EX-10.77





Exhibit 10.77


EMPLOYMENT AGREEMENT




     EMPLOYMENT AGREEMENT (this “Agreement”) dated as of January _6_, 2009 between FOSTER
WHEELER LTD., a Bermuda company (the “Company”), and LISA Z. WOOD (the “Executive”).



     WHEREAS, the Executive is currently employed by the Company, and the Executive and the Company
wish to continue their employment relationship, on the terms and conditions set forth in this
Agreement.



     Accordingly, the Company and the Executive hereby agree as follows:



     1. Employment, Duties and Acceptance.



          1.1 Employment, Duties. The Company hereby agrees to continue to employ the Executive
for the Term (as defined in Section 2.1), to render exclusive and full-time services to the
Company; provided, however, that the Executive may participate in civic, charitable, industry, and
professional organizations to the extent that such participation does not materially interfere with
the performance of Executive’s duties hereunder.




          1.2 Acceptance. The Executive hereby accepts such employment and agrees to render the
services described above. During the Term, and consistent with the above, the Executive agrees to
serve the Company faithfully and to the best of the Executive’s ability, to devote the Executive’s
entire business time, energy and skill to such employment, and to use the Executive’s best efforts,
skill and ability to promote the Company’s interests.




          1.3 Fiduciary Duties to the Company. Executive acknowledges and agrees that Executive
owes a fiduciary duty of loyalty, fidelity and allegiance to act at all times in the best interests
of the Company and to do no act which would, directly or indirectly, injure the Company’s business,
interests, or reputation. It is agreed that any direct or indirect interest in, connection with, or
benefit from any outside activities, particularly commercial activities, which interest might in
any way adversely affect Company, involves a possible conflict of interest. In keeping with
Executive’s fiduciary duties to the Company, Executive agrees that Executive shall not knowingly
become involved in a conflict of interest with the Company, or upon discovery thereof, allow such a
conflict to continue. Moreover, Executive shall not engage in any activity which might involve a
possible conflict of interest without first obtaining approval in accordance with the Company’s
policies and procedures.




          1.4 Location. The duties to be performed by the Executive hereunder shall be
performed primarily at the Company’s offices in Clinton, New Jersey, subject to reasonable travel
requirements consistent with the nature of the Executive’s duties from time to time on behalf of
the Company. The Executive shall keep Executive’s primary residence within reasonable daily
commute of the Clinton, New Jersey area throughout the Term.




     2. Term of Employment.



          2.1 Term. The term of the Executive’s employment under this Agreement (the “Term”)
shall commence on the date first above written (the “Effective Date”), and shall end on the date on
which the Term is terminated pursuant to Section 4.




 









 





     3. Compensation; Benefits.



          3.1 Salary. As compensation for all services to be rendered pursuant to this
Agreement, the Company agrees to pay to the Executive during the Term a base salary at the initial
annual rate of Two Hundred Seventy-Five Thousand Dollars ($275,000) (the “Base Salary”). On each
anniversary of the Effective Date or such other appropriate date during each year of the Term when
the salaries of executives at the Executive’s level are normally reviewed, the Company shall review
the Base Salary and determine if, and by how much, the Base Salary should be increased provided,
however, the Base Salary under this Agreement, including as subsequently adjusted upwards, may not
be decreased thereafter without the written consent of Executive, except for across-the-board
changes for executives at the Executive’s level. All payments of Base Salary or other compensation
hereunder shall be less such deductions or withholdings as are required by applicable law and
regulations.




          3.2 Bonus. The Executive shall be eligible to participate, as determined by the
Company in the Company’s annual incentive program as in effect from time to time for executives at
the Executive’s level. The Executive shall be eligible for an annual incentive bonus at a target
opportunity of forty percent (40%) of Base Salary (up to a maximum opportunity of eighty percent
(80%) of Base Salary) based upon the achievement of certain business unit objectives established in
advance by the Company (the “Annual Bonus”). The actual amount of any Annual Bonus shall be
determined by and in accordance with the terms of the Company’s annual incentive program as in
effect from time to time and the Executive shall have no absolute right to an Annual Bonus in any
year.




          3.3 Equity Awards. The Executive shall be eligible for annual equity awards, as
determined by the Company, under the Company’s equity award plan covering executives at the
Executive’s level, as in effect from time to time.




          3.4 Other Plans and Programs. During the Term, the Executive shall be entitled to
participate in those defined benefit, defined contribution, group insurance, medical, dental,
disability and other benefit plans, vacation programs, automobile allowance programs, and business
expense reimbursement programs of the Company as from time to time in effect for those at the
Executive’s level.




