\nARTICLE X MISCELLANEOUS………………………………………………………. 22<\/p>\n Section 10.01. Expenses……………………………………………….. 22<\/p>\n
Section 10.02. Notices………………………………………………… 23<\/p>\n
Section 10.03. Amendment and Waiver…………………………………….. 23<\/p>\n
Section 10.04. Counterparts……………………………………………. 24<\/p>\n
Section 10.05. Governing Law…………………………………………… 24<\/p>\n
Section 10.06. Consent to Jurisdiction………………………………….. 24<\/p>\n
Section 10.07. Entire Agreement………………………………………… 24<\/p>\n
Section 10.08. Parties in Interest……………………………………… 24<\/p>\n
Section 10.09. Attorneys’ Fees…………………………………………. 24
\n<\/c><\/s><\/table>\n
SCHEDULE 1 NEW FLUOR GROUP<\/p>\n
SCHEDULE 2 OLD FLUOR\/MASSEY GROUP<\/p>\n
iii<\/p>\n
DISTRIBUTION AGREEMENT<\/p>\n
DISTRIBUTION AGREEMENT (the “Agreement”) dated as of November 30,
\n2000 between Fluor Corporation, a Delaware corporation, which shall be renamed
\nMassey Energy Company in connection with the transactions contemplated herein
\n(together with its successors and permitted assigns, “Parent”), and Fluor
\nCorporation, a Delaware corporation (together with its successors and permitted
\nassigns, “New Fluor”).<\/p>\n
W I T N E S S E T H
\n – – – – – – – – – –<\/p>\n
WHEREAS, Parent acting through its direct and indirect
\nsubsidiaries currently conducts a number of businesses, including, without
\nlimitation, (i) provision of engineering, procurement and construction services,
\noutsourcing and asset management solutions and business administration and
\nsupport services (together with all other businesses now or formerly conducted
\nby Parent and any of its subsidiaries, but excluding the Massey Business as
\ndefined below, the “Fluor Business”) and (ii) mining, processing, brokering and
\nselling coal (together with all other businesses now or formerly conducted by
\nA.T. Massey Coal Company, Inc. or any of its subsidiaries, including, without
\nlimitation, Appalachian Synfuel, LLC, the “Massey Business”);<\/p>\n
WHEREAS, the Board of Directors of Parent has determined that it
\nis in the best interest of Parent’s shareholders, as well as of Parent and its
\nbusinesses, to reorganize Parent by separating from Parent all businesses
\ncurrently conducted by Parent other than the Massey Business and to cause such
\nbusinesses to be owned and conducted, directly or indirectly, by New Fluor;<\/p>\n
WHEREAS, in order to effect such separation, the Board of
\nDirectors of Parent has determined that it is appropriate, desirable and in the
\nbest interest of Parent’s shareholders, as well as of Parent and its businesses,
\nfor Parent (i) to take certain steps to reorganize Parent’s subsidiaries and
\nbusinesses and (ii) to distribute to the holders of Parent’s common stock, par
\nvalue $0.625 per share, all of the outstanding shares of common stock of New
\nFluor as set forth herein in what the parties intend to be a tax-free
\ndistribution pursuant to Section 355 of the Internal Revenue Code;<\/p>\n
WHEREAS, each of Parent and New Fluor has determined that it is
\nnecessary and desirable, on or prior to the Distribution Date (as defined
\nherein), to allocate and transfer those assets and allocate and assign
\nresponsibility for those liabilities in respect of activities of the businesses
\nof such entities;<\/p>\n
WHEREAS, each of Parent and New Fluor has determined that it is
\nnecessary and desirable to set forth the principal corporate transactions
\nrequired to effect such distribution and to set forth other agreements that will
\ngovern certain other matters following such distribution; and<\/p>\n
WHEREAS, in connection with such distribution, Parent is
\nconcurrently herewith entering into a Tax Sharing Agreement dated as of the date
\nhereof with New Fluor.<\/p>\n
NOW, THEREFORE, in consideration of the mutual agreements,
\nprovisions and covenants contained in this Agreement, the parties hereby agree
\nas follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS<\/p>\n
Section 1.01. Definitions. As used herein, the following terms
\n ———–
\nshall have the following meanings:<\/p>\n
“Affiliate” means, with respect to any person, another person
\ndirectly or indirectly controlling, controlled by or under common control with
\nsuch person; provided, however, that for the purposes of this Agreement, no
\n ——– ——-
\nmember of the Massey Group shall be deemed an Affiliate of any member of the New
\nFluor Group and vice versa.<\/p>\n
“Agent” means ChaseMellon Shareholder Services, LLC, as
\ndistribution agent hereunder.<\/p>\n
“Agreement” is defined in the preamble to this Agreement.<\/p>\n
“Assets” means all assets of any nature whatsoever that would be
\nreflected on a balance sheet of Parent as of the Distribution Date prepared in
\naccordance with generally accepted accounting principles consistently applied
\nand in accordance with existing management practices including, without
\nlimitation: all cash equivalents; accounts receivable; notes receivable;
\ncontract work in progress (costs and earnings in excess of billings);
\ninventories; pre-paid taxes (current and non-current); property, plant and
\nequipment; pension assets; goodwill (excess of cost over net assets of acquired
\ncompanies); investments; and other current and non-current assets.<\/p>\n
“Cumulative Cash Flow” is defined in Section 5.11 of this
\nAgreement.<\/p>\n
“Distribution” means the distribution contemplated by Section
\n2.02 of this Agreement.<\/p>\n
“Distribution Date” means such date as shall be agreed upon by
\nParent and New Fluor on which the Distribution shall occur.<\/p>\n
“Distribution Record Date” means the date set by the Board of
\nDirectors of Parent for the determination of holders of record of Parent Common
\nStock entitled to participate in the Distribution.<\/p>\n
“DRIH Grid Note” means that certain note defined and described in
\nParagraph 2 of Schedule 5.06 to this Agreement.<\/p>\n
2<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of
\n1974, as amended .<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as
\namended.<\/p>\n
“Fluor Business” is defined in the recitals to this Agreement.<\/p>\n
“Fluor Executive Plans” means certain plans, funds and programs
\nmaintained by Parent and certain members of the New Fluor Group which are aimed
\nat providing additional compensation, equity participation and other benefits
\nfor a select group of highly compensated management, executive employees and
\nnon-employee directors.<\/p>\n
“Fluor Master Trust” means the Fluor Corporation and Subsidiary
\nEmployees’ Master Trust, trusteed by Bankers Trust of California, N.A.<\/p>\n
“Fluor Insurance Policies” means certain insurance policies which
\nprovide property, workers compensation and employer liability, professional
\nliability, builders risk, automobile liability, commercial general liability,
\ndirectors and officers liability, fiduciary and political action committee
\nliability and crime coverage for the benefit of the New Fluor Group and the
\nParent.<\/p>\n
“Fluor Payroll Practices” means certain plans, funds and programs
\nmaintained by Parent and certain members of the New Fluor Group in the nature of
\npayroll practices including, but not limited to, time off with pay, jury duty,
\nfamily leave and other programs<\/p>\n
“Fluor Pension Benefit Plans” means certain “employee pension
\nbenefit plans” maintained by Parent and certain members of the New Fluor Group
\nas defined in Title 29 U.S.C. Section 1002(2)(A).<\/p>\n
“Fluor Plans” means collectively the Fluor Welfare Benefits
\nPlans, the Fluor Pension Benefit Plans, the Fluor Executive Plans and the Fluor
\nPayroll Practices.<\/p>\n
“Fluor Welfare Benefit Plans” means certain “employee welfare
\nbenefit plans” maintained by Parent and certain members of the New Fluor Group
\nas defined in Title 29 U.S.C. Section 1002(1).<\/p>\n
“Grid Note” shall mean that note defined and described in
\nparagraph 3 of Schedule 5.06 to this Agreement.<\/p>\n
“Grid Note Accounts” means the Grid Note and the HQ Account
\nexisting as of the date hereof between the parties.<\/p>\n
“Group” means either of the New Fluor Group and the Massey Group.<\/p>\n
“HQ Account” shall mean that certain intercompany account defined
\nand described in paragraph 1 of Schedule 5.06 of this Agreement.<\/p>\n
3<\/p>\n
“Indemnified Party” has the meaning ascribed to such term in
\nSection 4.01 of this Agreement.<\/p>\n
“Indemnifying Party” has the meaning ascribed to such term in
\nSection 4.01 of this Agreement.<\/p>\n
“Industry Standards” has the meaning set forth in Section 5.07
\nbelow.<\/p>\n
“Liabilities” means all liabilities of any nature whatsoever that
\nwould be reflected on a balance sheet of Parent as of the Distribution Date
\nprepared in accordance with generally accepted accounting principles
\nconsistently applied and in accordance with existing management practices
\nincluding, without limitation: all trade accounts and notes payable; short-term
\ndebt; advance billings on contracts (billings and earnings in excess of costs);
\naccrued salaries, wages and benefit plan liabilities; other accrued liabilities;
\nincome taxes payable; deferred taxes; long-term debt (other than the Public
\nDebt); deferred taxes; minority interests and other current and non-current
\nliabilities.<\/p>\n
“Loss” (individually) or “Losses” (collectively) means all
\nlosses, damages, injuries, harm, detriment, declines in value, liabilities,
\nexposures, claims, demands, proceedings, settlements, judgments, awards,
\npunitive damage awards, fines, penalties, fees, charges, costs or expenses
\n(including, without limitation, reasonable costs of attempting to avoid or in
\nopposing the imposition thereof, interest, penalties, costs of preparation and
\ninvestigation, and the reasonable fees, disbursements and expenses of attorneys,
\naccountants and other professional advisors).<\/p>\n
“Massey” means Parent, as it is renamed Massey Energy Company,
\nfollowing the Distribution.<\/p>\n
“Massey Business” is defined in the recitals to this Agreement.<\/p>\n
“Massey Debt Position” is defined in Section 5.11.<\/p>\n
“Massey Executive Plans” means certain plans, funds and programs
\nmaintained by members of the Massey Group which are aimed at providing
