exhibit10_1.htm


    EXHIBIT
      10.1

     

    
       

      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”).

      


      
        	
                1.
 
                  

              	
                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. 

              


      

      


      
        	
                2.  

              	
                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:

              


      

      


      
        	
                A.  

              	
                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.

              
	 	 


      

      
        	
                B.  

              	
                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.

              
	 	 


      

      
        	
                C.  

              	
                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.

              


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

        	 	 


      

      
        	
                D.  

              	
                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.  

              
	 	 


      

      
        	
                E.  

              	
                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.  

              


      

       

      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.

      


      
        	
                3.  

              	
                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 of diminishing or injuring
                  the
                  goodwill and/or reputation of SNS, its officers, directors or
                  associates.   

              


      

      


      No
        officer or other person authorized to act on behalf of the Company with regard
        to such action will make any statements that would be reasonably likely to
        injure Mr. Milne’s goodwill or reputation.  If Mr. Milne 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.  

              	
                Raiding
                  of Employees.  Mr. Milne 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.

              


      

      


      
        	
                5.  

              	
                Return
                  of SNS’s Property.  Except as set forth
                  in
                  Section 2.D. above Mr. Milne will return to SNS all of its property
                  in his
                  possession by 5 p.m. on February 24, 2009.  Notwithstanding the
                  foregoing, Mr. Milne may retain his Blackberry telephone device
                  and laptop
                  computer for 60 days following the Resignation
                  Date.

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        	
                6.  

              	
                Breach
                  of this Agreement.  If Mr. Milne breaches any term or
                  condition of this Agreement, all of which are material terms, Mr.
                  Milne
                  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.

              


      

      
         

      

      
        	
                7.  

              	
                Waiver
                  of Claims.  Mr. Milne, in consideration of the mutual
                  promises and benefits contained herein, knowingly and voluntarily
                  waives,
                  releases, discharges and holds SNS and its directors, officers,
                  agents,
                  insurers and employees harmless (on behalf of himself and his family,
                  heirs, executors, successors and assigns) from any and all complaints,
                  causes of action and any other claims, costs, damages, expenses,
                  liabilities, taxes, judgments, compensation, attorneys’ fees, or any other
                  relief or costs arising out of Mr. Milne’s employment, resignation from
                  employment, or any other relationship with SNS, whether these claims
                  are
                  known or unknown.  Mr. Milne specifically waives any right he
                  may have to pursue and/or recover monetary, pecuniary, punitive,
                  or any
                  other personal benefits of any kind pursuant to any lawsuit, claim,
                  charge
                  or other cause of action of any kind that Mr. Milne files or that
                  is filed
                  on Mr. Milne’s behalf, except as otherwise provided by applicable law or
                  regulation.  Mr. Milne 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 Employment Act, 29 U.S.C. §621 et seq, the Older
                  Workers Benefits Protection Act, the Fair Labor Standards Act,
                  the Family
                  and Medical Leave Act, the Indiana Worker’s Compensation Act (or its
                  equivalent), and any other applicable federal, state and/or local
                  civil
                  rights law, regulation or statute, and any common law claims and/or
                  tort
                  claims.  In addition to the foregoing, Mr. Milne 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
                  Mr. Milne
                  entered with SNS during or prior to his employment with SNS.  In
                  addition to the foregoing, Mr. Milne acknowledges that SNS has
                  not (a)
                  discriminated against him, (b) breached any contract with him,
                  (c)
                  committed any civil wrong against him, or (d) otherwise acted unlawfully
                  toward him.  Notwithstanding the foregoing, Mr. Milne and SNS
                  agree that Mr. Milne 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 Mr. Milne
                  makes
                  after the last payment of the Severance Amount is
                  made.  

              


      

      


      SNS
        hereby waives releases, discharges and holds Mr. Milne 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 Mr. Milne’s
        employment, resignation from employment or any other relationship with SNS,
        whether these claims are known or unknown.

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      
        	
                8.
                   

              	
                Right
                  to Revoke, Right to Review, and Right to Seek Legal
                  Advice.  Mr. Milne is hereby advised that:
                  

              


      

      


      
        	
                A.  

              	
                He
                  has up to 21 days to review and consider this Agreement, and the
                  Agreement
                  may not be withdrawn during his period of
                  review;

              


      

      
        	
                B.  

              	
                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;

              


      

      
        	
                C.  

              	
                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.

              


      

      
         

      

      To
        revoke
        this Agreement after signing it, Mr. Milne 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
        Mr.
        Milne signs this Agreement.  If Mr. Milne revokes this Agreement, it
        shall not be effective or enforceable, Mr. Milne will not receive any of
        the
        benefits or the payments described herein and Mr. Milne shall return any
        payments made hereunder.

      


      
        	
                9.
                    

              	
                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. 

              


      

      


      
        	
                10.  
                  

              	
                Successors
                  and Assigns.  This Agreement shall be binding upon Mr.
                  Milne and SNS, and upon their heirs, administrators, representatives,
                  executors, successors and assigns, and shall inure to the benefit
                  of Mr.
                       Milne and SNS, and to their heirs, administrators, representatives,
                  executors, successors and assigns. 

              


      

       

      
        	
                11.  
                  

              	
                Venue,
                  Jurisdiction and Governing Law.  Mr. Milne and SNS agree
                  that any suit or claim arising out of this Agreement, seeking to
                  remedy a
                  breach of this Agreement, or otherwise arising out of Mr. Milne’s
                  employment with SNS shall only be brought in the Federal District
                  Court
                  for the Southern District of Indiana, Indianapolis Division or
                  the Indiana
                  state courts located in Marion 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.
                  

              


      

      


      
        	
                12.
 

              	
                Complete
                  Agreement.  Mr. Milne agrees that this written Agreement
                  is the complete and entire agreement between himself and SNS and
                  that it
                  completely supersedes any and all other agreements between the
                  parties.  Notwithstanding the foregoing or anything else
                  contained herein the Indemnity Agreement into which Mr. Milne entered
                  with
                  SNS on or around October 7, 2007 shall remain in full force and
                  effect.
                  

              


      

      


      THIS
        AGREEMENT IS ENTERED INTO AS OF THE DATE ABOVE WRITTEN AND THE PARTIES AGREE
        TO
        BE BOUND TO ITS TERMS BY SIGNING BELOW:

      


      
        
          	David
                  C.
                  Milne:	The
                  Steak n Shake
                  Company:
	________________________	By:         
                  _______________________
	Dated: 
                  _______________________	Printed: 
                  _______________________
	 	Dated:   
                  _______________________