     4. Termination.



          4.1 Termination Events.




               4.1.1 The Executive’s employment and the Term shall terminate immediately upon the occurrence
of any of the following:



                    (i) Death: the death of the Executive;



                    (ii) Disability: the physical or mental disability of the Executive, whether totally
or partially, such that with or without reasonable accommodation the Executive is unable to perform
the Executive’s material duties, for a period of not less than one hundred and eighty (180)
consecutive days; or



                    (iii) For Cause By the Company: notice of termination for “Cause.” As used herein,
“Cause” means (A) conviction of a felony; (B) actual or attempted theft or embezzlement of Company
assets; (C) use of illegal drugs; (D) material breach of the Agreement that the Executive has not
cured within thirty (30) days after the Company has provided the Executive notice of



2









 







the material breach which shall be given within sixty (60) days of the Company’s knowledge of
the occurrence of the material breach; (E) commission of an act of moral turpitude that in the
judgment of the Company’s Board of Directors can reasonably be expected to have an adverse effect
on the business, reputation or financial situation of the Company and/or the ability of the
Executive to perform the Executive’s duties; (F) gross negligence or willful misconduct in
performance of the Executive’s duties; (G) breach of fiduciary duty to the Company; (H) willful
refusal to perform the duties of Executive’s titled position; or (I) a material violation of the
Foster Wheeler Code of Business Conduct and Ethics.



               4.1.2 For Good Reason By the Executive: The Executive may immediately resign the
Executive’s position for Good Reason and, in such event, the Term shall terminate. As used herein,
“Good Reason” means a material negative change in the employment relationship without the
Executive’s consent, as evidenced by the occurrence of any of the following: (i) reduction of Base
Salary and benefits except for across-the-board changes for executives at the Executive’s level;
(ii) exclusion from executive benefit/compensation plans; (iii) relocation of the Executive’s
principal business location by the Company of greater than fifty (50) miles; (iv) material breach
of the Agreement by the Company; or (v) resignation in compliance with securities/corporate
governance applicable law (such as the US Sarbanes-Oxley Act) or rules of professional conduct
specifically applicable to such Executive. For each event described above in this Section 4.1.2,
the Executive must notify the Company within ninety (90) days of the occurrence of the event and
the Company shall have thirty (30) days after receiving such notice in which to cure.



               4.1.3 Without Cause By the Company: The Company may terminate the Executive’s
employment thirty (30) days following notice of termination without Cause given by the Company and,
in such event, the Term shall terminate. During such thirty (30) day notice period, the Company
may require that the Executive cease performing some or all of the Executive’s duties and/or not be
present at the Company’s offices and/or other facilities.



               4.1.4 Without Good Reason By the Executive: The Executive may voluntarily resign the
Executive’s position effective thirty (30) days following notice to the Company of the Executive’s
intent to voluntarily resign without Good Reason and, in such event, the Term shall terminate.
During such thirty (30) day notice period, the Company may require that the Executive cease
performing some or all of the Executive’s duties and/or not be present at the Company’s offices
and/or other facilities.



               4.1.5 Definition of Termination Date. The date upon which Executive’s employment and
the Term terminate pursuant to this Section 4.1 shall be the Executive’s “Termination Date” for all
purposes of this Agreement.



          4.2 Payments Upon a Termination Event.




               4.2.1 Entitlements Upon Termination For Any Reason. Following any termination of the
Executive’s employment, the Company shall pay or provide to the Executive, or the Executive’s
estate or beneficiary, as the case may be, (i) Base Salary earned through the Termination Date;
(ii) the balance of any awarded (i.e., the amount and payment of the specific award has been fully
approved by the Company, including, where applicable, approval by Compensation Committee of Foster
Wheeler Ltd.’s Board of Directors) but as yet unpaid, annual cash incentive or other incentive
awards for any calendar year prior to the calendar year during which the Executive’s Termination
Date occurs provided, however, if the Executive’s employment is terminated by the Company for
Cause, such incentive award, even if awarded, shall be immediately forfeited if permitted under the
law of the State in which the Executive resides; (iii) a payment representing the Executive’s
accrued but unused vacation;
(iv) any vested, but not forfeited benefits on the Termination Date under the Company’s
employee benefit



3









 




plans in accordance with the terms of such plans; and (v) benefit continuation and
conversion rights to which the Executive is entitled under the Company’s employee benefit plans.




               4.2.2 Payments Upon Involuntary Termination by the Company Without Cause or Voluntary
Termination of the Executive with Good Reason. Following a termination by the Company without
Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive in
addition to the payments and benefits in Section 4.2.1 above:



                    (i) Base Salary at the rate in effect on the Termination Date and continuing for twelve (12)
months thereafter, payable at the same intervals at which active employees at the Executive’s level
are paid;



                    (ii) an amount equal to one hundred percent (100%) of the Executive’s annual cash incentive
payment at target, payable once in a lump sum at the same time that the Company pays annual cash
incentives to its active employees pursuant to its then current annual incentive program;



                    (iii) twelve (12) months of continued health and welfare benefit plan coverage following the
Termination Date (excluding any additional vacation accrual or sick leave) at active employee
levels, if and to the extent the Executive was participating in any such plans on the Termination
Date, provided that the Executive remits monthly premiums for the full cost of any health benefits;



                    (iv) executive level career transition assistance services by a firm selected by the Executive
and approved by the Company in an amount not to exceed $8,000.00 in the aggregate (which amount
includes any applicable gross-up for any taxes due for such payment); and



                    (v) a cash payment each month during the twelve (12) month period following the Termination
Date equal to the full monthly premium for the health benefits described in clause (iii) above
minus the active employee cost of such coverage, such full monthly premium to be grossed-up by the
Company for any applicable income taxes.


