Exhibit 10.11
COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
between
FMC Technologies, Inc., as Issuer
and
Banc of America Securities LLC, as Dealer
Concerning Notes to be issued pursuant to an Issuing and
Paying Agent Agreement dated as of January 24, 2003 between
the Issuer and Bank One, National Association, as Issuing and
Paying Agent
Dated As of
January 24, 2003
COMMERCIAL PAPER DEALER AGREEMENT
4(2) Program
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer in connection with the issuance and sale by the Issuer of
its short-term promissory notes through the Dealer (the "Notes").
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer shall not,
without the consent of the Dealer, offer, solicit or accept offers to purchase,
or sell, any Notes except (a) in transactions with one or more dealers which may
from time to time after the date hereof become dealers with respect to the Notes
by executing with the Issuer one or more agreements which contain provisions
substantially identical to Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice or (b) in transactions
with the other dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially identical to
Section 1 of this Agreement contemporaneously herewith. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination or minimum amount,
whichever is applicable, of $250,000 or integral multiples of $1,000 in excess
thereof, will bear such interest rates, if interest bearing, or will be sold at
such discount from their face amounts, as shall be agreed upon by the Dealer and
the Issuer, shall have a maturity not exceeding 365 days from the date of
issuance (exclusive of days of grace) and shall not contain any provision for
extension, renewal or automatic "rollover."
1.4 The authentication, delivery and payment of the Notes shall be
effected in accordance with the Issuing and Paying Agent Agreement and the Notes
shall be represented by book-entry Notes registered in the name of DTC or its
nominee in the form or forms annexed to the Issuing and Paying Agent Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the date of
issue, purchase price, principal amount, maturity and interest rate (in the case
of interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agent Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to
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the Issuer. Except as otherwise agreed, in the event that the Dealer is acting
as an agent and a purchaser shall either fail to accept delivery of or make
payment for a Note on the date fixed for settlement, the Dealer shall promptly
notify the Issuer, and if the Dealer has theretofore paid the Issuer for the
Note, the Issuer will promptly return such funds to the Dealer upon notice of
such failure. If such failure occurred for any reason other than default by the
Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the
Dealer's loss of the use of such funds for the period such funds were credited
to the Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer shall be
made only to investors reasonably believed by the Dealer to be: (i)
Institutional Accredited Investors or Sophisticated Individual
Accredited Investors, (ii) non-bank fiduciaries or agents that will be
purchasing Notes for one or more accounts, each of which is an
Institutional Accredited Investor or Sophisticated Individual
Accredited Investor, and (iii) Qualified Institutional Buyers.
(b) Resales and other transfers of the Notes by or through the
Dealer or by other holders thereof shall be made only in accordance
with the restrictions in the legends described in clause (e) below.
(c) No general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without limiting the
generality of the foregoing, without the prior written approval of
Dealer, the Issuer shall not issue any press release or place or
publish any "tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less than
$250,000 principal or face amount, and no Note shall be issued in a
smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000 principal or face
amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the Dealer
acting as agent for the Issuer shall be subject to the restrictions
described in the legend appearing on Exhibit A hereto. A legend
substantially to the effect of such Exhibit A shall appear as part of
the Private Placement Memorandum used in connection with offers and
sales of Notes hereunder.
(f) The Dealer shall furnish or shall have furnished to each
purchaser of Notes for which it has acted as the Dealer a copy of the
then-current Private Placement Memorandum unless such purchaser has
previously received a copy of the Private Placement Memorandum as then
in effect. The Private Placement Memorandum shall expressly state that
any person to whom Notes are offered shall have an opportunity to ask
questions of, and receive information from, the Issuer and the Dealer
and shall provide the names, addresses and telephone numbers of the
persons from whom information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each of
the holders and prospective purchasers from time to time of the Notes
that, if at any time the Issuer shall not be subject to Section 13 or
15(d) of the Exchange Act, the Issuer will furnish, upon request and at
its expense, to the Dealer and to holders and prospective purchasers of
Notes information required by Rule 144A(d)(4)(i) in compliance with
Rule 144A(d).
