INDEMNIFICATION AGREEMENT
Exhibit
10
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into as of the
___ day of __________, 200_, by and between Willbros Group, Inc., a Delaware
corporation (the “Company”), and ____________________
(“Indemnitee”).
WHEREAS,
it is essential to the Company to retain and attract as directors and officers
the most capable persons available;
WHEREAS,
Indemnitee is an officer and/or director of the Company or of an entity in which
the Company directly or indirectly owns an interest;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of litigation and
other claims being asserted against directors and officers of corporations in
the current environment;
WHEREAS,
the Certificate of Incorporation and Bylaws of the Company (the “Charter
Documents”) require the Company to indemnify and advance expenses to its
officers and directors to the fullest extent permitted under Delaware law and
Indemnitee has agreed to serve or has served and continues to serve in such
capacity, in part, in reliance on the Charter Documents; and
WHEREAS,
in recognition of Indemnitee’s need for (i) substantial protection against
personal liability based on Indemnitee’s reliance on the Charter Documents, (ii)
specific contractual assurance that the protection promised by the Charter
Documents will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of the
Charter Documents or any change in the composition of the Company’s Board of
Directors or acquisition transaction relating to the Company) and (iii) an
inducement to agreeing to or to continue to provide effective services to the
Company, the Company wishes to provide in this Agreement for the indemnification
of and the advancing of expenses to Indemnitee to the fullest extent (whether
partial or complete) permitted under Delaware law and as set forth in this
Agreement, and for the coverage of Indemnitee under the Company’s directors’ and
officers’ liability insurance policies.
NOW,
THEREFORE, in consideration of the premises and of Indemnitee’s agreeing to or
continuing to serve the Company directly or, at its request, another enterprise,
and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Certain
Definitions:
(a) “Change
in Control” means and shall be deemed to have occurred if (i) any Person is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), directly or indirectly,
of securities of the Company representing thirty percent (30%) or more of the
total voting power of all the then outstanding Voting Securities, (ii) any
Person purchases or otherwise acquires under a tender offer, securities
representing thirty percent (30%) or more of the total voting power of all the
then outstanding Voting Securities, (iii) during any period of two (2)
consecutive years, individuals (a) who at the beginning of such period
constitute the Board of Directors of the Company and (b) any new director whose
election by the Company’s Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
such period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the members of the
Company’s Board of Directors, (iv) the stockholders of the Company approve a
merger or consolidation of the Company with another entity, other than a merger
or consolidation which would result in the Voting Securities outstanding
immediately prior thereto continuing to represent, either by remaining
outstanding or by being converted into voting securities of the surviving entity
(or if the surviving entity is a subsidiary of another entity, then of the
parent entity of such surviving entity), at least sixty percent (60%) of the
total voting power represented by the voting securities of the surviving entity
(or parent entity) outstanding immediately after such merger or consolidation,
or (v) the stockholders approve a plan of complete liquidation of the Company or
an agreement for the sale or disposition by the Company (in one transaction or a
series of transactions) of all or substantially all of the Company’s
assets.
(b) “Claim”
shall mean any threatened, pending or completed action, suit or proceeding, or
any inquiry or investigation, whether conducted by the Company or any other
party, that Indemnitee in good faith believes might lead to the institution of
any such action, suit or proceeding, whether civil, criminal, administrative,
investigative or other.
(c) “Expenses”
shall include reasonable attorneys’ fees and all other costs, expenses and
obligations paid or incurred in connection with investigating, defending, being
a witness in, participating in (including on appeal), or preparing to defend, be
a witness in or participate in any Claim relating to any Indemnifiable
Event.
(d) “Indemnifiable
Event” shall mean any event or occurrence that takes place either prior to or
after the execution of this Agreement related to the fact that Indemnitee is or
was a director, officer, employee, agent or fiduciary of the Company, or is or
was serving at the request (expressed or implied) of the Company as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
was a director, officer, employee, agent or fiduciary of a foreign or domestic
corporation that was a predecessor corporation of the Company or of another
enterprise at the request of such predecessor corporation, or by reason of
anything done or not done by Indemnitee in any such capacity.
(e) “Person”
shall mean any person, as such term is used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding therefrom a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(f) “Potential
Change in Control” shall be deemed to have occurred if (i) the Company enters
into an agreement the consummation of which would result in the occurrence of a
Change in Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions which if
consummated would constitute a Change in Control; or (iii) the Board
of Directors of the Company adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
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(g) “Reviewing
Party” shall mean any appropriate person or body consisting of a member or
members of the Company’s Board of Directors or any other person or body
appointed by the Company’s Board of Directors (including the special,
independent counsel referred to in Section 3 below) who is not a party to the
particular Claim for which Indemnitee is seeking indemnification.
(h) “Voting
Securities” shall mean any securities of the Company which vote generally in the
election of directors.
2. Basic Indemnification
Arrangement.
(a) In
the event Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, a Claim by reason of (or arising in part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest
extent permitted by law, as the same exists or hereafter may be amended or
interpreted (but in the case of any such amendment or interpretation, only to
the extent that such amendment or interpretation permits the Company to provide
broader indemnification rights than were provided prior thereto), promptly upon
the receipt of written demand, against any and all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties or amounts paid in settlement) of such
Claim. If so requested by Indemnitee, the Company shall advance (within ten (10)
business days after the Company’s receipt of such request) any and all Expenses
to Indemnitee (an “Expense Advance”). Notwithstanding anything in this Agreement
to the contrary, prior to a Change in Control, Indemnitee shall not be entitled
to indemnification pursuant to this Agreement in connection with any claim
initiated by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or the Board of Directors of the
Company has consented to the initiation of such claim.
(b) Notwithstanding
the foregoing, (i) the obligations of the Company under Section 2(a) shall be
subject to the condition that the Reviewing Party shall not have determined (in
a written legal opinion if the special, independent counsel referred to in
Section 3 below is involved) that indemnification of Indemnitee would not be
permitted under applicable law, provided, that to be effective any such denial
of indemnity must be in writing, delivered to the Indemnitee, stating with
particularity the reason for such denial; and (ii) the obligation of the Company
to make an Expense Advance pursuant to Section 2(a) above shall be subject to
the condition that if, when and to the extent that the Reviewing Party
determines that indemnification of Indemnitee would not be permitted under
applicable law, the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if Indemnitee has commenced legal proceedings in a
court of competent jurisdiction to secure a determination that Indemnitee should
be indemnified under applicable law, any determination made by the Reviewing
Party that indemnification of Indemnitee would not be permitted under applicable
law shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed).
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(c) If
there has not been a Change in Control, the Reviewing Party shall be selected by
the Board of Directors of the Company, and if there has been such a Change in
Control, the Reviewing Party shall be the special, independent counsel referred
to in Section 3 below. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that indemnification of
Indemnitee would not be permitted in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation, in any court in the
State of Delaware having subject matter jurisdiction thereof and in which venue
is proper, seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof. The
Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party not challenged
by the Indemnitee shall be conclusive and binding on the Company and
Indemnitee.
(d) No
indemnification pursuant to this Agreement shall be paid by the Company on
account of any Claim in which a final judgment is rendered against Indemnitee or
Indemnitee enters into a settlement, in each case, (i) for an accounting of
profits made from the purchase or sale by Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the Exchange Act or
similar provisions of any federal, state or local laws; (ii) for which payment
has actually been made to or on behalf of Indemnitee under any insurance policy
or other indemnity provision, except with respect to any excess beyond the
amount paid under any insurance policy or other indemnity provision; or (iii)
for which payment is prohibited by law.
3. Change in
Control. The Company agrees that if there is a Change in
Control, then, with respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnity payments and Expense Advances under this
Agreement or any other agreement or the Charter Documents now or hereafter in
effect relating to Claims for Indemnifiable Events, the Company shall seek legal
advice only from special, independent counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld or
delayed), which counsel has not otherwise performed services for the Company or
Indemnitee within the last five (5) years (other than in connection with such
matters). The independent counsel shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement. Such
counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
fully indemnify such counsel against any and all expenses (including attorneys’
fees), claims, liabilities and damages arising out of or relating to this
Agreement or such counsel’s engagement pursuant hereto.