Notwithstanding any other provision of this Agreement, as consideration for the pay and benefits
that the Company shall provide the Executive pursuant to this Section 4.2.2, the Executive shall
provide the Company an enforceable waiver and release agreement in a form that the Company normally
requires.




          4.3 Change of Control.




               4.3.1 Definitions.



                    (i) Affiliated Company. For purposes of this Agreement, “Affiliated Company” means
any company, directly or indirectly, controlled by, controlling or under common control with the
Company.



                    (ii) Change of Control. For the purpose of this Agreement, a “Change of Control”
shall mean:



                         (A) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”)
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of voting securities of the Company where such acquisition
causes



4









 







such Person to own 20% or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of directors (the “Outstanding
Company Voting Securities”), provided, however, that for purposes of this subparagraph (A), the
following acquisitions shall not be deemed to result in a Change of Control: (I) any acquisition
directly from the Company or any corporation or other legal entity controlled, directly or
indirectly, by the Company, (II) any acquisition by the Company or any corporation or other legal
entity controlled, directly or indirectly, by the Company, (III) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any corporation or other
legal entity controlled, directly or indirectly, by the Company or (IV) any acquisition by any
corporation pursuant to a transaction that complies with clauses (I), (II) and (III) of
subparagraph (C) below; and provided, further, that if any Person’s beneficial ownership of the
Outstanding Company Voting Securities reaches or exceeds 20% as a result of a transaction described
in clauses (I) or (II) above, and such Person subsequently acquires beneficial ownership of
additional voting securities of the Company, such subsequent acquisition shall be treated as an
acquisition that causes such Person to own 20% or more of the Outstanding Company Voting
Securities; or



                         (B) Individuals who, as of the date hereof, constitute the Board (such individuals, the
“Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board; or



                         (C) The approval by the shareholders of the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the assets of the Company
(“Business Combination”) or, if consummation of such Business Combination is subject, at the time
of such approval by shareholders, to the consent of any government or governmental agency, the
obtaining of such consent (either explicitly or implicitly by consummation); excluding, however,
such a Business Combination pursuant to which (I) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including, without limitation,
a corporation that as a result of such transaction owns the Company or all or substantially all of
the Company’s assets either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination of the Outstanding
Company Voting Securities, (II) no Person (excluding any (1) corporation owned, directly or
indirectly, by the beneficial owners of the Outstanding Company Voting Securities as described in
subclause (I) immediately preceding, or (2) employee benefit plan (or related trust) of the Company
or such corporation resulting from such Business Combination, or any of their respective
subsidiaries) beneficially owns, directly or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such Business Combination or
the combined voting power of the then outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business Combination and (III) at least a
majority of the members of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board, providing for such Business
Combination; or



5









 





                         (D) approval by the shareholders of the Company of a complete liquidation or dissolution of
the Company.



                    (iii) Change of Control Period. For purposes of this Agreement, the “Change of
Control Period” shall mean the period commencing on the date of a Change of Control and ending on
the twenty-fourth-month anniversary of such date.



                    (iv) Start Date. For purposes of this Agreement, “Start Date” shall mean the first
date of the Change of Control Period. Anything in this Agreement to the contrary notwithstanding,
if a Change of Control occurs and if the Executive’s employment with the Company is terminated
prior to the date on which the Change of Control occurs, and if it is reasonably demonstrated by
the Executive that such termination of employment (A) was at the request of a third party who has
taken steps reasonably calculated to effect a Change of Control or (B) otherwise arose in
connection with or anticipation of a Change of Control, then for all purposes of this Agreement the
“Start Date” shall mean the date immediately prior to the Termination Date.



               4.3.2 Obligations of the Company upon Executive’s Voluntary Termination with Good Reason
or the Company’s Involuntary Termination of Executive Without Cause (Other Than for Death or
Disability) During Change of Control Period. If, during the Change of Control Period, the
Company terminates the Executive’s employment without Cause (other than for death or Disability) or
the Executive terminates his employment for Good Reason, the Company shall pay or provide to the
Executive the following:



                    (i) Accrued Obligations. The sum of (I) the Executive’s Annual Base Salary through
the Termination Date to the extent not theretofore paid, and (II) any compensation previously
deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued
vacation pay, in each case, to the extent not theretofore paid (the sum of the amounts described in
subclauses (I) and (II), the “Accrued Obligations”), all in a lump sum in cash within 30 days
following the Termination Date; and



                    (ii) Base Salary. Base Salary at the rate in effect on the Termination Date and
continuing for two (2) years thereafter, payable at the same intervals at which active employees
at the Executive’s level are paid;



                    (iii) Bonus. Two (2) payments, each in an amount equal to one hundred percent (100%)
of the Executive’s annual cash incentive payment at target, one (1) of each such payments being
payable in each of the two (2) years following the Termination Date at the same time that the
Company pays annual cash incentives to its active employees pursuant to its then current annual
incentive program;