\nadditional compensation, equity participation and other benefits for a select
\ngroup of highly compensated management, executive employees and non-employee
\ndirectors<\/p>\n
“Massey Group” means Massey and its subsidiaries as of the
\nDistribution Date (including, without limitation, the entities listed on
\nSchedule 2 hereto).<\/p>\n
“Massey Indemnified Parties” has the meaning ascribed to such
\nterm in Section 3.01 of this Agreement.<\/p>\n
“Massey Master Trust” means a master trust maintained by Massey
\nEnergy Company and Subsidiaries to be created with a reputable and financially
\nsound institutional trustee to receive the assets of the Massey Pension Benefit
\nPlans which are currently held by the Fluor Master Trust.<\/p>\n
4<\/p>\n
“Massey Payroll Practices” means certain plans, funds and
\nprograms maintained by members of the Massey Group in the nature of payroll
\npractices including, but not limited to, time off with pay, jury duty, family
\nleave and other programs.<\/p>\n
“Massey Pension Benefit Plans” means certain “employee pension
\nbenefit plans” maintained by certain members of the Massey Group as defined in
\nTitle 29 U.S.C. Section 1002(2)(A).<\/p>\n
“Massey Plans” means collectively the Massey Welfare Benefits
\nPlans, the Massey Pension Benefit Plans, the Massey Executive Plans and the
\nMassey Payroll Practices.<\/p>\n
“Massey Welfare Benefits Plans” means certain “employee welfare
\nbenefit plans” maintained by members of the Massey Group as defined in Title 29
\nU.S.C. Section 1002(1).<\/p>\n
“MPPAA” means the Multi-Employer Pension Plan Amendments Act of
\n1980, as amended.<\/p>\n
“Net Cash Received” means actual cash received by Parent for
\nwhatever purpose in excess of actual cash paid by Parent as evidenced by
\ntransactions appropriately recorded in the respective Grid Note Accounts by both
\nthe Parent and the Massey Group in accordance with existing cash management
\npractices.<\/p>\n
“Net Cash Paid” means actual cash paid by Parent for whatever
\npurpose in excess of actual cash received by Parent as evidenced by transactions
\nappropriately recorded in the respective Grid Note Accounts by both the Parent
\nand the Massey Group in accordance with existing cash management practices.<\/p>\n
“New Fluor” is defined in the preamble to this Agreement.<\/p>\n
“New Fluor Common Stock” means the shares of common stock, par
\nvalue $0.01 per share, of New Fluor.<\/p>\n
“New Fluor Group” means New Fluor and its subsidiaries as of the
\nDistribution Date (including, without limitation, the entities listed on
\nSchedule 1 hereto).<\/p>\n
“New Fluor Indemnified Parties” has the meaning ascribed to such
\nterm in Section 3.02 of this Agreement.<\/p>\n
“Options” means those certain stock options, in the form of
\nNQSOs, ISOs and SARs granted to officers and other key employees of Parent prior
\nto the Distribution Date pursuant to the Fluor Executive Plans.<\/p>\n
“Parent” is defined in the preamble to this Agreement.<\/p>\n
“Parent Common Stock” means the issued and outstanding shares of
\ncommon stock, par value $0.625 per share, of Parent.<\/p>\n
5<\/p>\n
“Proxy Statement” means the definitive proxy statement (and any
\namendments thereof or supplements thereto) to be distributed in connection with
\nParent’s meeting of its stockholders to vote on the transactions contemplated
\nhereby.<\/p>\n
“Public Debt” means the $300 million of outstanding 6.95% Senior
\nNotes of Parent issued on March 7, 1997.<\/p>\n
“SEC” means the Securities and Exchange Commission.<\/p>\n
“Securities Act” means the Securities Act of 1933, as amended.<\/p>\n
“Spinoff Registration Documents” means the registration statement
\non Form 10, together with all exhibits, amendments and supplements thereto,
\nfiled with the SEC for the registration of the New Fluor Common Stock pursuant
\nto the Exchange Act.<\/p>\n
“Tax” means any income, gross income, gross receipts, profits,
\ncapital stock, franchise, withholding, payroll, social security, workers
\ncompensation, unemployment, disability, property, ad valorem, stamp, excise,
\nseverance, occupation, service, sales, use, license, lease, transfer, import,
\nexport, value added, alternative minimum, estimated or similar tax (including
\nany fee, assessment, or other charge in the nature of or in lieu of any tax)
\nimposed by any governmental entity or political subdivision thereof, and any
\ninterest, penalties, additions to tax, or additional amounts in respect of or
\nrelated to the foregoing.<\/p>\n
“Tax Sharing Agreement” means the tax sharing agreement between
\nParent, New Fluor and A.T. Massey Coal Company, Inc., a Virginia corporation,
\nentered into concurrently herewith.<\/p>\n
“Transaction Expenses” are defined in Section 10.01 of this
\nAgreement.<\/p>\n
“Transfer Date” means the date upon which the transfer of the
\nassets of the Massey Plans to be transferred from the Fluor Master Trust occurs
\nas described in Section 7.04 below.<\/p>\n
“Valuation Date” means the date upon which the value of the
\nassets of the Massey Plans to be transferred from the Fluor Master to the Massey
\nMaster Trust occurs as described in Section 7.04 below.<\/p>\n
ARTICLE II<\/p>\n
THE DISTRIBUTION<\/p>\n
Section 2.01. The Distribution. (a) On the terms and subject to
\n —————-
\nthe conditions of this Agreement and applicable law, Parent shall distribute to
\nits shareholders of record as of the Distribution Record Date one share of New
\nFluor Common Stock for each share of Parent Common Stock held by the
\nshareholders. All such distributed shares of New Fluor Common Stock shall be
\nfully paid, non-assessable and free of preemptive rights.<\/p>\n
6<\/p>\n
(b) On the Distribution Date, Parent will deliver to the Agent a
\nglobal certificate, representing the aggregate number of shares of New Fluor
\nCommon Stock to be distributed to the shareholders of Parent based upon the
\nlatest information from Agent. Such certificate shall be registered in the name
\nof the Agent as agent for the shareholders of record of Parent common stock on
\nthe Distribution Record Date. As soon as Agent and Parent agree on the final
\nlist of shareholders of record as of the Distribution Record Date, Agent will
\ndeliver to shareholders stock certificates representing shares of New Fluor
\nCommon Stock . Shares represented by the global certificate in excess of the
\nfinal number of shares to be distributed to shareholders of record will be
\ncancelled.<\/p>\n
Section 2.02. Securities Filings. (a) Prior to the Distribution,
\n ——————
\nParent and New Fluor shall file with the SEC the Spinoff Registration Documents
\nto effect the registration of the New Fluor Common Stock pursuant to the
\nExchange Act. Parent and New Fluor shall use commercially reasonable efforts to
\ncause the Spinoff Registration Documents to be declared effective under the
\nExchange Act as promptly as practicable.<\/p>\n
(b) Parent and New Fluor shall take all such actions as may be
\nnecessary or appropriate under any applicable state securities or blue sky laws
\nto effect the Distribution.<\/p>\n
ARTICLE III<\/p>\n
CROSS INDEMNIFICATION<\/p>\n
Section 3.01. Indemnification by New Fluor. Subject to Section
\n —————————-
\n3.03, on and after the Distribution Date, New Fluor shall indemnify and hold
\nharmless the Massey Group and each of its directors, officers and Affiliates
\n(the “Massey Indemnified Parties”) from and against:<\/p>\n
(a) all Losses of the Massey Indemnified Parties relating to,
\narising out of or due to, directly or indirectly, any breach of any provisions
\nof this Agreement by New Fluor.<\/p>\n
(b) all Losses of the Massey Indemnified Parties relating to,
\narising out of or due to any untrue statement or alleged untrue statement of a
\nmaterial fact concerning the New Fluor Group contained in the Spinoff
\nRegistration Documents or the Proxy Statement or any omission or alleged
\nomission to state therein a material fact concerning the New Fluor Group
\nrequired to be stated therein or necessary in order to make the statements
\ntherein not misleading.<\/p>\n
(c) all Losses of the Massey Indemnified Parties relating to,
\narising out of or due to any untrue statement or alleged untrue statement of a
\nmaterial fact concerning the New Fluor Group contained in any report of Parent
\nfiled prior to the Distribution Date under the Exchange Act, or in any filing
\nmade prior to the Distribution Date under the Securities Act by Parent, or the
\nomission or alleged omission to state in any such report or filing a material
\nfact concerning the New Fluor Group required to be stated therein or necessary
\nin order to make the statements therein not misleading.<\/p>\n
(d) all Losses of the Massey Indemnified Parties relating to,
\narising out of or due to any untrue statement of a material fact concerning the
\nNew Fluor Group contained in any report of Massey filed after the Distribution
\nDate under the Exchange Act, or in any filing made after the Distribution Date
\nunder the Securities Act by Massey, or the omission or alleged <\/p>\n
7<\/p>\n
omission to state in any such report or filing a material fact concerning the
\nNew Fluor Group required to be stated therein or necessary in order to make the
\nstatements therein not misleading; provided, however, that New Fluor shall be
\n ——–
\nliable in any such case only to the extent that any such Losses arise out of or
\nare based upon any untrue statement or alleged untrue statement or omission or
\nalleged omission made in any such report or filing in reliance upon and in
\nconformity with written information furnished to Massey, its Affiliates or any
\nof their respective representatives by or on behalf of New Fluor, its Affiliates
\nor any of their respective representatives specifically for use in preparing
\nsuch report or filing by Massey.<\/p>\n
(e) all Losses of the Massey Indemnified Parties relating to,
\narising out of or due to, directly or indirectly, the Fluor Business, the
\noperations and activities of DRIH Corporation or any other business conducted by
\nthe New Fluor Group, whether relating to, arising out of or due to occurrences
