EX-10.1



 





Exhibit 10.1




CONSULTING AGREEMENT




     This Consulting Agreement (hereinafter the “Agreement”), is entered into and effective as of
September 1, 2007, between JOHN T. La DUC (hereinafter “Consultant”) and FOSTER WHEELER INC., a
Delaware corporation (collectively with its direct and indirect parents, subsidiaries and
affiliates, the “Company” or “FW”).



     WHEREAS, Consultant retired as an employee of Foster Wheeler Inc effective August 13, 2007;
and



     WHEREAS, FW desires to retain Consultant to provide certain services to FW as specified
herein; and



     WHEREAS, Consultant is able to provide said services and desires to provide the same to FW,
its affiliates, and its representatives on the terms and conditions set forth herein.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in further consideration of the following mutual promises, covenants and
undertakings, the parties agree as follows:




	 	1.	 	Term. The term of this Agreement shall commence as of September 1,
2007 and shall continue in effect through February 29, 2008. Termination of this
Agreement, except for cause, before February 29, 2008, may occur only by mutual consent
or the death or permanent and total disability of Consultant as a result of bodily
injury, disease or mental disorder. This Agreement may be renewed for such term, and
upon such terms and conditions, as the parties may agree in a further writing.
	 
	 	2.	 	Consulting Services.






2.1. Consultant shall perform non-exclusive consulting services for FW primarily
in the nature of the services provided when consultant was Executive Vice President
& Chief Financial Officer of FW, which employment ended on August 13, 2007. A
listing of subject areas in which FW and Consultant have agreed that Consultant will
provide services to the Company is attached to this Agreement and incorporated
herein by reference.




2.2. Any additional services by Consultant beyond those referenced in Article 2.1
above shall be performed by Consultant only as agreed between Consultant and FW’s
CFO.




2.3. Consultant shall at all times act in accordance with his own best
judgment, experience and expertise as an independent Consultant. Consultant shall
routinely communicate the status and progress of the services being performed by
Consultant to FW’s CFO.




2.4 Consultant may perform consulting services and/or serve on boards of directors
for persons other than FW so long as such other services do not present a conflict
of interest for Consultant. Consultant shall advise FW if he enters into



 









 







any agreements to perform consulting services for any other entity or has agreed to
serve on the board of directors of any other entity. Consultant will arrange his
schedule and other work to ensure that FW work remains the primary priority for
Consultant’s time. Should Consultant request a waiver of any potential conflict
with respect to either other services or time, FW will not unreasonably withhold its
consent to such waiver.




	 	3.	 	Fees and Reimbursements/Invoices.






     3.1. Consultant’s compensation will be as follows:




     3.1.1. A base fee of $14,400 per month (“Base Fee”), exclusive of expenses,
for which Consultant will provide up to 36 hours of services. The Consultant’s mere
travel time (i.e. time when Consultant is traveling, but not also performing other
types of work) will be counted at one-half the number of hours spent so traveling,
and there will be no premium for weekend or holiday work.




     3.1.2. Monthly hours worked in excess of 36, up to a maximum of 104
(“Additional Fee”), exclusive of expenses, will be billed at $400 per hour, subject
to the same terms and conditions for travel, weekend and holiday work as provided in
Article 3.1.1. In the absence of a written agreement signed by Consultant and FW,
Consultant shall neither work, nor be paid for, more than 104 hours per month.




     3.2. Consultant’s compensation and expense reimbursement shall be paid as
follows:




     3.2.1 Beginning in September 2007 and each month thereafter during the term of
the Agreement, Consultant’s Base Fee will be paid automatically in advance by FW by
wire transfer monthly on the first business day between the first and fifth day of
the month.




     3.2.2 Beginning in October 2007 and each month thereafter during the term of
the Agreement, by the fifth day of the month, Consultant will provide an invoice for
the previous month that provides a summary of time and activities as to the Base
Fee, and a reasonably detailed description of services and time, rounded up to the
nearest tenth of the hour, for any Additional Fee earned during the previous month.
Consultant will also submit a reasonably detailed schedule of expenses for
reimbursement including receipts. Bills and receipts may be submitted
electronically.



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     3.2.3 Statements for services and requests for expense reimbursement shall be
submitted to


Foster Wheeler, Inc.