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4. Establishment of
Trust. In the event of a Potential Change in Control, the
Company shall promptly, upon written request by Indemnitee, create a trust for
the benefit of Indemnitee (the “Trust”) and, from time to time upon written
request by Indemnitee, shall fund the Trust in an amount sufficient to satisfy
(a) any and all Expenses reasonably anticipated at the time of each such request
to be incurred in connection with investigating, preparing for and defending any
Claim relating to an Indemnifiable Event, and (b) any and all judgments, fines,
penalties and settlement amounts of any and all Claims relating to an
Indemnifiable Event from time to time actually paid or claimed, reasonably
anticipated or proposed to be paid. The terms of the Trust shall
provide that, upon a Change in Control, (i) the Trust shall not be revoked or
the principal thereof invaded, without the written consent of
Indemnitee; (ii) the trustee of the Trust (the “Trustee”), shall
advance to Indemnitee, within ten (10) business days of a request by Indemnitee,
any and all Expenses and Indemnitee hereby agrees to reimburse the Trust under
the same circumstances for which Indemnitee would be required to reimburse the
Company under Section 2(b) above); (iii) the Trust shall continue to be funded
by the Company in accordance with the funding obligation set forth above; (iv)
the Trustee shall promptly pay to Indemnitee all amounts for which Indemnitee
shall be entitled to indemnification pursuant to this Agreement or otherwise;
and (v) all unexpended funds in the Trust shall revert to the Company upon a
final determination by the Reviewing Party or a court of competent jurisdiction,
as the case may be, that Indemnitee has been fully indemnified under the terms
of this Agreement. The Trustee shall be chosen by Indemnitee, with
the approval of the Company (which approval shall not be unreasonably withheld
or delayed). Nothing in this Section 4 shall relieve the Company of
any of its obligations under this Agreement or any provision of the Charter
Documents or other agreement now or hereafter in effect. The Company
shall pay all costs of establishing and maintaining the Trust and shall agree to
indemnify the Trustee against any and all expenses (including attorneys’ fees),
claims, liabilities, losses and damages arising out of or relating to this
Agreement or the establishment and maintenance of the Trust.
5. Indemnification for
Additional Expenses. The Company shall indemnify Indemnitee
against any and all expenses (including attorneys’ fees) and, if requested by
Indemnitee, shall (within ten (10) business days after receipt of such request)
advance such expenses to Indemnitee, which are 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 any provision of the Charter Documents now
or hereafter in effect relating to Claims for Indemnifiable Events; and/or (b)
recovery under any directors’ and officers’ liability insurance policies
maintained by the Company; provided that, in either case, Indemnitee ultimately
is determined to be entitled in whole or in part, to such indemnification,
advance expense payment or insurance recovery, as the case may
be. The Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts theretofore paid
Indemnitee under this Section 5 if Indemnitee ultimately is determined not to be
entitled to such indemnification, advance expense payment or insurance recovery,
as the case may be.
Notwithstanding
the foregoing, (i) the indemnification of any additional expense under this
Section 5 must be made by December 31st of the year next following the calendar
year in which the expense was incurred; and (ii) the Indemnitee’s recovery from
the Company of any additional expenses under this Section 5 must take place
during the time that this Agreement remains effective.
6. Partial Indemnification;
Mandatory Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion, but
not all, of the Expenses, judgments, fines, penalties and amounts paid in
settlement of a Claim, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or
all Claims relating in whole or in part to an Indemnifiable Event or in defense
of any issue or matter therein, including without limitation dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
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7. Notification and Defense of
Proceeding.
(a) Promptly
after receipt by Indemnitee of notice of the commencement of any Claim by reason
of (or arising in part out of) an Indemnifiable Event, Indemnitee shall, if a
claim in respect thereof is to be made against the Company under this Agreement,
notify the Company of the commencement thereof; but the omission so to notify
the Company will not relieve the Company from any liability that it may have to
Indemnitee, except as provided in Section 7(c).
(b) With
respect to any such Claim as to which Indemnitee notifies the Company of the
commencement thereof, the Company will be entitled to participate in the Claim
at its own expense and, except as otherwise provided below, to the extent the
Company so wishes, it may assume the defense thereof with counsel reasonably
satisfactory to Indemnitee. After notice from the Company to Indemnitee of
its election to assume the defense of any Claim, the Company shall not be liable
to Indemnitee under this Agreement or otherwise for any Expenses subsequently
incurred by Indemnitee in connection with the defense of such Claim other than
reasonable costs of investigation or as otherwise provided below.