\nor conditions prior to, on or after the Distribution Date, including, without
\nlimitation, those set forth on Schedule 3.01(d).<\/p>\n
Section 3.02. Indemnification by Massey. Subject to Section
\n ————————-
\n3.03, on and after the Distribution Date, Massey shall indemnify and hold
\nharmless the New Fluor Group and each of its directors, officers and Affiliates
\n(the “New Fluor Indemnified Parties”) from and against:<\/p>\n
(a) all Losses of the New Fluor Indemnified Parties relating to,
\narising out of or due to, directly or indirectly, any breach of any provisions
\nof this Agreement by Massey.<\/p>\n
(b) all Losses of the New Fluor Indemnified Parties relating to,
\narising out of or due to any untrue statement or alleged untrue statement of a
\nmaterial fact concerning the Massey Group contained in the Spinoff Registration
\nDocuments or the Proxy Statement or any omission or alleged omission to state
\ntherein a material fact concerning the Massey Group required to be stated
\ntherein or necessary in order to make the statements therein not misleading.<\/p>\n
(c) all Losses of the New Fluor Indemnified Parties relating to,
\narising out of or due to any untrue statement or alleged untrue statement of a
\nmaterial fact concerning the Massey Group contained in any report of New Fluor
\nfiled prior to the Distribution Date under the Exchange Act, or in any filing
\nmade prior to the Distribution Date under the Securities Act by New Fluor, or
\nthe omission or alleged omission to state in any such report or filing a
\nmaterial fact concerning the Massey Group required to be stated therein or
\nnecessary in order to make the statements therein not misleading.<\/p>\n
(d) all Losses of the New Fluor Indemnified Parties relating to,
\narising out of or due to any untrue statement of a material fact concerning the
\nMassey Group contained in any report of New Fluor filed after the Distribution
\nDate under the Exchange Act, or in any filing made after the Distribution Date
\nunder the Securities Act by New Fluor, or the omission or alleged omission to
\nstate in any such report or filing a material fact concerning the Massey Group
\nrequired to be stated therein or necessary in order to make the statements
\ntherein not misleading; provided, however, that Massey shall be liable in any
\n ——–
\nsuch case only to the extent that any such Losses arise out of or are based upon
\nany untrue statement or alleged untrue statement or omission or alleged omission
\nmade in any such report or filing in reliance upon and in conformity with
\nwritten information furnished to New Fluor, its Affiliates or any of their<\/p>\n
8<\/p>\n
respective representatives by or on behalf of Massey, its Affiliates or any of
\ntheir respective representatives specifically for use in preparing such report
\nor filing by New Fluor.<\/p>\n
(e) All Losses of the New Fluor Indemnified Parties relating to,
\narising out of or due to, directly or indirectly, the Massey Business or any
\nother business conducted by the Massey Group, whether relating to, arising out
\nof or due to occurrences or conditions prior to, on or after the Distribution
\nDate.<\/p>\n
Section 3.03. Overriding Provisions. Notwithstanding anything to
\n ———————
\nthe contrary in this Agreement, this Article III and Article VII hereof shall be
\nsubject to the following provisions: (a) This Article III shall not govern any
\nTax, and any and all Losses relating to foreign, federal, state and local Taxes,
\nincluding the payment of Taxes, and all Losses relating to breach of any
\nrepresentation, warranty or covenant under the Tax Sharing Agreement, shall be
\nexclusively governed by the Tax Sharing Agreement.<\/p>\n
(b) Except as otherwise expressly set forth below, this Article
\nIII shall not govern any employee benefits matters, or any and all Losses
\nrelating to the establishment, maintenance and administration of employee
\nbenefit plans and programs, which shall be exclusively governed by the
\nprovisions of Article VII hereof.<\/p>\n
(c) The indemnification provisions of this Article III and
\nArticle VII hereof shall not inure to the benefit of any third party or parties
\nother than the directors, officers and Affiliates of a Group as expressly
\nprovided in Sections 3.01, 3.02, 7.05 and 7.06. By way of illustration only, an
\ninsurer who would otherwise be obligated to pay any claim shall not be relieved
\nof the responsibility with respect thereto, or, solely by virtue of the
\nindemnification provisions hereof, have any subrogation rights with respect
\nthereto, it being expressly understood and agreed that no insurer or any other
\nthird party shall be entitled to a “windfall” (i.e., a benefit they would not be
\nentitled to receive in the absence of the indemnification provisions) by virtue
\nof the indemnification provisions. Accordingly, any indemnification shall be
\npaid net of the amount of any insurance paid to the indemnified party.<\/p>\n
(d) In the case of any Loss with respect to which an
\nindemnification payment is required under this Article III or Article VII hereof
\n(an “Indemnification Payment”), the amount of such Indemnification Payment shall
\nbe adjusted in accordance with the applicable provisions of the Tax Sharing
\nAgreement.<\/p>\n
ARTICLE IV<\/p>\n
INDEMNIFICATION PROCEDURES<\/p>\n
Section 4.01. Notice and Payment of Claims. If either Group (the
\n —————————-
\n“Indemnified Party”) determines that it is or may be entitled to indemnification
\nby the other Group (the “Indemnifying Party”) under Article III or Article VII
\nhereof, the Indemnified Party shall promptly deliver to the Indemnifying Party a
\nwritten notice and demand therefor, specifying, to<\/p>\n
9<\/p>\n
the extent reasonably practicable, the basis for its claim for indemnification,
\nthe nature of the claim and the amount for which the Indemnified Party
\nreasonably believes it is entitled to be indemnified. Unless such claim is
\nsubject to the provisions of Section 4.02 below, the Indemnifying Party shall
\npay the Indemnified Party the amount set forth in such notice, in cash or other
\nimmediately available funds, within thirty (30) days after receipt of such
\nnotice. However, the Indemnifying Party may object to the claim for
\nindemnification set forth in such notice; provided, however, that if the
\n ——– ——-
\nIndemnifying Party does not give the Indemnified Party written notice setting
\nforth its objection to such claim and the grounds therefor within the same
\nthirty (30) day period, the Indemnifying Party shall be deemed to have
\nacknowledged its liability for the amount of such claim and the Indemnified
\nParty may exercise any and all of its rights under applicable law to collect
\nsuch amount. Any such objection to a claim for indemnification shall be resolved
\nin accordance with Section 4.03.<\/p>\n
Section 4.02. Defense of Third-Party Claims. If the Indemnified
\n —————————–
\nParty’s claim for indemnification is based on a claim, demand, action or
\nproceeding, judicial or otherwise, brought by a third party, and except in the
\nevent that a party is disputing that it has any indemnification obligation to
\nthe other party (in which event the provisions of Section 4.03 below shall
\napply), within the thirty (30) day period referred to in Section 4.01 above, (a)
\nthe Indemnified Party may, by giving written notice thereof to the Indemnifying
\nParty, require the Indemnifying Party to assume, or (b) the Indemnifying Party
\nmay at its option and by giving written notice thereof to the Indemnified Party
\nelect to assume, the defense of such third-party claim at its sole cost and
\nexpense. Any such contest shall be conducted by attorneys employed by the
\nIndemnifying Party, but the Indemnified Party shall have the right to
\nparticipate in such proceedings and to be represented by attorneys of its own
\nchoosing at the Indemnified Party’s sole cost and expense. If the Indemnifying
\nParty assumes the defense of any such third-party claim, the Indemnifying Party
\nmay settle or compromise the claim without prior written consent of the
\nIndemnified Party so long as such settlement does not impose any obligation or
\nrestriction of any nature on the Indemnified Party. The Indemnifying Party shall
\npay to the Indemnified Party in cash the amount for which the Indemnified Party
\nis entitled to be indemnified within fifteen (15) days after the settlement or
\ncompromise of such third-party claim or the final unappealable judgment of a
\ncourt of competent jurisdiction. If the Indemnified Party does not require the
\nIndemnifying Party, and the Indemnifying Party does not elect, to assume the
\ndefense of any such third-party claim, the Indemnifying Party shall be bound by
\nthe result obtained with respect thereto by the Indemnified Party.<\/p>\n
Section 4.03. Dispute Resolution. In an effort to resolve
\n ——————
\ninformally and amicably any claim or controversy arising out of or related to
\nthe interpretation or performance of this Agreement without resorting to
\nlitigation, each party shall notify the other party to the dispute in writing of
\nany difference or dispute hereunder that requires resolution. Each party in
\ndispute shall designate an employee to investigate, discuss and seek to settle
\nthe matter between them. If the two are unable to settle the matter within
\nthirty (30) days after such notification, the matter shall be submitted to a
\nsenior officer of each such party for consideration. If settlement cannot be
\nreached through their efforts within an additional thirty (30) days, or such
\nlonger time period as they shall agree upon, such parties shall consider
\narbitration or other alternative means to resolve the dispute. If they are
\nunable to agree to an alternative dispute resolution mechanism, either party may
\ninitiate legal proceedings to resolve such matter. If upon final resolution of a
\ndispute it is determined that one party has an indemnification obligation to the
\nother, in such <\/p>\n
10<\/p>\n
event, the provisions of Section 4.02 shall then apply, with the thirty (30) day
\nperiod described in Sections 4.01 and 4.02 commencing upon the date of final
