Exhibit 10.10
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of _______________, 2002 (this
"AGREEMENT"), is made by and between Washington Group International, Inc., a
Delaware corporation (the "COMPANY"), and ____________________ ("INDEMNITEE").
RECITALS
A. It is important to the Company to attract and retain as directors
and officers the most capable persons reasonably available.
B. Indemnitee is a director and/or officer of the Company.
C. Both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
companies in today's environment.
D. The Company's Amended and Restated Certificate of Incorporation (the
"CERTIFICATE OF INCORPORATION") and Amended and Restated Bylaws (the "BYLAWS")
provide that the Company will indemnify its directors and officers, and
Indemnitee's willingness to serve as a director and/or officer of the Company is
based in part on Indemnitee's reliance on such provisions.
E. In recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
the Company in an effective manner, and Indemnitee's reliance on the aforesaid
provisions of the Certificate of Incorporation and Bylaws, and to provide
Indemnitee with express contractual indemnification (regardless of, among other
things, any amendment to or revocation of such provisions or any change in the
composition of the Company's Board of Directors (the "BOARD") or any acquisition
or business combination transaction relating to the Company), the Company wishes
to provide in this Agreement for the indemnification of and the advancement of
Expenses (as defined in Section 1(c)) to Indemnitee as set forth in this
Agreement and, to the extent insurance is maintained, for the continued coverage
of Indemnitee under the Company's directors' and officers' liability insurance
policies.
NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere herein,
the following terms have the following meanings when used in this Agreement with
initial capital letters:
(a) "AFFILIATE" has the meaning given to that term in Rule 405
under the United States Securities Act of 1933; PROVIDED, HOWEVER, that for
purposes of this Agreement the Company and its subsidiaries will not be deemed
to constitute Affiliates of Indemnitee or the Company.
(b) "CLAIM" means any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether instituted, made or
conducted by the Company or on its behalf or by any other party, including,
without limitation, any governmental entity, that
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Indemnitee determines might lead to the institution of any such action, suit
or proceeding, whether civil, criminal, administrative, arbitrative,
investigative or other.
(c) "EXPENSES" includes attorneys' and experts' fees, expenses
and charges and all other costs, expenses and obligations paid or incurred in
connection with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or participate
in, any Claim.
(d) "INDEMNIFIABLE LOSSES" means any and all Expenses, damages,
losses, liabilities, judgments, fines, penalties and amounts paid in settlement
(including, without limitation, all interest, assessments and other charges paid
or payable in connection with or in respect of any of the foregoing)
(collectively, "LOSSES") relating to, resulting from, or arising out of, any act
or failure to act by Indemnitee or his or her status as any person referred to
in clause (i) of this sentence, (i) in his or her capacity as a director,
officer, employee or agent of the Company, any of its Affiliates or any other
entity, including another corporation, limited liability company, partnership,
joint venture, trust or employee benefit plan, as to which Indemnitee is or was
serving at the request of the Company as a director, officer, employee, member,
manager, trustee or agent, whether or not for profit, and (ii) in respect of any
business, transaction or other activity of any entity referred to in clause (i)
of this sentence.
2. BASIC INDEMNIFICATION ARRANGEMENT. The Company will indemnify and
hold harmless Indemnitee, to the fullest extent permitted by the laws of
Delaware in effect on the date hereof or as such laws may from time to time
hereafter be amended to increase the scope of such permitted indemnification,
against all Indemnifiable Losses relating to, resulting from, or arising out, of
any Claim as soon as practicable but in any event no later than 60 calendar days
after Indemnitee has made a written demand therefor. Unless otherwise required
by the General Corporation Law of Delaware, the Certificate of Incorporation or
the Bylaws, the failure by Indemnitee to notify the Company of such Claim, or to
request in writing Indemnification in respect thereof, will not relieve the
Company from any liability hereunder unless, and only to the extent that, the
Company did not otherwise learn of the Claim and such failure results in
forfeiture by the Company of substantial defenses, rights or insurance coverage.
