CONSULTING AND INDEMNIFICATION AGREEMENT
This Consulting and Indemnification Agreement ("Agreement")
is between Anheuser-▇▇▇▇▇ Companies, Inc. ("A-BC") and ▇▇▇▇▇ ▇.
▇▇▇▇▇ (the "Director Designee").
WHEREAS, Anheuser-▇▇▇▇▇ International Holdings, Inc., a
subsidiary of A-BC, has nominated Director Designee to be a
director of Grupo Modelo, S.A. de C.V. ("Grupo Modelo"); and
WHEREAS, Director Designee has agreed to serve as a director
of Grupo Modelo and to provide certain consulting services to A-
BC;
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:
--------------------
(a) Claim: any threatened, pending or completed
------
action, suit or proceeding, or any
inquiry, hearing or investigation, whether
conducted by A-BC or any other party, that Director
Designee in good faith believes might lead to the
institution of any such action, suit or proceeding,
whether civil, criminal, administrative,
investigative or other.
(b) Expenses: include attorneys' fees and
---------
all other costs, 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.
(c) Indemnifiable Event: any event or
---------------------
occurrence related to the fact that Director
Designee is or was a director, alternate director,
agent or fiduciary of Grupo Modelo, or by reason of
anything done or not done by Director Designee in
any such capacity.
(d) Reviewing Party: any appropriate person
-----------------
or body consisting of a member or members of A-
BC's Board of Directors; any other person or body
appointed by the Board who is not a party to the
particular Claim for which Director Designee is
seeking indemnification and, to the extent
permitted by applicable law, any officer of A-BC
authorized therefor.
1
2. Consulting Services. Director Designee agrees to serve
--------------------
as a director of Grupo Modelo and agrees to refrain from
resigning as a director without giving A-BC at least 30 days'
advance written notice. From time to time, Director Designee
agrees to be reasonably available to A-BC for discussions and
advice concerning Grupo Modelo.
3. Compensation. A-BC shall annually pay to the Director
-------------
Designee any amount by which the aggregate cash fees that A-BC
would have paid Director Designee for each calendar year had the
Director Designee been a member of the Board of Directors of A-BC
exceeds the cash fees actually paid to the Director Designee by
Grupo Modelo for services on the Board of Directors of Grupo
Modelo, taking into account (i) the committees of the Board of
Directors of Grupo Modelo on which the Director Designee served
and the capacities in which the Director Designee served; (ii)
the meetings of the Board of Directors of Grupo Modelo and of the
committees thereof on which the Director Designee served,
scheduled and held during that calendar year and the number of
such meetings that the Director Designee attended; and (iii) the
portion of such calendar year during which Director Designee
served on the Board of Directors of Grupo Modelo or any committee
thereof. Within 45 days after the end of each of the first three
calendar quarters in each year, A-BC shall pay to Director
Designee its estimate of one-quarter of the annual amount
required to be paid by A-BC under this Section 3, and on or prior
to February 15 of each year A-BC shall pay to the Director
Designee any amount by which the annual amount required to be
paid by A-BC under this Section 3 exceeds the aggregate payments
previously made by A-BC with respect to such calendar year.
4. Basic Indemnification Arrangement.
-----------------------------------
(a) In the event Director Designee 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, A-BC shall indemnify Director Designee 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 A-BC,
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 Director Designee as a result of the actual or
deemed receipt of any payments under this
Agreement. Notwithstanding anything in this
Agreement to the contrary and except as provided in
Section 5, Director Designee shall not be entitled
2
to indemnification pursuant to this Agreement in
connection with any Claim initiated by Director
Designee against A-BC or any director or officer of
A-BC unless A-BC has joined in or consented to the
initiation of such Claim. If so requested by
Director Designee, A-BC shall advance (within two
business days of such request) any and all Expenses
to Director Designee (an "Expense Advance").
(b) Notwithstanding the foregoing, (i) the
obligations of A-BC under Section 4(a) shall be
subject to the condition that the Reviewing Party
shall not have determined that the Director
Designee is not entitled to be indemnified under
applicable law, and (ii) the obligation of A-BC to
make an Expense Advance pursuant to Section 4(a)
shall be subject to the condition that, if, when
and to the extent that the Reviewing Party
determines that Director Designee would not be
permitted to be so indemnified under applicable
law, A-BC shall be entitled to be reimbursed by
Director Designee (who hereby agrees to reimburse A-
BC) for all such amounts theretofore paid;
provided, however, that if Director Designee has
commenced legal proceedings in a court of competent
jurisdiction to secure a determination that
Director Designee should be indemnified under
applicable law, any determination made by the
Reviewing Party that Director Designee would not be
permitted to be indemnified under applicable law
shall not be binding and Director Designee shall
not be required to reimburse A-BC 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).
