Exhibit 10.16
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement ("Agreement") is between Anheuser-Xxxxx,
Incorporated ("ABI") and (the "Indemnitee").
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WHEREAS, Indemnitee is a director or an officer of ABI and ABI is a
direct subsidiary of Anheuser-Xxxxx Companies, Inc. ("A-BC").
WHEREAS, ABI has determined that the service by Indemnitee as a
director of other corporations, partnerships, joint ventures, trusts, employee
benefit plans or other enterprises is beneficial to Indemnitee in the
performance of his duties and obligations as a director or an officer of ABI.
WHEREAS, at the request of ABI, Indemnitee has agreed to serve as a
director or member of other governing body of other corporations, partnerships,
joint ventures, trusts or other enterprises as may be specified from time to
time by the board of directors of ABI or by an officer authorized by the board
of directors of ABI (each, a "Company," collectively the "Companies");
WHEREAS, both ABI and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors of other
corporations, partnerships, joint ventures, trusts or other enterprises in
today's environment;
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
ABI in an effective manner, and in order to induce Indemnitee to serve as a
director or member of other governing body of the Companies, ABI wishes to
provide in this Agreement for the indemnification of and advancing of expenses
to Indemnitee.
NOW, THEREFORE, in consideration of the foregoing premises and
respective representations, warranties, covenants and agreements, and upon the
terms and subject to the conditions hereinafter set forth, and intending to be
legally bound hereby, the parties do hereby agree as follows:
1. Certain Definitions:
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(a) Change of Control: shall be deemed to have occurred if (i)
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any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities and Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding
securities under an employee benefit plan of A-BC or a
corporation owned directly or indirectly by the stockholders
of A-BC in substantially the same proportions as their
ownership of stock of A-BC, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly
or indirectly, of
securities of A-BC representing 20% or more of the total
voting power represented by A-BC's then outstanding Voting
Securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of such period
constitute the Board of Directors of A-BC and any new
director whose election by the Board of Directors or
nomination for election by A-BC's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning
of the period or whose election or nomination for election
was previously so approved cease for any reason to
constitute a majority thereof, or (iii) the stockholders of
A-BC approve a merger or consolidation of A-BC with any
other corporation, other than a merger or consolidation
which would result in the Voting Securities of A-BC
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the
Voting Securities of A-BC or such surviving entity
outstanding immediately after such merger or consolidation,
or the stockholders of A-BC approve a plan of complete
liquidation of A-BC or an agreement for the sale or
disposition by A-BC (in one transaction or a series of
transactions) of all or substantially all of A-BC's assets.
(b) Claim: any threatened, pending or completed action,
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suit or proceeding, or any inquiry, hearing or
investigation, whether conducted by a Company or any
other party, that Indemnitee in good faith believes
might lead to the institution of any such action, suit
or proceeding, whether civil, criminal, administrative,
investigative or other.
(c) Expenses: include attorneys' fees and all other costs,
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expenses and obligations paid or incurred in connection
with investigating, defending, being a witness in or
participating in (including on appeal) any Claim
relating to any Indemnifiable Event, or preparing to
defend, be a witness in or participate in any Claim
relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence related to
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the fact that Indemnitee is or was a director or member
of other governing body of a Company, or by reason or
anything done or not done by Indemnitee in such
capacity.
(e) Potential Change of Control: shall be deemed to have occurred
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if (i) A-BC enters into an agreement or arrangement, the
consummation of which would result in the occurrence of a
Change in Control; (ii) any person (including A-BC) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a
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Change of Control; (iii) any person, other than a trustee or
other fiduciary holding securities under an employee benefit
plan of A-BC acting in such capacity or a corporation owned,
directly or indirectly, by the stockholders of A-BC in
substantially the same proportions as their ownership of
stock of A-BC, who is or becomes the beneficial owner,
directly or indirectly, of securities of A-BC representing
10% or more of the combined voting power of A-BC's then
outstanding Voting Securities, increases his beneficial
ownership of such securities by 5% or more over the
percentage so owned by such person on the date hereof; or
(iv) the Board of Directors of ABI adopts a resolution to
the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
(f) Reviewing Party: any appropriate person or body
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consisting of the member or members of ABI's Board of
Directors who are not parties to the particular Claim
for which Indemnitee is seeking indemnification,
independent legal counsel selected by such directors or
the shareholders of ABI.
(g) Voting Securities: any securities of A-BC which vote
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generally in the election of directors.
2. Basic Indemnification Arrangement.
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(a) In the event Indemnitee was, is or becomes a party to or
witness or other participant in, or is threatened to be made
a party to or witness or other participant in, a Claim by
reason of (or arising in part out of) an Indemnifiable
Event, ABI shall, subject to the limitations described in
this Agreement, indemnify Indemnitee, as soon as practicable
but in any event no later than 30 days after written demand
is presented to ABI, against any and all Expenses,
judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid
or payable in connection with or in respect of such
Expenses, judgments, fines, penalties or amounts paid in
settlement) of such Claim and any federal, state, local or
foreign taxes imposed on the Indemnitee as a result of the
actual or deemed receipt of any payments under this
Agreement (including the creation of the Trust).
