Exhibit 10.1
DISTRIBUTION AGREEMENT
dated as of
, 2000
between
FLUOR CORPORATION,
a Delaware corporation
incorporated in 2000
and
FLUOR CORPORATION,
a Delaware corporation
incorporated in 1978
(to be renamed ▇▇▇▇▇▇ Energy Company
on the Distribution Date described herein)
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS...................................................... 1
Section 1.01. Definitions................................................ 1
ARTICLE II THE DISTRIBUTION................................................ 4
Section 2.01. The Distribution........................................... 4
Section 2.02. Securities Filings......................................... 4
ARTICLE III CROSS INDEMNIFICATION.......................................... 4
Section 3.01. Indemnification by New Fluor............................... 4
Section 3.02. Indemnification by ▇▇▇▇▇▇.................................. 5
Section 3.03. Overriding Provisions...................................... 5
ARTICLE IV INDEMNIFICATION PROCEDURES...................................... 6
Section 4.01. Notice and Payment of Claims............................... 6
Section 4.02. Defense of Third-Party Claims.............................. 6
Section 4.03. Dispute Resolution......................................... 6
ARTICLE V OTHER AGREEMENTS................................................. 7
Section 5.01. Asset Transfers............................................ 7
Section 5.02. Further Assurances and Consents............................ 7
Section 5.03. No Representation or Warranty.............................. 7
Section 5.04. Registration and Listing................................... 7
Section 5.05. Conduct of Businesses Pending Distribution................. 8
Section 5.06. Intercompany Accounts...................................... 8
Section 5.07. Intellectual Property...................................... 8
Section 5.08. Insurance.................................................. 8
Section 5.09. Retained Liabilities....................................... 9
Section 5.10. Composition of Boards...................................... 9
Section 5.11. Capital Structure.......................................... 9
ARTICLE VI INFORMATION AND SERVICES........................................ 9
Section 6.01. Provision of Corporate Records............................. 9
Section 6.02. Access to Information...................................... 9
Section 6.03. Production of Witnesses.................................... 9
Section 6.04. Reimbursement.............................................. 10
Section 6.05. Retention of Records....................................... 10
Section 6.06. Confidentiality............................................ 10
Section 6.07. Information and Services Relating to Taxes................. 10
ARTICLE VII EMPLOYEE BENEFITS.............................................. 10
Section 7.01. Fluor Employee Benefit Plans............................... 10
Section 7.02. ▇▇▇▇▇▇ Employee Benefit Plans.............................. 10
Section 7.03. Fluor Plans--Change of Sponsorship......................... 10
Section 7.04. Master Trust Changes....................................... 11
Section 7.05. Indemnification by New Fluor............................... 11
Section 7.06. Indemnification by ▇▇▇▇▇▇.................................. 11
ARTICLE VIII INTERCOMPANY AGREEMENTS....................................... 12
Section 8.01. Termination................................................ 12
ARTICLE IX TERMINATION; SURVIVAL........................................... 12
Section 9.01. Termination................................................ 12
Section 9.02. Survival................................................... 12
ARTICLE X MISCELLANEOUS.................................................... 12
Section 10.01. Expenses.................................................. 12
Section 10.02. Notices................................................... 13
Section 10.03. Amendment and Waiver...................................... 13
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Section 10.04. Counterparts.............................................. 13
Section 10.05. Governing Law............................................. 13
Section 10.06. Consent to Jurisdiction................................... 13
Section 10.07. Entire Agreement.......................................... 14
Section 10.08. Parties in Interest....................................... 14
Section 10.09. Attorneys' Fees........................................... 14
SCHEDULE 1 NEW FLUOR GROUP
SCHEDULE 2 OLD FLUOR/▇▇▇▇▇▇ GROUP
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DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (the "Agreement") dated as of , 2000 between
Fluor Corporation, a Delaware corporation, which shall be renamed ▇▇▇▇▇▇ Energy
Company in connection with the transactions contemplated herein (together with
its successors and permitted assigns, "Parent"), and Fluor Corporation, a
Delaware corporation (together with its successors and permitted assigns, "New
Fluor").
W I T N E S S E T H
WHEREAS Parent acting through its direct and indirect subsidiaries currently
conducts a number of businesses, including, without limitation, (i) provision
of engineering, procurement and construction services, outsourcing and asset
management solutions and business administration and support services (together
with all other businesses now or formerly conducted by Parent and any of its
subsidiaries, but excluding the ▇▇▇▇▇▇ Business as defined below, the "Fluor
Business") and (ii) mining, processing, brokering and selling coal (together
with all other businesses now or formerly conducted by A.T. ▇▇▇▇▇▇ Coal
Company, Inc. or any of its subsidiaries, including, without limitation,
Appalachian Synfuel, LLC, but excluding DRIH Corporation, the "▇▇▇▇▇▇
Business");
WHEREAS the board of directors of Parent has determined that it is in the
best interest of Parent's shareholders, as well as of Parent and its
businesses, to reorganize Parent by separating from Parent all businesses
currently conducted by Parent other than the ▇▇▇▇▇▇ Business and to cause such
businesses to be owned and conducted, directly or indirectly, by New Fluor;
WHEREAS in order to effect such separation, the Board of Directors of Parent
has determined that it is appropriate, desirable and in the best interests of
Parent's shareholders, as well as of Parent and its businesses, for Parent (i)
to take certain steps to reorganize Parent's subsidiaries and businesses and
(ii) to distribute to the holders of Parent's common stock, par value $0.625
per share ("Parent Common Stock") all of the outstanding shares of common stock
of New Fluor ("New Fluor Common Stock") as set forth herein;
WHEREAS each of Parent and New Fluor has determined that it is necessary and
desirable, on or prior to the Distribution Date (as defined herein), to
allocate and transfer those assets and allocate and assign responsibility for
those liabilities in respect of activities of the businesses of such entities;
WHEREAS each of Parent and New Fluor has determined that it is necessary and
desirable to set forth the principal corporate transactions required to effect
such distribution and to set forth other agreements that will govern certain
other matters following such distribution; and
WHEREAS in connection with such distribution, Parent is concurrently
herewith entering into a Tax Sharing Agreement dated as of the date hereof with
New Fluor,
NOW THEREFORE in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used herein, the following terms shall have
the following meanings:
"Affiliate" means, with respect to any person, another person directly
or indirectly controlling, controlled by or under common control with such
person; provided, however, that for the purposes of this Agreement, no
member of the ▇▇▇▇▇▇ Group shall be deemed an Affiliate of any member of
the New Fluor Group and vice versa.
