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 


 


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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
expenses incurred by the Reviewing Party acting pursuant to this Agreement.
Cost and expenses incurred by the Indemnitee (including reasonable attorney’s
fees) for cooperating with the Reviewing Party shall be borne by the Company
unless and until a final and non appealable decision of a competent arbitral
tribunal determines that Indemnitee would not be entitled to indemnification.


 


(d) In the event that (i) the
Reviewing Party determines that the Indemnitee is not entitled to
indemnification or Expense Advances or if such determination is not made by the
Reviewing Party within the period of 30 calendar days pursuant to section 6(b) above,
or (ii) the Expense Advance or the indemnity pursuant to section 7(b) above
is not timely made, the Indemnitee shall be entitled to commence legal
proceedings in a court as specified in Section 20 herein to secure a
determination that Indemnitee should be indemnified and/or entitled to Expense
Advances under applicable laws or the terms and conditions of this Agreement.
Any determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law or the terms and conditions of
this Agreement 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). Any determination by the Reviewing
Party otherwise shall be conclusive and binding on the Company and Indemnitee.
In case of court proceedings in accordance with Section 20 the Indemnitee
shall be presumed to be entitled to indemnification/Expense Advance hereunder
and the Company shall have the burden of proof to overcome this presumption.


 


(e) The Company shall indemnify
Indemnitee for Expenses incurred by Indemnitee in connection with the
successful establishment or enforcement, in whole or in part, by Indemnitee of
Indemnitee’s right to indemnification or Expense Advances.


 


Section 8.               No Presumption.  For
purposes of this Agreement, the termination of any 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 Indemnitee did not meet any particular standard of
conduct or have any particular belief.


 


Section 9.               Notification and Defense of
Claim.  Within 30 days after receipt by Indemnitee of notice of
the commencement of a Claim which may involve an Indemnifiable Event,
Indemnitee will, if a claim in respect thereof is to be made against the
Company under 


 


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this Agreement, submit to the Company a written notice identifying the
proceeding, but the omission so to notify the Company will not relieve it from
any liability which it may have to Indemnitee under this Agreement unless the
Company is materially prejudiced by such lack of notice.  With respect to any such Claim as to which
Indemnitee notifies the Company of the commencement thereof:


 


(a) the Company will be entitled to
participate therein at its own expense;


 


(b) except as otherwise provided below,
to the extent that it may wish, the Company jointly with any other indemnifying
party similarly notified will be entitled to assume the defense thereof, with
counsel selected by the Board and reasonably satisfactory to Indemnitee.  After notice from the Company to Indemnitee
of its election to assume the defense thereof, the Company will not be liable
to Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below.  Indemnitee shall have the right to employ
counsel in such action, suit or proceeding, but the fees and expenses of such
counsel incurred after notice from the Company of its assumption of the defense
thereof shall be at the expense of Indemnitee unless (i) the employment of
counsel by Indemnitee has been authorized by the Company, (ii) in the
reasonable opinion of counsel to the Indemnitee there may be a conflict of
interest between the Company and the Indemnitee in the conduct of the defense
of such action, or (iii) the Company shall not in fact have employed
counsel to assume the defense of such action, in each of which cases (subject
to Section 12) the fees and expenses of counsel shall be at the expense of
the Company.  The Company shall not be
entitled to assume the defense of any claim brought by or on behalf of the
Company or as to which Indemnitee shall have made the conclusion provided for
in clause (ii) above; and


 


(c) the Company shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any action or claim effected without its written consent.  The Company shall not settle any action or
claim the defense of which is assumed by the Company in accordance with this Section 9
in any manner which would impose any penalty or limitation on Indemnitee
without Indemnitee’s written consent. 
Neither the Company nor Indemnitee will unreasonably withhold or delay
their consent to any proposed settlement.


 


Section 10.             Non-exclusivity, Etc.  The
rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Articles of Association, any agreement, a vote of
the Company shareholders, including a vote of the Company shareholders granting
discharge (“décharge”) under article 698 section 2 para 5 of the Swiss code of
obligations (the “SCO”), a resolution of the Board or otherwise.  No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee acting on behalf of the Company and at the request of the Company
prior to such amendment, alteration or repeal. 
To the extent that a change in the SCO (whether by statute or judicial
decision) or the Articles of Association permits greater indemnification by
agreement than would be afforded currently under the Articles of Associations
and this Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such
change.  No right or remedy herein
conferred is intended to be exclusive of any other right or 


 


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remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other right or remedy.


