, Compensation shall also include amounts deferred
pursuant to an election under Section 4.01.

     

    (o)           "Deferral
Contribution" means the amount credited to a Participant's Account as the result
of the Participant's election to reduce his Compensation and/or
Performance-based Bonus in exchange for such credit, as described in Article
IV.

     

    (p)           "Denial"
or "Denied" means a denial, reduction, termination, or failure to provide or
make payment (in whole or in part) of a Plan benefit.

     

    (q)           "Designated
Benefit Commencement Date" means, with respect to an Account, the date elected
by a Participant on the Applicable Form for distribution (or commencing
distribution, if payable in installments) of the Account.  Such date
may be the date on which the Participant Separates from Service, a year
specified by the Participant, or the date on which a Change of Control
occurs.  If a Participant fails to elect a Designated Benefit
Commencement Date, the Designated Benefit Commencement Date shall be the date on
which the Participant Separates from Service.

     

    (r)           "Designated
Form" means, with respect to an Account, the form in which a Participant has
elected for the Account to be distributed.  The "Designated Form" must
be either (i) a single lump sum payment or (ii) annual installments beginning on
the Designated Benefit Commencement Date and continuing over the next following
anniversaries of such date for a number of years elected by the Participant, not
to exceed a total of 10 annual installments.  Each installment shall
consist of a portion of the remaining vested Account, which shall be equal to
(x) one divided by (y) one plus the number of installments remaining after the
installment for which the calculation is being made.  If a Participant
fails to elect the Designated Form for an Account, the Designated Form for such
Account shall be a single lump sum payment.  Notwithstanding any
provision in this subsection to the contrary, if a Participant elects a Change
of Control as the Designated Benefit Commencement Date, the Designated Form
shall be a single lump sum payment.

     

    
      
         


      

      
        - 3
-

        
          

        

      

      
         


      

    


    (s)           "Director"
means a member of the Board or a member of the board of directors of an
Employer.

     

    (t)           "Eligible
Employee" means a highly compensated, common-law management employee of an
Employer selected by the Administrator.  

     

    (u)           "Employee
Participant" means a Participant who is an Eligible Employee.

     

    (v)           "Employer"
means the Company and all of its Affiliated Employers.

     

    (w)           "Employer
Discretionary Contribution" means an amount credited to a Participant's Account
pursuant to Section 5.04.

     

    (x)           "ERISA"
means the Employee Retirement Income Act of 1974, as amended from time to
time.

     

    (y)           "Fund"
means an Investment Fund.

     

    (z)           "Investment
Fund" means a fund selected by the Administrator pursuant to Section 5.05 to
determine Account Adjustments.

     

    (aa)         "Matching
Contribution" means an amount credited to a Participant's Account pursuant to
Section 5.03.

     

    (bb)         "Normal
Retirement Age" means age 55.

     

    (cc)         "Participant"
means an Eligible Employee or Director who has elected to make deferrals under
the Plan on an Applicable Form and whose Accounts have not been fully
distributed.

     

    (dd)         "Performance-based
Bonus" means any bonus which constitutes compensation, the amount of, or
entitlement to, which is contingent on the satisfaction of pre-established
organizational or individual performance criteria relating to a performance
period of at least 12 consecutive months and which is further defined in
Treasury Regulation § 1.409A-1(e).

     

    (ee)          "Period
of Severance" means a continuous period of time beginning on the date the
Participant incurs a Separation from Service, or if earlier, the 12-month
anniversary of the date on which the Participant was otherwise first absent from
service.

     

    
      
         


      

      
        - 4
-

        
          

        

      

      
         


      

    


    (ff)           "Plan"
means The Steak n Shake Non-Qualified Savings Plan as set out in this document,
as amended from time to time.

     

    (gg)         "Qualified
Domestic Relations Order" has the meaning specified in ERISA Section
206(d)(3)(B).

     

    (hh)        
"Retire" or "Retirement" refers to Separation from Service after attaining
Normal Retirement Age.

     

    (ii)           "Separates
from Service," "Separation from Service," or any variation thereof means a
separation from service within the meaning of Code Section 409A(a)(2)(A)(i) and
the guidance thereunder.