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"Agent" means , as distribution agent
hereunder.
"Agreement" is defined in the preamble to this Agreement.
"Distribution" means the distribution contemplated by Section 2.02 of
this Agreement.
"Distribution Date" means such date as shall be agreed upon by Parent
and New Fluor on which the Distribution shall occur.
"Distribution Record Date" means the date set by the Board of Directors
of Parent for the determination of holders of record of Parent Common Stock
entitled to participate in the Distribution.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fluor Business" is defined in the recitals to this Agreement.
"Fluor Executive Plans" means certain plans, funds and programs
maintained by Parent and certain member of the New Fluor Group which are
aimed at providing additional compensation, equity participation and other
benefits for a select group of highly compensated management, executive
employees and non-employee directors
"Fluor Master Trust" means the Fluor Corporation and Subsidiary
Employees' Master Trust, trusteed by Bankers Trust of California, N.A.
"Fluor Insurance Policies" means certain insurance policies which
provide property, workers compensation and employer liability, professional
liability, builders risk, automobile liability, commercial general
liability, directors and officers liability, fiduciary and political action
committee liability and crime coverage for the benefit of the New Fluor
Group and the Parent.
"Fluor Payroll Practices" means certain plans, funds and programs
maintained by Parent and certain members of the New Fluor Group in the
nature of payroll practices including, but not limited to, time off with
pay, jury duty, family leave and other programs
"Fluor Pension Benefit Plans" means certain "employee pension benefit
plans" maintained by Parent and certain members of the New Fluor Group as
defined in Title 23 U.S.C. Section 1002(2)(A).
"Fluor Plans" means collectively the Fluor Welfare Benefits Plans, the
Fluor Pension Benefit Plans, the Fluor Executive Plans and the Fluor
Payroll Practices.
"Fluor Welfare Plans" means certain "employee welfare benefit plans"
maintained by Parent and certain members of the New Fluor Group as defined
in Title 23 U.S.C. Section 1002(1).
"Group" means either of the New Fluor Group and the ▇▇▇▇▇▇ Group.
"Indemnified Party" has the meaning ascribed to such term in Section
4.01 of this Agreement.
"Indemnifying Party" has the meaning ascribed to such term in Section
4.01 of this Agreement.
"Industry Standards" has the meaning set forth in Section 5.07 below.
"Losses" means all losses, damages, injuries, harm, detriment, declines
in value, liabilities, exposures, claims, demands, proceedings,
settlements, judgments, awards, punitive damage awards, fines, penalties,
fees, charges, costs or expenses (including, without limitation, reasonable
costs of attempting to avoid or in opposing the imposition thereof,
interest, penalties, costs of preparation and investigation, and the
reasonable fees, disbursements and expenses of attorneys, accountants and
other professional advisors).
"▇▇▇▇▇▇" means Parent, as it is renamed ▇▇▇▇▇▇ Energy Company following
the Distribution.
"▇▇▇▇▇▇ Business" is defined in the recitals to this Agreement.
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"▇▇▇▇▇▇ Executive Plans" means certain plans, funds and programs
maintained by members of the ▇▇▇▇▇▇ Group which are aimed at providing
additional compensation, equity participation and other benefits for a
select group of highly compensated management, executive employees and non-
employee directors
"▇▇▇▇▇▇ Group" means ▇▇▇▇▇▇ and its subsidiaries as of the Distribution
Date (including the entities listed on Schedule 2 hereto).
"▇▇▇▇▇▇ Indemnified Parties" has the meaning ascribed to such term in
Section 3.01 of this Agreement.
"▇▇▇▇▇▇ Payroll Practices" means certain plans, funds and programs
maintained by members of the ▇▇▇▇▇▇ Group in the nature of payroll
practices including, but not limited to, time off with pay, jury duty,
family leave and other programs
"▇▇▇▇▇▇ Pension Benefit Plans" means certain "employee pension benefit
plans" maintained by certain members of the ▇▇▇▇▇▇ Group as defined in
Title 23 U.S.C. Section 1002(2)(A).
"▇▇▇▇▇▇ Plans" means collectively the ▇▇▇▇▇▇ Welfare Benefits Plans, the
▇▇▇▇▇▇ Pension Benefit Plans, the ▇▇▇▇▇▇ Executive Plans and the ▇▇▇▇▇▇
Payroll Practices.
"▇▇▇▇▇▇ Welfare Benefits Plans" means certain "employee welfare benefit
plans" maintained by members of the ▇▇▇▇▇▇ Group as defined in Title 23
U.S.C. Section 1002(1).
"MPPAA" means the Multi-Employer Pension Plan Amendments Act of 1980, as
amended.
"New Fluor" is defined in the preamble to this Agreement.
"New Fluor Common Stock" means the shares of common stock, par value
$0.01 per share, of New Fluor.
"New Fluor Group" means New Fluor and its subsidiaries as of the
Distribution Date (including the entities listed on Schedule 1 hereto).
"New Fluor Indemnified Parties" has the meaning ascribed to such term in
Section 3.02 of this Agreement.
"Parent" is defined in the preamble to this Agreement.
"Parent Common Stock" means the issued and outstanding shares of common
stock, par value $0.625 per share, of Parent.
"Proxy Statement" means the proxy statement (and any amendments thereof
or supplements thereto) to be distributed in connection with Parent's
meeting of its stockholders to vote on the transactions contemplated
hereby.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Spinoff Registration Documents" means the registration statement on
Form 10, together with all exhibits, amendments and supplements thereto,
filed with the SEC for the registration of the New Fluor Common Stock
pursuant to the Exchange Act.