\nresolution of the matter.<\/p>\n
ARTICLE V<\/p>\n
OTHER AGREEMENTS<\/p>\n
Section 5.01. Asset Transfers. (a) Prior to the Distribution
\n —————
\nDate, Parent shall transfer, assign and convey any and all rights and\/or
\nobligations it may have to New Fluor with respect to (a) all Parent Assets and
\nParent Liabilities except (i) Parent’s investments in any Massey Group entity,
\n(ii) all intercompany accounts described in Section 5.06 to be retained by
\nParent, (iii) all historical equity accounts of Parent, (iv) the Massey Group’s
\nshare of all assets and liabilities under any Fluor Plans as described and
\nallocated in accordance with Section 7.03; (b) all intellectual property rights
\nof Parent as described in Section 5.07; (c) all investments in any subsidiary or
\naffiliate which are part of the New Fluor Group; (d) all liabilities arising
\nprimarily from the Fluor Business or DRIH Corporation, whether fixed, contingent
\nor otherwise (other than the DRIH Grid Note); and (e) all other assets not
\notherwise used primarily in the conduct of the Massey Business including,
\nwithout in any way limiting the preceding, those assets to be assigned to New
\nFluor as described in Paragraph B of Schedule 5.01. In addition, prior to the
\nDistribution Date, Fluor Enterprises, Inc. (a New Fluor subsidiary) shall
\ntransfer, convey and assign to a Massey Group subsidiary (to be designated)
\nthose assets described in Paragraph A of Schedule 5.01. The parties acknowledge
\nand agree that the transfers set forth herein shall be completed on or prior to
\nthe Distribution Date, if practicable.<\/p>\n
(b) To the extent that a Group owns any other asset which is used
\nprimarily in the business conducted by the other Group, the first-mentioned
\nGroup shall use its commercially reasonable efforts, subject to receipt of any
\nnecessary consents of third parties, to cause such asset to be conveyed,
\nassigned and transferred to such other Group.<\/p>\n
(c) If any transfer contemplated by subsection (a) shall not have
\nbeen consummated prior to the Distribution Date, the parties shall cooperate to
\neffect such transfer as promptly thereafter as shall be reasonably practicable,
\nit nonetheless being agreed and understood that no party shall be liable to any
\nother party for any delay in making any transfer contemplated by this Section.
\nNotwithstanding the provisions of Article III, upon such transfer, the
\ntransferee of any such asset shall assume any liability (other than any
\nliability relating to any Tax, which liabilities are exclusively governed by the
\nTax Sharing Agreement) relating to such asset and shall indemnify and hold
\nharmless the transferor and its directors, officers and Affiliates against all
\nclaims relating thereto. The cost (other than any cost relating to any Tax,
\nwhich costs are exclusively governed by the Tax Sharing Agreement) of effecting
\nany such transfer of assets and assumption of related liabilities shall be borne
\nby the person to whom such asset is transferred.<\/p>\n
Section 5.02. Further Assurances and Consents. (a) Each of the
\n ——————————-
\nparties hereto will execute and deliver such further instruments of conveyance
\nand assignment and will take such other actions as any other party may
\nreasonably request in order to effectuate the purposes of this Agreement and to
\ncarry out the terms hereof.<\/p>\n
11<\/p>\n
(b) In addition to the actions specifically provided for
\nelsewhere in this Agreement, each of the parties hereto shall use commercially
\nreasonable efforts to take, or cause to be taken, all actions, and to do, or
\ncause to be done, all things, reasonably necessary, proper or advisable under
\napplicable laws, regulations and agreements to consummate and make effective the
\ntransactions contemplated by this Agreement, including, without limitation,
\nusing commercially reasonable efforts to obtain any consents and approvals and
\nto make the filings and applications necessary or desirable in order to
\nconsummate the transactions contemplated by this Agreement; provided, however,
\n ——–
\nthat no party hereto shall be obligated to pay any consideration therefor
\n(except for filing fees and other administrative charges) to any third party
\nfrom whom such consents, approvals and amendments are requested or to take any
\naction or omit to take any action if the taking of such action or such omission
\nwould be unreasonably burdensome to the party, its Group or its Group’s
\nbusiness.<\/p>\n
Section 5.03. No Representation or Warranty. The parties hereto
\n —————————–
\nunderstand and agree that no party is representing or warranting in any way (i)
\nas to the nature or value of, freedom from encumbrance or fitness for purpose
\nof, or as to any other matter concerning, any assets or liabilities referred to
\nin Section 5.01 (it being agreed and understood that all such assets are being
\ntransferred “as is, where is”), (ii) as to the legal sufficiency of any
\nconveyance or assignment contemplated by Sections 5.01 and 5.02, (iii) as to the
\nexecution, delivery and filing of the instruments pertaining thereto, or (iv) as
\nto the obtaining of any consents or approvals, the making of any filings or
\napplications or the compliance with the requirements of any applicable laws or
\njudgments necessary to comply with Sections 5.01 and 5.02.<\/p>\n
Section 5.04. Registration and Listing. (a) Each party shall
\n ————————
\ncooperate in the preparation of the Spinoff Registration Documents and the Proxy
\nStatement and any amendments or supplements thereto. The parties shall use
\ncommercially reasonable efforts to cause the New Fluor Common Stock to be
\ndistributed hereunder to be registered pursuant to the Exchange Act and
\nthereafter to effect the Distribution in accordance with the terms of this
\nAgreement, including, without limitation, by preparing and filing the Spinoff
\nRegistration Documents under the Exchange Act covering the New Fluor Common
\nStock and using commercially reasonable efforts to cause the Spinoff
\nRegistration Documents to be declared and remain effective.<\/p>\n
(b) The parties shall cooperate in preparing and filing with the
\nSEC and causing to become and remain effective any registration statements, and
\nany amendments or supplements thereto, which are appropriate to reflect the
\nestablishment of, or amendment to, any employee benefit and other plan
\ncontemplated by Article VII hereof.<\/p>\n
(c) The parties shall take all such commercially reasonable
\nactions as may be necessary or appropriate under the securities or blue sky laws
\nof states or other political subdivisions of the United States in connection
\nwith the transactions contemplated by this Agreement.<\/p>\n
(d) The parties shall take all such commercially reasonable
\nactions to prepare, and shall file and pursue, applications to permit listing of
\nthe new Fluor Common Stock and Massey Common Stock on the New York Stock
\nExchange.<\/p>\n
12<\/p>\n
Section 5.05. Conduct of Businesses Pending Distribution. (a) The
\n ——————————————
\nparties agree that from the date hereof until the Distribution Date, except as
\notherwise contemplated by this Agreement, they will use commercially reasonable
\nefforts to cause the businesses of New Fluor and Parent to be conducted
\ndiligently in the ordinary course and substantially in the same manner as
\nheretofore conducted and to preserve intact the business organization and
\ngoodwill of each such business; provided, however, that notwithstanding the
\n ——–
\nforegoing, (i) Parent shall, at New Fluor’s request, (A) authorize one or more
\ncontributions from Parent to New Fluor on the Distribution Date, in the form of
\ncash, securities and\/or property, in such amount and on such terms and subject
\nto such conditions as the board of directors of Parent may determine, (B)
\ndetermine Cumulative Cash Flow in order to determine the final level of Massey
\nDebt Position (as defined below) in accordance with Section 5.11, and (C) enter
\ninto commercial paper or other financing arrangements to pay such contributions
\nand for other purposes and (ii) New Fluor shall adopt a charter and by-laws
\nreasonably satisfactory to New Fluor and Parent, for approval by Parent as sole
\nstockholder of New Fluor.<\/p>\n
(b) The parties agree that on or before the Distribution Date,
\nParent shall settle and terminate that certain Forward Equity Acquisition
\nTransaction between Parent and Citibank, N.A. dated as of October 30, 1998 for
\nthe purchase of 1,850,000 shares of Parent common stock.<\/p>\n
(c) Prior to the Distribution Date, the Massey Group shall not,
\nwithout the prior consent in writing of Parent, make any public announcement or
\nissue any press release with respect to the Distribution or with respect to any
\nmaterial event, and, subject to Article IX, each Group shall use commercially
\nreasonable efforts not to take any action which may prejudice or delay the
\nconsummation of the Distribution.<\/p>\n
Section 5.06. Intercompany Accounts. All intercompany accounts,
\n ———————
\nreceivables and payables between the parties hereto shall be settled and
\nresolved in accordance with the provisions of Schedule 5.06 attached hereto,
\nexcept those related to Appalachian Synfuel, LLC which shall be addressed in the
\nagreement transferring ownership to the Massey Group.<\/p>\n
Section 5.07. Intellectual Property. On or prior to the
\n ———————
\nDistribution Date, Parent shall transfer to New Fluor all intellectual property
\nheld by Parent, other than intellectual property that relates to the Massey
\nBusiness, including, without limitation, the intellectual property listed on
\nSchedule 5.07.<\/p>\n
Section 5.08. Insurance. With respect to the Fluor Insurance
\n ———
\nPolicies currently maintained by Parent, Parent shall continue to maintain the
\nstatus of the members of the Massey Group as “insureds” under the layers of the
\ncombined aggregate protection and excess liability portion of the Fluor
\nInsurance Policies up to the Distribution Date, and Parent and New Fluor will
\ntake such action as is necessary and appropriate to cause, effective as of the
\nDistribution Date: (a) New Fluor (and with respect to directors and officers
\nliability insurance, the directors and officers of New Fluor) to become the sole
\n“named insured” on each of the Fluor Insurance Policies whose policy term shall
\nnot have expired prior to the Distribution Date and on its combined aggregate
\nprotection and excess liability policies for the period 10-31-98 through
\n10-31-00, and the transfer by Parent to New Fluor of all assets and liabilities
\nrelated to the Fluor Insurance Policies; (b) the termination of the excess
\ncoverage of all members of the Massey <\/p>\n
13<\/p>\n
Group under the Fluor Insurance Policies and the discontinuation of all members
\nof the Massey Group as an “insured” under any of the Fluor Insurance Policies;
\n(c) to provide Parent with additional insured status under the combined
\naggregate protection and excess liability portions of its coverage with respect
\nto claims (other than those arising from the Massey Business) for occurrences
\narising before the Distribution Date; and (d) to provide the directors and
\nofficers of Parent with additional insured status under the directors and
\nofficers policy of Parent with respect to claims for occurrences arising on or
\nbefore the Distribution Date. Notwithstanding the foregoing, with respect to
\naircraft liability coverage currently being maintained by Parent (ACE; Policy
\nNo. S00387149) (the “Aircraft Policy”), Parent agrees that it shall use
\ncommercially reasonable efforts to permit the assignment of such Aircraft Policy
\nto the Massey Group, such assignment to occur, if at all, concurrently with the
\nDistribution Date. Parent and New Fluor have not taken, and on and after the
\nDistribution Date, New Fluor shall refrain from taking, any action which
\nadversely impacts the coverage of the Massey Group for claims based upon their
\nstatus as an “insured” up to the Distribution Date with respect to any coverage
\nafforded under the Fluor Insurance Policies that is broader than that afforded
\nto Massey under its own insurance policies covering the same types of risks.
\nParent represents and warrants that it has provided notice to the primary and
\nexcess layer of its combined aggregate protection and excess liability policies
\nconcerning the coal slurry release, Martin County, Kentucky, which commenced on
\nor about October 11, 2000, and Parent has taken no action constituting a waiver
\nof coverage therefor. It is specifically acknowledged and agreed that the Massey
\nGroup may communicate directly with the Fluor Insurance Policies carriers on the
\ncoal slurry release, provide claims related documentation to such carriers and
\nmay take such other action as may be, in its reasonable discretion, required in
\norder to determine coverage under the applicable insurance policies. Any such
\ncommunications shall be concurrently copied to New Fluor and where the
\ncommunication deals with payment or coverage demands, coverage positions or
\nlegal proceedings, then Massey shall provide New Fluor with reasonable prior
\nnotice and shall otherwise consult with New Fluor prior to any communication
\nwith the Fluor carriers or the institution of legal proceedings. After the
\nDistribution Date, New Fluor shall not take any action to forfeit, waive,
\ncancel, amend or modify, or cause to be forfeited, waived, cancelled, amended or
\nmodified, the insurance coverage to be provided to the Massey Group under the
\nFluor Insurance Policies up to the Distribution Date. After the Distribution
\nDate, the Massey Group shall not take any action to forfeit, waive, cancel,
\namend or modify, or cause to be forfeited, waived, cancelled, amended or
\nmodified, the coverage to be provided to New Fluor under the Fluor Insurance
\nPolicies up to the Distribution Date.<\/p>\n
From and after the Distribution Date, New Fluor shall cause the
\nNew Fluor Group to maintain, and Massey shall cause the Massey Group to
\nmaintain, with financially sound and reputable insurance companies, property
\ndamage, commercial general liability, professional liability and directors and
\nofficer’s liability insurance in at least such amounts and against such risks as
\nare usually insured against by companies of established repute engaged in the
\nsame or similar business as the New Fluor Group or Massey Group, as applicable,
\nand owning similar assets (“Industry Standards”), except where such risks are
\ncovered by self-insurance so long as the amount of such self-insurance and the
\nrisks covered thereby are consistent with Industry Standards. Each party will
\npromptly furnish the other party, subject to appropriate confidentiality
\nprotection, such information as to insurance carried or self-insurance
\nmaintained as may be reasonably requested in writing by such other party.<\/p>\n
14<\/p>\n
Parent hereby represents and warrants, on behalf of and with
\nrespect to the Massey Group, and New Fluor hereby represents and warrants on
\nbehalf of and with respect to the New Fluor Group, that except as previously
\ndisclosed in writing to the other party, there are no outstanding claims or
\nnotices, or, to its best knowledge, facts and circumstances which could
\nreasonably be expected to result in a claim or notice, under any of the combined
\naggregate protection or excess liability portions of the Fluor Insurance
\nPolicies.<\/p>\n
Section 5.09. Retained Liabilities. Without limiting any other
\n ——————–
\nprovision of this Agreement, the Massey Group acknowledges the obligations and
\nliabilities set forth on Schedule 5.09, and to the extent applicable, the Massey
\nGroup agrees to honor and properly discharge all such obligations and
\nliabilities following the Distribution Date. Notwithstanding anything to the
\ncontrary contained herein, the New Fluor indemnity provisions described in
\nSection 3.01 of this Agreement shall not apply to the extent that the Massey
\nIndemnified Parties are the cause, either directly or indirectly, of any matter,
\nactivity or omission resulting in Losses due to breach of the obligations and
\nliabilities set forth in Schedule 5.09. The foregoing notwithstanding, with
\nrespect to any guarantees issued by Parent that are listed on Schedule 5.09 and
\nany other guarantees by Parent of any obligations arising from the Fluor
\nBusiness that survive the Distribution, the obligations of the Massey Group
\nunder this Section 5.09 with respect to any such guarantee shall be deemed fully
\nsatisfied, and the Massey Indemnified Parties shall not suffer any diminution of
\nindemnity rights otherwise available under this agreement for Losses arising
\nfrom such guarantee if: (a) the Massey Group provides New Fluor with prompt
\nwritten notice of any claims made under such guarantee and tenders the defense
\nof such claims to New Fluor in accordance with the provisions of Section 4.01
\nand 4.02 hereof and (b) the Massey Group complies with its obligations under
\nArticle VI hereof that arise in respect of any claims made under such guarantee.<\/p>\n
With respect to the guarantees listed on Schedule 5.09 and any
\nother guarantees by Fluor Corporation that relate to the Fluor Business, the New
\nFluor Group shall discharge in a timely manner all obligations secured by such
\nguarantees and use commercially reasonable efforts to prevent any claim from
\nbeing made under such guarantees; provided, however, that nothing in this
\nSection 5.09 shall impose any obligation or liability whatsoever on the New
\nFluor Group to any member of the Massey Group for taking any action or
\nrefraining from taking any action in the defense, settlement or other handling
\nof any claim against any member of the New Fluor Group covered by any such
\nguarantee that the New Fluor Group determines in good faith to be appropriate in
\nprotecting the interests of the New Fluor Group with respect to such claim,
\nexcept that the New Fluor Group shall use commercially reasonable efforts to
\ncause the prompt release of any lien imposed on any assets of the Massey Group
\nin connection with any such guarantee. The obligations set forth in this Section
\n5.09 shall be in addition to any obligation of New Fluor to indemnify the Massey
\nGroup with respect to Losses related to such guarantees pursuant to Section
\n3.01(e) of this Agreement.<\/p>\n
Section 5.10. Composition of Boards. The initial members of
\n ———————
\nthe boards of directors of Massey and New Fluor following the Distribution shall
\nbe as set forth on Schedule 5.10.<\/p>\n
Section 5.11. Capital Structure. Parent will retain the Public
\n —————–
\nDebt, will incur additional borrowing in the commercial paper market and will
\nenter into a new bank credit <\/p>\n
15<\/p>\n
facility to support its commercial paper program. The Massey Group’s debt
\nposition as of the Distribution Date, composed of the Public Debt and commercial
\npaper, will be $530 million (the “Massey Debt Position”), adjusted as follows:
\n(i) If for the period beginning August 1, 2000 and ending on the Distribution
\nDate, the Cumulative Cash Flow of A.T. Massey Coal Company, Inc. and its
\nsubsidiaries is positive, then the Massey Debt Position will be decreased by
\nsuch amount unless the Massey Group retains such excess cash in its cash
\naccounts in accordance with the provisions hereof and (ii) if such Cumulative
\nCash Flow for such period is negative, then the Massey Debt Position will be
\nincreased by such amount. For purposes of this Section 5.11, the term
\n“Cumulative Cash Flow” shall be determined as follows:<\/p>\n
(a) if on the Distribution Date, the net cumulative cash
\ntransactions reflected through the Grid Note results in Net Cash Received by
\nParent from the Massey Group, such amount shall be deducted from the Massey Debt
\nPosition;<\/p>\n
(b) if on the Distribution Date, the net cumulative cash
\ntransactions reflected through the Grid Note results in Net Cash Paid by Parent
\nto the Massey Group, such amount shall be added to the Massey Debt Position.<\/p>\n
(c) Notwithstanding the preceding, interest on the Grid Note,
\nand the purchase price, redemption price or liquidation amount paid along with