                    (iv) Medical Coverage. For two (2) years after the Executive’s Termination Date, or
such longer period as may be provided by the terms of the appropriate health or welfare plan,
program, practice or policy, the Company shall continue benefits to the Executive and/or the
Executive’s family at least equal to those which would have been provided to them in accordance
with the health or welfare plans, programs, practices and policies if the Executive’s employment
had not been terminated or, if more favorable to the Executive, and to the extent he otherwise is
or becomes eligible therefor, as in effect generally at any time thereafter with respect to other
similarly situated peer executives of the Company and the Affiliated Companies and their families;
provided, however, that the Executive remits monthly premiums for the full cost of any health
benefits; and provided further that if the Executive becomes reemployed with another employer and
is eligible to receive health or welfare benefits
under another employer provided plan, the health
and welfare benefits



6









 







described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility. For purposes of determining eligibility (but not the
time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be considered to have remained employed until
the second anniversary of the Termination Date and to have retired on such second anniversary;



                    (v) Medical Payments. The Company shall make a cash payment each month during the
two-year period commencing after the Executive’s Termination Date, equal to the full monthly
premium for the health benefits described in Section 4.3.2(iv) above minus the active employee cost
of such coverage, such full monthly premium to be grossed-up for any applicable income taxes;



                    (vi) Outplacement Services. The Company shall, at its sole expense as incurred, in an
amount not to exceed $8,000.00 in the aggregate (which amount includes any applicable gross-up for
any taxes, other than Excise Taxes as defined in Section 4.3.6 below, due for such payment),
provide the Executive with outplacement services the scope and provider of which shall be selected
by the Executive in the Executive’s sole discretion; and



                    (vii) Other Benefits. To the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under any plan, program, policy or practice
or contract or agreement of the Company and the Affiliated Companies (such other amounts and
benefits shall be hereinafter referred to as the “Other Benefits”).



               4.3.3 Obligations of the Company upon Executive’s Death. If the Executive’s
employment is terminated by reason of the Executive’s death during the Change of Control Period,
the Company shall provide the Executive’s estate or beneficiaries with the Accrued Obligations and
the timely payment or delivery of the Other Benefits, and shall have no other severance obligations
under this Agreement. The Accrued Obligations shall be paid to the Executive’s estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Termination Date. With
respect to the provision of Other Benefits, the term “Other Benefits” as utilized in this
Subsection 4.3.3 shall include, without limitation, and the Executive’s estate and/or beneficiaries
shall be entitled to receive, benefits at least equal to the most favorable benefits provided by
the Company and the Affiliated Companies to the estates and beneficiaries of similarly situated
peer executives of the Company and the Affiliated Companies under such plans, programs, practices
and policies relating to death benefits, if any, as in effect with respect to other similarly
situated peer executives and their beneficiaries at any time during the 120-day period immediately
preceding the Start Date or, if more favorable to the Executive’s estate and/or the Executive’s
beneficiaries, as in effect on the date of the Executive’s death with respect to other similarly
situated peer executives of the Company and the Affiliated Companies and their beneficiaries.



               4.3.4 Obligations of the Company upon Executive’s Disability. If the Executive’s
employment is terminated by reason of the Executive’s disability during the Change of Control
Period, the Company shall provide the Executive with the Accrued Obligations and the timely payment
or delivery of the Other Benefits, and shall have no other severance obligations under this
Agreement. The Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30
days of the Termination Date. With respect to the provision of Other Benefits, the term “Other
Benefits” as utilized in this Subsection 4.3.4 shall include, and the Executive shall be entitled
after the disability start date to receive, disability and other benefits at least equal to the
most favorable of those generally
provided by the Company and the Affiliated Companies to similarly situated disabled executives
and/or their families in accordance with such plans, programs, practices and policies relating to
disability, if any, as in effect generally with respect to other similarly situated peer executives
and their families at any time



7









 







during the 120-day period immediately preceding the Start Date or,
if more favorable to the Executive and/or the Executive’s family, as in effect at any time
thereafter generally with respect to other similarly situated peer executives of the Company and
the Affiliated Companies and their families.



               4.3.5 Obligations of the Company upon Executive’s Voluntary Termination Without Good
Reason or the Company’s Involuntary Termination of Executive With Cause During Change of Control
Period. If the Executive’s employment is terminated for Cause during the Change of Control
Period, the Company shall provide to the Executive (i) the Executive’s Annual Base Salary through
the Termination Date, (ii) the amount of any compensation previously deferred by the Executive, and
(iii) Other Benefits, in each case to the extent theretofore unpaid, and shall have no other
severance obligations under this Agreement. If the Executive voluntarily terminates employment
during the Change of Control Period, excluding a termination for Good Reason, the Company shall
provide to the Executive the Accrued Obligations and the timely payment or delivery of Other
Benefits, and shall have no other severance obligations under this Agreement. In such case, all
Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the
Termination Date.



               4.3.6 Certain Additional Payments by the Company.



                    (i) Definitions. The following terms shall have the following meanings for purposes
of this Subsection 4.3.6.



                         (A) Excise Tax. “Excise Tax” shall mean the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the “Code”), together with any interest or penalties
imposed with respect to such excise tax.