     

    (jj)           "Specified
Employee" means, with respect to the 12-month period beginning on the Specified
Employee Effective Date, an individual who is a specified employee within the
meaning of Code Section 409A(a)(2)(B)(i) and the guidance
thereunder.

     

    (kk)         "Specified
Employee Effective Date" means the April 1 next following the Specified Employee
Identification Date.

     

    (ll)           "Specified
Employee Identification Date" means December 31.

     

    (mm)        Spouse"
means, as of a Participant's Benefit Commencement Date, the person to whom the
Participant is married in accordance with applicable law of the jurisdiction in
which the Participant resides.

     

    (nn)          "Trust"
means the grantor trust established by Biglari Holdings Inc. to hold assets for
the provision of benefits under the Plan.

     

    (oo)          "Trustee"
means the individual(s) or entity appointed by Biglari Holdings Inc. under the
Trust agreement.

     

    (pp)          "Unforeseeable
Emergency" has the meaning given to such term by Code Section 409A and the
guidance thereunder.  In general, the term means a severe financial
hardship to the Participant resulting from an illness or accident of the
Participant, the Participant's spouse, or a dependent (as defined in Code
Section 152(a)) of the Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable circumstances arising
from events beyond the control of the Participant.

     

    (qq)          "Years
of Service" means, with respect to any Participant, the number of whole years of
his periods of service with the Employer and any Affiliated
Employers.  A Participant will receive credit for the aggregate of all
time period(s) commencing with his Employment Commencement Date and ending on
the date a Break in Service begins.  A Participant will also receive
credit for any Period of Severance of less than 12 consecutive
months.  Fractional periods of a year will be expressed in terms of
days.  For purposes of this Plan, Years of Service shall also include
a Participant's periods of service with Kelly Restaurants, Inc. and Creative
Restaurants, Inc.

     

    
      
         


      

      
        - 5
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    Section
2.02 Rules of
Interpretation.

     

    (a)           The
Plan is intended to comply with (i) Code Section 409A and the guidance
thereunder and (ii) the applicable provisions of ERISA, and it shall be
interpreted and administered in accordance with such intent. Except as provided
in the preceding sentence or as otherwise expressly provided herein, the Plan
shall be construed, enforced, and administered, and the validity thereof
determined, in accordance with the internal laws of the State of Indiana without
regard to conflict of law principles and the following provisions of this
Section.

     

    (b)           Words
used herein in the masculine shall be construed to include the feminine, where
appropriate, and vice versa,
and words used herein in the singular or plural shall be construed to
include the plural or singular, where appropriate.

     

    (c)           Headings
and subheadings are used for convenience of reference only and shall not affect
the interpretation of any provision hereof.

     

    (d)           If
any provision of the Plan shall be held to violate the Code or the applicable
provisions of ERISA or be illegal or invalid for any other reason, that
provision shall be deemed null and void, but the invalidation of that provision
shall not otherwise affect the Plan.

     

    (e)           Reference
to any provision of the Code, ERISA, or other law shall be deemed to include a
reference to the successor of such provision.

     

    ARTICLE
III

    PARTICIPATION

     

    The
Administrator shall notify an individual of his eligibility to participate in
the Plan as soon as administratively feasible after it determines that the
individual has satisfied the requirements (other than notification) for
eligibility to participate.  An individual shall become an Eligible
Employee upon receipt of the Administrator's notice.  An Eligible
Employee or a Director shall become a Participant only after completing such
forms and making such elections as the Administrator may prescribe.

     

    ARTICLE
IV

    DEFERRAL
AND DISTRIBUTION ELECTIONS

     

    Section
4.01 Deferral of
Compensation.  An Eligible Employee or Director may elect
pursuant to this Article IV to defer receipt of all or a portion, as specified
in the election, of his Compensation that would otherwise be paid to him in
cash.  All elections pursuant to this Article IV shall be made by
filing an Applicable Form with the Administrator.  Subject to the
provisions of Section 4.06, elections under this Article IV shall become
irrevocable as on the last day of the applicable election period; provided,
however, if the Administrator grants a Participant's request for a distribution
on account of an Unforeseeable Emergency, it shall cancel the Participant's
existing deferral elections.  Amounts deferred pursuant to a
Participant's election shall be withheld from his cash compensation and credited
to his Account as provided in Section 5.02.  The Participant's
Employer shall withhold employment and other taxes with respect to the deferred
amounts from the Participant's other compensation, as required by
law.  If the Participant's other compensation is insufficient for that
purpose, the Participant shall reimburse the Employer for the required
withholding not withheld from the Participant's other compensation.

