exv10w34



 








Exhibit 10.34




EMPLOYEE INDEMNITY AGREEMENT




     This Employee Indemnity Agreement (this “Agreement”) dated as of July 12, 2007 (the
“Effective Date”) is entered into by and between The Shaw Group Inc., a Louisiana corporation (the
“Company”), and Brian K. Ferraioli (“Employee”). The Company and Employee hereinafter individually
referred to as a “Party” and collectively as the “Parties”.



RECITALS




     WHEREAS, Employee and Company have or shall enter into an arrangement whereby Employee shall
become an employee of Company or an affiliate thereof;



     WHEREAS, Employee was a party to, as an employee of Foster Wheeler Ltd. or an affiliate
thereof (the “Former Employer”), (i) the Foster Wheeler Ltd. Management Restricted Stock Plan
(Adopted September 2004) and (ii) the Foster Wheeler Ltd. 2004 Stock Option Plan (Adopted
September 2004) (collectively, the “Foster Wheeler
Stock Agreements”);



     WHEREAS, Employee was a party to, as an employee of the Former Employer, the Employment
Agreement effective December, 2003 (the “Foster Wheeler
Employment Agreement”);



     WHEREAS, the Company, Employee and the Former Employer are parties to a Settlement Agreement
dated July 12, 2007 (the “Settlement
Agreement”; the Foster Wheeler Stock Agreements, the Foster
Wheeler Employment Agreement and the “Settlement Agreement” collectively referred to as the
“Relevant Agreements”); and



     WHEREAS, the Company and Employee now desire to enter into this Agreement to indemnify
Employee against certain liabilities that may arise under the Relevant Agreements.



     NOW, THEREFORE, in consideration of the mutual promises, terms, covenants and conditions set
forth herein and the performance of each, it is hereby agreed as follows:



AGREEMENTS




     1. Indemnity Obligation.




     (a) Under this Agreement, the “Indemnified Obligations” are the obligations of Employee
to pay any amount to the Former Employer in respect of any claim by the Former Employer on
or after June 19, 2007. arising under (i) either of the Foster Wheeler Stock Agreements
including without limitation any amounts under Section 13 of each of the Relevant Agreements
with respect to profits realized from the sale of shares of the Former Employer in January
2007, (ii) the Foster Wheeler Employment Agreement, other than obligations in respect of
claims arising under Section 5.1, 5.1.1, 5.1.2 or (to the extent such Section relates to
Section 5.1 (together with its sub-Sections)) Section 5.3, 5.4, 5.5 or 5.6 of the Employment
Agreement (the “Excepted Obligations”), and (iii) the Settlement Agreement, other than
claims in respect of Excepted Obligations, but “Indemnified Obligations” shall not include
any other liabilities or obligations under the Relevant Agreements or otherwise arising out
of the employment relationship with the



 









 







Former Employer. The Company agrees to indemnify and hold harmless the Employee from and
against any and all loss, liability and expense (including judgments, fines,; amounts paid
or to be paid in settlement, costs of investigation, and any and all attorneys’ fees and
expenses, whether or not the dispute or proceeding involves the Company) incurred or
suffered by the Employee in connection with Indemnified Obligations, including any
additional federal or state taxes incurred by Employee as a result of the reimbursement by
the Company to Employee of the Indemnified Obligations as well as for any federal or state
income tax relating to profits realized from the sale to the extent such profits are
required to be refunded but as to which Employee is not permitted to take a deduction as
to such taxes in connection with such reimbursement. The foregoing indemnity shall apply
to the fullest extent permitted under applicable law; provided that Employee shall not be
so indemnified and held harmless to the extent there has been a final and non-appealable
judgment entered by a court of competent jurisdiction determining that the Employee, with
respect to the applicable Relevant Agreements acted in a fraudulent manner or in violation
of applicable securities laws with respect to the Relevant Agreements or the shares issued
or sold thereunder.