                         (B) Net After-Tax Amount. The “Net After-Tax Amount” of a Payment shall mean the
Value of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1
and 4999 of the Code and applicable state and local law, determined by applying the highest
marginal rates that are expected to apply to the Executive’s taxable income for the taxable year in
which the Payment is made.



                         (C) Parachute Value. “Parachute Value” of a Payment shall mean the present value as
of the date of the change of control for purposes of Section 280G of the Code of the portion of
such Payment that constitutes a “parachute payment” under Section 280G(b)(2), as determined by the
Accounting Firm for purposes of determining whether and to what extent the Excise Tax will apply to
such Payment.



                         (D) Payment. A “Payment” shall mean any payment or distribution in the nature of
compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the
Executive, whether paid or payable pursuant to this Agreement or otherwise.



                         (E) Safe Harbor Amount. The “Safe Harbor Amount” means the maximum Parachute Value of
all Payments that the Executive can receive without any Payments being subject to the Excise Tax.



                         (F) Value. “Value” of a Payment shall mean the economic present value of a Payment as
of the date of the change of control for purposes of Section 280G of the Code, as determined by the
Accounting Firm (as defined below) using the discount rate required by Section 280G(d)(4) of the
Code.



8









 





                    (ii) Gross-Up Payment. Notwithstanding anything in this Agreement other than as set
forth below in this Subsection 4.3.6(ii), in the event it shall be determined that any Payment
would be subject to the Excise Tax, then the Executive shall be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes
(and any interest or penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Payments. Any Gross-Up Payment will be made as soon as reasonably
practicable but in no event later than December 31 of the year following the year in which the
Excise Tax is incurred. Despite and as an exception to the foregoing provisions of this Section
4.3.6(ii), if the Executive is subject to the Excise Tax but the sum of the Payments when
calculated in accordance with the relevant provisions of the Code do not exceed 110% of the
Executive’s Safe Harbor Amount, then (1) the Company shall not make any Gross-Up Payment to the
Executive, and (2) the Payments otherwise payable to the Executive shall be reduced so that the
Payments in the aggregate equal the largest amount that does not exceed the Safe Harbor Amount. In
such event, the Company shall promptly notify the Executive of its intent to reduce the amount of
the Payments, and, to the extent permitted by applicable laws, shall consult with the Executive as
to which of the specific Payment(s) shall be so reduced in order to bring the aggregate of the
Payments within the Safe Harbor Amount.



                    (iii) Determination of the Gross-Up Payment. Subject to the provisions of paragraph
(iv) immediately below, all determinations required to be made under this Subsection 4.3.6,
including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall be made by
PricewaterhouseCoopers LLP or such other nationally recognized certified public accounting firm as
may be designated by the Executive (the “Accounting Firm”). The Accounting Firm shall provide
detailed supporting calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change of Control, the Executive may
appoint another nationally recognized accounting firm to make the determinations required hereunder
(which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Subsection 4.3.6, shall be paid by the Company to the Executive within
five days of the receipt of the Accounting Firm’s determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been
made by the Company should have been made (“Underpayment”), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its remedies pursuant to
paragraph (iv) below and the Executive thereafter is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.



                    (iv) Notification. The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten
business days after the Executive is informed in writing of such claim. The Executive shall
apprise the Company of the nature of such claim and the date on which such claim is requested
to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration of such period that the Company desires
to contest such claim, the Executive shall:



9









 





                         (A) give the Company any information reasonably requested by the Company relating to such
claim;



                         (B) take such action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the Company;



                         (C) cooperate with the Company in good faith in order effectively to contest such claim; and



                         (D) permit the Company to participate in any proceedings relating to such claim;


provided, however, that the Company shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and shall indemnify and
hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this paragraph (iv), the Company shall
control all proceedings taken in connection with such contest and, at its sole discretion, may
pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the
applicable taxing authority in respect of such claim and may, at its sole discretion, either direct
the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible
manner, and the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such payment to the
Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with
respect to such advance or with respect to any imputed income in connection with such advance; and
provided, further, that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. Furthermore, the Company’s control of the contest
shall be limited to issues with respect to which the Gross-Up Payment would be payable hereunder
and the Executive shall be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.




                    (v) Entitlement to Refund. If, after the receipt by the Executive of an amount
advanced by the Company pursuant to paragraph (iv) above, the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the Company’s complying with
the requirements of paragraph (iv)) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt
by the Executive of an amount advanced by the Company pursuant to paragraph (iv), a determination
is made that the Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such advance shall be forgiven
and shall not be
required to be repaid and the amount of such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.



                    (vi) Consent to Withholding. Notwithstanding any other provision of this Subsection
4.3.6, the Company may, in its sole discretion, withhold and pay over to the



10









 







Internal Revenue
Service or any other applicable taxing authority, for the benefit of the Executive, all or any
portion of the Gross-Up Payment, and the Executive hereby consents to such withholding.



          4.4 No Mitigation. Upon termination of the Executive’s employment with the Company,
the Executive shall be under no obligation to seek other employment or otherwise mitigate the
obligations of the Company under this Agreement.