Except as provided in Section 18, however, Indemnitee will not be entitled to
indemnification pursuant to this Agreement in connection with any Claim
initiated by Indemnitee unless the Board authorized the initiation of such
Claim. If so requested by Indemnitee by submission of a written request and
undertaking substantially in the form of EXHIBIT 1 hereto, the Company will
advance within 20 calendar days of such written request any and all Expenses to
Indemnitee that Indemnitee determines reasonably likely to be payable; PROVIDED,
HOWEVER, that Indemnitee will return, without interest, any such advance that
remains unspent at the final conclusion of the Claim to which the advance
related.
3. INDEMNIFICATION FOR ADDITIONAL EXPENSES. Without limiting the
generality or effect of the foregoing, the Company will indemnify Indemnitee
against and, if requested in writing by Indemnitee, will within 60 calendar days
of such request advance to Indemnitee, any and all Expenses paid or incurred by
Indemnitee in connection with any Claim asserted against or action brought by
Indemnitee for (a) indemnification or advance payment of Expenses by the Company
under this Agreement or any other agreement or under any provisions of the
Certificate of Incorporation or Bylaws now or hereafter in effect relating to
Claims for
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Indemnifiable Losses or (b) recovery under any directors' and officers'
liability insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
4. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Indemnifiable Loss but not for all of the total amount thereof,
the Company will 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 successful on the merits
or otherwise in defense of any or all Claims relating in whole or in part to an
Indemnifiable Loss or in defense of any issue or matter therein, including,
without limitation, dismissal without prejudice, Indemnitee will be indemnified
against all Expenses incurred in connection therewith.
5. PRESUMPTION OF RIGHT TO INDEMNIFICATION. In connection with any
determination as to whether Indemnitee is entitled to be indemnified hereunder,
there will be a presumption that Indemnitee is so entitled, which presumption
the Company may overcome only by its adducing clear and convincing evidence to
the contrary.
6. NO OTHER PRESUMPTION. For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with or without
court approval), conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, will not, of itself, create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law.
7. NON-EXCLUSIVITY, ETC. The rights of Indemnitee hereunder will be in
addition to any other rights Indemnitee may have under the Certificate of
Incorporation or Bylaws, or the General Corporation Law of Delaware, any other
contract or otherwise (collectively, "OTHER INDEMNITY PROVISIONS"); PROVIDED,
HOWEVER, that (a) to the extent that Indemnitee otherwise would have any greater
right to indemnification under any Other Indemnity Provision, Indemnitee will be
deemed to have such greater right hereunder and (b) to the extent that any
change is made to any Other Indemnity Provision that permits any greater right
to indemnification than that provided under this Agreement as of the date
hereof, Indemnitee will be deemed to have such greater right hereunder. The
Company will not adopt any amendment to the Certificate of Incorporation or
Bylaws the effect of which would be to deny, diminish or encumber Indemnitee's
right to indemnification under this Agreement or any Other Indemnity Provision.
8. LIABILITY INSURANCE AND FUNDING. To the extent the Company maintains
an insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee will be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for any
director or officer of the Company. The Company may, but will not be required
to, create a trust fund, grant a security interest or use other means,
including, without limitation, a letter of credit, to ensure the payment of such
amounts as may be necessary to satisfy its obligations to indemnify and advance
expenses pursuant to this Agreement.
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9. SUBROGATION. In the event of payment under this Agreement, the
Company will be subrogated to the extent of such payment to all of the related
rights of recovery of Indemnitee against other persons or entities (other than
Indemnitee's successors). Indemnitee will execute all papers reasonably required
to evidence such rights (all of Indemnitee's reasonable Expenses, including
attorneys' fees and charges, related thereto to be reimbursed by or, at the
option of Indemnitee, advanced by the Company).
10. NO DUPLICATION OF PAYMENTS. The Company will not be liable under
this Agreement to make any payment in connection with any Indemnifiable Loss
made against Indemnitee to the extent Indemnitee has otherwise actually received
payment (net of Expenses incurred in connection therewith) under any insurance
policy or Other Indemnity Provisions or otherwise of the amounts otherwise
indemnifiable hereunder.
