Exhibit 10
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this
“Agreement”) is made and entered into as of the ___ day
of __________, 200_, by and between Willbros Group, Inc., a
Delaware corporation (the “Company”), and
____________________ (“Indemnitee”).
WHEREAS, it is essential to the Company to
retain and attract as directors and officers the most capable
persons available;
WHEREAS, Indemnitee is an officer and/or
director of the Company or of an entity in which the Company
directly or indirectly owns an interest;
WHEREAS, both the Company and Indemnitee
recognize the increased risk of litigation and other claims being
asserted against directors and officers of corporations in the
current environment;
WHEREAS, the Certificate of Incorporation and
Bylaws of the Company (the “Charter Documents”) require
the Company to indemnify and advance expenses to its officers and
directors to the fullest extent permitted under Delaware law and
Indemnitee has agreed to serve or has served and continues to serve
in such capacity, in part, in reliance on the Charter Documents;
and
WHEREAS, in recognition of Indemnitee’s
need for (i) substantial protection against personal liability
based on Indemnitee’s reliance on the Charter Documents, (ii)
specific contractual assurance that the protection promised by the
Charter Documents will be available to Indemnitee (regardless of,
among other things, any amendment to or revocation of the Charter
Documents or any change in the composition of the Company’s
Board of Directors or acquisition transaction relating to the
Company) and (iii) an inducement to agreeing to or to continue to
provide effective services 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 under Delaware law and as set forth
in this Agreement, and for the coverage of Indemnitee under the
Company’s directors’ and officers’ liability
insurance policies.
NOW, THEREFORE, in consideration of the premises
and of Indemnitee’s agreeing to or continuing to serve the
Company directly or, at its request, another enterprise, and
intending to be legally bound hereby, the parties hereto agree as
follows:
1.
Certain Definitions :
(a) “Change
in Control” means and shall be deemed to have occurred if (i)
any Person is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)), directly or indirectly,
of securities of the Company representing thirty percent (30%) or
more of the total voting power of all the then outstanding Voting
Securities, (ii) any Person purchases or otherwise acquires under a
tender offer, securities representing thirty percent (30%) or more
of the total voting power of all the then outstanding Voting
Securities, (iii) during any period of two (2) consecutive years,
individuals (a) who at the beginning of such period constitute the
Board of Directors of the Company and (b) any new director whose
election by the Company’s 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 such period or
whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the
members of the Company’s Board of Directors, (iv) the
stockholders of the Company approve a merger or consolidation of
the Company with another entity, other than a merger or
consolidation which would result in the Voting Securities
outstanding immediately prior thereto continuing to represent,
either by remaining outstanding or by being converted into voting
securities of the surviving entity (or if the surviving entity is a
subsidiary of another entity, then of the parent entity of such
surviving entity), at least sixty percent (60%) of the total voting
power represented by the voting securities of the surviving entity
(or parent entity) outstanding immediately after such merger or
consolidation, or (v) the stockholders 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 of the Company’s
assets.
(b) “Claim”
shall mean any threatened, pending or completed action, suit or
proceeding, or any inquiry 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”
shall include reasonable attorneys’ fees and all other costs,
expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in, participating in
(including on appeal), or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable
Event.
(d) “Indemnifiable
Event” shall mean any event or occurrence that takes place
either prior to or after the execution of this Agreement 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 (expressed or implied) 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 was a director, officer, employee,
agent or fiduciary of a foreign or domestic corporation that was a
predecessor corporation of the Company or of another enterprise at
the request of such predecessor corporation, or by reason of
anything done or not done by Indemnitee in any such
capacity.
(e) “Person”
shall mean any person, as such term is used in Sections 13(d) and
14(d) of the Exchange Act, but excluding therefrom 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.
(f) “Potential
Change in Control” shall be deemed to have occurred if (i)
the Company enters into an agreement 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 taking
actions which if consummated would constitute a Change in Control;
or (iii) the Board of Directors of the Company adopts a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(g) “Reviewing
Party” shall mean any appropriate 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 Company’s Board of
Directors (including the special, independent counsel referred to
in Section 3 below) who is not a party to the particular Claim for
which Indemnitee is seeking indemnification.
(h) “Voting
Securities” shall mean any securities of the Company which
vote generally in the election of directors.
2. Basic
Indemnification Arrangement .
(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, the Company shall indemnify
Indemnitee to the fullest extent permitted by law, as the same
exists or hereafter may be amended or interpreted (but in the case
of any such amendment or interpretation, only to the extent that
such amendment or interpretation permits the Company to provide
broader indemnification rights than were provided prior thereto),
promptly upon the receipt of written demand, 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. If so requested by Indemnitee, the Company shall advance
(within ten (10) business days after the Company’s receipt of
such request) any and all Expenses to Indemnitee (an “Expense
Advance”). Notwithstanding anything in this Agreement to the
contrary, 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 the Board of Directors of the Company has
consented to the initiation of such claim.
(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 legal opinion if the
special, independent counsel referred to in Section 3 below is
involved) that indemnification of Indemnitee would not be permitted
under applicable law, provided, that to be effective any such
denial of indemnity must be in writing, delivered to the
Indemnitee, stating with particularity the reason for such denial;
and (ii) the obligation of the Company to make an Expense Advance
pursuant to Section 2(a) above shall be subject to the condition
that if, when and to the extent that the Reviewing Party determines
that indemnification of Indemnitee would not be permitted 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 be
indemnified under applicable law, any determination made by the
Reviewing Party that indemnification of Indemnitee would not be
permitted 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).
(c) If
there has not been a Change in Control, the Reviewing Party shall
be selected by the Board of Directors of the Company, and if there
has been such a Change in Control, the Reviewing Party shall be the
special, independent counsel referred to in Section 3
below. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that
indemnification of Indemnitee would not be permitted in whole or in
part under applicable law, Indemnitee shall have the right to
commence litigation, in any court in the State of Delaware having
subject matter jurisdiction thereof and in which venue is
proper