     

    
      
         


      

      
        - 6
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    Section
4.02 Initial Deferral
Election.  An individual may make a deferral election pursuant
to this Section only within the enrollment period specified by the
Administrator, which shall end not later than 30 days after the individual
becomes an Eligible Employee or Director (or, if earlier, within 30 days after
the date on which he becomes eligible to participate in any other plan of an
Affiliated Employer that is required to be aggregated with this Plan for
purposes of Code Section 409A).  Pursuant to such election, (i) an
Eligible Employee or Director may elect to defer part of his Compensation for
services performed after the date on which his election is filed with the
Administrator and/or (ii) an Eligible Employee may elect to defer part or all of
his Performance-based Bonus for services performed in months after the date on
which his election is filed with the Administrator.  For purposes of
clause (ii) of the preceding sentence, the portion of an Eligible Employee's
Performance-based Bonus for services performed in days after the date on which
his election is filed with the Administrator shall be equal to the amount of his
Performance-based Bonus multiplied by a fraction, the numerator of which is the
number of calendar days in the Performance-based Bonus period occurring after
the filing of the Eligible Employee's election and the denominator of which is
the number of calendar days in the Performance-based Bonus period.

     

    Section
4.03 Annual Deferral
Elections.  A Participant may elect to defer part or all of his
Compensation for services performed during a calendar year by filing an election
during the enrollment period established by the Administrator, which period
shall end not later than December 31 of the preceding year.

     

    Section
4.04 Elections to Defer
Performance-based Bonus Payouts.  An Eligible Employee may
elect to defer part or all of his cash payouts under a Performance-based Bonus,
provided that such election is made during the enrollment period established by
the Administrator, which period shall end not later than six (6) months before
end of the performance period, and such election is otherwise permitted by Code
Section 409A and the guidance thereunder.  Except as permitted by the
preceding provisions of this Section, an Eligible Employee's election to defer
part or all of his cash payouts under a Performance-based Bonus must be made
before the beginning of the applicable performance period.

     

    Section
4.05 Election of Form
and Timing of Payment.  At the time a Participant makes a
deferral election pursuant to Section 4.02, 4.03 or 4.04, he shall also elect a
Designated Benefit Commencement Date and Designated Form for the Account to
which amounts subject to the deferral are credited.

     

    Section
4.06 Election
Changes.  A Participant may, pursuant to this Section, elect to
change the Designated Benefit Commencement Date and/or Designated Form for an
Account, provided, however, that a Participant may make only one election
pursuant to this Section with respect to an Account.  A Participant's
election change pursuant to this Section shall be not be valid until 12 months
after it is filed with the Administrator, and it shall be valid only if (i) it
defers the original Designated Benefit Commencement Date for at least five
years, and (ii) if it changes an election for payment at a specified time, it is
made at least 12 months before the prior Designated Benefit Commencement
Date.  In addition, if the prior Designated Benefit Commencement Date
is based on the Participant’s Separation from Service, the Participant's new
Designated Benefit Commencement Date must be precisely five years after the
prior Designated Benefit Commencement Date.

     

    
      
         


      

      
        - 7
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    ARTICLE
V

    PARTICIPANT
ACCOUNTS

     

    Section
5.01 Establishment of
Accounts.  The Administrator shall establish a separate Account
to reflect each Participant's interest under the Plan with respect to amounts
deferred pursuant to each of the Participant's deferral elections.

     

    Section
5.02 Crediting of
Deferrals.  A Participant's deferrals shall be credited to his
appropriate Account as of the payroll date on which they are withheld from his
pay.