Attn: Franco Baseotto, Executive Vice President and CFO

Perryville Corporate Park

Clinton, NJ 08809-4000

Fax: (908) 730-5300

E-mail : franco_baseotto@fwc.com





     3.2.4 FW will promptly review the statements submitted with respect to the
Additional Fee and requests for expense reimbursement, and will pay all undisputed
Additional Fee and expense reimbursement amounts within 15 days of FW’s receipt of
such statement. Questions regarding any Additional Fee and/or expenses will be
addressed promptly with a view toward reaching an agreement, and payment for any
questioned Additional Fee and/or expense amounts will be paid on the later of 15
days after the statement was received or 10 days after the questions are resolved.
As to the Base Fee, FW may request additional information concerning the content of
the Base Fee description and time but may not withhold payment of the Base Fee.




3.3 If this Agreement is terminated before its expiration date as a result of
Consultant’s death or disability, FW shall pay Consultant or his estate any
Additional Fees that he earned prior to his death or disability, but shall have no
further obligation pursuant to Article 3 of this Agreement. If this Agreement is
terminated before its expiration date for “Cause,” FW shall have no further
obligation pursuant to Article 3 of this Agreement. For the purposes of this
Agreement, “Cause” shall have the same meaning as in the Employment Agreement (as
defined in Article 4 of this Agreement). If FW otherwise terminates this Agreement
before its expiration date, FW shall remain liable for the Base Fees otherwise due
through the expiration date, but shall have no further obligation pursuant to
Article 3 of this Agreement.




	 	4.	 	No Employee Benefits. Consultant and FW agree that Consultant
(including his employees and agents) shall not be entitled to participate in any
employee benefit plans or arrangements or fringe benefit plans or programs or payroll
practice maintained or contributed to by FW or its affiliates for their employees as a
result of providing consulting services or otherwise with relation to this Agreement,
provided, however, it is understood that Consultant may be entitled to certain
benefits related to his April 14, 2004 employment agreement with Foster Wheeler Ltd.,
as amended, (“Employment Agreement”) and his retirement from FW, which entitlement
shall not be affected by this Agreement. Consultant hereby waives any and all claims
to any Company sponsored benefits related to his provision of consulting services or
otherwise with relation to this Agreement even if Consultant (including his employees
and agents) at a later date is determined or adjudged to be a common law or statutory
employee of the Company as a result of performing the consulting services under this
Agreement. Accordingly, there




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	 	 	 	will be no withholdings from the compensation described in Articles 2 and 3 above.






	 	5.	 	Nature of Relationship.






5.1. It is expressly acknowledged and agreed that, in performing any consulting
services pursuant to this Agreement, Consultant shall be an independent contractor
to FW and Consultant shall not be considered as having employee or agent status with
respect to FW or any of its subsidiaries or affiliates for any purpose.
Accordingly, FW shall not supervise, control or direct the manner or means by which
Consultant performs the consulting services, and Consultant shall have no authority
to contractually bind FW without FW’s express written consent.




5.2. Consultant shall be solely responsible for payment of all Federal, state and
local taxes arising out of or imposed on Consultant as a result of Consultant’s
performance of the consulting services or receipt of the compensation described in
Articles 2 and 3 above, including by way of illustration but not limitation,
Federal, state and local income taxes, Social Security taxes or social insurance
obligations and any other taxes or business license fees required to be paid by
Consultant by applicable law. FW shall not carry workers’ compensation insurance or
any health or accident insurance to cover Consultant nor pay any amounts on account
of Consultant for purposes of Social Security or social insurance, unemployment
insurance, or Federal, state or local withholding and employment taxes, and shall
not provide any other contributions or benefits on account of the Consultant which
might be required or customary in connection with an employer-employee relationship.




5.3. Consultant agrees to indemnify and hold harmless FW and its subsidiaries and
affiliates, and their respective directors, officers and employees (“FW Indemnified
Parties”), from and against any taxes, penalties, interest, liabilities, costs or
expenses (including, without limitation, reasonable attorney’s fees and
disbursements) incurred by FW Indemnified Parties arising out of or related to
Consultant’s material breach of his obligations under Article 5.2 hereof.
Consultant agrees to reimburse FW and its subsidiaries and affiliates for any
amounts that the Internal Revenue Service and/or any state or local tax authority
claims should have been withheld by FW from monies paid to Consultant in accordance
with this Agreement or as a result of the reclassification of Consultant as an
employee of FW or its subsidiaries or affiliates or a determination that FW or any
of its subsidiaries or affiliates shall be considered the employer of Consultant for
any purpose.