"Tax" means any income, gross income, gross receipts, profits, capital
stock, franchise, withholding, payroll, social security, workers
compensation, unemployment, disability, property, ad valorem, stamp,
excise, severance, occupation, service, sales, use, license, lease,
transfer, import, export, value added, alternative minimum, estimated or
similar tax (including any fee, assessment, or other charge in the nature
of or in lieu of any tax) imposed by any governmental entity or political
subdivision thereof, and any interest, penalties, additions to tax, or
additional amounts in respect of or related to the foregoing.
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"Tax Sharing Agreement" means the tax sharing agreement between Parent
and New Fluor entered into concurrently herewith.
"Transfer Date" means the date upon which the value of the assets to be
transferred from the ▇▇▇▇▇▇ Plans occurs as described in Section 7.04
below.
ARTICLE II
THE DISTRIBUTION
Section 2.01. The Distribution. (a) On the terms and subject to the
conditions of this Agreement and applicable law, Parent shall distribute to its
shareholders of record as of the Distribution Record Date, one share of New
Fluor Common Stock for each share of Parent Common Stock held by the
shareholders. All such distributed shares of New Fluor Common Stock shall be
fully paid, non-assessable and free of preemptive rights.
(b) Prior to the Distribution Date, Parent will deliver to the Agent a
global certificate, representing the aggregate number of shares of New
Fluor Common Stock to be distributed to the shareholders of Parent. Such
certificate shall be registered in the name of the Agent as agent for the
shareholders of Parent on the Distribution Record Date. Parent will use a
book-entry system to distribute the shares of New Fluor Common Stock. The
Agent will send to each shareholder of record on the Distribution Record
Date a statement of the shares of New Fluor Common Stock credited to such
shareholder's account.
(c) Immediately following the Distribution, any remaining shares of New
Fluor Common Stock held by Parent shall automatically be canceled and
Parent shall surrender any and all rights to any such shares.
Section 2.02. Securities Filings. (a) Prior to the Distribution, Parent and
New Fluor shall file with the SEC the Spinoff Registration Documents to effect
the registration of the New Fluor Common Stock pursuant to the Exchange Act.
Parent and New Fluor shall use commercially reasonable efforts to cause the
Spinoff Registration Documents to be declared effective under the Exchange Act
as promptly as practicable.
(b) Parent and New Fluor shall take all such actions as may be necessary
or appropriate under any applicable state securities or blue sky laws to
effect the Distribution.
ARTICLE III
CROSS INDEMNIFICATION
Section 3.01. Indemnification by New Fluor. Subject to Section 3.03, on and
after the Distribution Date, New Fluor shall indemnify and hold harmless the
▇▇▇▇▇▇ Group and each of its directors, officers and Affiliates (the "▇▇▇▇▇▇
Indemnified Parties") from and against:
(a) all Losses of the ▇▇▇▇▇▇ Indemnified Parties relating to, arising
out of or due to, directly or indirectly, any breach of any provisions of
this Agreement by New Fluor.
(b) all Losses of the ▇▇▇▇▇▇ Indemnified Parties relating to, arising
out of or due to any untrue statement or alleged untrue statement of a
material fact concerning the New Flour Group contained in the Spinoff
Registration Documents or the Proxy Statement or any omission or alleged
omission to state therein a material fact concerning the New Fluor Group
required to be stated therein or necessary in order to make the statements
therein not misleading.
(c) all Losses of the ▇▇▇▇▇▇ Indemnified Parties relating to, arising
out of or due to any untrue statement or alleged untrue statement of a
material fact concerning the New Fluor Group contained in any report of
Parent with respect to any period entirely or partially prior to the
Distribution Date required by or filed under the Exchange Act, or any
filing made prior to the Distribution Date under the Securities Act
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by Parent, or the omission or alleged omission to state in any such report
or filing a material fact concerning the New Fluor Group required to be
stated therein or necessary in order to make the statements therein not
misleading.
(d) all Losses of the ▇▇▇▇▇▇ Indemnified Parties relating to, arising
out of or due to, directly or indirectly, the Fluor Business or any other
business conducted by the New Fluor Group, whether relating to, arising out
of or due to occurrences or conditions prior to, on or after the
Distribution Date, including, without limitation, those set forth on
Schedule 3.01(d).
Section 3.02. Indemnification by ▇▇▇▇▇▇. Subject to Section 3.03, on and
after the Distribution Date, ▇▇▇▇▇▇ shall indemnify and hold harmless the New
Fluor Group and each of its directors, officers and Affiliates (the "New Fluor
Indemnified Parties") from and against:
(a) all Losses of the New Fluor Indemnified Parties relating to, arising
out of or due to, directly or indirectly, any breach of any provisions of
this Agreement by ▇▇▇▇▇▇.
(b) all Losses of the New Fluor Indemnified Parties relating to, arising
out of or due to any untrue statement or alleged untrue statement of a
material fact concerning the ▇▇▇▇▇▇ Group contained in the Spinoff
Registration Documents or the Proxy Statement or any omission or alleged
omission to state therein a material fact concerning the ▇▇▇▇▇▇ Group
required to be stated therein or necessary in order to make the statements
therein not misleading.
(c) all Losses of the New Fluor Indemnified Parties relating to, arising
out of or due to any untrue statement or alleged untrue statement of a
material fact concerning the ▇▇▇▇▇▇ Group contained in any report of New
Fluor with respect to any period entirely or partially prior to the
Distribution Date required by or filed under the Exchange Act, or any
filing made prior to the Distribution Date under the Securities Act by New
Fluor, or the omission or alleged omission to state in any such report or
filing a material fact concerning the ▇▇▇▇▇▇ Group required to be stated
therein or necessary in order to make the statements therein not
misleading.
(d) All Losses of the New Fluor Indemnified Parties relating to, arising
out of or due to, directly or indirectly, the ▇▇▇▇▇▇ Business or any other
business conducted by the ▇▇▇▇▇▇ Group, whether relating to, arising out of
or due to occurrences or conditions prior to, on or after the Distribution
Date.