     

    Section
5.03 Crediting of
Matching Contributions.  The Employer shall credit a Matching
Contribution to the Account of each Employee Participant entitled to such
Matching Contribution.  Unless otherwise determined by the
Administrator, the amount of the Matching Contribution shall be determined as
follows:  For each Employee Participant who has made elective
contributions (as defined in Treasury Regulation § 1.401(k)-6 ("Qualified
Plan Deferrals")) of the maximum permitted under Code Section 402(g), or the
maximum permitted under the terms of The Steak n Shake 401(k) Savings Plan or
any successor thereto, (the "Qualified Plan") to the Qualified Plan, the
Employer shall make a Matching Contribution in an amount equal to (a) minus (b)
below:

     

    (a)           The
matching contributions (as defined in Treasury Regulation
§ 1.401(m)-1(a)(2) ("Qualified Plan Match")) that the Employee Participant
would have received under the Qualified Plan on the sum of the contributions
under Article IV and the Participant's Qualified Plan Deferrals, determined as
though:

     

    (1)           no
limits otherwise imposed by the tax law applied to such Qualified Plan
Match;

     

    (2)           the
Employee Participant's contributions under Article IV had been made to the
Qualified Plan; and

     

    (b)           The
Qualified Plan Match actually made to such Employee Participant under the
Qualified Plan for the applicable calendar year.

     

    Provided,
however, that the Matching Contributions credited to the Account of a
Participant pursuant to this Section shall be limited pursuant to (c) and (d)
below:

    


    (c)           The
sum of Matching Contributions made on behalf of a Participant pursuant to this
Section for any calendar year and any other benefits the Participant accrues
pursuant to another plan subject to Code Section 409A as a result of such
Participant's action or inaction under a qualified plan with respect to elective
deferrals and other employee pre-tax contributions subject to the contribution
restrictions under Code Section 401(a)(30) or 402(g) shall not result in a
decrease in the amounts deferred under all plans subject to Code Section 409A in
which the Participant participates in excess of the limit with respect to
elective deferrals under Code Section 402(g)(1)(A), (B) and (C) in effect for
the calendar year in which such action or inaction occurs; and

     

    
      
         


      

      
        - 8
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    (d)           The
Matching Contributions made on behalf of a Participant pursuant to this Section
shall never exceed 100% of the matching amounts that would be provided under the
Qualified Plan absent any plan-based restrictions that reflect limits on
qualified plan contributions under the Code.

     

    Section
5.04 Crediting of
Employer Discretionary Contributions.  The Employer may make
Employer Discretionary Contributions to the accounts of Employee Participants in
any amount (which amount may be zero), as determined by the Employer in its sole
discretion from time to time in writing, which is hereby incorporated
herein.

     

    Section
5.05 Investment
Options.  The Administrator shall, from time to time, specify
the available Investment Funds, which the Administrator may prospectively change
or close to new investments in its discretion.  Each Participant shall
elect one or more Funds to which his existing Accounts shall be allocated, in
increments of 1%.  A Participant may change his investment elections,
and he may make separate investment elections with respect to his existing
Accounts and future deferrals, under rules established by the
Administrator.  Such elections may be further limited as required
under applicable law. The sole purpose of the Funds is to measure Account
Adjustments to the Participant's Accounts, and there is no requirement that
amounts be invested in the Funds.

     

    Section
5.06 Allocation of
Earnings, Gains, Losses and Expenses.  As of the end of each
business day (or at such other periods determined by the Administrator), the
Administrator shall credit (or debit, as applicable) each Participant's Accounts
with earnings, dividends, interest gains, or losses based on the performance of
the Investment Funds as selected by the Participant (net of any related
investment expenses).  In allocating such earnings, gains, dividends,
interest and losses, the Administrator may adopt such procedures as it deems
appropriate, in its sole discretion.  In addition, the Administrator
may allocate administrative expenses and such other expenses related to the Plan
to Participant Accounts and reduce such Accounts for such expenses on pro-rata
basis, per capita basis or such other method selected by the
Administrator.  Such adjustments under this Section 5.06 are referred
to as Account Adjustments.

     

    Section
5.07 Charge for
Distributions.  Upon a distribution with respect to a
Participant, the Participant’s appropriate Accounts shall be reduced by the
amount of the distribution.

     

    ARTICLE
VI

    RIGHT
TO BENEFITS

     

    Section
6.01 Retirement.  The
Account of a Participant who attains Normal Retirement Age prior to a Separation
from Service will be 100% vested.

     

    Section
6.02 Death.  The Account
of a Participant who dies before the distribution of his entire Account will be
100% vested, provided that at the time of his death he is earning Years of
Service.  A distribution to a Beneficiary of a Specified Employee is
not considered to be a payment to a Specified Employee for purposes of Section
7.05.