11. DEFENSE OF CLAIMS. The Company will be entitled to participate
in the defense of any Claim or to assume (in a prompt and timely manner) the
defense thereof, with counsel reasonably satisfactory to Indemnitee, PROVIDED
that in the event that (a) the use of counsel chosen by the Company to
represent Indemnitee would present such counsel with an actual or potential
conflict, (b) the named parties in any such Claim (including any impleaded
parties) include both the Company and Indemnitee and Indemnitee shall
conclude that there may be one or more legal defenses available to him or her
that are different from or in addition to those available to the Company or
(c) any such representation by the Company would be precluded under the
applicable standards of professional conduct then prevailing, then Indemnitee
will be entitled to retain separate counsel (but not more than one law firm
plus, if applicable, local counsel in respect of any particular Claim) at the
Company's expense. The Company will not, without the prior written consent of
Indemnitee, effect any settlement of any threatened or pending Claim to which
Indemnitee is or could have been a party unless such settlement solely
involves the payment of money and includes an unconditional release of
Indemnitee from all liability on any claims that are the subject matter of
such Claim.
12. SUCCESSORS AND BINDING AGREEMENT. (a) The Company will require
any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of
the business or assets of the Company, by agreement in form and substance
satisfactory to Indemnitee and his or her counsel, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken place.
This Agreement will be binding upon and inure to the benefit of the Company
and any successor to the Company, including, without limitation, any person
acquiring directly or indirectly all or substantially all of the business or
assets of the Company, whether by purchase, merger, consolidation,
reorganization or otherwise (and such successor will thereafter be deemed the
"Company" for purposes of this Agreement), but will not otherwise be
assignable or delegable by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by
Indemnitee's personal or legal representatives, executors, administrators,
successors, heirs, distributees or other successors.
(c) This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign or delegate this Agreement
or any rights or obligations
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hereunder except as expressly provided in Sections 12(a) and 12(b). Without
limiting the generality or effect of the foregoing, Indemnitee's right to
receive payments hereunder will not be assignable, whether by pledge,
creation of a security interest or otherwise, other than by a transfer by
Indemnitee's will or by the laws of descent and distribution, and, in the
event of any attempted assignment or transfer contrary to this Section 12(c),
the Company will have no liability to pay any amount so attempted to be
assigned or transferred.
13. NOTICES. For all purposes of this Agreement, all communications,
including, without limitation, notices, consents, requests or approvals,
required or permitted to be given hereunder will be in writing and will be
deemed to have been duly given when hand delivered or dispatched by electronic
facsimile transmission (with receipt thereof orally confirmed), or five business
days after having been mailed by United States registered or certified mail,
return receipt requested, postage prepaid or one business day after having been
sent for next-day delivery by a nationally recognized overnight courier service,
addressed to the Company (to the attention of the Secretary of the Company) and
to Indemnitee at the addresses shown on the signature page hereto, or to such
other address as any party may have furnished to the other in writing and in
accordance herewith, except that notices of changes of address will be effective
only upon receipt.
14. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of Delaware without giving effect to the principles of
conflict of laws thereof. Each party consents to non-exclusive jurisdiction of
any jurisdiction in which a Claim is commenced by a third person for purposes of
any action, suit or proceeding hereunder, waives any objection to venue therein
or any defense based on FORUM NON CONVENIENS or similar theories and agrees that
service of process may be effected in any such action, suit or proceeding by
notice given in accordance with Section 13.
15. VALIDITY. If any provision of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstance will not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent, and only to the extent, necessary to
make it enforceable, valid or legal.
16. MISCELLANEOUS. No provision of this Agreement may be waived,
modified or discharged unless such waiver, modification or discharge is agreed
to in writing signed by Indemnitee and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement. References to Sections are to references to Sections of this
Agreement.
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17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.