Notwithstanding anything in this Agreement to the contrary
and except as provided in Section 5, prior to a Change in
Control Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with any Claim
initiated by Indemnitee against ABI or any director or
officer of ABI, or against A-BC or any director or officer
of A-BC, unless ABI has joined in or consented to the
initiation of such Claim. If so requested by Indemnitee, ABI
shall advance (within two business days of such request) any
and all Expenses to Indemnitee (an "Expense Advance").
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(b) Notwithstanding the foregoing, (i) the obligations of
ABI under Section 2(a) shall be subject to the condition
that the Reviewing Party shall not have determined that
Indemnitee would not be permitted to be indemnified under
applicable law, (ii) the obligation of ABI to make an
Expense Advance pursuant to Section 2(a) shall be subject to
the condition that, if, when and to the extent that the
Reviewing Party determines that the Indemnitee would not be
permitted to be so indemnified under applicable law, ABI
shall be entitled to be reimbursed by Indemnitee (who hereby
agrees to reimburse ABI) for all such amounts theretofore
paid; provided, however, that if Indemnitee has commenced
legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the
Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse ABI for any
Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed) and (iii) ABI's
indemnification obligations under this Agreement (except for
any liability imposed by Section 5 hereof), shall be subject
to such limitations, monetary or otherwise, as may be set
forth from time to time by resolutions of the board of
directors of ABI. Indemnitee's obligation to reimburse ABI
for Expense Advances shall be unsecured and no interest
shall be charged thereon. If there has not been a Change in
Control, the Reviewing Party shall be selected by the Board
of Directors of ABI and if there has been such a Change in
Control (other than a Change in Control which has been
approved by a majority of A-BC's Board of Directors who were
directors immediately prior to such Change in Control), the
Reviewing Party shall be the special, independent counsel
referred to in Section 3 hereof. If there has been no
determination by the Reviewing Party or if the Reviewing
Party determines that Indemnitee substantively would not be
permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence
litigation in any court in the State of Missouri having
subject matter jurisdiction thereof and in which venue is
proper, seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or
any aspect thereof, and ABI hereby consents to service of
process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be
conclusive and binding on ABI and Indemnitee.
3. Change in Control. ABI agrees that if there is a Change in Control
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of A-BC (other than a Change in Control which has been approved by a majority of
A-BC's Board of Directors who were directors immediately prior to such Change in
Control) then with respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnity
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payments and Expense Advances under this Agreement or any other agreement or
under applicable law or ABI's Articles of Incorporation or Bylaws now or
hereafter in effect relating to Claims for Indemnifiable Events, ABI shall seek
legal advice only from special, independent counsel selected by Indemnitee and
approved by ABI (which approval shall not be unreasonably withheld), and who has
not otherwise performed services for ABI within the last 10 years (other than in
connection with such matters) or Indemnitee. Such independent counsel shall not
include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either ABI or
Indemnitee in an action to determine Indemnitee's rights under this Agreement.
Such counsel, among other things, shall render its written opinion to ABI and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. ABI agrees to pay the reasonable fees of
the special, independent counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or the
engagement of special, independent counsel pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in
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Control, ABI shall, upon written request by Indemnitee, create a Trust for the
benefit of the Indemnitee and from time to time upon written request of
Indemnitee shall fund such Trust in an amount sufficient to satisfy any and all
Expenses reasonably anticipated at the time of each such request to be incurred
in connection with investigating, preparing for and defending any Claim relating
to an Indemnifiable Event, and any and all judgments, fines, penalties and
settlement amounts of any and all Claims relating to an Indemnifiable Event from
time to time actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the Trust pursuant to the
foregoing funding obligation shall be determined by the Reviewing Party, in any
case in which the special, independent counsel referred to above is involved.
The terms of the Trust shall provide that upon a Change in Control (i) the Trust
shall not be revoked or the principal thereof invaded, without the written
request of the Indemnitee, (ii) the Trustee shall advance, within two business
days of a request by the Indemnitee, any and all Expenses to the Indemnitee (and
the Indemnitee hereby agrees to reimburse the Trust under the circumstances
under which the Indemnitee would be required to reimburse ABI under Section 2(b)
of this Agreement), (iii) the Trust shall continue to be funded by ABI in
accordance with the funding obligation set forth above, (iv) the Trustee shall
promptly pay the Indemnitee all amounts for which the Indemnitee shall be
entitled to indemnification pursuant to this Agreement or otherwise, and (v) all
unexpended funds in such Trust shall revert to ABI upon a final determination by
the Reviewing Party or a court of competent jurisdiction, as the case may be,
that the Indemnitee has been fully indemnified under the terms of this
Agreement. The Trustee shall be chosen by the Indemnitee. Nothing in this
Section 4 shall relieve ABI of any of its obligations under this Agreement. All
income earned on the assets held in the Trust shall be reported as income by ABI
for federal, state, local, and foreign tax purposes.