     

    
      
         


      

      
        - 9
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    Section
6.03 Separation from
Service.  Except as provided in Section 7.10, if a Participant
has a Separation from Service, he will be entitled to a benefit equal to (i) the
vested percentage(s) of the value of the Matching and Employer Discretionary
Contributions credited to his Account, as adjusted for any Account Adjustments,
such percentage(s) determined in accordance with the vesting schedule below, and
(ii) the value of the portion of his Account attributable to Deferral
Contributions as adjusted for any Account Adjustments.  The amount
payable under this Section will be distributed in accordance with Article
VII.

     

    
      
        
          
            	
                    Years of Service

                  	
                    Vesting %

                  
	
                         Less
      than 2

                  	
                           0

                  
	
                    2

                  	
                          20

                  
	
                    3

                  	
                          40

                  
	
                    4

                  	
                          60

                  
	
                    5

                  	
                          80

                  
	
                         6
      or more

                  	
                        100

                  


          

        

      

    

    


    The
Employer shall comply with any service crediting rules to the extent required by
applicable law.

     

    Section
6.04 Forfeitures.  If a
Participant has a Separation from Service, any portion of his Account (including
any amounts credited after his Separation from Service) not vested or payable to
him under Section 6.03 will be forfeited by him.

     

    ARTICLE
VII

    DISTRIBUTION
OF ACCOUNTS

     

    Section
7.01 Distribution of
Deferral Contributions.  Except as otherwise expressly provided
in the following provisions of this Article, the portion of a Participant's
Account attributable to Deferral Contributions and the related Account
Adjustments attributable to such Deferral Contributions shall be distributed on
the Designated Benefit Commencement Date and in the Designated
Form.  Amounts shall be paid on the first day of the month which next
follows the Designated Benefit Commencement Date or as soon as administratively
feasible (and under no circumstances more than 30 days) thereafter.

     

    Section
7.02 Distribution of
Matching and Employer Discretionary Credits.  Except as
otherwise expressly provided in the following provisions of this Article, the
vested portion of a Participant's Account attributable to Matching and/or
Employer Discretionary Contributions and the related Account Adjustments
attributable thereto shall be distributed upon the Participant's Separation from
Service and in the Designated Form.  Amounts shall be paid on the
first day of the month which next follows the Participant's Separation from
Service or as soon as administratively feasible (and under no circumstances more
than 30 days) thereafter.

     

    Section
7.03 Distribution Upon
Death.  Notwithstanding Sections 7.01 and 7.02, if a
Participant dies before the distribution of his entire vested Account balance,
his remaining vested Account balance shall be distributed to his Beneficiary in
a single lump sum payment on the first day of the month which next follows the
Participant's date of death or as soon as administratively feasible (and under
no circumstances more than 30 days) thereafter.

     

    
      
         


      

      
        - 10
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    Section
7.04 Distribution on
Account of Unforeseeable Emergency.  Notwithstanding Sections
7.01 and 7.02, if a Participant demonstrates to the satisfaction of the
Administrator that he has incurred an Unforeseeable Emergency, the amount
necessary to alleviate the financial hardship resulting from the Unforeseeable
Emergency, as determined by the Administrator, shall be distributed from such
Participant's vested Account to him as soon as administratively feasible after
the Administrator’s decision.  If the Administrator grants a request
for withdrawal pursuant to this Section, it shall prospectively cancel the
Participant's existing deferral elections, and it shall take into account the
amounts saved by the cancellation of those elections in determining the amount
needed to satisfy the Participant's Unforeseeable Emergency.

     

    Section
7.05 Delay in Payment
for Specified Employees.  Notwithstanding any provision of this
Plan to the contrary, to the extent required by Code Section 409A(a)(2)(B)(i)
and the guidance thereunder, distributions to a Participant who is a Specified
Employee on account of his Separation from Service for any reason other than
death shall be delayed until the earliest date permitted by such
section.  Payments delayed pursuant to the preceding sentence shall be
adjusted by an Account Adjustments determined pursuant to Section 5.06, to the
date on which such payments are made.