     (b) If the Employee receives notice on any claim by the Former Employer with respect to
an Indemnified Obligation, it shall notify the Company within seven (7) days. The Company
shall have the right to assume the defense of any such claim by counsel of its choosing, and
to enter into a settlement thereof without the consent of the Employee, unless such
settlement involves any liability or obligation for which indemnity is not provided by the
Company hereunder or otherwise, in which event the consent of Employee shall not be
unreasonably withheld. The Company shall notify the Employee of its determination to either
assume the defense or not to assume the defense within seven (7) days of the receipt of
notice of the claim from the Employee. The Company shall advance to Employee the expenses
and other indemnification payments to which he may be otherwise entitled; provided, however,
that any such advance shall only be made if the Employee delivers a written affirmation of
his good faith belief that he is entitled to indemnification hereunder and agrees to repay
all amounts so advanced if it shall ultimately be determined that he is not entitled to be
indemnified hereunder,




     (c) The Company and Employee agree that, subsequent to the date of this Agreement the
Employee, acting reasonably, may require the Company to provide reasonable financial support
for its obligations under this Agreement.



     2. Complete Agreement. Employee has no oral representations, understandings or
agreements with Company or with any of its affiliates, officers, directors, manager, employees,
agents or representatives covering the same subject matter as this Agreement. This written
Agreement is the final, complete and exclusive statement and expression of the agreement between
the Company and Employee and all the terms of this Agreement, and it cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified except by a further writing signed by
a duly authorized officer of the Company and Employee, and no term of this Agreement may be waived
except by writing signed by the party waiving the benefit of such term. Without limiting the
generality of the foregoing, either party’s failure to insist on a strict compliance with this
Agreement shall not be deemed a waiver thereof.



2









 





     3. Notices. Whenever any notice is required hereunder, it shall be given in writing
addressed as follows:



	 	 	 	 	 
	 

	 	To the Company:
	 	The Shaw Group Inc.
	 

	 	 	 	4171 Essen Lane
	 

	 	 	 	Baton Rouge, Louisiana 70809
	 

	 	 	 	Attn: General Counsel
	 
	 	 	 	 
	 

	 	To Employee:
	 	Brian K. Ferraioli
	 

	 	 	 	c/o The Shaw Group Inc.
	 

	 	 	 	4171 Essen Lane
	 

	 	 	 	Baton Rouge, Louisiana 70809






     Notice shall be deemed given and effective when actually received by mail, facsimile,
overnight delivery service or hand delivery. Either Party may change the address for notice by
notifying the other Party of such change in accordance with this Section 3.



     4. Severability and Headings. If any portion of this Agreement is held invalid or
inoperative, the other portions of this Agreement shall be deemed valid and operative and, so far
as is reasonable and possible, effect shall be given to the intent manifested by the portion held
invalid or inoperative. The Section headings herein are for reference purposes only and are not
intended in any way to describe, interpret, define or limit the extent or intent of the Agreement
or of any part hereof.



     5. Dispute Resolutions. If during the term of this Agreement any issue, dispute or
controversy (“Dispute”) should arise hereunder and the Parties are unable to resolve the Dispute on
or before the 30th day following written notice of such Dispute, which notice describes
in reasonable detail the nature of the Dispute and the facts and circumstances relating thereto,
the Company shall nominate a member of its senior management team for the purpose of meeting with
the Employee and his appointed representative at a mutually agreeable
time and place to resolve
such Dispute. Such meeting shall take place on or before forty-five (45) days following the date
of the notice of the Dispute, and if the Dispute has not been resolved within fifteen (15) days
following such meeting (or if a Party fails to designate a member of its senior management team),
any Party may submit such Dispute to binding arbitration under this Section 5 by notifying the
other Party (an “Arbitration Notice”). Any Arbitration Notice must include a general description
of the Dispute and a reference to the fact that such Dispute is being referred to arbitration under
this Section 5. Except as otherwise expressly provided herein to the contrary, arbitration
pursuant to this Section 5 shall be the exclusive method of resolving Disputes other than through
agreement of the Parties.



     Promptly following the delivery of an Arbitration Notice, the Parties shall endeavor to agree
upon a panel of three (3) arbitrators. If on or before fifteen (15) days following the delivery of
an Arbitration Notice they have not agreed, then each Party, by notice to the other Party, may
designate one (1) arbitrator. The two (2) arbitrators designated as provided in the immediately
preceding sentence shall endeavor to designate promptly a third arbitrator. If a Party has not
designated an initial arbitrator on or before fifteen (15) days following the delivery of an
Arbitration Notice or if the two initially designated arbitrators have not designated a third




3









 







arbitrator within fifteen (15) days of the date for designation of the two arbitrators initially
designated, then a Party may request the American Arbitration Association to designate the
remaining arbitrator(s). If any arbitrator resigns, becomes incapacitated, or otherwise refuses or
fails to serve or to continue to serve as an arbitrator, the Party entitled to designate that
arbitrator shall designate a successor.