(h) In the event that any Note offered or to be offered by Dealer
would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify Dealer (by telephone, confirmed in writing) of such
fact and shall promptly prepare and deliver to Dealer an amendment or
supplement to the Private Placement Memorandum describing the Notes
that are ineligible, the reason for such ineligibility and any other
relevant information relating thereto.
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(i) The Issuer represents that it may issue commercial paper in the
United States market in reliance upon, and in compliance with, the
exemption provided by Section 3(a)(3) of the Securities Act. In that
connection, the Issuer agrees that (a) the proceeds from the sale of
the Notes will be segregated from the proceeds of the sale of any such
commercial paper by being placed in a separate account; (b) the Issuer
will institute appropriate corporate procedures to ensure that the
offers and sales of notes issued by the Issuer pursuant to the Section
3(a)(3) exemption are not integrated with offerings and sales of Notes
hereunder; and (c) the Issuer will comply with each of the requirements
of Section 3(a)(3) of the Act in selling commercial paper or other
short-term debt securities other than the Notes in the United States.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as permitted
by Section 1.6(i)) within the preceding six months neither the Issuer
nor any person other than the Dealer or the other dealers referred to
in Section 1.2 hereof acting on behalf of the Issuer has offered or
sold any Notes, or any substantially similar security of the Issuer
(including, without limitation, medium-term notes issued by the
Issuer), to, or solicited offers to buy any such security from, any
person other than the Dealer or the other dealers referred to in
Section 1.2 hereof. The Issuer also agrees that (except as permitted by
Section 1.6(i)), as long as the Notes are being offered for sale by the
Dealer and the other dealers referred to in Section 1.2 hereof as
contemplated hereby and until at least six months after the offer of
Notes hereunder has been terminated, neither the Issuer nor any person
other than the Dealer or the other dealers referred to in Section 1.2
hereof (except as contemplated by Section 1.2 hereof) will offer the
Notes or any substantially similar security of the Issuer for sale to,
or solicit offers to buy any such security from, any person other than
the Dealer and the other dealers referred to in Section 1.2 hereof
(except to the extent any of the foregoing would not cause the offer
and sale of the Notes by the Issuer to be integrated with other offers
and sales so as to no longer come within the exemption provided by
Section 4(2) of the Securities Act), it being understood that such
agreement is made with a view to bringing the offer and sale of the
Notes within the exemption provided by Section 4(2) of the Securities
Act and shall survive any termination of this Agreement. The Issuer
hereby represents and warrants that it has not taken or omitted to
take, and will not take or omit to take, any action that would cause
the offering and sale of Notes hereunder to be integrated with any
other offering of securities, whether such offering is made by the
Issuer or some other party or parties, under circumstances that would
cause the offering and sale of the Notes by the Issuer to fail to be
exempt under Section 4(2) of the Securities Act.
(b) The Issuer represents and agrees that the proceeds of the sale
of the Notes are not currently contemplated to be used for the purpose
of buying, carrying or trading securities within the meaning of
Regulation T and the interpretations thereunder by the Board of
Governors of the Federal Reserve System. In the event that the Issuer
determines to use such proceeds for the purpose of buying, carrying or
trading securities, whether in connection with an acquisition of
another company or otherwise, the Issuer shall give the Dealer at least
five business days' prior written notice to that effect. The Issuer
shall also give the Dealer prompt notice of the actual date that it
commences purchasing securities with the proceeds of the Notes.
Thereafter, in the event that the Dealer purchases Notes as principal
and does not resell such Notes on the day of such purchase, to the
extent necessary to comply with Regulation T and the interpretations
thereunder, the Dealer will sell such Notes only to offerees it
reasonably believes to be Qualified Institutional Buyers or to
Qualified Institutional Buyers it reasonably believes are acting for
other Qualified Institutional Buyers, in each case in accordance with
Rule 144A.