Section 3.03. Overriding Provisions. Notwithstanding anything to the
contrary in this Agreement, this Article III and Article VII hereof shall be
subject to the following provisions:
(a) This Article III shall not govern any Tax, and any and all Losses
relating to foreign, federal, state and local Taxes, including the payment
of Taxes, and all Losses relating to breach of any representation, warranty
or covenant under the Tax Sharing Agreement, shall be exclusively governed
by the Tax Sharing Agreement.
(b) Except as otherwise expressly set forth below, this Article III
shall not govern any employee benefits matters, and any and all Losses
relating to the establishment, maintenance and administration of employee
benefit plans and programs, which shall be exclusively governed by the
provisions of Article VII hereof.
(c) The indemnification provisions of this Article III and Article VII
hereof shall not inure to the benefit of any third party or parties other
than the directors, officers and Affiliates of a Group as expressly
provided in Sections 3.01, 3.02, 7.05 and 7.06. By way of illustration
only, an insurer who would otherwise be obligated to pay any claim shall
not be relieved of the responsibility with respect thereto, or, solely by
virtue of the indemnification provisions hereof, have any subrogation
rights with respect thereto, it being expressly understood and agreed that
no insurer or any other third party shall be entitled to a "windfall"
(i.e., a benefit they would not be entitled to receive in the absence of
the indemnification provisions) by virtue of the indemnification
provisions. Accordingly, any indemnification shall be paid net of the
amount of any insurance paid to the indemnified party.
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(d) In the case of any Loss with respect to which an indemnification
payment is required under this Article III or Article VII hereof (an
"Indemnification Payment"), the amount of such Indemnification Payment
shall be adjusted in accordance with Section of the Tax Sharing
Agreement.
ARTICLE IV
INDEMNIFICATION PROCEDURES
Section 4.01. Notice and Payment of Claims. If either Group (the
"Indemnified Party") determines that it is or may be entitled to
indemnification by the other Group (the "Indemnifying Party") under Article III
or Article VII hereof, the Indemnified Party shall promptly deliver to the
Indemnifying Party a written notice and demand therefor, specifying, to the
extent reasonably practicable, the basis for its claim for indemnification, the
nature of the claim and the amount for which the Indemnified Party reasonably
believes it is entitled to be indemnified. Unless such claim is subject to the
provisions of Section 4.02 below, the Indemnifying Party shall pay the
Indemnified Party the amount set forth in such notice, in cash or other
immediately available funds, within thirty (30) days after receipt of such
notice. However, the Indemnifying Party may object to the claim for
indemnification set forth in such notice; provided, however, that if the
Indemnifying Party does not give the Indemnified Party written notice setting
forth its objection to such claim and the grounds therefor within the same
thirty (30) day period, the Indemnifying Party shall be deemed to have
acknowledged its liability for the amount of such claim and the Indemnified
Party may exercise any and all of its rights under applicable law to collect
such amount. Any such objection to a claim for indemnification shall be
resolved in accordance with Section 4.03.
Section 4.02. Defense of Third-Party Claims. If the Indemnified Party's
claim for indemnification is based on a claim, demand, action or proceeding,
judicial or otherwise, brought by a third party, within the thirty (30) day
period referred to in Section 4.01 above, (a) the Indemnified Party may, by
giving written notice thereof to the Indemnifying Party, require the
Indemnifying Party to assume, or (b) the Indemnifying Party may at its option
and by giving written notice thereof to the Indemnified Party elect to assume,
the defense of such third-party claim at its sole cost and expense. Any such
contest shall be conducted by attorneys employed by the Indemnifying Party, but
the Indemnified Party shall have the right to participate in such proceedings
and to be represented by attorneys of its own choosing at the Indemnified
Party's sole cost and expense. If the Indemnifying Party assumes the defense of
any such third-party claim, the Indemnifying Party may settle or compromise the
claim without prior written consent of the Indemnified Party so long as such
settlement does not impose any obligation or restriction of any nature on the
Indemnified Party. The Indemnifying Party shall pay to the Indemnified Party in
cash the amount for which the Indemnified Party is entitled to be indemnified
within fifteen (15) days after the settlement or compromise of such third-party
claim or the final unappealable judgment of a court of competent jurisdiction.
If the Indemnified Party does not require the Indemnifying Party, and the
Indemnifying Party does not elect, to assume the defense of any such third-
party claim, the Indemnifying Party shall be bound by the result obtained with
respect thereto by the Indemnified Party.
Section 4.03. Dispute Resolution. In an effort to resolve informally and
amicably any claim or controversy arising out of or related to the
interpretation or performance of this Agreement without resorting to
litigation, each party shall notify the other party to the dispute in writing
of any difference or dispute hereunder that requires resolution. Each party in
dispute shall designate an employee to investigate, discuss and seek to settle
the matter between them. If the two are unable to settle the matter within
thirty (30) days after such notification, the matter shall be submitted to a
senior officer of each such party for consideration. If settlement cannot be
reached through their efforts within an additional thirty (30) days, or such
longer time period as they shall agree upon, such parties shall consider
arbitration or other alternative means to resolve the dispute. If they are
unable to agree to an alternative dispute resolution mechanism, either party
may initiate legal proceedings to resolve such matter.
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ARTICLE V
OTHER AGREEMENTS
Section 5.01. Asset Transfers. (a) To the extent that a Group owns any asset
which is used primarily in the business conducted by the other Group, the
first-mentioned Group shall use its best efforts, subject to receipt of any
necessary consents of third parties, to cause such asset to be conveyed,
assigned and transferred to such other Group. The parties acknowledge and agree
that the transfers set forth on Schedule 5.01 hereto shall be completed prior
to the Distribution Date or as soon as practicable following the Distribution.
(b) If any transfer contemplated by subsection (a) shall not have been
consummated prior to the Distribution Date, the parties shall cooperate to
effect such transfer as promptly thereafter as shall be practicable, it
nonetheless being agreed and understood that no party shall be liable to
any other party for any delay in making any transfer contemplated by this
Section. Notwithstanding the provisions of Article III, upon such transfer,
the transferee of any such asset shall assume any liability (other than any
liability relating to any Tax, which liabilities are exclusively governed
by the Tax Sharing Agreement) relating to such asset and shall indemnify
and hold harmless the transferor and its directors, officers and Affiliates
against all claims relating thereto. The cost (other than any cost relating
to any Tax, which costs are exclusively governed by the Tax Sharing
Agreement) of effecting any such transfer of assets and assumption of
related liabilities shall be borne by the person to whom such asset is
transferred.
Section 5.02 Further Assurances and Consents. (a) Each of the parties hereto
will execute and deliver such further instruments of conveyance and assignment
and will take such other actions as any other party may reasonably request in
order to effectuate the purposes of this Agreement and to carry out the terms
hereof.
(b) In addition to the actions specifically provided for elsewhere in
this Agreement, each of the parties hereto shall use its best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done,
all things, reasonably necessary, proper or advisable under applicable
laws, regulations and agreements to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
using its best efforts to obtain any consents and approvals and to make the
filings and applications necessary or desirable in order to consummate the
transactions contemplated by this Agreement; provided, however, that no
party hereto shall be obligated to pay any consideration therefor (except
for filing fees and other administrative charges) to any third party from
whom such consents, approvals and amendments are requested or to take any
action or omit to take any action if the taking of such action or such
omission would be unreasonably burdensome to the party, its Group or its
Group's business.
Section 5.03. No Representation or Warranty. The parties hereto understand
and agree that no party is representing or warranting in any way (i) as to the
nature or value of, freedom from encumbrance or fitness for purpose of, or as
to any other matter concerning, any assets or liabilities referred to in
Section 5.01 (it being agreed and understood that all such assets are being
transferred "as is, where is"), (ii) as to the legal sufficiency of any
conveyance or assignment contemplated by Sections 5.01 and 5.02 (iii) as to the
execution, delivery and filing of the instruments pertaining thereto or (iv) as
to the obtaining of any consents or approvals, the making of any filings or
applications or the compliance with the requirements of any applicable laws or
judgments necessary to comply with Sections 5.01 and 5.02.
Section 5.04. Registration and Listing. (a) Each party shall cooperate in
the preparation of the Spinoff Registration Documents and the Proxy Statement
and any amendments or supplements thereto. The parties shall use their
respective best efforts to cause the New Fluor Common Stock to be distributed
hereunder to be registered pursuant to the Securities Act and the Exchange Act
and thereafter to effect the Distribution in accordance with the terms of this
Agreement, including, without limitation, by preparing and filing the Spinoff
Registration Documents under the Exchange Act covering the New Fluor Common
Stock and using their respective best efforts to cause such registration
statements to be declared and remain effective.
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(b) The parties shall cooperate in preparing and filing with the
Commission and causing to become and remain effective any registration
statements, and any amendments or supplements thereto, which are
appropriate to reflect the establishment of, or amendment to, any employee
benefit and other plan contemplated by Article VII hereof.
(c) The parties shall take all such action as may be necessary or
appropriate under the securities or blue sky laws of states or other
political subdivisions of the United States in connection with the
transactions contemplated by this Agreement.
(d) The parties shall prepare, and New Fluor shall file and pursue, an
application to permit listing of the new Fluor Common Stock on the New York
Stock Exchange.
Section 5.05. Conduct of Businesses Pending Distribution. (a) The parties
agree that from the date hereof until the Distribution Date, except as
otherwise contemplated by this Agreement, they will use their best efforts to
cause the businesses of New Fluor and Parent to be conducted diligently in the
ordinary course and substantially in the same manner as heretofore conducted
and to preserve intact the business organization and goodwill of each such
business; provided, however, that notwithstanding the foregoing, (i) Parent
shall, at New Fluor's request, (A) declare one or more special dividends or
distributions prior to the Distribution Date, in the form of cash, securities
and/or property, in such amount and on such terms and subject to such
conditions as the board of directors of Parent may determine and (B) enter into
financing arrangements to pay such dividend and for other purposes and (ii) New
Fluor shall adopt a charter and by-laws reasonably satisfactory to New Fluor
and Parent, for approval by Parent as sole stockholder of New Fluor.
(b) Prior to the Distribution Date, the ▇▇▇▇▇▇ Group shall not, without
the prior consent in writing of Parent, make any public announcement or
issue any press release with respect to the Distribution or with respect to
any material event, and, subject to Article IX, each Group shall use its
best efforts not to take any action which may prejudice or delay the
consummation of the Distribution.
Section 5.06. Intercompany Accounts. All intercompany accounts, receivables
and payables between the parties hereto shall be settled and resolved in
accordance with the provisions of Schedule 5.06 attached hereto.
Section 5.07. Intellectual Property. On or prior to the Distribution Date,
Parent shall transfer to New Fluor or its Affiliates all intellectual property
held by Parent, other than intellectual property that relates to the Coal
Business, including, without limitation, the intellectual property listed on
Schedule 5.07.
Section 5.08. Insurance. With respect to the Fluor Insurance Policies
currently maintained by Parent, Parent and New Fluor will take such action as
is necessary and appropriate to cause, effective as of the Distribution Date:
(a) New Fluor to become the sole "named insured" on each of the Fluor Insurance
Policies whose policy term shall not have expired prior to the Distribution
Date and the transfer by Parent to New Fluor of all assets and liabilities
related to the Fluor Insurance Policies; (b) the termination of the excess
coverage of all members of the ▇▇▇▇▇▇ Group under the Fluor Insurance Policies
and the discontinuation of all members of the ▇▇▇▇▇▇ Group as an "insured"
under any of the Fluor Insurance Policies; and (c) to provide Parent with
additional insured status under the combined aggregate protection portions of
its coverage with respect to claims (other than those arising from the ▇▇▇▇▇▇
Business) for occurrences arising before the Distribution Date. Notwithstanding
the preceding, Parent currently maintains certain aircraft liability coverage
(ACE; Policy No. S00387149) (the "Aircraft Policy"). Parent agrees that it
shall use commercially reasonable efforts to permit the assignment of such
Aircraft Policy to the ▇▇▇▇▇▇ Group, such assignment to occur, if at all,
concurrently with the Distribution Date.
