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EXHIBIT 10.35
INDEMNITY AGREEMENT
This
AGREEMENT is made as of October 9, 2007, by and between The
Steak n Shake Company, an Indiana corporation (the
"Corporation"), and (See listing below) (the
"Indemnitee"), a director and/or executive officer of the
Corporation.
WHEREAS,
it is essential to the Corporation to retain and attract as
directors and/or executive officers of the Corporation the
most capable persons available and persons who have
significant experience in business, corporate and financial
matters; and
WHEREAS,
the Corporation has identified the Indemnitee as a person
possessing the background and abilities desired by the
Corporation and desires the Indemnitee to continue to serve as
a director and/or an executive officer; and
WHEREAS,
the Corporation and the Indemnitee recognize that serving as a
director and/or executive officer of a corporation at times
calls for subjective evaluations and judgments upon which
reasonable men may differ and that the good faith exercise of
their corporate duties and responsibilities may subject
directors and/or executive officers to burdensome
litigation; and
WHEREAS,
it is now the express policy of the Corporation to indemnify
its directors and/or executive officers to the fullest extent
not prohibited by law; and
WHEREAS,
the Amended and Restated Articles of Incorporation, and the
Restated By-Laws of the Corporation (collectively, the
"Constituent Documents") require indemnification of the
directors and/or executive officers of the Corporation
pursuant to the Indiana Business Corporation Law (the "IBCL")
and the IBCL expressly provides that the indemnification
provisions set forth therein are not exclusive, and thereby
contemplates that contracts may be entered into between the
Corporation and directors and/or executive officers of the
Corporation with respect to indemnification; and
WHEREAS,
the Corporation and the Indemnitee desire to articulate
clearly in contractual form their respective rights and
obligations with regard to the Indemnitee's service on behalf
of the Corporation and with regard to claims for loss,
liability, expense or damage which, directly or indirectly,
may arise out of or relate to such service.
NOW
THEREFORE, the Corporation and the Indemnitee agree as
follows:
1.
Agreement to Serve. The
Indemnitee shall serve as a director and/or executive officer
of the Corporation for so long as the Indemnitee is duly
elected or appointed or until the Indemnitee resigns or is
removed from such offices.
2.
Definitions. As used in this
Agreement:
(a) The
term "Proceeding" includes, without limitation, any
threatened, pending or completed action, suit or proceeding,
whether brought in the right of the Corporation or otherwise
and whether of a civil, criminal, administrative, legislative
or investigative nature, formal or informal, internal or
external, in which the Indemnitee may be or may have been
involved as a party, witness or otherwise, by reason of the
fact that the Indemnitee is or was a director and/or executive
officer of the Corporation or any of its subsidiaries, or is
or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, whether
or not serving in such capacity at the time any liability or
expense is incurred for which exculpation, indemnification or
reimbursement can be provided under this
Agreement.
(b) The
term "Expenses" includes, without limitation thereto, expenses
of investigations, "Proceedings" or appeals, attorney,
accountant and other professional fees and disbursements, any
other expenses or disbursements incurred in connection with
any Proceeding, and any expenses of establishing a right to
indemnification under Section 11 of this Agreement, but
shall not include amounts paid in settlement by the Indemnitee
or the amount of judgments or fines against the
Indemnitee.
(c) References
to "other enterprise" include, without limitation, employee
benefit plans; references to "fines" include, without
limitation, any excise tax assessed with respect to any
employee benefit plan; references to "serving at the request
of the Corporation" include, without limitation, any
service as a director, officer, employee or agent which
imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit
plan, its participants, or its beneficiaries; and a person who
acted in good faith and in a manner reasonably believed to be
in the interest of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of
the Corporation."
3.
Indemnity in Third-Party
Proceedings. The Corporation shall
indemnify the Indemnitee in accordance with the provisions of
this Section 3, if the Indemnitee is made a party to any
Proceeding (other than a Proceeding by or in the right of the
Corporation to procure a judgment in its favor), against all
Expenses, judgments, fines and amounts paid in settlement,
actually and reasonably incurred by the Indemnitee in
connection with such Proceeding if the conduct of the
Indemnitee was in good faith and the Indemnitee reasonably
believed that the Indemnitee's conduct was in the best
interests of the Corporation, or at least not opposed to
its best interests, and, in the case of a criminal proceeding,
the Indemnitee, in addition, had no reasonable cause to
believe that the Indemnitee's conduct was
unlawful. However, the Indemnitee shall not be
entitled to indemnification under this Section 3 in
connection with any Proceeding charging improper personal
benefit to the Indemnitee in which the Indemnitee was adjudged
liable on the basis that personal benefit was improperly
received by the Indemnitee unless and only to the extent that
the court conducting such Proceeding or any other court of
competent jurisdiction determines upon application that
despite the adjudication of liability, the Indemnitee is
fairly and reasonably entitled to indemnification in view of
all the relevant circumstances.
4.
Indemnity in Proceedings by or in the Right of the
Corporation. The Corporation shall
indemnify the Indemnitee in accordance with the provisions of
this Section 4, if the Indemnitee is made a party to any
Proceeding by or in the right of the Corporation to procure a
judgment in its favor, against all Expenses actually and
reasonably incurred by the Indemnitee in connection with such
Proceeding if the conduct of the Indemnitee was in good faith
and the Indemnitee reasonably believed that the Indemnitee's
conduct was in the best interests of the Corporation, or at
least not opposed to its best interests. However,
the Indemnitee shall not be entitled to indemnification under
this Section 4 in connection with any Proceeding in which
the Indemnitee has been adjudged liable to the Corporation
unless and only to the extent that the court conducting such
Proceeding or any other court of competent jurisdiction
determines upon application that, despite the adjudication of
liability, the Indemnitee is fairly and reasonably entitled to
indemnification in view of all the relevant
circumstances.
5.
Indemnification of Expenses of Successful
Party. Notwithstanding any other provisions of
this Agreement, to the extent that the Indemnitee has been
successful, on the merits or otherwise, in defense of any
Proceeding or in defense of any claim, issue or matter
therein, including the dismissal of an action without
prejudice, the Corporation shall indemnify the Indemnitee
against all Expenses incurred in connection
therewith.
6.
Additional Indemnification.
(a) Notwithstanding
any limitation in Sections 3, 4 or 5, the Corporation
shall indemnify the Indemnitee to the fullest extent not
prohibited by law with respect to any Proceeding
(including a Proceeding by or in the right of the
Corporation to procure a judgment in its favor) against all
Expenses, judgments, fines and amounts paid in settlement,
actually and reasonably incurred by the Indemnitee in
connection with such Proceeding.
(b) For
purposes of this Agreement, the meaning of the phrase "to the
fullest extent not prohibited by law" shall include, but not
be limited to:
(i) to
the fullest extent authorized or not prohibited by any changes
in the law, including but not limited to any amendments to or
replacements of the IBCL adopted after the date of this
Agreement that increase the extent to which a corporation may
indemnify its directors; and
(ii) to
the fullest extent authorized by the provision of the IBCL
that authorizes or contemplates additional indemnification by
agreement, or the corresponding provision of any amendment to
or replacement of the IBCL.
7.
Exclusions . Notwithstanding any
provision in this Agreement, the Corporation shall not be
obligated under this Agreement to make any
indemnification:
(a) &nb
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