Section 2. Representations and Warranties of Issuer
The Issuer represents and warrants that:
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2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute, deliver and perform its
obligations under the Notes, this Agreement and the Issuing and Paying Agent
Agreement.
2.2 This Agreement and the Issuing and Paying Agent Agreement have been
duly authorized, executed and delivered by the Issuer and constitute the legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and limitations on
rights to indemnity and contribution imposed by applicable law.
2.3 The Notes have been duly authorized, and when issued and delivered
as provided in the Issuing and Paying Agent Agreement, will be duly and validly
issued and delivered and will constitute the legal, valid and binding
obligations of the Issuer enforceable against the Issuer in accordance with
their terms subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and limitations on rights to indemnity and
contribution imposed by applicable law.
2.4 Assuming compliance by the Dealer with the procedures applicable to
it set forth in Section 1.6 hereof, the offer and sale of Notes in the manner
contemplated hereby do not require registration of the Notes under the
Securities Act, pursuant to the exemption from registration contained in Section
4(2) thereof, and no indenture in respect of the Notes is required to be
qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured
and unsubordinated indebtedness of the Issuer.
2.6 Assuming compliance by the Dealer with the procedures applicable to
it set forth in Section 1.6 hereof, no consent or action of, or filing or
registration with, any governmental or public regulatory body or authority,
including the SEC, is required to authorize, or is otherwise required in
connection with the execution, delivery or performance of this Agreement, the
Notes or the Issuing and Paying Agent Agreement, except as may be required by
the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the
Issuing and Paying Agent Agreement, nor the issuance and delivery of the Notes
in accordance with the Issuing and Paying Agent Agreement, nor the fulfillment
of or compliance with the terms and provisions hereof or thereof by the Issuer,
will (i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or an event of default under any
of the terms of the Issuer's charter documents or by-laws, any material contract
or instrument to which the Issuer is a party or by which it or its property is
bound, or any law or regulation or any order, writ, injunction or decree of any
court or government instrumentality, to which the Issuer is subject or by which
it or its property is bound, which breach or event of default could reasonably
be expected to have a material adverse effect on the condition (financial or
otherwise) or operations of the Issuer and its subsidiaries, taken as a whole,
or the ability of the Issuer to perform its obligations under this Agreement,
the Notes or the Issuing and Paying Agent Agreement.
2.8 There is no litigation or governmental proceeding pending, or to
the knowledge of the Issuer threatened, against or affecting the Issuer or any
of its subsidiaries which could reasonably be expected to result in a material
adverse change in the condition (financial or otherwise) or operations of the
Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to
perform its obligations under this Agreement, the Notes or the Issuing and
Paying Agent Agreement.
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2.9 The Issuer is not an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
2.10 The Private Placement Memorandum delivered to investors in
connection with any sale of Notes will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, that the Issuer makes no representation or warranty as to
the Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and limitations on rights to indemnity and contribution imposed by
applicable law and (iii) in the case of an issuance of Notes, since the date of
the most recent Private Placement Memorandum, there has been no material adverse
change in the condition (financial or otherwise) or operations of the Issuer and
its subsidiaries taken as a whole which has not been disclosed to the Dealer in
writing.
Section 3. Covenants and Agreements of Issuer
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of, or waiver with respect to, the Notes or the Issuing and Paying
Agent Agreement, including a complete copy of any such amendment, modification
or waiver.
3.2 The Issuer shall, whenever there shall occur any event that could
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise) or operations of the Issuer and its subsidiaries taken
as a whole or the ability of the Issuer to perform its obligations under this
Agreement or the Notes, notify the Dealer (by telephone, confirmed in writing)
of such event prior to subsequent issuances of Notes hereunder. The Issuer
shall, whenever it receives notice of any downgrading or intended downgrading or
any review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes, promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such occurrence.
