INDEMNITY AGREEMENT
EXHIBIT
10.35
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.
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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) for
which payment is made to or on behalf of the Indemnitee under any insurance
policy, except with respect to any excess amount to which the Indemnitee is
entitled under this Agreement beyond the amount of payment under such
insurance policy;
(b) for
any liability for profits made from the purchase and sale by the Indemnitee
of
securities of the Corporation, which liability arises under Section 16(b) of
the
Securities Exchange Act of 1934, as amended, or any similar provision of any
state statutory or common law;
(c) if
a court having jurisdiction in the matter shall finally determine that such
indemnification is not lawful under any applicable statute or public
policy; or
(d) in
connection with any Proceeding (or part of any Proceeding) initiated by the
Indemnitee, or any Proceeding by the Indemnitee against the Corporation or
its
directors, officers, employees or other persons entitled to be indemnified
by
the Corporation, unless (i) the Corporation is expressly required by
law to make the indemnification, (ii) the Proceeding was authorized by
the Board of Directors of the Corporation, or (iii) the Indemnitee
initiated the Proceeding pursuant to Section 11 of this Agreement and the
Indemnitee is successful in whole or in part in the Proceeding.
8. Advancement
of Expenses. The Corporation shall pay the Expenses incurred
by the Indemnitee in any Proceeding in advance of the final disposition of
the
Proceeding at the written request of the Indemnitee, if the
Indemnitee:
(a) furnishes
the Corporation a written affirmation of the Indemnitee's good faith belief
that
the Indemnitee is entitled to be indemnified under this Agreement;
and
(b) furnishes
the Corporation a written undertaking to repay the advance to the extent that
it
is ultimately determined that the Indemnitee is not entitled to be indemnified
by the Corporation. Such undertaking shall be an unlimited general
obligation of the Indemnitee but need not be secured.
Advances
pursuant to this Section 8 shall be made no later than 10 days after
receipt by the Corporation of the affirmation and undertaking described in
Sections 8(a) and 8(b) above, and shall be made without regard to the
Indemnitee's ability to repay the amount advanced and without regard to the
Indemnitee's ultimate entitlement to indemnification under this
Agreement.
9. Nonexclusivity
and Continuity of Rights. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which the Indemnitee may be entitled under the
Constituent Documents, any other agreement, any vote of shareholders or
directors, the IBCL, or otherwise, both as to action in the Indemnitee's
official capacity and as to action in another capacity while holding such
office. The indemnification under this Agreement shall continue as to
the Indemnitee even though the Indemnitee may have ceased to be a director
and/or executive officer of the Corporation or a director, officer, employee
or
agent of an enterprise related to the Corporation and shall inure to the benefit
of the heirs, executors, administrators and personal representatives of the
Indemnitee.
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10. Procedure
Upon Application for Indemnification. Any indemnification
under Sections 3, 4, 5 or 6 shall be made no later than 45 days after
receipt of the written request of the Indemnitee, unless a determination is
made
within such 45-day period by (a) the Board of Directors by a majority vote
of a quorum consisting of directors who were not parties to the applicable
Proceeding, or (b) legal counsel (who may be counsel to the Corporation
with respect to other matters) in a written opinion, that the Indemnitee is
not
entitled to indemnification under this Agreement.
11. Enforcement. The
Indemnitee may enforce any right to indemnification or advances provided by
this Agreement in any court of competent jurisdiction if (a) the
Corporation denies the claim for indemnification or advances, in whole or in
part, or if the Corporation does not dispose of such claim within the time
period required by this Agreement. It shall be a defense to any such
enforcement action (other than an action brought to enforce a claim for
advancement of expenses pursuant to, and in compliance with, Section 8 of
this Agreement) that the Indemnitee is not entitled to indemnification under
this Agreement. However, except as provided in Section 12 of
this Agreement, the Corporation shall have no defense to an action brought
to enforce a claim for advancement of expenses pursuant to Section 8
of this Agreement if the Indemnitee has tendered to the Corporation the
affirmation and undertaking required thereunder. The burden of
proving by clear and convincing evidence that indemnification is not appropriate
shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors or legal counsel) to have made a determination
prior to the commencement of such action that indemnification or advancement
of
Expenses is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct nor an actual determination by the
Corporation (including its Board of Directors or legal counsel) that
indemnification is improper because the Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee is not entitled to indemnification under
this Agreement or otherwise. The Indemnitee's expenses incurred in
connection with successfully establishing the Indemnitee's right to
indemnification or advances, in whole or in part, in any Proceeding shall also
be indemnified by the Corporation, whether or not an action to enforce these
rights is commenced.
The
termination of any Proceeding by judgment, order of court, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the Indemnitee is not entitled to
indemnification under Sections 3, 4 or 6 of this Agreement.
12. Notification
and Defense of Claim. Not later than 45 days after receipt
by the Indemnitee of notice of the commencement of any Proceeding, the
Indemnitee shall, if a claim in respect of the Proceeding is to be made against
the Corporation under this Agreement, notify the Corporation of the commencement
of the Proceeding. The omission to notify the Corporation shall not
relieve the Corporation from any liability which it may have to the Indemnitee
otherwise than under this Agreement, and shall not relieve the Corporation
from
any liability under this Agreement, unless the Corporation can demonstrate
that
its rights have been actually prejudiced by the failure to give timely
notice. With respect to any Proceeding as to which the Indemnitee
notifies the Corporation of the commencement:
(a) The
Corporation will be entitled to participate in the Proceeding at its own
expense.
(b) Except
as otherwise provided below, the Corporation may, at its option and jointly
with
any other indemnifying party similarly notified and electing to assume such
defense, assume the defense of the Proceeding with legal counsel reasonably
satisfactory to the Indemnitee. The Indemnitee shall have the right
to use separate legal counsel in the Proceeding, but the Corporation shall
not
be liable to the Indemnitee under this Agreement, including Section 8
above, for the fees and expenses of separate legal counsel incurred after notice
from the Corporation of its assumption of the defense, unless (i) the
Indemnitee reasonably concludes that there may be a conflict of interest between
the Corporation and the Indemnitee in the conduct of the defense of the
Proceeding, or (ii) the Corporation does not use legal counsel to assume
the defense of such Proceeding. The Corporation shall not be entitled
to assume the defense of any Proceeding brought by or on behalf of the
Corporation or as to which the Indemnitee shall have made the conclusion
provided for in (i) above.
(c) If
two or more persons who may be entitled to indemnification from the Corporation,
including the Indemnitee, are parties to any Proceeding, the Corporation may
require the Indemnitee to use the same legal counsel as the other
parties. The Indemnitee shall have the right to use separate legal
counsel in the Proceeding, but the Corporation shall not be liable to the
Indemnitee under this Agreement, including Section 8 above, for the fees
and expenses of separate legal counsel incurred after notice from the
Corporation of the requirement to use the same legal counsel as the other
parties, unless the Indemnitee reasonably concludes that there may be a conflict
of interest between the Indemnitee and any of the other parties required by
the
Corporation to be represented by the same legal counsel.
(d) The
Corporation shall not be liable to indemnify the Indemnitee under this Agreement
for any amounts paid in settlement of any Proceeding effected without its
written consent, which shall not be unreasonably withheld. The
Indemnitee shall permit the Corporation to settle any Proceeding that the
Corporation assumes the defense of, except that the Corporation shall not settle
any action or claim in any manner that would impose any penalty or limitation
on
the Indemnitee or be otherwise prejudicial to his or her best interests without
the Indemnitee's written consent.
13. Partial
Indemnification. If the Indemnitee is entitled under any
provisions of this Agreement to indemnification by the Corporation for some
or a
portion of the Expenses, judgments, fines or amounts paid in settlement,
actually and reasonably incurred by the Indemnitee in connection with such
Proceeding, but not, however, for the total amount thereof, the Corporation
shall nevertheless indemnify the Indemnitee for the portion of such Expenses,
judgments, fines or amounts paid in settlement to which the Indemnitee is
entitled.