Director Designee's obligation to reimburse A-BC
for Expense Advances shall be unsecured and no
interest shall be charged thereon. If there has
been no determination by the Reviewing Party or if
the Reviewing Party determines that Director
Designee substantively would not be permitted to be
indemnified in whole or in part under applicable
law, Director Designee 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 A-BC 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 A-BC and Director Designee.
3
5. Indemnification for Additional Expenses. A-BC shall
-------------------------------------------
indemnify Director Designee against any and all expenses
(including attorneys' fees) and, if requested by Director
Designee, shall (within two business days of such request)
advance such expenses to Director Designee, which are incurred by
Director Designee in connection with any claim asserted against
or action brought by Director Designee for (i) indemnification or
advance payment of Expenses by A-BC 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 A-BC, in each case under (i) or (ii)
regardless of whether Director Designee ultimately is determined
to be entitled to such indemnification, advance expense payment
or insurance recovery, as the case may be.
6. Partial Indemnity, Etc. If Director Designee is
-----------------------
entitled under any provision of this Agreement to indemnification
by A-BC 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, A-BC shall
nevertheless indemnify Director Designee for the portion thereof
to which Director Designee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the
extent that Director Designee 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, Director
Designee shall be indemnified against all Expenses incurred in
connection therewith. In connection with any determination by
the Reviewing Party or otherwise as to whether Director Designee
is entitled to be indemnified hereunder, the burden of proof
shall be on A-BC to establish that Director Designee is not so
entitled.
7. No Presumption. For purposes of this Agreement, the
----------------
termination of 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 Director
Designee 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.
4
8. Non-exclusivity, Etc. The rights of the Director
----------------------
Designee hereunder shall be in addition to any other rights
Director Designee may have under A-BC'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)
occurring after the date hereof permits greater indemnification
by agreement than would be afforded currently under A-BC's
Restated Certificate of Incorporation and By-laws and this
Agreement, it is the intent of the parties hereto that Director
Designee shall enjoy by this Agreement the greater benefits so
afforded by such change.
9. Liability Insurance. To the extent A-BC maintains an
--------------------
insurance policy or policies providing directors' and officers'
liability insurance, Director Designee shall be covered by such
policy or policies, in accordance with its or their terms, to the
maximum extent of the coverage available to Director Designee.
10. Amendments, Etc. No supplement, modification or
-----------------
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.
11. Subrogation. In the event of payment under this
------------
Agreement, A-BC shall be subrogated to the extent of such payment
to all of the rights of recovery of Director Designee against any
other party, including Grupo Modelo, and Director Designee 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 A-BC effectively to bring suit to
enforce such rights.
12. No Duplication of Payments. A-BC shall not be liable
---------------------------
under this Agreement to make any payment in connection with any
claim made against Director Designee to the extent Director
Designee has otherwise actually received payment (under any
insurance policy, from Grupo Modelo or otherwise) of the amounts
otherwise indemnifiable hereunder.
5
13. Binding Effect, Etc. This Agreement shall be 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 A-BC, spouses, heirs, and personal and
legal representatives. A-BC 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 A-BC, by
written agreement in form and substance satisfactory to Director
Designee, expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that A-BC would be
required to perform if no such succession had taken place.
14. 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.
15. Governing Law. This Agreement shall be governed by and
--------------
construed and enforced in accordance with 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.
6
16. Termination.
------------
(a) At the option of A-BC, A-BC may terminate this
Agreement and its obligations hereunder by written
notice to the Director Designee delivered to his
address as recorded upon the records of A-BC. Upon
receipt by Director Designee of such notice, A-BC
shall have no further obligations hereunder;
provided that such termination shall not limit the
rights of the Director Designee or the obligations
of A-BC with respect to any Claim arising prior to
such termination.
(b) In the event that Director Designee terminates
service as a director of Grupo Modelo, this
Agreement shall terminate, but such termination
shall not limit the rights or obligations of
Director Designee or A-BC hereunder arising prior
to such termination.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of October 1, 1997.
ANHEUSER-▇▇▇▇▇ COMPANIES, INC.
By: /s/ W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------
Title: Vice President and Chief Financial Officer
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
7