From and after the Distribution Date, New Fluor shall cause the New Fluor
Group to maintain, and ▇▇▇▇▇▇ shall cause the ▇▇▇▇▇▇ Group to maintain, with
financially sound and reputable insurance companies, property damage,
commercial general liability, professional liability and directors and
officer's liability insurance in at least such amounts and against such risks
as are usually insured against by companies of established repute engaged in
the same or similar business as the New Fluor Group or ▇▇▇▇▇▇ Group, as
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applicable, and owning similar assets ("Industry Standards"), except where such
risks are covered by self-insurance so long as the amount of such self-
insurance and the risks covered thereby are consistent with Industry Standards.
Each party will promptly furnish the other, subject to appropriate
confidentiality protection, such information as to insurance carried or self-
insurance maintained as may be reasonably requested in writing by such party.
Parent hereby represents and warrants, on behalf of and with respect to the
▇▇▇▇▇▇ Group, and New Fluor hereby represents and warrants on behalf of and
with respect to the New Fluor Group, that except as previously disclosed in
writing to the other party, there are no outstanding claims or notices, or, to
its best knowledge, facts and circumstances which could reasonably be expected
to result in a claim or notice, under any of the combined aggregate protection
portions of the Fluor Insurance Policies.
Section 5.09. Retained Liabilities. Without limiting any other provision of
this Agreement, the ▇▇▇▇▇▇ Group acknowledges that the obligations and
liabilities set forth on Schedule 5.09 shall remain the responsibility of the
▇▇▇▇▇▇ Group and agrees to honor and properly discharge all such obligations
and liabilities.
Section 5.10. Composition of Boards. The initial members of the boards of
directors of ▇▇▇▇▇▇ and New Fluor following the Distribution shall be as set
forth on Schedule 5.10.
Section 5.11. Capital Structure. The ▇▇▇▇▇▇ Group will retain the $300
million of outstanding 6.95% Senior Notes, will incur additional borrowing in
the commercial paper market and will enter into a new bank credit facility to
support its commercial paper program. ▇▇▇▇▇▇'▇ debt position as of the
Distribution Date, composed of the Senior Notes and commercial paper will be
$530 million, adjusted as follows: (i) If for the period beginning August 1,
2000 and ending on the Distribution Date, the cumulative cash-flow of A.T.
▇▇▇▇▇▇ Coal Company, Inc. and its subsidiaries is positive, then the $530
million total debt amount will be decreased by such amount unless the ▇▇▇▇▇▇
Group retains such excess cash in its cash accounts in accordance with the
provisions hereof and (ii) if such cumulative cash-flow for such period is
negative, then the $530 million total debt amount will be increased by such
amount.
ARTICLE VI
INFORMATION AND SERVICES
Section 6.01. Provision of Corporate Records. Each Group shall arrange as
soon as practicable following the Distribution Date for the provision to the
other Group of existing corporate governance documents (e.g. minute books,
stock registers, stock certificates, documents of title, etc.) in its
possession, if any, relating to such other Group or its business and affairs.
Section 6.02. Access to Information. From and after the Distribution Date,
each Group shall afford the other Group and its accountants, counsel and other
designated representatives reasonable access (including using reasonable
efforts to give access to persons or firms possessing information) and
duplicating rights during normal business hours to all records, books,
contacts, instruments, computer data and other data and information in such
Group's possession relating to the business and affairs of the other Group,
insofar as such access is reasonably required by the other Group including,
without limitation, for audit, accounting, litigation and tax purposes, as well
as for purposes of fulfilling disclosure and reporting obligations.
Section 6.03. Production of Witnesses. Each Group shall use reasonable
efforts to make available to the other Group, upon written request, its
officers, directors, employees and agents as witnesses to the extent that such
persons may reasonably be required in connection with any legal, administrative
or other proceedings in which the requesting party may from time to time be
involved.
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Section 6.04. Reimbursement. A Group providing information or witnesses
under this Article VI to the other Group shall be entitled to receive from the
recipient, upon the presentation of invoices therefor, payment for all costs
and expenses (including the allocable portion of any overhead expenses
attributable thereto) as may be reasonably incurred in providing such
information or witnesses.
Section 6.05. Retention of Records. Except as otherwise required by law or
agreed to in writing, each party shall, and shall cause the members of its
Group to, retain all information relating to the other Group's business in
accordance with the record retention policies of such party as may be in effect
from time to time. Notwithstanding the foregoing, any party may destroy or
otherwise dispose of any information at any time, provided that, prior to such
destruction or disposal, (i) such party shall provide no less than 90 days
prior written notice to the other party, specifying the information proposed to
be destroyed or disposed of and (ii) if a recipient of such notice shall
request in writing prior to the scheduled date for such destruction or disposal
that any of the information proposed to be destroyed or disposed of be
delivered to such requesting party, the party proposing the destruction or
disposal shall promptly arrange for the delivery of such of the information as
was requested at the expense of the requesting party.
Section 6.06. Confidentiality. Each party shall hold and shall cause its
consultants and advisors to hold in strict confidence, unless compelled to
disclose by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law, all information (other than any such
information relating solely to the business or affairs of such party)
concerning the other party hereto furnished it by such other party or its
representatives pursuant to this Agreement or otherwise (except to the extent
that such information can be shown to have been (i) previously known by the
party to which it was furnished, (ii) in the public domain through no fault of
such party or (iii) later lawfully acquired from other sources by the party to
which it was furnished), and each party shall not release or disclose such
information to any other person, except its auditors, attorneys, financial
advisors, bankers and other consultants and advisors who shall be advised of
the provisions of this Section 6.06. Each party shall be deemed to have
satisfied its obligation to hold confidential information concerning or
supplied by the other party if it exercises the same care as it takes to
preserve confidentiality for its own similar information.
Section 6.07. Information and Services Relating to Taxes. The provisions of
Sections 6.02, 6.04 and 6.05 hereof shall not apply to the extent any matter
addressed therein is addressed by any provision of the Tax Sharing Agreement,
and such provision of the Tax Sharing Agreement shall govern such matters
exclusively for all purposes.
ARTICLE VII
EMPLOYEE BENEFITS
Section 7.01. Fluor Employee Benefit Plans. Schedule 7.01 attached contains
a complete listing of the Fluor Welfare Plans, Fluor Pension Plans, Fluor
Executive Plans and Fluor Payroll Practices.