14. Severability. If
this Agreement or any portion thereof shall be invalidated on any ground by
any
court of competent jurisdiction, then the remainder of this Agreement shall
continue to be valid and the Corporation shall nevertheless indemnify the
Indemnitee as to Expenses, judgments, fines and amounts paid in settlement,
with
respect to any Proceeding, to the fullest extent permitted by any
applicable portion of this Agreement that shall not have been invalidated or
by
any other applicable law.
15. Subrogation. In
the event of payment under this Agreement, the Corporation shall be subrogated
to the extent of such payment to all of the rights of recovery of the
Indemnitee. The Indemnitee shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable
the
Corporation effectively to bring suit to enforce such rights.
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16. Notices. All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (a) upon
delivering by hand to the party to whom the notice or other communication shall
have been directed, or (b) on the third business day after the date on
which it is mailed by certified or registered mail with postage prepaid,
addressed as follows:
(i) If
to the Indemnitee, to the address indicated on the signature page of this
Agreement.
(ii) If
to the Corporation, to
The
Steak
n Shake Company
00
Xxxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Attention: General
Counsel
or
to any
other address as either party may designate to the other in
writing.
17. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
constitute the original.
18. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Indiana without regard to
the
principles of conflict of laws.
19. Successors
and Assigns. This Agreement shall be binding upon the
Corporation and its successors and assigns.
IN
WITNESS WHEREOF, the parties hereby have caused this Agreement to be duly
executed and signed as of the day and year first above written.
THE
STEAK
N SHAKE
COMPANY:
By
/s/ Xxxx X.
Xxxxxx
Chairman,
Interim President and Chief Executive
Officer
Title
INDEMNITEE:
|
By:
|
Title
|
|
|
/s/
Xxxx X. Xxxxxx
|
Xxxx
X. Xxxxxx
|
Chairman,
Interim President and Chief Executive Officer
|
|
/s/
Xxxxxxx X. Blade
|
Xxxxxxx
X. Blade
|
Executive
Vice President, Chief Financial and Administrative
Officer
|
|
/s/
Xxxx X. Xxxxxxxx
|
Xxxx
X. Xxxxxxxx
|
Executive
Vice President, Development
|
|
/s/
Xxxx Xxxxxx
|
Xxxx
Xxxxxx
|
Executive
Vice President, Operations
|
|
/s/
Xxxxxx Xxxxxxxx
|
Xxxxxx
Xxxxxxxx
|
Senior
Vice President, Chief Marketing Officer
|
|
/s/
Xxxxxx Xxxxxxx
|
Xxxxxx
Xxxxxxx
|
Senior
Vice President, Human Resources
|
|
/s/
Xxxxx Xxxxxx
|
Xxxxx
Xxxxxx
|
Vice
President, Controller
|
|
/s/
Xxxxxxx Xxxxx
|
Xxxxxxx
Xxxxx
|
Vice
President, Strategic Planning and Chief Information
Officer
|
|
/s/
Xxxxx X. Xxxxx
|
Xxxxx
X. Xxxxx
|
Vice
President, General Counsel and Corporate Secretary
|
|
/s/
Xxxxx Xxxxxxxx
|
Xxxxx
Xxxxxxxx
|
Director
|
|
/s/
Xxxxx Xxxxxx
|
Xxxxx
Xxxxxx
|
Director
|
|
/s/
Xxxxxxx Xxxxxx
|
Xxxxxxx
Xxxxxx
|
Director
|
|
/s/
Xxxx Person
|
Xxxx
Person
|
Director
|
|
/s/
Xxxx X. Xxxx
|
Xxxx
X. Xxxx
|
Director
|
|
/s/
J. Xxxx Risk
|
J.
Xxxx Risk
|
Director
|
|
/s/
Xxxxxx X. Xxxxxxx
|
Xxxxxx
X. Xxxxxxx
|
Director
|
|
/s/
Xxxxxx Xxxxxxx
|
Xxxxxx
Xxxxxxx
|
Director
|
|
/s/
Xxxxx Xxxxxxxxxx, Jr.
|
Xxxxx
Xxxxxxxxxx, Jr.
|
Director
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