     5. Protection of Confidential Information; Non-Competition;
Non-Solicitation.



          5.1 Confidential Information. The Executive acknowledges that the Executive’s
services will be unique, that they will involve the development of Company-subsidized relationships
with key customers, suppliers, and service providers as well as with key Company employees and that
the Executive’s work for the Company will give the Executive access to highly confidential
information not available to the public or competitors, including trade secrets and confidential
marketing, sales, product development and other data and information which it would be
impracticable for the Company to effectively protect and preserve in the absence of this Section 5
and the disclosure or misappropriation of which could materially adversely affect the Company.
Accordingly, the Executive agrees:




               5.1.1 except in the course of performing the Executive’s duties provided for in Section 1.1,
not at any time, whether before, during or after the Executive’s employment with the Company, to
divulge to any other entity or person any confidential information acquired by the Executive
concerning the Company’s or its subsidiaries’ or affiliates’ financial affairs or business
processes or methods or their research, development or marketing programs or plans, or any other of
its or their trade secrets. The foregoing prohibitions shall include, without limitation, directly
or indirectly publishing (or causing, participating in, assisting or providing any statement,
opinion or information in connection with the publication of) any diary, memoir, letter, story,
photograph, interview, article, essay, account or description (whether fictionalized or not)
concerning any of the foregoing, publication being deemed to include any presentation or
reproduction of any written, verbal or visual material in any communication medium, including any
book, magazine, newspaper, theatrical production or movie, or television or radio programming or
commercial. In the event that the Executive is requested or required to make disclosure of
information subject to this Section 5.1.1 under any court order, subpoena or other judicial
process, then, except as prohibited by law, the Executive will promptly notify the Company, take
all reasonable steps requested by the Company to defend against the compulsory disclosure and
permit the Company to control with counsel of its choice any proceeding relating to the compulsory
disclosure. The Executive acknowledges that all information, the disclosure of which is prohibited
by this section, is of a confidential and proprietary character and of great value to the Company
and its subsidiaries and affiliates; and



               5.1.2 to deliver promptly to the Company on termination of the Executive’s employment with the
Company, or at any time that the Company may so request, all confidential memoranda, notes,
records, reports, manuals, drawings, software, electronic/digital media records, blueprints and
other documents (and all copies thereof) relating to the Company’s (and its subsidiaries’ and
affiliates’) business and all property associated therewith, which the Executive may then possess
or have under the Executive’s control.



          5.2 Company Protections. In consideration of the Company’s entering into this
Agreement, the Executive agrees that at all times during the Term and thereafter for twenty-four
(24) months, in the event the Executive’s employment is terminated pursuant to Section 4.3.2
hereof, or for twelve (12) months, in the event the Executive’s employment terminates for any other
reason, the



11









 






Executive shall not, directly or indirectly, for Executive or on behalf of or in
conjunction with, any other person, company, partnership, corporation, business, group, or other
entity (each, a “Person”):




               5.2.1 Non-Competition: engage in any activity for or on behalf of a Competitor, as
director, employee, shareholder (excluding any such shareholding by the Executive of no more than
5% of the shares of a publicly-traded company), consultant or otherwise, which is the same as or
similar to activity in which Executive engaged at any time during the last two (2) years of
employment by the Company; or



               5.2.2 Non-Solicitation: (i) call upon any Person who is, at such Termination Date,
engaged in activity on behalf of the Company or any subsidiary or affiliate of the Company for the
purpose or with the intent of enticing such Person to cease such activity on behalf of the Company
or such subsidiary or affiliate; or (ii) solicit, induce, or attempt to induce any customer of the
Company to cease doing business in whole or in part with or through the Company or a subsidiary or
affiliate, or to do business with any Competitor.


For purposes of this Agreement, “Competitor” means a person or entity who or which is engaged in a
material line of business conducted by the Company. For purposes of this Agreement, “a material
line of business conducted by the Company” means an activity of the Company generating gross
revenues to the Company of more than twenty-five million dollars ($25,000,000) in the immediately
preceding fiscal year of the Company.




          5.3 Remedies and Injunctive Relief. If the Executive commits a breach or threatens to
breach any of the provisions of Section 5.1 or 5.2 hereof, the Company shall have the right and
remedy to have the provisions of this Agreement specifically enforced by injunction or otherwise by
any court having jurisdiction, it being acknowledged and agreed that any such breach will cause
irreparable injury to the Company in addition to money damage and that money damages alone will not
provide a complete or adequate remedy to the Company, it being further agreed that such right and
remedy shall be in addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity.




          5.4 Severability. If any of the covenants contained in Sections 5.1, 5.2 or 5.3, or
any part thereof, hereafter are construed to be invalid or unenforceable, the same shall not affect
the remainder of the covenant or covenants, which shall be given full effect, without regard to the
invalid portions.




          5.5 Extension of Term of Covenants Following Violation. The period during which the
prohibitions of Section 5.2 are in effect shall be extended by any period or periods during which
the Executive is in violation of Section 5.2.




          5.6 Blue Penciling by Court. If any of the covenants contained in Sections 5.1 or
5.2, or any part thereof, are held to be unenforceable, the parties agree that the court making
such determination shall have the power to revise or modify such provision to make it enforceable
to the maximum extent permitted by applicable law and, in its revised or modified form, said
provision shall then be enforceable.