     

    Section
7.06 Designating a
Beneficiary.  The Participant may designate a Beneficiary only
by filing a completed Applicable Form with the Administrator during his
life.  The Participant's proper filing of a Beneficiary designation
shall cancel all prior Beneficiary designations.  If the Participant
does not designate a Beneficiary, or if all properly designated Beneficiaries
die before the Participant, the Participant's Beneficiary shall be his Spouse,
if living at the time of the Participant's death, or if his Spouse is not then
living, to the Participant's estate.

     

    Section
7.07 Payment of Small
Account Balances.  Notwithstanding any provisions of this Plan
to the contrary, the Administrator may, in its discretion, automatically pay out
a Participant's vested Account in a lump sum, provided that such payment
satisfies the following requirements:

     

    (a)           Such
payment results in the termination and liquidation of the entirety of the
Participant's interest under the Plan, including all agreements, methods,
programs, or other arrangements with respect to which deferrals of compensation
are treated as having been deferred under a single nonqualified deferred
compensation plan under Treasury Regulation § 1.409A-1(c)(2);

     

    (b)           Such
payment is not greater than the applicable dollar amount under Code Section
402(g)(1)(B); and

     

    (c)           Such
exercise of Administrator discretion is evidenced in writing no later than the
date of such payment.

     

    Section
7.08 Delay of
Distribution.  Notwithstanding any provisions of this Plan to
the contrary, the Administrator may, in its discretion, delay a payment
otherwise required hereunder to a date after the Designated Benefit Commencement
Date due to any of the circumstances described below, provided that the
Administrator treats all payments to similarly situated Participants on a
reasonably consistent basis.

     

    
      
         


      

      
        - 11
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    (a)           In
the event the Administrator reasonably anticipates that, if the payment were
made as scheduled, the Employer's deduction with respect to such payment would
not be permitted due to the application of Code Section 162(m), provided the
delay complies with the conditions in Treasury Regulation
§ 1.409A-2(b)(7)(i);

     

    (b)           In
the event the Administrator reasonably anticipates that the making of such
payment will violate Federal securities laws or other applicable law, provided
the delay complies with the conditions in Treasury Regulation
§ 1.409A-2(b)(7)(ii);

     

    (c)           Upon
such other events and conditions as the Commissioner of the Internal Revenue
Service may prescribe in generally applicable guidance published in the Internal
Revenue Bulletin; or

     

    (d)           Upon
a Change in Control, provided the delay complies with conditions in Treasury
Regulation § 1.409A-3(i)(5)(iv).

     

    Section
7.09 Notice to
Trustee.  The Administrator shall provide direction to the
Trustee, as provided in the Trust agreement, whenever any Participant or
Beneficiary is entitled to receive benefits under the Plan.  The
Administrator's notice shall indicate the form, amount and frequency of benefits
that such Participant or Beneficiary shall receive.

     

    Section
7.10 Forfeiture of
Matching and Employer Discretionary
Contributions.  Notwithstanding any provisions of this Plan to
the contrary, a Participant will forfeit his Matching and Employer Discretionary
Contributions (regardless of whether vested) upon (a) a Participant's willful
breach of any applicable confidentiality or non-competition agreement with the
Employer; (b) 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 (c) a Participant's conviction of a
felony crime, a crime involving moral turpitude or a crime involving property of
the Employer, or entry of a plea of nolo contendere thereof.

     

    ARTICLE
VIII

    ADMINISTRATION
OF PLAN

     

    Section 8.01 Powers
and Responsibilities of the Administrator.

     

    (a)           The
Administrator shall have full responsibility and discretionary authority to
control and manage the operation and administration of the Plan.  The
Administrator is authorized to accept service of legal process on behalf of the
Plan.  To the fullest extent permitted by applicable law, any action
taken by the Administrator pursuant to a reasonable interpretation of the Plan
shall be binding and conclusive on all persons claiming benefits under the Plan,
except to the extent that a court of competent jurisdiction determines that such
action was arbitrary or capricious.

     

    
      
         


      

      
        - 12
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    (b)           The
Administrator's discretionary powers include, but are not limited to, the
following:

     

    (1)           to
interpret Plan documents, decide all questions of eligibility, determine whether
a Participant has Separated from Service, determine the amount, manner, and
timing of distributions under the Plan, and resolve any claims for
benefits;

     

    (2)           to
prescribe procedures to be followed by a Participant, Beneficiary, or other
person applying for benefits;

     

    (3)           to
appoint or employ persons to assist in the administration of the Plan and any
other agents as it deems advisable;

     

    (4)           to
adopt such rules as it deems necessary or appropriate; and

     

    (5)           to
maintain and keep adequate records concerning the Plan, including sufficient
records to determine each Participant's eligibility to participate and his
interest in the Plan, and its proceedings and acts in such form and detail as it
may decide.