18. LEGAL FEES AND EXPENSES. It is the intent of the Company that
Indemnitee not be required to incur legal fees and or other expenses associated
with the interpretation, enforcement or defense of Indemnitee's rights under
this Agreement by litigation or otherwise because the cost and expense thereof
would substantially detract from the benefits intended to be extended to
Indemnitee hereunder. Accordingly, without limiting the generality or effect of
any other provision hereof, if Indemnitee determines that the Company has failed
to comply with any of its obligations under this Agreement or in the event that
the Company or any other person takes or threatens to take any action to declare
this Agreement void or unenforceable, or institutes any litigation or other
action or proceeding designed to deny, or to recover from, Indemnitee the
benefits provided or intended to be provided to Indemnitee hereunder, the
Company irrevocably authorizes Indemnitee from time to time to retain counsel of
Indemnitee's choice, at the expense of the Company as hereafter provided, to
advise and represent Indemnitee in connection with any such interpretation,
enforcement or defense, including, without limitation, the initiation or defense
of any litigation or other legal action, whether by or against the Company or
any director, officer, stockholder or other person affiliated with the Company,
in any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to Indemnitee's entering into an attorney-client relationship with such
counsel and, in connection therewith, the Company and Indemnitee agree that a
confidential relationship shall exist between Indemnitee and such counsel.
Without respect to whether Indemnitee prevails, in whole or in part, in
connection with any of the foregoing, the Company will pay and be solely
financially responsible for any and all attorneys' and related fees and expenses
incurred by Indemnitee in connection with any of the foregoing.
19. CERTAIN INTERPRETIVE MATTERS. No provision of this Agreement will
be interpreted in favor of, or against, either of the parties hereto by reason
of the extent to which any such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof or thereof.
20. LIMITATIONS ON INDEMNIFICATION UNDER PLAN OF REORGANIZATION.
Notwithstanding anything to the contrary contained in this Agreement, all rights
to indemnification and advancement of expenses under this Agreement are subject
to the limitations set forth in Section 5.18 of the Second Amended Joint Plan of
Reorganization of Washington Group International, Inc., et al., dated July 24,
2001, as modified and confirmed on December 21, 2001 (the "PLAN"), for actions
or events occurring prior to the Petition Date, as that term is defined in the
Plan.
[signature page follows]
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IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused
its duly authorized representatives to execute this Agreement as of the date
first above written.
WASHINGTON GROUP INTERNATIONAL, INC.
000 Xxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
[INDEMNITEE]
[Address]
__________________________________
[Indemnitee]
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EXHIBIT 1
UNDERTAKING
State of _______________ )
) ss.
County of _______________ )
I, ________________________________________, being first duly sworn, do
depose and say as follows:
1. This Undertaking is submitted pursuant to the Indemnification
Agreement, dated _______________, 20___, between Washington Group International,
Inc. (the "Company"), a Delaware corporation, and the undersigned.
2. I am requesting advancement of certain costs, charges and expenses
which I have incurred or will incur in defending a civil or criminal action,
suit, proceeding or claim.
3. I hereby undertake to repay this advancement of expenses if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that I am not entitled to be indemnified by the Company
under the aforesaid Indemnification Agreement or otherwise.
4. The costs, charges and expenses for which advance is requested are,
in general, all expenses related to:
_____________________________________________________________________________
_____________________________________________________________________________
-----------------------------------
Signature
Subscribed and sworn to before me, a Notary Public in and for said County and
State, this _____ day of _______________, 20___.
[Seal]
------------------------------------
Notary Public
My commission expires ______________
Indemnification Agreement - Exhibit 1
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SCHEDULE TO EXHIBIT 10.10
INDEMNIFICATION AGREEMENTS WITH DIRECTORS AND EXECUTIVE OFFICERS
EFFECTIVE JANUARY 25, 2002
Directors: Xxxxx X. Xxxxxxxxxx
H. Xxxxx Xxxxx
Xxxxxx X. Del Genio
Xxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx "Skip" Xxxxxx
Xxxxxx X. Xxxxxxxxxx
Officers:
Xxxx X. Xxxxxxxx
Xxxxx X. XxXxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. X'Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxxxx
Xxxx X. Xxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxx
G. Xxxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxx
