Exhibit 10.12
INDEMNIFICATION AGREEMENT
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AGREEMENT, effective as of --------------, 19----,
between Anheuser-Xxxxx Companies, Inc., a Delaware
corporation (the "Company"), and --------------- (the
"Indemnitee").
WHEREAS, it is essential to the Company to retain
and attract as directors [and executive officers] the most
capable persons available;
WHEREAS, Indemnitee is a [director/executive
officer] of the Company;
WHEREAS, both the Company and Indemnitee recognize
the increased risk of litigation and other claims being
asserted against directors of public companies in today's
environment;
WHEREAS, the Restated Certificate of Incorporation
and the By-laws of the Company require the Company to
indemnify and advance expenses to its directors to the full
extent permitted by law and the Indemnitee has been serving
and continues to serve as a director [or executive officer]
of the Company in part in reliance on such Restated
Certificate of Incorporation and By-laws;
WHEREAS, in recognition of Indemnitee's need for
substantial protection against personal liability in Order
to enhance Indemnitee's continued service to the Company in
an effective manner and Indemnitee's reliance on the
aforesaid Restated Certificate of Incorporation and
By-laws, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such
Restated Certificate of Incorporation and By-laws will be
available to Indemnitee (regardless of, among other things,
any amendment to or revocation of such Restated Certificate
of Incorporation and By-laws or any change in the
composition of the Company's Board of Directors or
acquisition transaction relating to the Company), and in
order to induce Indemnitee to continue to provide services
to the Company as a director [or executive officer]
thereof, the Company wishes to provide in this Agreement
for the indemnification of and the advancing of expenses to
Indemnitee to the full extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and,
to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and
officers' liability insurance policies;
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NOW, THEREFORE, in consideration of the premises
and of Indemnitee continuing to serve the Company directly
or, at its request, with another enterprise, and intending
to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Definitions:
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(a) Change in Control: shall be deemed to have
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occurred if (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary
holding securities under an employee benefit
plan of the Company or a corporation owned
directly or indirectly by the stockholders of
the Company in substantially the same
proportions as their ownership of stock of
the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities
of the Company representing 20% or more of
the total voting power represented by the
Company's then outstanding Voting Securities,
or (ii) during any period of two consecutive
years, individuals who at the beginning of
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such period constitute the Board of Directors
of the Company and any new director whose
election by the Board of Directors or
nomination for election by the Company'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 the Company approve a merger or
consolidation of the Company with any other
corporation, other than a merger or
consolidation which would result in the
Voting Securities of the Company 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 the Company or such surviving
entity outstanding immediately after such
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merger or consolidation, or the stockholders
of the Company approve a plan of complete
liquidation of the Company or an agreement
for the sale or disposition by the Company
(in one transaction or a series of
transactions) of all or substantially all the
Company's assets.
(b) Claim: any threatened, pending or completed
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action, suit or proceeding, or any inquiry,
hearing or investigation, whether conducted
by the 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
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other costs, expenses and obligations paid or
incurred in connection with investigating,
defending, being a witness in or
participating in (including on appeal), or
preparing to defend, be a witness in or
participate in any Claim relating to any
Indemnifiable Event.
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(d) Indemnifiable Event: any event or
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occurrence related to the fact that
Indemnitee is or was a director,
officer, employee, agent or
fiduciary of the Company, or is or
was serving at the request of the
Company as a director, officer,
employee, trustee, agent or
fiduciary of another corporation,
partnership, joint venture, employee
benefit plan, trust or other
enterprise, or by reason of anything
done or not done by Indemnitee in
any such capacity.
(e) Potential Change in Control:
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shall be deemed to have occurred if
(i) the Company enters into an
agreement or arrangement, the
consummation of which would result
in the occurrence of a Change in
Control; (ii) any person (including
the Company) publicly announces an
intention to take or to consider
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taking actions which if consummated
would constitute a Change in
Control; (iii) any person, other
than a trustee or other fiduciary
holding securities under an employee
benefit plan of the Company acting
in such capacity or a corporation
owned, directly or indirectly, by
the stockholders of the Company in
substantially the same proportions
as their ownership of stock of the
Company, who is or becomes the
beneficial owner, directly or
indirectly, of securities of the
Company representing 10% or more of
the combined voting power of the
Company'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 adopts a
resolution to the effect that, for
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purposes of this Agreement, a
Potential Change in Control has
occurred.
(f) Reviewing Party: any appropriate
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person or body consisting of a
member or members of the Company's
Board of Directors or any other
person or body appointed by the
Board (including the special,
independent counsel referred to in
Section 3) who is not a party to the
particular Claim for which
Indemnitee is seeking
indemnification.
(g) Voting Securities: any securities
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of the Company which vote generally
in the election of directors.
2. Basic Indemnification Arrangement. (a) In
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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,
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the Company shall indemnify Indemnitee to the
fullest extent permitted by law, as soon as
practicable but in any event no later than thirty
days after written demand is presented to the
Company, 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 the Company or any director or officer of
the Company unless the Company has joined in or
consented to the initiation of such Claim. If so
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requested by Indemnitee, the Company shall advance
(within two business days of such request) any and
all Expenses to Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing,
(i) the obligations of the Company under Section
2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a
written opinion, in any case in which the special,
independent counsel referred to in Section 3
hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law,
and (ii) the obligation of the Company 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
Indemnitee would not be permitted to be so
indemnified under applicable law, the Company
shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) 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
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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 the Company 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).
Indemnitee's obligation to reimburse the Company
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, and
if there has been such a Change in Control (other
than a Change in Control which has been approved
by a majority of the Company'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
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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 States of Missouri
or Delaware 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 the Company 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 the Company and Indemnitee.
3. Change in Control. The Company agrees
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that if there is a Change in Control of the
Company (other than a Change in Control which has
been approved by a majority of the Company'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 payments and
Expense Advances under this Agreement or any other
agreement or under applicable law or the Company's
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Restated Certificate of Incorporation or By-laws
now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal
advice only from special, independent counsel
selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably
withheld), and who has not otherwise performed
services for the Company 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 the Company or Indemnitee in an action to
determine Indemnitee's rights under this
Agreement. Such counsel, among other things,
shall render its written opinion to the Company
and Indemnitee as to whether and to what extent
the Indemnitee would be permitted to be
indemnified under applicable law. The Company
agrees to pay the reasonable fees of the special,
independent counsel referred to above and to
indemnify fully such counsel against any and all
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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
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Potential Change in Control, the Company 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
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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 consent 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 the
Company under Section 2(b) of this Agreement),
(iii) the Trust shall continue to be funded by the
Company in accordance with the funding obligation
set forth above, (iv) the Trustee shall promptly
pay to 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
the Company 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
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chosen by the Indemnitee. Nothing in this Section
4 shall relieve the Company of any of its
obligations under this Agreement. All income
earned on the assets held in the Trust shall be
reported as income by the Company for federal,
state, local and foreign tax purposes.
5. Indemnification for Additional Expenses.
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The Company shall indemnify Indemnitee against any
and all expenses (including attorneys' fees) and,
if requested by Indemnitee, 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
the Company under this Agreement or any other
agreement or under applicable law or the Company's
Restated Certificate of Incorporation or By-laws
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 the Company, regardless of
whether Indemnitee ultimately is determined to be
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entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Indemnitee is entitled
----------------------
under any provision of this Agreement to indemnification by
the Company 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, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
Moreover, 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. 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 the
Company to establish that Indemnitee is not so entitled.
7. No Presumption. For purposes of this Agreement, the
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termination of any claim, action, suit or proceeding, by
judgment, order, settlement (whether with or without
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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. Non-exclusivity, Etc. The rights of the Indemnitee
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hereunder shall be in addition to any other rights
Indemnitee may have under the Company's Restated
Certificate of Incorporation or By-laws or the Delaware
General Corporation Law or otherwise. To the extent that a
change in the Delaware General Corporation Law (whether by
statute or judicial decision) permits greater
indemnification by agreement than would be afforded
currently under the Company's Restated Certificate of
Incorporation and By-laws and this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such
change.
9. Liability Insurance. To the extent the Company
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maintains an insurance policy or policies providing
directors' and officers' liability insurance, Indemnitee
shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of
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the coverage available for any Company director or officer.
10. Period of Limitations. No legal action shall be
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brought and no cause of action shall be asserted by or on
behalf of the Company or any affiliate of the Company
against Indemnitee, Indemnitee's spouse, heirs, executors
or personal or legal representatives after the expiration
of two years from the date of accrual of such cause of
action, and any claim or cause of action of the Company or
its affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action
within such two-year period; provided, however, that if any
shorter period of limitations is otherwise applicable to
any such cause of action such shorter period shall govern.
11. Amendments, Etc. No supplement, modification or
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amendment of this 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
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Agreement, the Company shall be subrogated to the
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extent of such payment to all of the rights of recovery of
Indemnitee, who 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 the Company effectively to bring suit to enforce
such rights.
13. No Duplication of Payments. The Company shall not
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be liable under this 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, By-law or otherwise) of the
amounts otherwise indemnifiable hereunder.
14. Binding Effect, Etc. This Agreement shall be
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binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors,
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 the
Company, spouses, heirs, and personal and legal
representatives. The Company 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 the
Company, by written agreement in form and substance sat-
20
isfactory to the Indemnitee, expressly to assume and agree
to perform this Agreement in the same manner and to the same
extent that the Company 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 executive officer] of
the Company or of any other enterprise at the Company's
request.
15. Severability. The provisions of this Agreement
------------
shall be severable 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 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
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and construed and enforced in accordance with
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the laws of the State of Delaware applicable to contracts
made and to be performed in such State without giving effect
to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have duly
executed and delivered this Agreement as of the ----- day
of ----------, 19--.
ANHEUSER-XXXXX COMPANIES, INC.
By: --------------------------
Name:
Title:
---------------------------
(Indemnitee)
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