FIRST AMENDMENT TO CHANGE IN CONTROL BENEFITS AGREEMENT
EXHIBIT
10.1
FIRST
AMENDMENT TO CHANGE IN CONTROL BENEFITS AGREEMENT
This
First Amendment (the “Amendment”) to that certain Change in Control Benefits
Agreement entered into by the parties on November 7, 2007, by and between
The
Steak N Shake Company, an Indiana corporation (hereinafter referred to as
the
“Company”), and ________________ (hereinafter referred to as
“Executive”) (the “Agreement”) is hereby made this 22nd day of April, 2008 on
the following terms and conditions:
WITNESSETH
WHEREAS,
the
Company believes that Executive has made and will continue to make valuable
contributions to the productivity and profitability of the Company;
and
WHEREAS,
the
Company desires to encourage Executive to continue to make valuable
contributions, not to seek or accept employment elsewhere, and be an integral
part of the Company’s future; and
WHEREAS,
the
Company, desires to assure Executive of certain benefits should his/her
employment be terminated for any reason except cause, death, disability or
his/her voluntary decision to leave the Company;
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants
herein
contained and the mutual benefits herein provided, the Company and Executive
hereby agree as follows:
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1.
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All
terms and conditions in the Agreement shall remain in full force
and
effect unless specifically modified
herein;
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2.
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Should
Executive’s employment end for any reason except death, disability (as
defined in Section 3(B) of the Agreement), termination for cause
(as
defined in Section 3(C) of the Agreement) or should Executive elect
to
voluntarily resign for any of the reasons enumerated in Section
4 (A-E) of
the Agreement, then Executive shall receive the
following:
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a.
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His/her
normal gross salary, as it existed on the date of separation of
employment
from the Company, and which shall not be lower than Executive’s salary on
the date of this Amendment, payable for one year from the last
day of
Executive’s employment with Company, subject to withholdings required by
law or elected by Executive (the “Salary Benefit”) subject to the
following conditions:
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i.
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The
Salary Benefit shall be paid on the Company’s normal and customary pay
days;
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ii.
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Should
Executive begin subsequent employment with any other employer or
provide
services for remuneration for any person or entity as a consultant
or
contractor while the Salary Benefit is payable, then the gross
amount of
the Salary Benefit shall be reduced by the amount of the Executive’s gross
salary at his/her subsequent
employment;
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b.
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Executive
shall be paid a lump sum payment equal to any bonus to which Executive
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 by Executive, 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 the Executive was employed by the Company. By way of
example, should the computation period be one year, during which
the
Executive worked 75 days before the termination, then the fraction
would
be 75/365. The parties understand and agree that should the
calculation of the bonus not be ascertainable at the date of Executive’s
termination then the payment required hereunder shall be made within
20
days of the date the computation herein is first able to be made
by
Company.
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c.
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Should
Executive be provided with the use of an automobile which is owned
or
leased by the Company on the date of his/her termination from the
Company
then Executive shall be entitled to continue to use such automobile
on the
same terms and conditions as he/she did prior to the termination
for a
period of up to sixty (60) days following such
termination. Should Executive be provided with use of an
automobile by a subsequent employer prior to the expiration of
sixty (60) days then Executive shall make arrangements to return
the
Company’s automobile within five (5) days
thereafter;
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d.
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For
up to twelve (12) months following the Executive’s last date of employment
he/she shall be entitled to continue participation in any Company-provided
group medical insurance plan in which he/she was enrolled on the
date of
termination. If the Company is prevented by law or contract
from retaining Executive as a participant in any insurance plan,
Company
shall pay to Executive the amount of the Company’s contribution for such
coverage so that Executive may continue his/her coverage under
COBRA or
acquire similar coverage in the market at the same financial obligation
as
he/she would have if he/she had remained an employee of the
Company. The Company’s obligations under this sub-paragraph
shall end on the date that Executive is eligible to participate
in any
group health plan offered by a subsequent
employer.
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e.
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Within
the first twelve (12) months following Executive’s last date of employment
with the Company the Company shall, upon request, either pay for
directly
or reimburse Executive for up to $15,000 for outplacement services
provided on Executive’s behalf.
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f.
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If,
as of the date his employment terminates, Executive is a “key employee”
within the meaning of Section 416(i) of the Code, without regard
to
paragraph 416(i)(5) thereof, and the Company has stock that is
publicly
traded on an established securities market or otherwise, any payment
that
constitutes deferred compensation because of employment termination
will
be suspended until, and will be paid to Executive on, the first
day of the
seventh month following the month in which Executive’s last day of
employment occurs. For purposes of this Section 6,
“deferred compensation” means compensation provided under a nonqualified
deferred compensation plan as defined in, and subject to,
Section 409A of the Code.
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3.
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To
induce the Company to enter into this Agreement, Executive hereby
agrees
as follows:
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a.
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He/she
will use good faith efforts to obtain substantially similar subsequent
employment, shall notify the Company’s General Counsel and Senior Vice
President, Human Resources promptly upon obtaining such substantially
similar subsequent employment, including informing them of his/her
gross
salary amount, eligibility for group health insurance benefits
and any
other information that is reasonably related to the calculation
of
benefits hereunder;
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year first above set forth.
| THE STEAK N SHAKE COMPANY | |
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By:
__________________________________
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▇▇▇▇▇
▇. ▇▇▇▇▇▇, Interim Chief Executive Officer
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| EXECUTIVE: | |
| _____________________________________ | |