Exhibit 10.10
INDEMNIFICATION
AGREEMENT
AGREEMENT, made this [
·
], between Foster Wheeler AG
, Zug, Switzerland, (the “Company”) and [
·
] (the
“Indemnitee”).
BACKGROUND
:
A.
The Indemnitee is a [member of the Board][officer] of the
Company.
B.
Highly competent persons have become more reluctant to serve
publicly-held companies as directors or in other capacities unless
they are provided with adequate protection through insurance and
indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of such companies.
C.
Uncertainties relating to indemnification increase the difficulty
of attracting and retaining such persons.
D.
The Board (as defined in Section 13(d)) has determined that an
inability to attract and retain such persons is detrimental to the
best interests of the Company and that the Company should act to
assure such persons that there will be increased certainty of such
protection in the future.
E.
In recognition of Indemnitee’s need for protection against
personal liability in order to secure Indemnitee’s service to
the Company and Indemnitee’s reliance on the indemnity
provisions of the Company’s Articles of Association (the
“AoA”) contained in Article 26 of the AoA
requiring indemnification of the Indemnitee to the fullest extent
permitted by law, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by
Article 26 of the AoA will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation
of Article 26 of the AoA or any change in the composition of
the Company’s Board of Directors (the “Board”) or
acquisition transaction relating to the Company), the Company
wishes to provide in this Agreement for the indemnification of and
the advancing of expenses to Indemnitee to the fullest extent
(whether partial or complete) permitted by law and as set forth in
this Agreement.
F.
It is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to advance
expenses on behalf of persons serving as [members of the
board][executive officers] of the Company to the fullest extent
permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they will not be so
indemnified.
G.
Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition
that Indemnitee be so indemnified.
AGREEMENT :
Section 1.
Agreement to Serve . Indemnitee served as
[director/officer] of the Foster Wheeler Ltd Bermuda and agrees to
serve as a [director/officer] of the Company. This Agreement
does not create or otherwise establish any right on the part of
Indemnitee to be and
continue to be elected or appointed a
[director/officer] of the Company or any other Group Company and
does not create an employment contract between the Company and
Indemnitee.
Section 2
.
Basic Indemnification Agreement
. (a) Subject to section 12, the Company shall
indemnify and hold harmless Indemnitee if Indemnitee (in
Indemnitee’s capacity as a director/officer), was is or
becomes a party to or other participant in, or is threatened to be
made a party to or other participant in, a Claim (as defined in
Section 13(d) herein) by reason of (or arising in part
out of) an Indemnifiable Event (as defined in
Section 13(h) herein), such indemnity to be to the
fullest extent permitted by law as soon as practicable and in
accordance with the procedures set forth in Section 7, such
indemnity to include indemnity against any and all Expenses (as
defined in Section 13(f) herein), damages, judgments,
fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection therewith) of such Claim actually and reasonably
incurred by or on behalf of Indemnitee in connection with such
Claim and any federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement. Notwithstanding the foregoing,
the indemnification obligations of the Company under
Section 2(a) and the Company’s obligations to
advance Expenses under Section 6 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 or receive an
advancement of Expenses under applicable law.
(b) Notwithstanding anything in
this Agreement to the contrary, prior to a Change of Control (as
defined in Section 13(c) herein), and except as provided
in Sections 2(b), 5 and 9, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any
Claim (i) 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; (ii) made on
account of Indemnitee’s conduct which constitutes a breach of
Indemnitee’s duty of loyalty to the Company or its
shareholders or is an act or omission not in good faith or which
involves intentional misconduct or a knowing violation of the law;
or (iii) arising from the purchase and sale by Indemnitee of
securities in violation of Section 17(b) of the
Securities Exchange Act of 1934, as amended.
(c) Notwithstanding the
foregoing, the Company shall not indemnify the Indemnitee in
respect of any Claim as to which the Indemnitee shall have been
adjudged in a final and non-appealable judgment or decree of a
court, arbitral tribunal or governmental or administrative
authority of competent jurisdiction to have committed an
intentional or grossly negligent breach of his duties as [a member
of the Board][an executive officer] of the Company under applicable
law, provided however, that to the extent applicable law changes
after the date of this Agreement and permits greater
indemnification by agreement than would be afforded currently under
this section 2(c), it is the intent of the parties hereto that the
Company shall indemnify the Indemnitee without regard to the
restrictions contained in this section 2(c) to the fullest
extent permitted under applicable law at such time.