     

    Section
8.02 Indemnification.  The
Company shall indemnify and hold harmless the Administrator, any person serving
on a committee that serves as Administrator, and any officer, employee, or
director of an Employer to whom any duty or power relating to the administration
of the Plan has been properly delegated from and against any cost, expense, or
liability arising out of any act or omission in connection with the Plan, unless
arising out of such person's own fraud or bad faith.

     

    Section 8.03 Claims
and Claims Review Procedure.

     

    (a)           All
Benefit Claims must be made in accordance with procedures established by the
Administrator from time to time.  A Benefit Claim and any appeal
thereof may be filed by the claimant or his authorized
representative.

     

    (b)           The
Administrator shall provide the claimant with written or electronic notice of
its approval or Denial of a properly filed Benefit Claim within 90 days after
receiving the claim, unless special circumstances require an extension of the
decision period.  If special circumstances require an extension of the
time for processing the claim, the initial 90-day period may be extended for up
to an additional 90 days.  If an extension is required, the
Administrator shall provide written notice of the required extension before the
end of the initial 90-day period, which notice shall (i) specify the
circumstances requiring an extension and (ii) the date by which the
Administrator expects to make a decision.

     

    (c)           If
a Benefit Claim is Denied, the Administrator shall provide the claimant with
written or electronic notice containing (i) the specific reasons for the
Denial, (ii) references to the applicable Plan provisions on which the
Denial is based, (iii) a description of any additional material or
information needed and why such material or information is necessary, and (iv) a
description of the applicable review process and time limits.

     

    
      
         


      

      
        - 13
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    (d)           A
claimant may appeal the Denial of a Benefit Claim by filing a written appeal
with the Administrator within 60 days after receiving notice of the
Denial.  The claimant's appeal shall be deemed filed on receipt by the
Administrator.  If a claimant does not file a timely appeal, the
Administrator's decision shall be deemed final, conclusive, and binding on all
persons.

     

    (e)           The
Administrator shall provide the claimant with written or electronic notice of
its decision on appeal within 60 days after receipt of the claimant's appeal
request, unless special circumstances require an extension of this time
period.  If special circumstances require an extension of the time to
process the appeal, the processing period may be extended for up to an
additional 60 days.  If an extension is required, the Administrator
shall provide written notice of the required extension to the claimant before
the end of the original 60-day period, which shall specify the circumstances
requiring an extension and the date by which the Administrator expects to make a
decision.  If the Benefit Claim is Denied on appeal, the Administrator
shall provide the claimant with written or electronic notice containing a
statement that the claimant is entitled to receive, upon request and free of
charge, reasonable access to and copies of all documents, records, and other
information relevant to the Benefit Claim, as well as the specific reasons for
the Denial on appeal and references to the applicable Plan provisions on which
the Denial is based.  The Administrator's decision on appeal shall be
final, conclusive, and binding on all persons, subject to the claimant's right
to file a civil action pursuant to ERISA Section 502(a).

     

    ARTICLE
IX

    AMENDMENT
AND TERMINATION

     

    The Plan
shall be binding upon any successor to substantially all the assets of the
Company.  The Company may, however, at any time, amend the Plan to
provide that no additional benefits shall accrue with respect to any Participant
under the Plan; provided, however, that no such amendment shall (i) deprive any
Participant or Beneficiary of any benefit that accrued under the Plan before the
adoption of such amendment; (ii) result in an acceleration of benefit
payments in violation of Code Section 409A and the guidance thereunder, or
(iii) result in any other violation of Section 409A or the guidance
thereunder.  The Company may also, at any time, amend the Plan
retroactively or otherwise, if and to the extent that it deems such action
appropriate in light of government regulations or other legal requirements. The
Company reserves the right to terminate the Plan at any time and provide for the
distribution of benefits in a manner that complies with Code Section
409A.

