exhibit10_35.htm


    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.

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    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

    36
      South
      Pennsylvania Street, Suite 500

    Indianapolis,
      IN  46204

    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/ Alan B.
      Gilman                   
                                                                                                          

    


    Chairman,
      Interim President and Chief Executive
      Officer                                                                                                           

    Title                                                                                                                                     

     

     

     

    INDEMNITEE:

     

    
      
        	
                By:

              	 	
                Title

              
	
                /s/
                  Alan B. Gilman

              	
                Alan
                  B. Gilman

              	
                Chairman,
                  Interim President and Chief Executive Officer

              
	
                /s/
                  Jeffrey A. Blade

              	
                Jeffrey
                  A. Blade

              	
                Executive
                  Vice President, Chief Financial and Administrative
                  Officer

              
	
                /s/
                  Gary T. Reinwald

              	
                Gary
                  T. Reinwald

              	
                Executive
                  Vice President, Development

              
	
                /s/
                  Omar Janjua

              	
                Omar
                  Janjua

              	
                Executive
                  Vice President, Operations

              
	
                /s/
                  Steven Schiller

              	
                Steven
                  Schiller

              	
                Senior
                  Vice President, Chief Marketing Officer

              
	
                /s/
                  Thomas Murrill

              	
                Thomas
                  Murrill

              	
                Senior
                  Vice President, Human Resources

              
	
                /s/
                  Duane Geiger

              	
                Duane
                  Geiger

              	
                Vice
                  President, Controller

              
	
                /s/
                  Michael Vance

              	
                Michael
                  Vance

              	
                Vice
                  President, Strategic Planning and Chief Information
                  Officer

              
	
                /s/
                  David C. Milne

              	
                David
                  C. Milne

              	
                Vice
                  President, General Counsel and Corporate Secretary

              
	 	 	 
	
                /s/
                  Geoff Ballotti

              	
                Geoff
                  Ballotti

              	
                Director

              
	
                /s/
                  Wayne Kelley

              	
                Wayne
                  Kelley

              	
                Director

              
	
                /s/
                  Charles Lanham

              	
                Charles
                  Lanham

              	
                Director

              
	
                /s/
                  Ruth Person

              	
                Ruth
                  Person

              	
                Director

              
	
                /s/
                  John W. Ryan

              	
                John
                  W. Ryan

              	
                Director

              
	
                /s/
                  J. Fred Risk

              	
                J.
                  Fred Risk

              	
                Director

              
	
                /s/
                  Steven M. Schmidt

              	
                Steven
                  M. Schmidt

              	
                Director

              
	
                /s/
                  Edward Wilhelm

              	
                Edward
                  Wilhelm

              	
                Director

              
	
                /s/
                  James Williamson, Jr.

              	
                James
                  Williamson, Jr.

              	
                Director

              


      

    

    


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