	 	6.	 	Indemnity. The Company agrees to the provisions of Annex 1 hereto
which provide for indemnification by the Company of Consultant. Such indemnification
is an integral part of this Agreement and the terms thereof are incorporated by
reference as if fully stated herein. The Consultant shall indemnify and hold harmless
FW Indemnified Parties from and against any Losses (as defined in Annex 1 hereto)
directly or indirectly related to Consultant’s breach of this




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	 	 	 	Agreement, or gross negligence, willful misconduct, bad faith or fraud in
conjunction with the Consulting Services to be provided under this Agreement;
provided, however, that the Consultant shall not be required to indemnify a FW
Indemnified Party for such Losses unless and until it is finally judicially
determined by a court of competent jurisdiction that such Losses arose primarily
because of the gross negligence, willful misconduct, bad faith or fraud of
Consultant.






	 	7.	 	Survival






The provisions of Articles 4, 5, 6, and 8-18, and any other provisions necessary to
carry out the intentions of the parties as expressed herein, shall survive the
termination or expiration of this Agreement.




	 	8.	 	Covenants of Consultant.






8.1. Consultant acknowledges that he has acquired and will acquire knowledge of
information relating to the confidential affairs of FW and its subsidiaries and
affiliates, including, but not limited to, financial information, technical
information, intellectual property, business and marketing plans, strategies,
customer information, process material, methodologies, manuals and strategic options
and models (collectively, “Confidential Information”). Consultant agrees that
during and after the time during which he provides Consulting Services (“Term”), he
(i) will hold inviolate, keep secret and will not divulge, transmit, or otherwise
disclose the Confidential Information (except as legally compelled by court order,
and then only to the extent required, after prompt notice to FW of any such order),
directly or indirectly, other than in the proper performance of the Consulting
Services, without the prior written consent of FW, and (ii) not use, directly or
indirectly, any Confidential Information for the benefit of anyone other than FW or
such subsidiary or affiliate; provided, however, that Consultant shall have no
obligation to refrain from disclosing to others or using any such Confidential
Information which is or hereafter shall become available to the public other than
through disclosure by the Consultant.




8.2. All Confidential Information, files, records, or correspondence, memoranda,
notes or other documents (including, without limitation, those in computer-readable
form) or property relating or belonging to FW or its subsidiaries or affiliates,
whether prepared by Consultant or otherwise coming into his possession in the course
of the performance of the Consulting Services, shall be the exclusive property of FW
and shall be delivered to FW or destroyed, as applicable, and not retained by
Consultant (including, without limitation, any copies or excerpts thereof), promptly
upon request by FW.




8.3. During, and for the period specified in the Employment Agreement, Consultant
shall not (i) in any way request, suggest or advise any customer of the Company to
withdraw or cancel any of their business or refuse to continue to do business with
the Company, or (ii) recruit, hire, solicit or induce any current



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employee of the Company to end his or her employment with the Company. For purposes
of this Article 8, “current employee” shall mean any employee of FW on September 1,
2007 or anyone who becomes an employee of FW during the Term of this Agreement.




	 	9.	 	Irreparable Harm. In the event of the breach or threatened breach of
Article 8 of this Agreement by Consultant, Consultant acknowledges that FW would have
no adequate remedy at law and, in the event of such breach, FW would be irreparably
harmed and shall, therefore, be entitled to injunctions, both preliminary and final,
enjoining and restraining such breach or threatened breach. Such remedies shall be in
addition to all other remedies available at law or in equity (including FW’s rights
under this Agreement).
	 
	 	10.	 	Successors and Assigns; Binding Effect. The Consulting Services are of
a unique and specialized nature, to be rendered by Consultant as provided in Article 1
above in reliance upon his unique knowledge and experiences. Consequently, this
Agreement and all rights and obligations hereunder are personal to Consultant, and
Consultant shall not assign his interest in, or delegate his duties under, this
Agreement, and any purported assignment in violation hereof shall not be valid or
binding on FW. The benefits of this Agreement and the indemnification and other
obligations of the Company to Consultant contained in Annex 1 hereto shall inure to the
respective successors and assigns of the parties hereto and thereto and of the
indemnified parties, and the obligations and liabilities assumed in this Agreement and
Annex 1 by the parties hereto and thereto shall be binding upon their respective
successors and assigns. This Agreement shall be binding upon and inure to the benefit
of FW and its successors and assigns.
	 