 


Section 11.             Liability Insurance.  To
the extent the Company maintains an insurance policy or policies providing
directors’ and officers’ liability insurance, Indemnitee shall be covered by
such policy or policies in accordance with its or their terms to the maximum
extent of the coverage available for any Company director or officer.  If, at the time the Company receives notice
from any source of a Claim as to which Indemnitee is a party or a participant
(as a witness or otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of such proceeding to
the insurers in accordance with the procedures set forth in the respective
policies.  The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such Claim in accordance
with the terms of such policies.  In the
event of a Potential Change in Control (as defined in Section 13(c) herein),
the Company shall maintain in force any and all insurance policies then
maintained by the Company providing directors’ and officers’ liability
insurance, in respect of Indemnitee, for a period of six years thereafter.  The Company shall indemnify Indemnitee for
Expenses incurred by Indemnitee in connection with any successful action
brought by Indemnitee for recovery under any insurance policy referred to in
this Section 11 and shall advance to Indemnitee the Expenses of such
action in the manner provided in Section 6 above.


 


Section 12.             Limitation of Indemnification.  Notwithstanding any other terms of this
Agreement, nothing herein shall indemnify the Indemnitee against, or exempt
Indemnitee from, any liability in respect of the Indemnitee’s (a) fraud,
or (b) dishonesty.


 


Section 13.             Certain Definitions.


 


(a)                                  “Business
Day” means any day when the banks in New York and Zurich are open
for business.


 


(b)           The
“Board” means the board of directors of
the Company.


 


(c)           “Change in Control” shall be deemed to
have occurred if:


 


(1)           any person, as that term is used in Section 13(d) and
Section 14(d)(2) of the Exchange Act, becomes, is discovered to be,
or files a report on Schedule 13D or 14D-1 (or any successor schedule,
form or report) disclosing that such person is a beneficial owner (as defined
in Rule 13d-3 under the Exchange Act or any successor rule or
regulation), directly or indirectly, of securities of the Company representing
20% or more of the total voting power of the Company’s then outstanding Voting
Securities (unless such 


 


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person becomes such a beneficial owner in
connection with the initial public offering of the Company);


 


(2)           during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board and
any new director whose election by the Board or nomination for election by the
Company’s shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof;


 


(3)           the Company, or any material
subsidiary of the Company, is merged, amalgamated, consolidated or reorganized
into or with another company, corporation or other legal person (an “Acquiring
Person”) or securities of the Company are exchanged for securities of an
Acquiring Person, and immediately after such merger, amalgamation,
consolidation, reorganization or exchange less than a majority of the combined
voting power of the then outstanding securities of the Acquiring Person
immediately after such transaction are held, directly or indirectly, in the
aggregate by the holders of Voting Securities immediately prior to such
transaction;


 


(4)           any Group Company, in any transaction
or series of related transactions, sells or otherwise transfers all or
substantially all of its assets to an Acquiring Person, and less than a
majority of the combined voting power of the then outstanding securities of the
Acquiring Person immediately after such sale or transfer is held, directly or
indirectly, in the aggregate by the holders of Voting Securities immediately
prior to such sale or transfer;


 


(5)           any Group Company, in any transaction
or series of related transactions, sells or otherwise transfers business
operations that generated two thirds or more of the consolidated revenues
(determined on the basis of the Group Companies four most recently completed
fiscal quarters) of the Group Company immediately prior thereto;


 


(6)           the Company files a report or proxy
statement with the Securities and Exchange Commission pursuant to the Exchange
Act disclosing that a change in control of the Company has or may have occurred
or will or may occur in the future pursuant to any then existing contract or
transaction; or


 


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(7)           any other transaction or series of
related transactions occur that have substantially the effect of the
transactions specified in any of the preceding clauses in this Section 13(a).


 


Notwithstanding the provisions of Section 13(c)(1) or
13(c)(4), unless otherwise determined in a specific case by majority vote of
the Board, a Change of Control shall not be deemed to have occurred for
purposes of this Agreement solely because (i) the Company, (ii) an
entity in which the Company directly or indirectly beneficially owns 50% or
more of the voting securities or (iii) any Company sponsored employee
stock ownership plan, or any other employee benefit plan of the Company, either
files or becomes obligated to file a report or a proxy statement under or in
response to Schedule 13D, Schedule 14D-1, Form 8-K or
Schedule 14A (or any successor schedule, form or report or item therein)
under the Exchange Act, disclosing beneficial ownership by it of shares of
stock of the Company, or because the Company reports that a Change in Control
of the Company has or may have occurred or will or may occur in the future by
reason of such beneficial ownership.