\nrelated settlement costs associated with the transfer of interests of
\nAppalachian Synfuel, LLC, as described in Schedule 5.01, shall be excluded from
\nthe determination of Cumulative Cash Flow.<\/p>\n
(d) Attached hereto as Schedule 5.11 solely for explanatory
\npurposes is a pro forma statement demonstrating how Cumulative Cash Flow would
\nbe calculated using sample numbers and reflecting the amount of commercial paper
\nor other borrowings that would be deliverable from Parent to New Fluor in the
\nform of contributions but whose repayment responsibility shall be retained by
\nthe Massey Group following the closing of the Distribution, such contributions
\nto occur in accordance with Section 5.05.<\/p>\n
Section 5.12 Additional Settlement Matters. The following
\n —————————–
\nadditional costs, expenses and matters shall be settled as follows, and shall
\nnot impact the determination of Cumulative Cash Flow:<\/p>\n
(a) Transaction Expenses shall be determined in accordance with
\nSection 10.01.<\/p>\n
(b) With respect to the Public Debt, the next interest payment
\nthereunder is due on March 1, 2001. New Fluor shall be responsible for its share
\nof interest payments due on the Public Debt between the last date interest was
\npaid on the Public Debt, September 1, 2000 through and including the
\nDistribution Date (the “New Fluor Share”). Massey shall be responsible for
\ninterest payments due on the Public Debt following the Distribution Date and
\nthereafter. Massey will be responsible for the interest payment due on the
\nPublic Debt on March 1, 2001, provided New Fluor shall reimburse Massey for the
\nNew Fluor Share. New Fluor shall pay the New Fluor Share within 10 days
\nfollowing receipt of an invoice therefor from Massey, such invoice not due and
\npayable earlier than February 28, 2001.<\/p>\n
16<\/p>\n
(c) To the extent that the Massey Group had any cash balances as
\nof July 31, 2000, such balances shall be retained by Massey following the
\nDistribution and shall not impact the determination of Cumulative Cash Flow.<\/p>\n
Section 5.13. Cooperation with SEC Filings. Each party shall
\n —————————-
\ncooperate in providing to the other party information as may be reasonably
\nrequested in order to comply with applicable filing requirements under the
\nSecurities Act or the Exchange Act. The party providing such information shall
\nensure that such information is correct and complete in all material respects.<\/p>\n
Section 5.14 Agreement to Close Books. The Massey Group agrees
\n ————————
\nthat it shall close its financial books and records on the Distribution Date,
\nand within fifteen (15) days thereafter report to New Fluor the financial
\nstatements for the Massey Group from the day after the last day of the last
\nfinancial reporting period through the Distribution Date, such financial
\nstatements to be prepared in accordance with generally accepted accounting
\nprinciples consistently applied and in accordance with existing management
\npractices. Such financial statement shall be subject to audit by Ernst & Young.<\/p>\n
ARTICLE VI<\/p>\n
INFORMATION AND SERVICES<\/p>\n
Section 6.01. Provision of Corporate Records. Each Group shall
\n ——————————
\narrange as soon as reasonably practicable following the Distribution Date for
\nthe provision to the other Group of existing corporate governance documents
\n(e.g. minute books, stock registers, stock certificates, documents of title,
\netc.) in its possession, if any, relating to such other Group or its business
\nand affairs.<\/p>\n
Section 6.02. Access to Information. From and after the
\n ———————
\nDistribution Date, each Group shall afford the other Group and its accountants,
\ncounsel and other designated representatives reasonable access (including using
\nreasonable efforts to give access to persons or firms possessing information)
\nand duplicating rights during normal business hours to all records, books,
\ncontacts, instruments, computer data and other data and information in such
\nGroup’s possession relating to the business and affairs of the other Group,
\ninsofar as such access is reasonably required by the other Group, including,
\nwithout limitation, for audit, accounting, litigation and tax purposes, as well
\nas for purposes of fulfilling disclosure and reporting obligations.<\/p>\n
Section 6.03. Production of Witnesses. Each Group shall use
\n ———————–
\nreasonable efforts to make available to the other Group, upon written request,
\nits officers, directors, employees and agents as witnesses to the extent that
\nsuch persons may reasonably be required in connection with any legal,
\nadministrative or other proceedings in which the requesting party may from time
\nto time be involved.<\/p>\n
Section 6.04. Reimbursement. A Group providing information or
\n ————-
\nwitnesses under this Article VI to the other Group shall be entitled to receive
\nfrom the recipient, upon the presentation of invoices therefor, payment for all
\ncosts and expenses (including the allocable <\/p>\n
17<\/p>\n
portion of any overhead expenses attributable thereto) as may be reasonably
\nincurred in providing such information or witnesses.<\/p>\n
Section 6.05. Retention of Records. Except as otherwise required
\n ——————–
\nby law or agreed to in writing, each party shall, and shall cause the members of
\nits Group to, retain all information relating to the other Group’s business in
\naccordance with the record retention policies of such party as may be in effect
\nfrom time to time. Notwithstanding the foregoing, any party may destroy or
\notherwise dispose of any information at any time, provided that, prior to such
\ndestruction or disposal, (i) such party shall provide no less than 90 days prior
\nwritten notice to the other party, specifying the information proposed to be
\ndestroyed or disposed of and (ii) if a recipient of such notice shall request in
\nwriting prior to the scheduled date for such destruction or disposal that any of
\nthe information proposed to be destroyed or disposed of be delivered to such
\nrequesting party, the party proposing the destruction or disposal shall promptly
\narrange for the delivery of such of the information as was requested at the
\nexpense of the requesting party.<\/p>\n
Section 6.06. Confidentiality. Each party shall hold and shall
\n —————
\ncause its consultants and advisors to hold in strict confidence, unless
\ncompelled to disclose by judicial or administrative process or, in the opinion
\nof its counsel, by other requirements of law, all information (other than any
\nsuch information relating solely to the business or affairs of such party)
\nconcerning the other party hereto furnished it by such other party or its
\nrepresentatives pursuant to this Agreement or otherwise (except to the extent
\nthat such information can be shown to have been (i) previously known by the
\nparty to which it was furnished, (ii) in the public domain through no fault of
\nsuch party or (iii) later lawfully acquired from other sources by the party to
\nwhich it was furnished), and each party shall not release or disclose such
\ninformation to any other person, except its auditors, attorneys, financial
\nadvisors, bankers and other consultants and advisors who shall be advised of the
\nprovisions of this Section 6.06. Each party shall be deemed to have satisfied
\nits obligation to hold confidential information concerning or supplied by the
\nother party if it exercises the same care as it takes to preserve
\nconfidentiality for its own similar information.<\/p>\n
Section 6.07. Information and Services Relating to Taxes. The
\n ——————————————
\nprovisions of Sections 6.02, 6.04 and 6.05 hereof shall not apply to the extent
\nany matter addressed therein is addressed by any provision of the Tax Sharing
\nAgreement, and such provision of the Tax Sharing Agreement shall govern such
\nmatters exclusively for all purposes.<\/p>\n
ARTICLE VII<\/p>\n
EMPLOYEE BENEFITS<\/p>\n
Section 7.01. Fluor Employee Benefit Plans. Schedule 7.01
\n —————————-
\nattached contains a complete listing of the Fluor Welfare Benefit Plans, Fluor
\nPension Benefit Plans, Fluor Executive Plans and Fluor Payroll Practices.<\/p>\n
Section 7.02. Massey Employee Benefit Plans. Schedule 7.02
\n —————————–
\nattached contains a complete listing of the Massey Welfare Benefit Plans, Massey
\nPension Benefit Plans, Massey Executive Plans and Massey Payroll Practices.<\/p>\n
18<\/p>\n
Section 7.03(a). Fluor Plans – Change of Sponsorship. On and
\n ———————————–
\nafter the Distribution Date, the sponsorship of all Fluor Welfare Benefit Plans
\nand all Fluor Pension Benefit Plans which are currently sponsored by Parent
\nshall be transferred from Parent to New Fluor, such change in sponsorship to
\ninclude a full transfer of all Plan assets and liabilities including any plan
\nunderfunding or overfunding and such change in sponsorship shall be reflected by
\ncorporate resolutions, amendments to such plans where appropriate and changes to
\nany required filings with any governmental agency reflecting New Fluor as plan
\nsponsor. With regard to the Fluor Executive Plans, those Fluor Executive Plans
\nlisted on Schedule 7.03(a)(i), together with all related assets and liabilities,
\nwill be assigned from Parent to New Fluor. Those Fluor Executive Plans listed on
\nSchedule 7.03(a)(ii), which include Parent stock as a form of benefit, will
\nremain with the Parent. Those Fluor Executive Plans listed on Schedule
\n7.03(a)(iii) which cover executives of both the New Fluor Group and the Massey
\nGroup will be partitioned into two plans, with the assets and liabilities
\nattributable to current and former Fluor executives being transferred to New
\nFluor and the assets and liabilities attributable to current and former Massey
\nGroup executives remaining with the Parent. The grantor trust established by
\nParent and any insurance policy(ies) funded by Parent to provide for payment of
\nbenefits to current or former Parent executives shall be transferred to New
\nFluor. Any insurance policy(ies) funded by Parent or any of its subsidiaries to
\nprovide for payment of benefits to current or former Massey Group executives
\nshall be retained by Parent. The indemnification provisions set forth in
\nSections 7.05 and 7.06 shall apply to the Fluor Plans whether such Fluor Plans
\nare assigned to New Fluor or remain with the Parent.<\/p>\n
(b) Except as provided otherwise in Section 10.01(b), any stock
\noptions on Parent stock held by persons currently or formerly employed by the
\nMassey Group shall remain subject to the applicable plan under which such
\noptions were granted, and shall be adjusted in a manner consistent with FASB
\nEmerging Issues Task Force Issue 90-9 to constitute solely options for Parent’s
\nCommon Stock. Stock options to Parent stock held by persons currently or
\nformerly employed by the New Fluor Group shall be assumed by New Fluor and shall
\nbe adjusted in a manner consistent with FASB Emerging Issues Task Force Issue
\n90-9 to constitute solely options for New Fluor Common Stock, and New Fluor
\nshall adopt the Fluor 2000 Executive Incentive Performance Plan to provide
\noptions in new Fluor Common Stock. Except as otherwise provided in Section
\n10.01(b), any unvested restricted stock, stock appreciation rights, phantom
\nstock, shadow stock, and other forms of equity-based compensation held by a
\ncurrent or former employee of Parent shall be adjusted in the same manner
\ndescribed in the preceding two sentences.<\/p>\n
(c) Parent held restricted stock and restricted units by
\nnon-employee directors of Parent who are directors of New Fluor on the
\nDistribution Date, but who are no longer directors of Parent immediately
\nfollowing the Distribution Date, shall be assumed by New Fluor and shall be
\nadjusted in a manner consistent with FASB Emerging Issues Task Force Issue 90-9
\nto constitute solely restricted stock and restricted units for New Fluor Common
\nStock, and New Fluor shall adopt the Fluor Stock Plan for Non-Employee
\nDirectors. Parent restricted stock and restricted units held by non-employee
\ndirectors who are directors of both Parent and New Fluor immediately following
\nthe Distribution Date shall be adjusted in a manner consistent with FASB
\nEmerging Issues Task Force Issue 90-9 so that a director has a corresponding
\nnumber of shares of Parent restricted stock and New Fluor restricted stock and a
\ncorresponding number of share equivalents of Parent restricted units and New
\nFluor restricted units.<\/p>\n
19<\/p>\n
(d) Prior to the Distribution Date, Parent shall cause New Fluor
\nto adopt the Fluor 2000 Executive Incentive Performance Plan and the Fluor Stock
\nPlan for Non-Employee Directors, and Parent shall approve such plans as sole
\nstockholder of New Fluor.<\/p>\n
Section 7.04. Master Trust Changes. Schedule 7.04(a) lists the
\n ——————–
\nFluor Pension Benefit Plans and the Massey Pension Benefit Plans (the “Massey
\nDefined Benefit Plans”) whose assets constitute the corpus of the Fluor Master
\nTrust. It is the intention of Parent and New Fluor to continue to maintain such
\nqualified plans after the Distribution Date although this representation shall
\nnot bind either Parent or New Fluor with respect to the continuation of any such
\nplans subsequent to the Distribution Date. Not later than the Distribution Date,
\nthe Massey Group shall establish the Massey Master Trust. The assets of the
\nMassey Defined Benefit Plans to be transferred from the Fluor Master Trust to
\nthe Massey Master Trust shall be determined in accordance with and based upon
\nthe current asset allocation and the valuation policies and practices currently
\nbeing used by the Fluor Master Trust, with the value being determined as of the
\nend of the month immediately preceding or coinciding with the Distribution Date.
\nTo the extent reasonably practicable, the assets shall be transferred in kind
\nand the transfer shall be completed within sixty (60) days following the
\nDistribution Date. Any increase or decrease during the period between the
\nValuation Date and the Transfer Date in the value of the assets to be
\ntransferred as described above, including any income or loss derived from such
\nassets during such period, shall be for the account of the Massey Master Trust.
\nNew Fluor and Parent shall each use diligent efforts to cause the transfers
\ncontemplated above to be accomplished on an expeditious basis. On and after the
\nDistribution Date, Parent shall cease to be the grantor of the Fluor Master
\nTrust and New Fluor shall be substituted in its place in accordance with the
\nterms of the Fluor Master Trust.<\/p>\n
Section 7.05. Indemnification by New Fluor. New Fluor shall
\n —————————-
\nindemnify and hold harmless the Massey Indemnified Parties from and against:<\/p>\n
(a) All Losses relating to, or arising out of, or due to,
\ndirectly or indirectly, (i) the management or investment of assets of any of the
\nFluor Plans with respect to all periods prior to and after the Distribution
\nDate; excluding losses relating to the management or investment, after the
\nDistribution Date, of assets relating to Massey Group participants or
\nbeneficiaries or (ii) claims by Massey Group participants or beneficiaries
\nregarding the management or investment of the Massey Defined Benefit Plans prior
\nto the Transfer Date for the period of time in which such plans were part of the
\nFluor Master Trust.<\/p>\n
(b) All Losses from assessments, fines or penalties imposed with
\nrespect to any of the Fluor Plans, by any governmental agency, federal or state,
\nwith jurisdiction in the premises with respect to all periods prior to and after
\nthe Distribution Date; excluding Losses arising from the administration of such
\nFluor Plans by or on behalf of the Massey Group following the Distribution Date.<\/p>\n
(c) All Losses relating to or arising out of any claims of
\nwhatever nature made by or on behalf of New Fluor Group participants or
\nbeneficiaries in any of the Plans, including but not limited to, claims under
\napplicable federal or state law with respect to all periods prior to and after
\nthe Distribution Date.<\/p>\n
20<\/p>\n
(d) All Losses which may be incurred with respect to Fluor
\nPension Benefit Plans with respect to all periods prior to and after the
\nDistribution Date as a result of any withdrawal or any other liability under
\nERISA and\/or Losses which may be incurred with respect to multi-employer plans
\ncontributed to by the New Fluor Group or, prior to the Distribution Date,
\ncontributed to by Parent, under the MPPAA.<\/p>\n
Section 7.06. Indemnification by Massey. Massey shall
\n ————————-
\nindemnify and hold harmless the New Fluor Indemnified Parties from and against:<\/p>\n
(a) All Losses relating to, or arising out of, or due to,
\ndirectly or indirectly, (i) the management or investment of assets of any of the
\nMassey Plans with respect to all periods prior to and after the Distribution
\nDate (other than the Massey Defined Benefit Plans with respect to periods prior
\nto the Transfer Date for the period in which they were part of the Fluor Master
\nTrust), or (ii) the management and investment, after the Distribution Date, of
\nFluor Plan assets held by the Massey Group that are attributable to Massey Group
\nparticipants and beneficiaries.<\/p>\n
(b) All Losses from assessments, fines or penalties imposed,
\nwith respect to any of the Massey Plans with respect to all periods prior to and
\nafter the Distribution Date or imposed after the Distribution Date with respect
\nto the Fluor Plans, or any portions thereof, which are administered by or on
\nbehalf of the Massey Group on and after the Distribution Date and which are
\nbased upon acts, errors or omissions of the Massey Group.<\/p>\n
(c) All Losses relating to or arising out of any claims of
\nwhatever nature, including but not limited to, claims under applicable federal
\nor state law, made by or on behalf of participants or beneficiaries in any of
\nthe Massey Plans with respect to all periods prior to and after the Distribution
\nDate, or any claims made by or on behalf of Massey Group Participants in any of
\nthe Fluor Plans, which are administered by or on behalf of the Massey Group
\nafter the Distribution Date and which Losses are based on acts, errors or
\nomissions occurring after the Distribution Date.<\/p>\n
(d) All Losses which may be incurred with respect to any Massey
\nPension Benefit Plan with respect to all periods prior to and after the
\nDistribution Date as a result of any withdrawal or any other potential liability
\nunder ERISA and\/or, with respect to multi-employer plans contributed to by the
\nMassey Group (excluding Parent) or after the Distribution Date, contributed to
\nby Parent under the MPPAA.<\/p>\n
ARTICLE VIII<\/p>\n
INTERCOMPANY AGREEMENTS<\/p>\n
Section 8.01. Termination. Without prejudice to any claims
\n ———–
\nthereunder based upon occurrences prior to the Distribution Date or any
\nconfidentiality obligations thereunder, Parent and New Fluor hereby agree that
\neach the agreements described in Schedule 8.01 will, effective as of the
\nDistribution Date, be terminated and of no effect thereafter (it being
\nacknowledged by Parent and New Fluor that, except as specified herein and as may
\nhave been <\/p>\n
21<\/p>\n
entered into in the ordinary course of business, there are no other material
\nagreements between Parent and New Fluor).<\/p>\n
ARTICLE IX<\/p>\n
TERMINATION; SURVIVAL<\/p>\n
Section 9.01. Termination. This Agreement may be terminated
\n ———–
\nat any time prior to the Distribution upon a resolution to such effect passed by
\nthe board of directors of Parent.<\/p>\n
Section 9.02. Survival. The respective obligations of the
\n ——–
\nparties hereto shall survive the Distribution Date.<\/p>\n
ARTICLE X<\/p>\n
MISCELLANEOUS<\/p>\n
Section 10.01. Expenses. Except as otherwise specifically set
\n ——–
\nforth below, all costs and expenses incurred in connection with the preparation,
\nexecution and delivery of this Agreement and with the consummation of the
\ntransactions contemplated hereby (collectively, the “Transaction Expenses”) are
\ndescribed on and shall be borne in accordance with Schedule 10.01 to this
\nAgreement.
