Exhibit 10.34
EMPLOYEE INDEMNITY AGREEMENT
This Employee Indemnity Agreement
(this “Agreement” ) dated as of
July 12, 2007 (the “Effective Date”
) is entered into by and between The Shaw Group Inc. , a
Louisiana corporation (the “Company” )
, and Brian K. Ferraioli
(“Employee”) . The Company and
Employee hereinafter individually referred to as a
“Party” and collectively as the
“Parties” .
RECITALS
WHEREAS, Employee and Company
have or shall enter into an arrangement whereby Employee shall
become an employee of Company or an affiliate thereof;
WHEREAS, Employee was a party
to, as an employee of Foster Wheeler Ltd. or an affiliate thereof
(the “Former Employer” ), (i) the
Foster Wheeler Ltd. Management Restricted Stock Plan (Adopted
September 2004) and (ii) the Foster Wheeler Ltd. 2004
Stock Option Plan (Adopted September 2004) (collectively, the
“Foster Wheeler Stock Agreements”
);
WHEREAS, Employee was a party
to, as an employee of the Former Employer, the Employment Agreement
effective December, 2003 (the “Foster Wheeler
Employment Agreement” );
WHEREAS, the Company,
Employee and the Former Employer are parties to a Settlement
Agreement dated July 12, 2007 (the “Settlement
Agreement” ; the Foster Wheeler Stock Agreements, the
Foster Wheeler Employment Agreement and the “Settlement
Agreement” collectively referred to as the
“Relevant Agreements” ); and
WHEREAS, the Company and
Employee now desire to enter into this Agreement to indemnify
Employee against certain liabilities that may arise under the
Relevant Agreements.
NOW, THEREFORE, in
consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, it is
hereby agreed as follows:
AGREEMENTS
1. Indemnity Obligation
.
(a) Under this Agreement, the
“Indemnified Obligations” are the
obligations of Employee to pay any amount to the Former Employer in
respect of any claim by the Former Employer on or after
June 19, 2007. arising under (i) either of the Foster
Wheeler Stock Agreements including without limitation any amounts
under Section 13 of each of the Relevant Agreements with
respect to profits realized from the sale of shares of the Former
Employer in January 2007, (ii) the Foster Wheeler Employment
Agreement, other than obligations in respect of claims arising
under Section 5.1, 5.1.1, 5.1.2 or (to the extent such Section
relates to Section 5.1 (together with its sub-Sections))
Section 5.3, 5.4, 5.5 or 5.6 of the Employment Agreement (the
“Excepted Obligations” ), and
(iii) the Settlement Agreement, other than claims in respect
of Excepted Obligations, but “Indemnified Obligations”
shall not include any other liabilities or obligations under the
Relevant Agreements or otherwise arising out of the employment
relationship with the
Former
Employer. The Company agrees to indemnify and hold harmless the
Employee from and against any and all loss, liability and expense
(including judgments, fines,; amounts paid or to be paid in
settlement, costs of investigation, and any and all
attorneys’ fees and expenses, whether or not the dispute or
proceeding involves the Company) incurred or suffered by the
Employee in connection with Indemnified Obligations, including any
additional federal or state taxes incurred by Employee as a result
of the reimbursement by the Company to Employee of the Indemnified
Obligations as well as for any federal or state income tax relating
to profits realized from the sale to the extent such profits are
required to be refunded but as to which Employee is not permitted
to take a deduction as to such taxes in connection with such
reimbursement. The foregoing indemnity shall apply to the fullest
extent permitted under applicable law; provided that
Employee shall not be so indemnified and held harmless to the
extent there has been a final and non-appealable judgment entered
by a court of competent jurisdiction determining that the Employee,
with respect to the applicable Relevant Agreements acted in a
fraudulent manner or in violation of applicable securities laws
with respect to the Relevant Agreements or the shares issued or
sold thereunder.
(b) If the Employee receives notice
on any claim by the Former Employer with respect to an Indemnified
Obligation, it shall notify the Company within seven (7) days.
The Company shall have the right to assume the defense of any such
claim by counsel of its choosing, and to enter into a settlement
thereof without the consent of the Employee, unless such settlement
involves any liability or obligation for which indemnity is not
provided by the Company hereunder or otherwise, in which event the
consent of Employee shall not be unreasonably withheld. The Company
shall notify the Employee of its determination to either assume the
defense or not to assume the defense within seven (7) days of
the receipt of notice of the claim from the Employee. The Company
shall advance to Employee the expenses and other indemnification
payments to which he may be otherwise entitled; provided,
however, that any such advance shall only be made if the
Employee delivers a written affirmation of his good faith belief
that he is entitled to indemnification hereunder and agrees to
repay all amounts so advanced if it shall ultimately be determined
that he is not entitled to be indemnified hereunder,
(c) The Company and Employee agree
that, subsequent to the date of this Agreement the Employee, acting
reasonably, may require the Company to provide reasonable financial
support for its obligations under this Agreement.
2. Complete Agreement .
Employee has no oral representations, understandings or agreements
with Company or with any of its affiliates, officers, directors,
manager, employees, agents or representatives covering the same
subject matter as this Agreement. This written Agreement is the
final, complete and exclusive statement and expression of the
agreement between the Company and Employee and all the terms of
this Agreement, and it cannot be varied, contradicted or
supplemented by