5. Indemnification for Additional Expenses. ABI shall indemnify
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Indemnitee against any and all expenses (including attorneys' fees) and, if
requested by Indemnitee,
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shall (within two business days of such request) advance such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any claim
asserted against or action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by ABI under this Agreement or any other agreement
or under the Bylaws or resolutions of ABI now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii) recovery under any directors' and
officers' liability insurance policies maintained by ABI or A-BC, in each case
under (i) or (ii) regardless of whether Indemnitee ultimately is determined to
be entitled to such indemnification, advance Expense payment or insurance
recovery, as the case may be.
6. Partial Indemnity, Etc.
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(i) If Indemnitee is entitled under any provision of this
Agreement to indemnification by ABI for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement of
a Claim but not, however, for all of the total amount thereof, ABI
shall nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.
(ii) Notwithstanding any other provision of this Agreement, to
the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in part
to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified
against all Expenses incurred in connection therewith.
(iii) In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on ABI to establish
that Indemnitee is not so entitled.
7. No Presumption. For purposes of this Agreement, the termination of
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any claim, action, suit or proceeding, by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law.
8. Exclusivity, Etc. The rights of the Indemnitee described hereunder
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and under ABI's Bylaws and resolutions shall be Indemnitee's exclusive rights
for indemnification for Indemnifiable Events, notwithstanding any additional
rights that might be provided otherwise, including pursuant to ABI's Articles of
Incorporation or the General and Business Corporation Law of Missouri.
Indemnitee hereby acknowledges the exclusivity of this Agreement, ABI's Bylaws
and resolutions waives any such additional rights and agrees that his right to
indemnification from ABI shall be limited as described by this Agreement, ABI's
Bylaws and resolutions.
9. Liability Insurance. To the extent ABI or ABC maintains an insurance
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policy or policies providing directors' and officers' liability insurance
applicable to Indemnitee,
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Indemnitee shall be covered by such policy or policies, in accordance with its
or their terms, to the maximum extent of the coverage available to Indemnitee.
Nothing in this section shall limit or prevent ABI's ability to make claims or
seek reimbursement under any such policy.
10. Period of Limitations. ABI's right under this Agreement for
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reimbursement of any amounts paid by it hereunder shall expire unless ABI
provides notice to Indemnitee requesting such reimbursement within two years
after ABI has reasonable notice of its right to seek reimbursement.
11. Amendments, Etc. No supplement, modification or amendment of this
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Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
12. Subrogation. In the event of payment under this Agreement, ABI
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shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee against any other party, including the Companies, and
Indemnitee shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable ABI effectively to bring suit to enforce such rights.
13. No Duplication of Payments. ABI shall not be liable under this
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Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, from any Company or otherwise) of the amounts
otherwise indemnifiable hereunder.
14. Binding Effect, Etc. This Agreement shall be binding upon and inure
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to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of ABI, spouses, heirs, and personal and legal representatives.
ABI shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of ABI, by written agreement in
form and substance satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that ABI would
be required to perform if no such succession had taken place. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as
a director or officer of ABI or of any Company.
15. Severability. The provisions of this Agreement shall be severable
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in the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions
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of this Agreement (including, without limitation, each portion of this Agreement
containing any provision held to be invalid, void or otherwise unenforceable,
that is not itself invalid, void or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
16. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the laws of the State of Missouri applicable to
contracts made and to be performed in such State without giving effect to the
principles of conflicts of laws.
17. Termination. At the option of ABI, ABI may terminate this Agreement
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and its obligations hereunder or may amend this Agreement by eliminating any
entity previously specified as a "Company", in each case by written notice to
the Indemnitee delivered to his address as recorded upon the records of ABI.
Upon receipt by Indemnitee of such notice, ABI's obligations shall be terminated
or amended as described in such notice; provided that such termination or
amendment shall not limit the rights of the Indemnitee or the obligations of ABI
with respect to any Indemnifiable Event occurring prior to such termination or
amendment.
18. Rights Against A-BC. Indemnitee agrees and acknowledges that it
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shall not be entitled to any right of indemnity against Anheuser-Xxxxx
Companies, Inc. ("A-BC") with respect to any Indemnifiable Event arising after
the effective date hereof.
19. Mutual Agreement to Arbitrate Claims. The Mutual Agreement to
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Arbitrate Claims between A-BC and the Indemnitee shall not apply to any claim or
controversy relating to the subject matter of this Agreement.
20. Effective Date. The effective date of this Agreement shall be
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and the obligations and rights of the parties hereto shall
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commence as of .
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of .
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ANHEUSER-XXXXX, INCORPORATED
By:
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Title:
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[Indemnitee Name]
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