     

    ARTICLE
X

    MISCELLANEOUS

     

    Section
10.01Obligations of
Biglari Holdings Inc.  The obligation of Biglari Holdings Inc.
hereunder shall be a contractual obligation to make payments to Participants or
Beneficiaries entitled to benefits provided for herein when due, and only to the
extent that such payments are not made from the Trust or otherwise paid by
another Employer.  Nothing herein shall give a Participant,
Beneficiary, or other person any right to a specific asset of an Employer or the
Trust, other than as a general creditor of the Employer.

     

    
      
         


      

      
        - 14
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    Section
10.02 Employment
Rights.  Nothing contained herein shall confer any right on an
Participant to be continued in the employ of any Employer or affect the
Participant's right to participate in and receive benefits under and in
accordance with any pension, profit-sharing, incentive compensation, or other
benefit plan or program of an Employer.

     

    Section
10.03 Non-Alienation.
Except as otherwise required by a Qualified Domestic Relations Order, no
right or interest of an Participant, Spouse, or other Beneficiary under this
Plan shall be subject to voluntary or involuntary alienation, assignment, or
transfer of any kind.  Payments shall be made to an Alternate Payee to
the extent provided in a Qualified Domestic Relations Order.  To the
extent permitted by Code Section 409A and the guidance thereunder, payments
pursuant to a Qualified Domestic Relations Order may be made in a lump sum and
before the Participant's earliest retirement age (as defined by ERISA Section
206(d)(3)(E)(ii)).

     

    Section
10.04 Tax
Withholding.  The Employer or Trustee may withhold from any
distribution hereunder amounts that the Employer or Trustee deems necessary to
satisfy federal, state, or local tax withholding requirements (or make other
arrangements satisfactory to the Employer or Trustee with regard to such
taxes).

     

    Section
10.05 Other
Plans.  Amounts and benefits paid under the Plan shall not be
considered compensation to the Participant for purposes of computing any
benefits to which he may be entitled under any other pension or retirement plan
maintained by an Employer.

     

    Section
10.06 Liability of
Affiliated Employers.  If any payment to be made under the Plan
is to be made on account of an Participant who is or was employed by an
Affiliated Employer, the cost of such payment shall be borne in such proportion
as the Company and the Affiliated Employer agree.

     

    Section
10.07 Facility of
Payment.  In the event the Administrator determines, on the
basis of medical reports or other evidence satisfactory to the Administrator,
that the recipient of any benefit payments under the Plan is incapable of
handling his affairs by reason of minority, illness, infirmity or other
incapacity, the Administrator may disburse such payments, or direct the Trustee
to disburse such payments, as applicable to a person or institution designated
by a court which has jurisdiction over such recipient or a person or institution
otherwise having the legal authority under State law of the care and control of
such recipient.  The receipt by such person or institution of any such
payments shall be complete acquittance therefore, and any such payment to the
extent thereof, shall discharge the liability of the Trust for the payment of
benefits hereunder to such recipient.

     

    Section
10.08 Plan
Records.  The Administrator shall maintain the records of the
Plan on a calendar-year basis.

     

    Section
10.09 USERRA.  Notwithstanding
anything herein to the contrary, the Administrator shall permit any Participant
election and make any payments hereunder required by the Uniformed Services
Employment and Reemployment Rights Act of 1994, as amended, 38 U.S.C.
4301-4334.

     

    
      
         


      

      
        - 15
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    This
restatement of the Plan has been signed by the following duly authorized officer
of Steak n Shake Operations, Inc., acting on behalf of Steak n Shake Operations,
Inc., and by the following duly authorized officer of Biglari Holdings Inc.,
acting on behalf of Biglari Holdings Inc., on this 22nd day of April,
2010.

     

    
      
        
          
            
              
                
                  
                    	 
      	
                            STEAK
      N SHAKE OPERATIONS, INC.

                          
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                            By:

                          	/s/
      Duane Geiger
	 
      	 
      	 
      
	 
      	
                            Title:

                          	Interim
      CFO, VP and Controller
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                            BIGLARI
      HOLDINGS INC.

                          
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                            By:

                          	
                            /s/
      Duane Geiger

                          
	 
      	 
      	 
      
	 
      	
                            Title:

                          	Interim
      CFO, VP and
Controller


                  

                

              

            

          

        

      

    

     

    
      
         


      

      
        - 16
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