Indemnitee shall have the right to employ legal counsel in such Claim, but all
Expenses related thereto incurred after notice from the Company of its
assumption of the defense shall be at Indemnitee’s expense unless: (i) the
employment of legal counsel by Indemnitee has been authorized by the Company,
(ii) Indemnitee has reasonably determined that there may be a conflict of
interest between Indemnitee and the Company in the defense of the Claim,
(iii) after a Change in Control, the employment of counsel by Indemnitee
has been approved by the independent counsel or (iv) the Company shall not
in fact have employed counsel to assume the defense of such Claim, in each of
which cases all Expenses of the Claim shall be borne by the Company. The
Company shall not be entitled to assume the defense of any Claim brought by or
on behalf of the Company, or as to which Indemnitee shall have made the
determination provided for in (ii) above or under the circumstances
provided for in (iii) and (iv) above.
(c) The
Company shall not be liable to indemnify Indemnitee under this Agreement or
otherwise for any amounts paid in settlement of any Claim effected without the
Company’s written consent, such consent not to be unreasonably withheld;
provided, however, that if a Change in Control has occurred, the Company shall
be liable for indemnification of Indemnitee for amounts paid in settlement if
the independent counsel has approved the settlement. The Company shall not
settle any Claim in any manner that would impose any penalty or limitation on
Indemnitee without Indemnitee’s written consent. The Company shall not be
liable to indemnify the Indemnitee under this Agreement with regard to any
judicial award if the Company was not given a reasonable and timely opportunity
as a result of Indemnitee’s failure to provide notice, at its expense, to
participate in the defense of such action, and the lack of such notice
materially prejudiced the Company’s ability to participate in defense of such
action. The Company’s liability hereunder shall not be excused if
participation in the Claim by the Company was barred by this
Agreement.
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8. Burden of
Proof. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified
hereunder the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.
9. No
Presumption. For purposes of this Agreement, the termination
of any claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law.
10. Non-exclusivity,
etc. The rights of Indemnitee hereunder shall be in addition to any
other rights Indemnitee may have under the Charter Documents, applicable law or
otherwise; provided, however, that this Agreement shall supersede any prior
indemnification agreement between Willbros Group, Inc., a Republic of Panama
corporation, and Indemnitee. To the extent that a change in
applicable law (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the Charter
Documents, applicable law or this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change.
11. Liability
Insurance. To the extent the Company maintains an insurance
policy or policies providing directors’ and officers’ liability insurance,
Indemnitee shall be covered by such policy or policies, in accordance with its
or their terms, to the maximum extent of the coverage available for any Company
director or officer.
12. Amendment;
Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
13. Subrogation. In
the event of payment under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and shall do everything that may be necessary
to secure such rights, including without limitation the execution of such
documents as may be necessary to enable the Company effectively to bring suit to
enforce such rights.
14. No Duplication of
Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy, the Charter Documents or otherwise) of the amounts otherwise
indemnifiable hereunder.
15. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors (including without limitation any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Company), assigns, spouse, heirs, and personal and
legal representatives. The indemnification provided under this
Agreement shall continue in effect as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity pertaining to an Indemnifiable
Event regardless of whether Indemnitee continues to serve as an officer or
director of the Company or of any other enterprise at the Company’s request or
has ceased to serve in such capacity at the time of any Claim.
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16. Severability. The
provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law.
17. Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such State without giving effect to its
principles of conflicts of laws. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall only be brought in the state courts of the State of
Delaware.
18. Notices. All
notices, demands and other communications required or permitted hereunder shall
be made in writing and shall be deemed to have been duly given if delivered by
hand, against receipt, or mailed, postage prepaid, certified or registered mail,
return receipt requested and addressed to the Company at:
Willbros Group, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
and to
Indemnitee at:
The address set forth below Indemnitee’s signature hereto.
Notice of
change of address shall be effective only when given in accordance with this
Section. All notices complying with this Section shall be deemed to
have been received on the date of hand delivery or on the third business day
after mailing.
19. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement.
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by
Indemnitee and a duly authorized representative of the Company as of the date
first above written.
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WILLBROS
GROUP, INC.
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By:
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Name:
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Title:
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INDEMNITEE:
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[Indemnitee’s
typed name]
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Address
for notices:
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