3.3 The Issuer shall from time to time upon request of the Dealer
furnish to the Dealer copies of all materials provided by the Issuer to any
national securities exchange regarding (i) the Issuer's operations and financial
condition, and (ii) the Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, that the Issuer shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agent Agreement as then in effect, (c) a copy of resolutions
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adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement, the
Issuing and Paying Agent Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) a copy of the executed
Letter of Representations among the Issuer, the Issuing and Paying Agent and DTC
and (e) such other certificates, opinions, letters and documents as the Dealer
shall have reasonably requested.
3.6 The Issuer shall reimburse the Dealer for all of the Dealer's
reasonable out-of-pocket expenses related to this Agreement up to $10,000,
including expenses incurred in connection with its preparation and negotiation,
and the transactions contemplated hereby (including, but not limited to, the
printing and distribution of the Private Placement Memorandum), and, if
applicable, for the reasonable fees and out-of-pocket expenses of the Dealer's
counsel.
Section 4. Disclosure
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes publicly available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon
the occurrence of any event relating to or affecting the Issuer that would cause
the Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Dealer notice pursuant
to Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it
is holding in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that such Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer.
(c) In the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it
is then holding Notes in inventory and (iii) the Issuer chooses not to promptly
amend or supplement the Private Placement Memorandum in the manner described in
clause (b) above, then all solicitations and sales of Notes shall be suspended
until such time as the Issuer has so amended or supplemented the Private
Placement Memorandum, and made such amendment or supplement available to the
Dealer.
Section 5. Indemnification and Contribution
5.1 The Issuer will indemnify and hold harmless the Dealer and each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (hereinafter the "Indemnitees") against any and
all liabilities, penalties, suits, causes of action, losses, damages, claims,
costs and expenses (including, without limitation, reasonable fees and
disbursements of counsel) or judgments of whatever kind or nature (each a
"Claim"), imposed upon, incurred by or asserted against the Indemnitees arising
out of or based upon (i) any allegation that the Private Placement Memorandum
included (as of any relevant time of an offer and sale of the Notes by the
Issuer) or includes an untrue statement of a material fact or omitted (as of any
relevant time of an offer and sale of the Notes by the Issuer) or omits to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or
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(ii) arising out of or based upon the breach by the Issuer of any agreement,
covenant or representation made in or pursuant to this Agreement; provided,
however, the obligations of the Issuer under this Section 5 shall not inure to
the benefit of any Indemnitee on account of any losses, claims, damages or
liabilities from the sale of any Notes by the Dealer to any investor if a copy
of the Private Placement Memorandum (as amended or supplemented, if prior to
distribution of the Private Placement Memorandum by the Dealer to such investor
the Issuer shall have made any amendments or supplements which have been
furnished to the Dealer) shall not have been sent or given by or on behalf of
the Dealer to such investor at or prior to the written confirmation of the sale
of the Notes to such investor and such statement or omission is cured in the
Private Placement Memorandum; and provided further, however, that the
obligations of the Issuer under this Section 5 shall not extend to any liability
of any Indemnitee arising out of (i) any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, or
the omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, in each case, to the extent such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon Dealer Information with respect to Claims arising from
clause (i) of the preceding sentence, or (ii) the Dealer's willful misconduct or
gross negligence in the performance of its obligations under this Agreement with
respect to Claims arising from clause (ii) of the preceding sentence.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in clause (i) of Section
5 is held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
Section 6. Definitions
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent incorporated by reference
therein, (i) the Issuer's most recent report on Form 10-K filed with the SEC and
each report on Form 10-Q or 8-K filed by the Issuer with the SEC since the most
recent Form 10-K, (ii) the Issuer's most recent annual audited financial
statements and each interim financial statement or report prepared subsequent
thereto, if not included in item (i) above, (iii) the Issuer's other publicly
available recent reports, including, but not limited to, any publicly available
filings or reports provided to its stockholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer" shall mean Banc of America Securities LLC.
6.4 "Dealer Information" shall mean material concerning the Dealer and
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
6.5 "DTC" shall mean The Depository Trust Company.
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6.6 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
6.7 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.8 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.9 "Issuing and Paying Agent Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.10 "Issuing and Paying Agent" shall mean the party designated as such
on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agent Agreement.