Section 7.02. ▇▇▇▇▇▇ Employee Benefit Plans. Schedule 7.02 attached contains
a complete listing of the ▇▇▇▇▇▇ Welfare Plans, ▇▇▇▇▇▇ Pension Plans, ▇▇▇▇▇▇
Executive Plans and ▇▇▇▇▇▇ Payroll Practices.
Section 7.03. Fluor Plans--Change of Sponsorship. On and after the
Distribution Date, the sponsorship of all Fluor Welfare Plans and all Fluor
Pension Benefit Plans which are currently sponsored by Parent shall be
transferred from Parent to New Fluor, such change in sponsorship to include a
full transfer of all Plan assets and liabilities including any plan
underfunding or overfunding and such change in sponsorship shall be reflected
by corporate resolutions, amendments to such plans where appropriate and
changes to any required filings with any governmental agency reflecting New
Fluor as plan sponsor. With regard to the Fluor Executive Plans, those Fluor
Executive Plans listed on Schedule 7.03(a), together with all related assets
and liabilities will be assigned from Parent to New Fluor. Those Fluor
Executive Plans listed on Schedule 7.03(b) which include
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Parent stock as a form of benefit, will remain with the Parent. Those Fluor
Executive Plans listed on Schedule 7.03(c) which cover executives of both the
New Fluor Group and the ▇▇▇▇▇▇ Group and which have related company owned
assets, will be partitioned into two plans, with the assets and liabilities
attributable to current and former Fluor executives being transferred to New
Fluor and the assets and liabilities attributable to current and former ▇▇▇▇▇▇
executives remaining with the Parent. The indemnification provisions set forth
in Sections 7.05 and 7.06 shall apply to the Fluor Plans whether such Fluor
Plans are assigned to New Fluor or remain with the Parent.
Section 7.04. Master Trust Changes. Schedule 7.04(a) lists the Fluor Pension
Benefit Plans and the ▇▇▇▇▇▇ Pension Benefit Plans (the "▇▇▇▇▇▇ Defined
Benefits Plans") whose assets constitute the corpus of the "Fluor Master Trust.
It is the intention of Parent and New Fluor to continue to maintain such
qualified plans after the Distribution Date although this representation shall
not bind either Parent or New Fluor with respect to the continuation of any
such plans subsequent to the Distribution Date. Not later than 90 days after
the Distribution Date, the ▇▇▇▇▇▇ Group shall establish a new master trust with
a reputable and financially sound institutional trustee to receive the assets
of the ▇▇▇▇▇▇ Pension Benefit Plans which are currently held by the Fluor
Master Trust. The value of the assets to be transferred from the ▇▇▇▇▇▇ Plans
shall be determined in accordance with and based upon the current asset
allocation and the valuation policies and practices currently being used by the
Fluor Master Trust, with the value being determined as of the end of the month
immediately preceding the Transfer Date, which Transfer Date shall occur as
soon as practicable after said valuation date. New Fluor and Parent shall each
use diligent efforts to cause the transfers contemplated above to be
accomplished on an expeditious basis. On and after the Distribution Date,
Parent shall cease to be the grantor of the Fluor Master Trust and New Fluor
shall be substituted in its place in accordance with the terms of the Fluor
Master Trust.
Section 7.05. Indemnification by New Fluor. New Fluor shall indemnify and
hold harmless the ▇▇▇▇▇▇ Indemnified Parties from and against;
(a) All Losses relating to, or arising out of, or due to, directly or
indirectly, (i) the management or investment of assets of any of the Fluor
Plans with respect to all periods prior to and after the Distribution Date;
excluding losses relating to the management or investment, after the
Distribution Date, of assets relating to ▇▇▇▇▇▇ Group participants or
beneficiaries or (ii) claims by ▇▇▇▇▇▇ Group participants or beneficiaries
regarding the management or investment of the ▇▇▇▇▇▇ Defined Benefit Plans
prior to the Transfer Date for the period of time in which such plans were
part of the Fluor Master Trust.
(b) All Losses from assessments, fines or penalties imposed with respect
to any of the Fluor Plans, by any governmental agency, federal or state,
with jurisdiction in the premises with respect to all periods prior to and
after the Distribution Date; excluding losses arising from the
administration of such Fluor Plans by or on behalf of the ▇▇▇▇▇▇ Group
following the Distribution Date.
(c) All Losses relating to or arising out of any claims of whatever
nature made by or on behalf of New Fluor Group participants or
beneficiaries in any of the Plans, including but not limited to, claims
under applicable federal or state law with respect to all periods prior to
and after the Distribution Date.
(d) All Losses which may be incurred with respect to Fluor Pension
Benefit Plans with respect to all periods prior to and after the
Distribution Date as a result of any withdrawal or any other liability
under ERISA and/or Losses which may be incurred with respect to multi-
employer plans contributed to by the New Fluor Group or, prior to the
Distribution Date contributed to by Parent, under the MPPAA.
(e) The indemnities set forth in this (S)7.05 shall include reasonable
attorney's fees.
Section 7.06. Indemnification by ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall indemnify and hold
harmless the New Fluor Indemnified Parties from and against;
(a) All Losses relating to, or arising out of, or due to, directly or
indirectly, (i) the management or investment of assets of any of the ▇▇▇▇▇▇
Plans with respect to all periods prior to and after the
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Distribution Date (other than the ▇▇▇▇▇▇ Defined Benefit Plans with respect
to periods prior to the Transfer Date for the period in which they were
part of the Fluor Master Trust), or (ii) the management and investment,
after the Distribution Date of Fluor Plan assets held by the ▇▇▇▇▇▇ Group
that are attributable to ▇▇▇▇▇▇ Group participants and beneficiaries.
(b) All Losses from assessments, fines or penalties imposed, with
respect to any of the ▇▇▇▇▇▇ Plans with respect to all periods prior to and
after the Distribution Date or imposed after the Distribution Date with
respect to the Fluor Plans, or any portions thereof, which are administered
by or on behalf of the ▇▇▇▇▇▇ Group on and after the Distribution Date and
which are based upon acts, errors or omissions of the ▇▇▇▇▇▇ Group.