          5.7 Blue Penciling by One Court Not to Affect Covenants in Another State. The parties
hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 5.1,
5.2 and 5.3 upon the courts of any state within the geographical scope of such covenants. In the
event that the courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is the intention of the
parties’ hereto that such



12









 






determination not bar or in any way affect the Company’s right to the
relief provided above in the courts of any other states within the geographical scope of such
covenants as to breaches of such covenants in such other respective jurisdictions, the above
covenants as they relate to each state being for this purpose severable into diverse and
independent covenants.




     6. Intellectual Property.



          6.1 Company’s Rights. Notwithstanding and without limiting the provisions of
Section 5, the Company shall be the sole owner of all the products and proceeds of the Executive’s
services hereunder, including, but not limited to, all materials, ideas, concepts, formats,
suggestions, developments, arrangements, packages, programs and other intellectual properties that
the Executive may acquire, obtain, develop or create in connection with or during the Term, free
and clear of any claims by the Executive (or anyone claiming under the Executive) of any kind or
character whatsoever (other than the Executive’s right to receive payments hereunder), the
Executive shall, at the request of the Company, execute such assignments, certificates or other
instruments as the Company may from time to time deem necessary or desirable to evidence,
establish, maintain, perfect, protect, enforce or defend its right, title or interest in or to any
such properties.




     7. Indemnification.



          7.1 General Rule. In addition to any rights to indemnification to which the Executive
is entitled under the Company’s charter and by-laws, to the extent permitted by applicable law, the
Company will indemnify, from the assets of the Company supplemented by insurance in an amount
determined by the Company, the Executive at all times, during and after the Term, and, to the
maximum extent permitted by applicable law, shall pay the Executive’s expenses (including
reasonable attorneys’ fees and expenses, which shall be paid in advance by the Company as incurred,
subject to recoupment in accordance with applicable law) in connection with any threatened or
actual action, suit or proceeding to which the Executive may be made a party, brought by any
shareholder of the Company directly or derivatively or by any third party by reason of any act or
omission or alleged act or omission in relation to any affairs of the Company or any subsidiary or
affiliate of the Company of the Executive as an officer, director or employee of the Company or of
any subsidiary or affiliate of the Company. The Company shall use its best efforts to maintain
during the Term and thereafter insurance coverage sufficient in the determination of the Company to
satisfy any indemnification obligation of the Company arising under this Section 7.




     8. Notices.



     All notices, requests, consents and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given if delivered personally,
one day after sent by overnight courier or three days after mailed first class, postage prepaid, by
registered or certified mail, as follows (or to such other address as either party shall designate
by notice in writing to the other in accordance herewith):


If to the Company, to:



Foster Wheeler Ltd.

Perryville Corporate Park

Clinton, NJ 08809-4000

Attention: General Counsel




13









 








     If to the Executive, to the Executive’s principal residence as reflected in the records of the
Company.



     9. General.



          9.1 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New Jersey applicable to agreements made between residents
thereof and to be performed entirely in New Jersey.




          9.2 Headings. The section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.




          9.3 Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by either party that is not
embodied in this Agreement, and neither party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.




          9.4 Non-exclusivity of Rights. Other than as expressly set forth in this Agreement,
nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation
in any plan, program, policy or practice provided by the Company or the Affiliated Companies and
for which the Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any other contract or agreement with the Company or the
Affiliated Companies. For avoidance of doubt, it is agreed and understood that this Agreement
shall not supersede or otherwise adversely affect any stock option, restricted stock or other form
of equity grant or award provided to Executive prior to the Effective Date, or any indemnification
agreement heretofore entered into between the Company and the Executive. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice
or program of or any contract or agreement with the Company or any of the Affiliated Companies at
or subsequent to the Termination Date shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by this Agreement.
Notwithstanding the foregoing, if the Executive receives payments and benefits pursuant to this
Agreement in connection with the termination of the Executive’s employment, the Executive shall not
be entitled to any severance pay or benefits under any severance plan, program or policy of the
Company and the Affiliated Companies, unless specifically provided therein in a specific reference
to this Agreement.




          9.5 Full Settlement. The Company’s obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may
have against the Executive or others. The Company agrees to pay as incurred (within ten days
following the Company’s receipt of an invoice from the Executive, which invoice the Executive must
submit to the Company not later than March 1 of the year following the year in which the expenses
were incurred), to the full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest (regardless of the outcome thereof) by
the Company, the Executive or others of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive about the amount of any
payment pursuant to this Agreement), plus in each case interest on any delayed payment at the
applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.




          9.6 Assignability. This Agreement, and the Executive’s rights and obligations
hereunder, may not be assigned by the Executive, nor may the Executive pledge, encumber or



14









 






anticipate any payments or benefits due hereunder, by operation of law or otherwise. The Company
may assign its rights, together with its obligations, hereunder (i) to any affiliate or (ii) to a
third party in connection with any sale, transfer or other disposition of all or substantially all
of any business to which the Executive’s services are then principally devoted, provided that no
assignment pursuant to this Section 9.6 shall relieve the Company from its obligations hereunder to
the extent the same are not timely discharged by such assignee.