6.11 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.12 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including the Company Information and all
other materials referred to therein or incorporated by reference therein)
provided to purchasers and prospective purchasers of the Notes, and shall
include amendments and supplements thereto which may be prepared from time to
time in accordance with this Agreement (other than any amendment or supplement
that has been completely superseded by a later amendment or supplement).
6.13 "Qualified Institutional Buyer" shall have the meaning
assigned to that term in Rule 144A under the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933,
as amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning set forth in
Regulation D under the Securities Act and (b) based on his or her pre-existing
relationship with the Dealer, is reasonably believed by the Dealer to be a
sophisticated investor (i) possessing such knowledge and experience (or
represented by a fiduciary or agent possessing such knowledge and experience) in
financial and business matters that he or she is capable of evaluating and
bearing the economic risk of an investment in the Notes and (ii) having a net
worth of at least $5 million.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflict of laws
provisions.
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7.3 EACH OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY
IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon
ten business days' prior notice to such effect to the Dealer, or by the Dealer
upon ten business days' prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.6 and 5 hereof or any liability arising from a breach of the
respective representations, warranties, agreements, covenants, rights or
responsibilities of the parties made or arising prior to the termination of this
Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any wholly-owned
direct or indirect subsidiary of the Dealer or of its ultimate parent. This
Agreement shall not confer any rights or remedies upon any person other than the
parties hereto and their respective permitted assigns.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement constitutes the entire agreement between the parties
hereto and supercedes any prior understandings, agreements or representations by
or between the parties hereto, written or oral, to the extent they relate to the
subject matter hereof.
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
FMC Technologies, Inc.,
as Issuer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director, Treasury Operations
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager, Corporate Finance
Banc of America Securities LLC,
as Dealer
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
ADDENDUM
1. The other dealers referred to in clause (b) of Section 1.2 of the
Agreement are ▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
and ▇▇▇▇▇ Incorporated.
2. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
For the Issuer:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
For the Dealer:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code CA5-801-12-47
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Money Market Origination
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES
LAW, AND OFFERS AND SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE
WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED TO REPRESENT
THAT IT HAS BEEN AFFORDED AN OPPORTUNITY TO INVESTIGATE MATTERS
RELATING TO THE ISSUER AND THE NOTES, THAT IT IS NOT ACQUIRING
SUCH NOTE WITH A VIEW TO ANY DISTRIBUTION THEREOF AND THAT IT IS
EITHER (A) AN INSTITUTIONAL INVESTOR OR HIGHLY SOPHISTICATED
INDIVIDUAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(a) UNDER THE ACT AND WHO, IN THE CASE OF AN
INDIVIDUAL, (i) POSSESSES SUCH KNOWLEDGE AND EXPERIENCE IN
FINANCIAL AND BUSINESS MATTERS THAT HE OR SHE IS CAPABLE OF
EVALUATING AND BEARING THE ECONOMIC RISK OF AN INVESTMENT IN THE
NOTES AND (ii) HAS A NET WORTH OF AT LEAST $5 MILLION (AN
"INSTITUTIONAL ACCREDITED INVESTOR" OR "SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR", RESPECTIVELY) AND THAT EITHER IS PURCHASING
NOTES FOR HIS, HER OR ITS OWN ACCOUNT, IS A U.S. BANK (AS DEFINED
IN SECTION 3(a)(2) OF THE ACT) OR A SAVINGS AND LOAN ASSOCIATION
OR OTHER INSTITUTION (AS DEFINED IN SECTION 3(a)(5)(A) OF THE ACT)
ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR IS A FIDUCIARY
OR AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN) PURCHASING
NOTES FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR OR SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR (i) WHO POSSESSES SUCH KNOWLEDGE AND
EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH PURCHASER HAS SOLE
INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT WHICH IS
ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS,
EACH OF WHICH IS A QIB AND WITH RESPECT TO EACH OF WHICH THE
PURCHASER HAS SOLE INVESTMENT DISCRETION; AND THE PURCHASER
ACKNOWLEDGES THAT HE, SHE OR IT IS AWARE THAT THE SELLER MAY RELY
UPON THE EXEMPTION FROM THE REGISTRATION PROVISIONS OF SECTION 5
OF THE ACT PROVIDED BY RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER THEREOF SHALL ALSO BE DEEMED TO AGREE THAT ANY RESALE OR
OTHER TRANSFER THEREOF WILL BE MADE ONLY (A) IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE ISSUER
OR TO BANC OF AMERICA SECURITIES LLC OR ANOTHER PERSON DESIGNATED
BY THE ISSUER AS A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY,
THE "PLACEMENT AGENTS"), NONE OF WHICH SHALL HAVE ANY OBLIGATION
TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN
INSTITUTIONAL ACCREDITED INVESTOR OR SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR OR A QIB BY A PLACEMENT AGENT, OR (3) TO A QIB
IN A TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A AND (B)
IN A MINIMUM AMOUNT OF $250,000.