	 	11.	 	Governing Law and Venue. This Agreement has been negotiated, executed
and delivered at and shall be deemed to have been made in Clinton, New Jersey. This
Agreement shall be governed by and construed in accordance with the laws of the State
of New Jersey, without giving effect to such State’s principles of conflicts of laws.
Regardless of any present or future domicile or principal place of business of the
parties hereto, each such party hereby irrevocably consents and agrees that any and all
claims or disputes between the parties hereto pertaining to this Agreement or to any
matter arising out of or related to this Agreement shall be brought in any State or
Federal court of competent jurisdiction in the State of New Jersey. By execution and
delivery of this Agreement, each party submits and consents in advance to such
jurisdiction in any action or suit commenced in any such court. Each party hereto
hereby waives any objection which it may have based on lack of personal jurisdiction,
improper venue or forum non conveniens and hereby consents to
the granting of such legal or equitable relief as is deemed appropriate by such court.
The Company and the Consultant each consent to the service of process in accordance
with New Jersey Law.
	 
	 	12.	 	Severability. If any clause or provision herein shall be adjudged
invalid or unenforceable by a court of competent jurisdiction or by operation of any




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	 	 	 	applicable law, it shall not affect the validity of any other clause or provision
herein, which shall remain in full force and effect. To the extent any provision is
held invalid or unenforceable for being overly broad, it is the intention of the
parties hereto that the court enforce such provision to the limits of proper scope.






	 	13.	 	Entire Agreement. This Agreement contains the entire agreement between
Consultant and FW regarding his consulting arrangement with the Company, and it shall
supersede any and all other prior agreements, arrangements, or understandings, whether
oral or written, regarding Consultant’s consulting arrangement other than as set forth
in this Agreement, provided, however, that it is understood and agreed that
Consultant’s contractual rights and obligations as a former employee of Foster Wheeler
Inc. and its affiliate Foster Wheeler Ltd. are governed by his Employment Agreement.
If there is any irreconcilable conflict between the Employee Agreement and this
Agreement, the Employee Agreement shall govern.
	 
	 	14.	 	Modification. This Agreement may not be modified, changed, extended or
discharged orally, but only by an agreement that is in writing and executed by the
party against whom enforcement of any change, modification, extension or discharge is
sought. The waiver by either party of any breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach. No waiver
shall be valid hereunder unless it is in writing and executed by the party granting the
waiver.
	 
	 	15.	 	Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original but all of which together shall constitute one and
the same instrument.
	 
	 	16.	 	Construction. The Company and the Consultant acknowledge that this
Agreement was the result of arm’s-length negotiations between sophisticated parties
each afforded representation by legal counsel. Each and every provision of this
Agreement shall be construed as though both parties participated equally in the
drafting of same, and any rule of construction that a document shall be construed
against the drafting party shall not be applicable to this Agreement.
	 
	 	17.	 	Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and either delivered in person or sent by
first class certified or registered mail, postage prepaid,






if to the Company at the Company’s principal place of business to the attention of
the Executive Vice President & Chief Financial Officer, and




if to Consultant, at 1 Laurelwood Drive, Bernardsville, NJ 07924,




or to such other address as either party shall have designated in writing to the
other party hereto.



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	 	18.	 	No Conflict. Consultant represents and warrants to FW that (a)
Consultant is not a party to any agreement, contract or arrangement which prohibits
Consultant’s engagement with FW pursuant to this Agreement and, (b) Consultant has not
and will not, in violation of any contract to which he is a party, bring with
Consultant to his engagement with FW any documents, records or other confidential
information belonging to others.




IN WITNESS WHEREOF, this Consulting Agreement has been executed by Consultant and FW
executed on the dates set forth on the signature page of this Agreement but effective as of
September 1, 2007.




	 	 	 	 	 
	JOHN T. La DUC

 	 	 
	/s/ John T. La Duc
 	 	 
	 	 	 
	 	 	 
	FOSTER WHEELER INC.

 	 	 
	By:  	/s/ Franco Baseotto
 	 	 
	 	Name:  	Franco Baseotto 	 	 
	 	Title:  	Executive Vice President & Chief Financial Officer 	 	 



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List of Subject Areas as to which Foster Wheeler Desires and Consultant Agrees to Provide Services





	 	•	 	U.S. Pension and Savings Plans
	 
	 	•	 	U.K. Pension Plan
	 
	 	•	 	Asbestos Accounting and Disclosure
	 
	 	•	 	SEC filings
	 
	 	•	 	Investor Relations
	 
	 	•	 	Audit Committee Preparations
	 
	 	•	 	External Auditor Matters
	 
	 	•	 	Rating Agency Matters
	 
	 	•	 	Credit Agreements
	 
	 	•	 	M&A Due Diligence




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     ANNEX 1



INDEMNITY



The Company shall indemnify and hold harmless Consultant and its officers, directors, shareholders,
employees, agents and other representatives (each an “Indemnified Person”) from and against any
losses, claims or proceedings, including, without limitation stockholder actions, damages,
judgments, assessments, investigation costs, settlement costs, fines, penalties, arbitration awards
any and other liabilities, costs, fees and expenses, including reasonable attorneys’ fees and
expenses (collectively, “Losses”) (a) directly or indirectly related to or arising out of
(i) oral or written information provided by the Company, the Company’s employees, directors or
other agents, which either the Company or Consultant provides to any person or entity or (ii) any
other action or failure to act by (A) the Company, the Company’s employees, directors or other
agents or (B) the Consultant at the Company’s request or with the Company’s consent, in each case
in connection with, arising out of, based upon, or in any way related to this Agreement, the
retention of and services provided by Consultant under this Agreement, or any transaction
authorized by the Company; or (b) otherwise directly or indirectly in connection with, arising out
of, based upon, or in any way related to the engagement of Consultant under this Agreement or any
transaction or conduct in connection therewith, provided that the Company shall not be required to
indemnify an Indemnified Person for such Losses if and only to the extent that it is finally
judicially determined by a court of competent jurisdiction that such Losses arose primarily because
of the gross negligence, willful misconduct, bad faith or fraud of any Indemnified Person. The
Company also shall indemnify and hold harmless Consultant from and against any Losses directly or
indirectly related to Company’s material breach or non-performance of this Agreement.



The Company shall advance all reasonable legal or other fees, disbursements or expenses incurred or
to be incurred (a) in investigating, preparing or pursuing any action or other proceeding (whether
formal or informal) or threat thereof, in connection with pending or threatened litigation or
arbitration and whether or not such Indemnified Person is a party (each, an “Action”) and
(b) in connection with enforcing Consultant’s rights under this Agreement; provided, however, that
in the event and only to the extent that it is finally judicially determined by a court of
competent jurisdiction that the Losses of an Indemnified Person arose primarily because of the
gross negligence, willful misconduct, bad faith or fraud of such Indemnified Person, such
Indemnified Person will promptly remit to the Company any amounts reimbursed under this paragraph.



Upon receipt by an Indemnified Person of notice of any Action, such Indemnified Person shall notify
the Company in writing of such Action, but the failure to so notify shall not relieve the Company
from any liability hereunder (i) if the Company had actual notice of such action or (ii) unless and
only to the extent that such failure results in the forfeiture by the Company of substantial rights
and defenses. The Company shall, if requested by such Indemnified Person, assume the defense of
any such Action including the employment of counsel reasonable satisfactory to such Indemnified
Person and will not, without the prior written consent of such Indemnified Person, settle,
compromise, consent or otherwise resolve or seek to terminate any pending or threatened Action
(whether or not any Indemnified Party is a party thereto) unless such settlement, compromise,
consent or termination (a) contains an express, unconditional


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release of such Indemnified Person from all liability relating to such Action and (b) does not
include a statement as to, or an admission of fault, culpability or a failure to act by or on
behalf of such Indemnified Person. The Indemnified Person shall be entitled to retain separate
counsel of his choice and participate in the defense of any Action in connection with any of the
matters to which this Agreement relates, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Persona unless (x) the parties to any such Action (including any
impleaded parties) include such Indemnified Person and the Company, and such Indemnified Person
shall have been advised by counsel that there may be one or more legal defenses available to the
Company; provided that the Company shall not in such event be responsible under this Agreement for
the fees and expenses of more than one firm of separate counsel (in addition to local counsel) in
connection with any such Action in the same jurisdiction.



The rights of Consultant hereunder shall be in addition to any other rights that Consultant may
have at common law, by statute or otherwise. Except as otherwise expressly provided for in this
Agreement, if any term, provision, covenant or restriction contained in this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained
in this Agreement shall all remain in full force and effect and shall in no way be affected,
impaired or invalidated. The reimbursement advancement, indemnity and contribution obligations of
the Company set forth herein shall apply to any modification of this Agreement and shall remain in
full force and effect regardless of any termination of, or the completion of Consultant’s services
under or in connection with, this Agreement.





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