     (a) The arbitration shall be conducted in Baton Rouge, Louisiana, or such other place
as the Parties may agree. The arbitrators shall set the date, the time, and the place of
hearing, which must commence on or before thirty (30) days following the designation of the
third arbitrator. The hearing may be adjourned to later times and dates as the arbitrators
determine. The arbitration shall be conducted under the rules of the American Arbitration
Association not inconsistent with the provision of this Agreement. In connection with any
such arbitration, the arbitrators shall construe this Agreement in a manner consistent with
the choice of law provisions set forth in Section 5. The arbitrators shall endeavor to
notify any Party not present of any adjournment to other dates or places; however, the
proceedings may continue in the absence of any Party that has received notice of the date,
the time, and the place of the initial session of the hearing.




     (b) The arbitrators shall endeavor to render their decision on or before thirty (30)
days following the last session of the hearing. The arbitrators’ decision shall be set forth
in a writing that includes an explanation of the reason for such decision and an allocation
of the fees and expenses of the arbitrators to the Parties based on the relative extent to
which they do not prevail on their positions. Each Party against which the decision
assesses a monetary obligation shall pay that obligation on or before thirty (30) days
following the decision or such other date as the decision may provide.




     (c) The decisions of the arbitrators are final and binding on all Parties and not
subject to appeal. The decisions of the arbitrators may be enforced in any court of
competent jurisdiction, and the Parties authorize any such court to enter judgment on the
arbitrators’ decisions.




     (d) Pending the outcome of any arbitration conducted pursuant to this Section 5, the
Parties shall be obligated to continue to perform their respective obligations hereunder.




     (e) Each of the Parties hereby undertakes to carry out without delay the provisions of
any arbitral award or decision.




     (f) The arbitrators shall have the right and the obligation to award attorney’s fees
and costs to the prevailing party as determined by the arbitrators.



     EXCEPT AS EXPRESSLY PROVIDED HEREIN TO THE CONTRARY, EACH PARTY AGREES THAT ARBITRATION UNDER
THIS SECTION 5 IS THE EXCLUSIVE METHOD FOR RESOLVING ANY DISPUTE AND THAT IT WILL NOT COMMENCE AN
ACTION OR PROCEEDING BASED ON A DISPUTE, EXCEPT TO ENFORCE ARBITRATOR’S DECISION AS PROVIDED IN
THIS SECTION 5 OR TO COMPEL THE OTHER PARTY TO PARTICIPATE IN ARBITRATION UNDER THIS SECTION 5.



4









 





     6. Governing Law. This Agreement shall in all respects be construed according to the
laws of the State of Louisiana, without regard to its conflicts of laws provisions.



     7. Successors. This Agreement shall be for the benefit of and binding upon the
parties hereto and their respective heirs, personal representative, legal representative,
successors and, where applicable, assigns, including, without limitation, any successor to the
Company by merger, consolidation sale of stock, sale of assets or otherwise. 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 expressly assume 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. Failure of the Company to obtain
such assumption and agreement prior to the effectiveness of any such succession shall be a material
breach of this Agreement. As used in this Agreement, “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.



     8. No Third Party Beneficiary. Nothing in this Agreement is intended, or shall be
construed, to confer upon or give any person other than the parties hereto and their respective
heirs, personal representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.



     9. Further Assurances. Each of Employee and Company shall furnish, execute and deliver
such documents, instruments, certificates, notices or other further assurances and take any and all
actions as the other Party may reasonably require as necessary or appropriate to effect the
purposes of this Agreement, or to confirm the rights created or arising hereunder.



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



[Signature Page Follows]




5









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective for all purposes
as of the date set forth above.



	 	 	 	 	 
	 	 	THE SHAW GROUP INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Clifton S. Rankin
	 

	 	Name:	 	Clifton S. Rankin
	 

	 	Title:
	 	General Counsel & Corporate Secretary
	 
	 	 	 	 
	 	 	/s/ Brian K. Ferraioli
	 	 	 
	 	 	Brian K. Ferraioli






Signature Page to

Employee Indemnity Agreement

(Brian K. Ferraioli)