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and external counsel)
as they are incurred by it in connection with investigating or defending any
loss, claim, damage, liability or action in respect of which indemnification may
be sought under Section 5.1 of the Agreement (whether or not it is a party to
any such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence
of a Claim arising under Section 5.1 of the Agreement, such Indemnitee will, if
a claim in respect thereof is to be made against the Issuer, notify the Issuer
in writing of the existence thereof; provided that (i) the omission so to notify
the Issuer will not relieve it from any liability which it may have hereunder
unless and except to the extent it did not otherwise learn of such Claim and the
Issuer is materially prejudiced thereby, and (ii) the omission so to notify the
Issuer will not relieve it from liability which it may have to an Indemnitee
otherwise than on account of this indemnity agreement. In case any such Claim is
made against any Indemnitee and it notifies the Issuer of the existence thereof,
the Issuer will be entitled to participate therein, and to the extent that it
may elect by written notice delivered to the Indemnitee, to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnitee; provided that
if the defendants in any such Claim include both the Indemnitee and the Issuer
and the Indemnitee shall have concluded that there may be legal defenses
available to it which are different from or additional to those available to the
Issuer, the Issuer shall not have the right to direct the defense of such Claim
on behalf of such Indemnitee, and the Indemnitee shall have the right to select
separate counsel to assert such legal defenses on behalf of such Indemnitee.
Upon receipt of notice from the Issuer to such Indemnitee of the Issuer's
election so to assume the defense of such Claim and approval by the Indemnitee
of counsel, the Issuer will not be liable to such Indemnitee for expenses
incurred thereafter by the Indemnitee in connection with the defense thereof
(other than reasonable costs of investigation) unless (i) the Indemnitee shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it being
understood, however, that the Issuer shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel in the
jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer shall
not have employed counsel reasonably satisfactory to the Indemnitee to represent
the Indemnitee within a reasonable time after notice of existence of the Claim
or (iii) the Issuer has authorized in writing the employment of counsel for the
Indemnitee. The indemnity, reimbursement and contribution obligations of the
Issuer hereunder shall be in addition to any other liability the Issuer may
otherwise have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Issuer and any Indemnitee. The Issuer agrees that without the Dealer's prior
written consent, which consent shall not be unreasonably withheld, it will not
settle, compromise or consent to the entry of any judgment in any Claim in
respect of which indemnification may be sought under Section 5.1 of the
Agreement (whether or not the Dealer or any other Indemnitee is an actual or
potential party to such Claim), unless such settlement, compromise or consent
includes an unconditional release of each Indemnitee from all liability arising
out of such Claim. The Dealer agrees that without the Issuer's prior written
consent, which consent shall not be unreasonably withheld, it shall not settle,
compromise or consent to the entry of any judgment in any Claim in respect of
which indemnification may be sought under Section 5.1 of the Agreement (whether
or not the Issuer is an actual or potential party to such Claim).