          9.7 Assumption of Agreement by Successor. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the Company would be required
to perform it if no such succession had taken place.




          9.8 Survival. The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement or the Term to the extent necessary to the intended
preservation of such rights and obligations.




          9.9 Amendment. This Agreement may be amended, modified, superseded, canceled, renewed
or extended and the terms or covenants hereof may be waived, only by a written instrument executed
by both of the parties hereto, or in the case of a waiver, by the party waiving compliance. The
failure of either party at any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce the same. No waiver by either party of
the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in
any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver
of any such breach, or a waiver of the breach of any other term or covenant contained in this
Agreement.




          9.10 Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original but all of which together will constitute one and the
same instrument.




          9.11 Acknowledgement of Ability to Have Counsel Review. The parties acknowledge that
this Agreement is the result of arm’s-length negotiations between sophisticated parties each
afforded the opportunity to utilize 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.




     10. Dispute Resolution. 



     Subject to the rights of the Company pursuant to Section 5.3 above, any controversy, claim or
dispute arising out of or relating to this Agreement, the breach thereof, or the Executive’s
employment by the Company shall be settled by arbitration with three arbitrators. The arbitration
will be administered by the American Arbitration Association in accordance with its National Rules
for Resolution of Employment Disputes. The arbitration proceeding shall be confidential, and
judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.
Any such arbitration shall take place in the Clinton, New Jersey area, or in any other mutually
agreeable location. In the event
any judicial action is necessary to enforce the arbitration provisions of this Agreement, sole
jurisdiction shall be in the federal and state courts, as applicable, located in New Jersey. Any
request for interim injunctive relief or other provisional remedies or opposition thereto shall not
be deemed to be a waiver or the right or obligation to arbitrate hereunder. The arbitrator shall
have the discretion to award reasonable attorneys’ fees, costs and expenses to the prevailing
party. To the extent a party prevails in any dispute



15









 







arising out of this Agreement or any of its
terms and provisions, all reasonable costs, fees and expenses relating to such dispute, including
the parties’ reasonable legal fees, shall be borne by the party not prevailing in the resolution of
such dispute, but only to the extent that the arbitrator or court, as the case may be, deems
reasonable and appropriate given the merits of the claims and defenses asserted.



     11. Free to Contract. 



     The Executive represents and warrants to the Company that Executive is able freely to accept
engagement and employment by the Company as described in this Agreement and that there are no
existing agreements, arrangements or understandings, written or oral, that would prevent Executive
from entering into this Agreement, would prevent Executive or restrict Executive in any way from
rendering services to the Company as provided herein during the Term or would be breached by the
future performance by the Executive of Executive’s duties hereunder. The Executive also represents
and warrants that no fee, charge or expense of any sort is due from the Company to any third person
engaged by the Executive in connection with Executive’s employment by the Company hereunder, except
as disclosed in this Agreement.



     12. Subsidiaries and Affiliates.



     As used herein, the term “subsidiary” shall mean any corporation or other business entity
controlled directly or indirectly by the Company or other business entity in question, and the term
“affiliate” shall mean and include any corporation or other business entity directly or indirectly
controlling, controlled by or under common control with the Company or other business entity in
question.



     13. Code Section 409A Legal Requirement.



     Notwithstanding anything to the contrary in this Agreement, if the Executive constitutes a
“specified employee” as defined and applied in Section 409A of the Code as of his Termination Date,
to the extent any payment under this Agreement constitutes deferred compensation (after taking into
account any applicable exemptions from Section 409A of the Code), and to the extent required by
Section 409A of the Code, no payments due under this Agreement may be made until the earlier of:
(i) the first day following the sixth month anniversary of Executive’s Termination Date, or (ii)
the Executive’s date of death; provided, however, that any payments delayed during this six-month
period shall be paid in the aggregate in a lump sum as soon as administratively practicable
following the sixth month anniversary of the Executive’s Termination Date. For purposes of Section
409A of the Code, each “payment” (as defined by Section 409A of the Code) made under this Agreement
shall be considered a “separate payment.” In addition, for purposes of Section 409A of the Code,
the payments described in Sections 4.2.2 and 4.3.2 shall be deemed exempt from Section 409A of the
Code to the full extent possible under any available exemptions, including without limit, the
“short-term deferral” exemption of Treasury Regulation § 1.409A-1(b)(4) and (with respect to
amounts paid no later than the second calendar year following the calendar year containing the
Executive’s Termination Date) the “two-years/two-times” separation pay exemption of Treasury
Regulation § 1.409A-1(b)(9)(iii), which are all hereby incorporated by reference.



[SIGNATURES FOLLOW]




16









 








     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.



	 	 	 	 	 	 	 
	 	 	FOSTER WHEELER LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Raymond J. Milchovich
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Raymond J. Milchovich	 	 
	 

	 	Title:
	 	Chairman and Chief Executive Officer	 	 






	 	 	 	 	 
	 	 	 
	 	/s/
Lisa Z. Wood
 	 
	 	Lisa Z. Wood 	 
	 	 	 
	 




17