 


(d) “Claim”
means any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution mechanism, or any inquiry, hearing
or investigation whether conducted by the Company or any other party, whether
civil, criminal, administrative, investigative or other and whether formal or
informal except for one initiated by the Indemnitee pursuant to Section 20
to enforce Indemnitee’s  rights under
this Agreement.


 


(e) “Expense
Advance”  has the meaning
assigned in Section 6(a).


 


(f) “Expenses”
means attorneys’ fees, court and administrative fees or charges
as well as all other costs, fees, expenses, related taxes and obligations of
any nature whatsoever paid or incurred in connection with investigating,
defending, being a witness in or participating in (including appeal), or
preparing to defend, be a witness in or participate in any Claim relating to
any Indemnifiable Event or recovery under an directors’ and officers’ liability
insurance policies maintained by the Company.


 


(g) “Group Companies”
means the Company and each subsidiary of the Company


 


(h) “Indemnifiable
Event” means any event or occurrence (whether before or after
the date hereof) related to the fact that Indemnitee is or was a director,
officer, employee, consultant, agent or fiduciary of or to the Company, or any
subsidiary of the Company, or is or was serving at the request 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 by reason of anything done or not done by Indemnitee in any such
capacity.


 


(i) Potential
Change in Control” will 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; (iii) any person, other
than a trustee or other fiduciary holding securities under an 


 


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employee benefit
plan of the Company or a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of shares of the Company, who is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 9.5% or more
of the combined voting power of the Company’s then outstanding Voting
Securities, increases such person’s beneficial ownership of such securities by
five percentage points or more over the initial percentage of such securities;
or (iv) the Board adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change in Control has occurred.


 


(j) “Reviewing
Party” means (i) the Board (provided that a majority of
directors are not parties to the particular Claim for which Indemnitee is
seeking indemnification) or (ii) any other person or body appointed by the
Board, who is not a party to the particular Claim for which Indemnitee is
seeking indemnification, or (iii) if there has been a Change in Control,
the special independent counsel referred to in Section 4 hereof.


 


(k) “SCO”
means the Swiss Code of Obligations (being the fifth part of the Swiss Civil
Code) dated March 30 1911, as amended until at December 31 2008.


 


(l) “Voting
Securities” means any securities of the Company which vote
generally in the election of directors to the Board.


 


Section 14.             Amendments, Termination and
Waiver.  No supplement, modification, amendment or termination 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.


 


Section 15.             Contribution.  If the
indemnification provided in Sections 2 et sqq of this Agreement is unavailable,
then, in respect of any Claim in which the Company is jointly liable with
Indemnitee (or would be if joined in the Claim), the Company shall contribute
to the amount of Expenses, judgments, fines, penalties and amounts paid in
settlement as appropriate to reflect: (i) the relative benefits received
by the Company, on the one hand, and Indemnitee, on the other hand, from the
transaction from which the Claim arose, and (ii) the relative fault of the
Company, on the one hand, and of Indemnitee, on the other, in connection with
the events which resulted in such Expenses, judgments, fines, penalties and
amounts paid in settlement, as well as any other relevant equitable
considerations.  The relative fault of
the Company, on the one hand, and of Indemnitee, on the other, shall be
determined by reference to, among other things, the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent the
circumstances resulting in such Expenses and Liabilities.  The Company agrees that it would not be just
and equitable if contribution pursuant to this Section 15 were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations described in this Section 15.


 


Section 16.             Subrogation.  In
the event of payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and shall do everything that may be necessary



 


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to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such
rights.


 


Section 17.             No Duplication of Payments.  The
Company shall not be liable under this Agreement to make any payment in
connection with any Claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under insurance policy or otherwise) of
the amounts otherwise indemnifiable hereunder.


 


Section 18.             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, amalgamation, consolidation
or otherwise to all or substantially all of the business or assets of the
Company, spouse, heirs, and personal and legal representatives.  This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director or officer of
the Company or of any other enterprise at the Board’s request.


 


Section 19.             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.


 


Section 20.             Applicable Law and Consent to
Arbitration.  This Agreement and the
legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of Switzerland, without regard to its
conflict of laws rules. Any dispute, controversy or claim arising out of or in
relation to this contract, including the validity, invalidity, breach or
termination thereof, shall be settled by arbitration in accordance with the
Swiss Rules of International Arbitration of the Swiss Chambers of Commerce
in force on the date when the Notice of Arbitration is submitted in accordance
with these Rules. The number of arbitrators shall be three. The seat of the
arbitration shall be in New York City; The arbitral proceedings shall be
conducted in English.


 


[SPACE INTENTIONALLY LEFT BLANK]


 


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Section 21.             Identical Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.  Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.


 


 


	
  Executed.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FOSTER WHEELERAG

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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