(c) All Losses relating to or arising out of any claims of whatever
nature, including but not limited to, claims under applicable federal or
state law, made by or on behalf of participants or beneficiaries in any of
the ▇▇▇▇▇▇ Plans with respect to all periods prior to and after the
Distribution Date, or any claims made by or on behalf of ▇▇▇▇▇▇ Group
Participants in any of the Fluor Plans, which are administered by or on
behalf of the ▇▇▇▇▇▇ Group after the Distribution Date and which Losses are
based on acts, errors or omissions occurring after the Distribution Date.
(d) All Losses which may be incurred with respect to any ▇▇▇▇▇▇ Pension
Benefit Plan with respect to all periods prior to and after the
Distribution Date as a result of any withdrawal or any other potential
liability under ERISA and/or, with respect to multi-employer plans
contributed to by the ▇▇▇▇▇▇ Group (excluding Parent) or after the
Distribution Date, contributed to by Parent under the MPPAA.
(e) The indemnities set forth in this (S)7.06 shall include reasonable
attorney's fees.
ARTICLE VIII
INTERCOMPANY AGREEMENTS
Section 8.01. Termination. Without prejudice to any claims thereunder based
upon occurrences prior to the Distribution Date or any confidentiality
obligations thereunder, Parent and New Fluor hereby agree that each the
agreements described in Schedule 8.01 will, effective as of the Distribution
Date, be terminated and of no effect thereafter (it being acknowledged by
Parent and New Fluor that, except as specified herein and as may have been
entered into in the ordinary course of business, there are no other material
agreements between Parent and New Fluor).
ARTICLE IX
TERMINATION; SURVIVAL
Section 9.01. Termination. This Agreement may be terminated at any time
prior to the Distribution upon a resolution to such effect passed by the board
of directors of Parent.
Section 9.02. Survival. The respective obligations of the parties hereto
shall survive the Distribution Date.
ARTICLE X
MISCELLANEOUS
Section 10.01. Expenses. All costs and expenses incurred in connection with
the preparation, execution and delivery of this Agreement and with the
consummation of the transactions contemplated hereby shall be paid by New
Fluor.
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Section 10.02. Notices. All notices and communications under this Agreement
shall be in writing and any communication or delivery hereunder shall be deemed
to have been duly given (i) when delivered, if delivered in person, or (ii) two
days following the date on which the notice or communication is sent, if sent
by first class mail or by other commercially reasonable means of written
communication (including delivery by an internationally recognized courier
service) addressed as follows:
If to ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ Energy Company
Four ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to New Fluor, to:
Fluor Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Any party may, by written notice so delivered to the other party, change the
address to which delivery of any notice shall thereafter be made.
Section 10.03. Amendment and Waiver. This Agreement may not be altered or
amended, nor may rights hereunder be waived, except by an instrument in writing
executed by the party or parties to be charged with such amendment or waiver.
No waiver of any terms, provision or condition of this Agreement, in any one or
more instances, shall be deemed to be, or construed as a further or continuing
waiver of any such term, provision or condition or as a waiver of any other
term, provision or condition of this Agreement.
Section 10.04. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original instrument, but all of
which together. shall constitute but one and the same Agreement.
Section 10.05. Governing Law. This Agreement and the transactions
contemplated hereby shall be construed in accordance with, and governed by, the
laws of the State of New York without reference to choice of law principles.
Section 10.06. Consent to Jurisdiction. Each of the parties hereto hereby
irrevocably submits to the nonexclusive jurisdiction of any United States
Federal or New York State court sitting in New York County in any action or
proceeding arising out of or relating to this Agreement, and irrevocably agrees
that all claims in respect of any such action or proceeding may be heard and
determined in any such United States Federal or New York State court. Each of
the parties hereto agrees to commence any action, suit or proceeding relating
hereto either in the United States District Court for the Southern District of
New York or, if for jurisdictional reasons such suit, action or other
proceeding may not be brought in such court, in the Supreme Court of the State
of New York, New York County. Each of the parties hereto further agrees that
service of any process, summons, notice or document by United States registered
mail to such party's respective address set forth in Section 10.02 shall be
effective service of process for any action, suit or proceeding in the State of
New York with respect to any matters to which it has submitted to jurisdiction
as set forth above in the immediately preceding sentence. Each of the parties
hereto irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (a) the Supreme Court of the State of New
York, New York County or (b) the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
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Section 10.07. Entire Agreement. This Agreement and the Tax Sharing
Agreement constitute the entire understanding of the parties hereto with
respect to the subject matter hereof, superseding all negotiations, prior
discussions and prior agreements and understandings. To the extent that the
provisions of this Agreement are inconsistent with the provisions of the Tax
Sharing Agreement, the provisions of the Tax Sharing Agreement shall prevail.
Section 10.08. Parties in Interest. Neither party hereto may assign its
rights or delegate any of its duties under this Agreement without the prior
written consent of the other party. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. Except as set forth in Section 3.03, nothing
contained in this Agreement, express or implied, is intended to confer any
benefits, rights or remedies upon any person or entity other than the parties
hereto.
Section 10.09. Attorneys' Fees. Subject to Section 4.03, in the event any
party to this Agreement brings an action or proceeding for the breach or
enforcement of this Agreement, the prevailing party in such action or
proceeding, whether or not such action or proceeding proceeds to final
judgment, shall be entitled to recover as an element of its costs, and not as
damages, such reasonable attorneys' fees as may be awarded in the action,
proceeding or appeal in addition to whatever other relief the prevailing party
may be entitled. For purposes of this Section, the "prevailing party" shall be
the party who is entitled to recover its costs; a party not entitled to recover
its costs shall not recover attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have caused this Distribution
Agreement to be duly executed and delivered as of the date and year first
written above.
FLUOR CORPORATION,
a Delaware corporation incorporated
in 1978
(to be renamed ▇▇▇▇▇▇ Energy Company
on the Distribution Date)
By: _________________________________
Name:
Title:
FLUOR CORPORATION
a Delaware corporation incorporated
in 2000
By: _________________________________
Name:
Title:
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