(d) To the fullest extent
permitted under applicable law, the Company waives, and undertakes
to cause its Subsidiaries to waive, any claim it may have against
the Indemnitee for
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loss, damage or costs howsoever caused to the
Company and/or any of its Subsidiaries in connection with a
Indemnifiable Event, unless any such loss, damage or cost is
attributable to conduct (including omissions) constituting an
intentional or grossly negligent breach of Indemnitees’s
duties as [a member of the Board][an officer] of the Company under
applicable law provided however, that to the extent applicable law
changes after the date of this Agreement and permits greater
indemnification by agreement than would be afforded currently under
this section 2(d), it is the intent of the parties hereto that the
Company shall indemnify the Indemnitee without regard to the
restrictions contained in this section 2(d) to the fullest
extent permitted under applicable law at such time.
Section 3
.
Change in Control . The Company agrees that if
there is a Change in Control of the Company (other than a Change in
Control which has been approved by two- thirds or more of the Board
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 the Articles of
Association 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 or
delayed) and who has not otherwise performed services for the
Company within the last five years (other than in connection with
such matters) or for Indemnitee or any other party to the
claim. In the event that Indemnitee and the Company are
unable to agree on the selection of the special independent
counsel, such special independent counsel shall be selected by lot
from among at least three law firms with offices in Zurich,
Switzerland having more than 50 attorneys, and having attorneys who
specialize in corporate law. Such selection shall be made in
the presence of Indemnitee (and his legal counsel or either of
them, as Indemnitee may elect). Such counsel, among other
things, shall, within 90 days of its retention, render its written
opinion to the Company and Indemnitee as to whether and to what
extent 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 fully
indemnify such counsel against any and all expenses (including
attorneys’ fees), claims, liabilities, and damages arising
out of or relating to this Agreement or its engagement pursuant
hereto to the fullest extent permitted under applicable
law.
Section 4
.
Notwithstanding any provisions herein to the contrary, to the
extent that the Indemnitee is, by reason of (or arising out of) an
Indemnifiable Event, a witness in any Claim (other than proceeding
instituted by or against Indemnitee), he shall be indemnified by
the Company against all Expenses actually and reasonably incurred
by him or on his behalf in connection therewith.
Section 5
.
Partial Indemnity, Etc. Subject to
Section 12, if Indemnitee is entitled under any provisions of
this Agreement to indemnification by the Company of some or a
portion of the Expenses, liabilities, 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
3
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.
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.
Section 6.
Expense Advances . (a) Subject to
Article 12 below the Company shall advance all reasonable
Expenses incurred by or on behalf of the Indemnitee in connection
with any Claim by reason of an Indemnifiable Event within 10
Business Days after the receipt by the Company of a written
statement from the Indemnitee requesting such an advance or
advances from time to time, whether prior to or after the final
disposition of such Claim provided, however that the
Reviewing Party has not determined in accordance with the
procedures set forth in section 7 that the Indemnitee would not be
permitted to be indemnified under applicable law and the terms and
conditions of this Agreement.
(b) The obligation of the
Company to make Expense Advances pursuant to
Section 6(a) shall be subject to the further condition
that the Company receives an undertaking from the Indemnitee that,
if, when and to the extent that the Reviewing Party or, in case the
Indemnitee has commenced legal proceedings in a court as specified
in Section 20 herein, the respective court in a final and not
appealable decision determines that Indemnitee would not be
permitted to be so indemnified under applicable law and the terms
and conditions of this Agreement, the Company shall be entitled to
be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid. Indemnitee’s
obligation to reimburse the Company for Expense Advances shall be
unsecured and no interest shall be charged thereon.
Section 7.
Procedure for Determination of Entitlement to Indemnification or
Expense Advances . (a) To obtain
indemnification or Expense Advances in accordance with this
Agreement, the Indemnitee shall submit to the Secretary a written
request, including such documentation and information as is
reasonably available to the Indemnitee and is reasonably necessary
to determine whether and to what extent the Indemnitee is entitled
to such indemnification or Expense Advances. The Secretary shall
promptly advise the Board in writing of such a request.
(b) The Reviewing Party shall
determine within 30 calendar days after the Company receives such
request whether the Indemnitee is entitled to such indemnification
and/or Expense Advances. In case the Reviewing Party determines
that the Indemnitee is not entitled to indemnification or Expense
Advances, the Company shall give, or cause to give, to the
Indemnitee written notice thereof specifying the reason therefore.
The indemnification shall by paid within 10 Business Days after the
Reviewing Party determines that the Indemnitee is entitled to
indemnification and/or Expense Advances.
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(c) The Indemnitee shall
cooperate with the Reviewing Party with respect to its request for
indemnification and/or Expense Advances, including providing the
Reviewing Party upon reasonable request any documentation or
information which is not privileged or otherwise protected from
disclosure and which is reasonably available to the Indemnitee and
reasonably necessary to such determination. Upon Indemnitee’s
request for indemnification or Expense Advance, Indemnitee shall be
presumed to be entitled to indemnification/Expense Advance
hereunder and the Company shall have the burden of proof in the
making of any determination contrary to such presumption. The
Company shall pay any and all reasonable fees, cost and