\n (a) Within ten (10) days following the Distribution, and as more
\nparticularly described in the Proxy Statement, Massey intends to offer its
\nemployees (other than Don L. Blankenship) who hold Options the opportunity to
\nsurrender their Options in exchange for a cash payment. In the event that a
\nholder of an Option elects to surrender his or her Options, such Option holder
\nwill be entitled to an amount equal to one-third of the present value of that
\nperson’s Options as calculated using the Black-Scholes option value methodology
\n(the “Cash Payment”). If accepted by an Option holder, the Cash Payment
\nobligation would be payable over three equal annual installments with the first
\ninstallment of the Cash Payment paid on the first anniversary of the
\nDistribution Date, subject to forfeiture to the extent the option holder’s
\nemployment with Parent terminates for a reason other than retirement or
\npermanent disability prior to the date an installment is to be paid. New Fluor
\nagrees that it shall be responsible for the Cash Payment to any Massey Option
\nholders who elect to surrender their Options as described above subject to the
\nfollowing: (i) within sixty (60) days following the Distribution Date, Massey
\nshall deliver to New Fluor a list of its Option holders who have elected to
\nsurrender their Options, the amount of Options surrendered and, subject to New
\nFluor’s reasonable approval, the Black Scholes value of the Options surrendered;
\n(ii) Massey’s Option surrender program shall be identical to that which is
\ndescribed in the Proxy and to the extent of any deviation therefrom which
\nresults in increased or accelerated liability to New Fluor, Massey shall bear
\nany such liability; and (iii) as and when a portion of the Cash Payment is due
\nto Massey employees who elected to surrender Options, Massey will invoice New
\nFluor for the amounts so due, such invoice not to be due and payable earlier
\nthan the payment date for the applicable portion of the Cash Payment.<\/p>\n
22<\/p>\n
(b) Pursuant to that certain Amendment to Employment Agreement
\n(the “Blankenship Amendment”), Fluor, Massey, New Fluor and Don L. Blankenship
\n(“Blankenship”) have agreed to modify the terms of Blankenship’s existing
\nEmployment Agreement and Special Successor Development and Retention Program
\nAgreement. New Fluor agrees that to the extent that under the Blankenship
\nAmendment cash payments are due to Blankenship following the Distribution,
\nMassey will make all such cash payments provided that within ten (10) days
\nfollowing receipt of invoice from Massey indicating that such cash payments have
\nbeen paid to Blankenship, New Fluor will reimburse Massey for such cash payments
\nmade to Blankenship. Notwithstanding the preceding, in the event that
\nBlankenship elects to defer any such cash payments due under the Blankenship
\nAmendment by electing to place such cash payments in a deferred compensation
\nprogram maintained by Massey (“Deferred Amounts”), and to the extent that such
\nDeferred Amounts are placed in a Rabbi Trust maintained by Massey, within ten
\n(10) days following New Fluor’s receipt of a statement that Massey has funded
\nthe Rabbi Trust with the Deferred Amounts (which invoice shall specify the
\namount so funded, not to exceed $2,778,700), New Fluor shall pay to Massey the
\namounts set forth in such invoice.<\/p>\n
Section 10.02. Notices. All notices and communications under
\n ——-
\nthis Agreement shall be in writing and any communication or delivery hereunder
\nshall be deemed to have been duly given (i) when delivered, if delivered in
\nperson, or (ii) two days following the date on which the notice or communication
\nis sent, if sent by first class mail or by other commercially reasonable means
\nof written communication (including delivery by an internationally recognized
\ncourier service) addressed as follows:<\/p>\n
If to Massey, to:<\/p>\n
Massey Energy Company
\n Four North 4th Street
\n Richmond, Virginia 23219
\n Attention: General Counsel<\/p>\n
If to New Fluor, to:<\/p>\n
Fluor Corporation
\n One Enterprise Drive
\n Aliso Viejo, California 92656-2606
\n Attention: General Counsel<\/p>\n
Any party may, by written notice so delivered to the other party, change the
\naddress to which delivery of any notice shall thereafter be made.<\/p>\n
Section 10.03. Amendment and Waiver. This Agreement may not be
\n ——————–
\naltered or amended, nor may rights hereunder be waived, except by an instrument
\nin writing executed by the party or parties to be charged with such amendment or
\nwaiver. No waiver of any terms, provision or condition of this Agreement, in any
\none or more instances, shall be deemed to be, or construed as a further or
\ncontinuing waiver of any such term, provision or condition or as a waiver of any
\nother term, provision or condition of this Agreement.<\/p>\n
23<\/p>\n
Section 10.04. Counterparts. This Agreement may be executed
\n ————
\nin any number of counterparts, each of which shall be deemed an original
\ninstrument, but all of which together. shall constitute but one and the same
\nAgreement.<\/p>\n
Section 10.05. Governing Law. This Agreement and the
\n ————-
\ntransactions contemplated hereby shall be construed in accordance with, and
\ngoverned by, the laws of the State of New York without reference to choice of
\nlaw principles.<\/p>\n
Section 10.06. Consent to Jurisdiction. Each of the parties
\n ———————–
\nhereto hereby irrevocably submits to the nonexclusive jurisdiction of any United
\nStates Federal or New York State court sitting in New York County in any action
\nor proceeding arising out of or relating to this Agreement, and irrevocably
\nagrees that all claims in respect of any such action or proceeding may be heard
\nand determined in any such United States Federal or New York State court. Each
\nof the parties hereto agrees to commence any action, suit or proceeding relating
\nhereto either in the United States District Court for the Southern District of
\nNew York or, if for jurisdictional reasons such suit, action or other proceeding
\nmay not be brought in such court, in the Supreme Court of the State of New York,
\nNew York County. Each of the parties hereto further agrees that service of any
\nprocess, summons, notice or document by United States registered mail to such
\nparty’s respective address set forth in Section 10.02 shall be effective service
\nof process for any action, suit or proceeding in the State of New York with
\nrespect to any matters to which it has submitted to jurisdiction as set forth
\nabove in the immediately preceding sentence. Each of the parties hereto
\nirrevocably and unconditionally waives any objection to the laying of venue of
\nany action, suit or proceeding arising out of this Agreement or the transactions
\ncontemplated hereby in (a) the Supreme Court of the State of New York, New York
\nCounty or (b) the United States District Court for the Southern District of New
\nYork, and hereby further irrevocably and unconditionally waives and agrees not
\nto plead or claim in any such court that any action, suit or proceeding brought
\nin any such court has been brought in an inconvenient forum.<\/p>\n
Section 10.07. Entire Agreement. This Agreement and the Tax
\n —————-
\nSharing Agreement constitute the entire understanding of the parties hereto with
\nrespect to the subject matter hereof, superseding all negotiations, prior
\ndiscussions and prior agreements and understandings. To the extent that the
\nprovisions of this Agreement are inconsistent with the provisions of the Tax
\nSharing Agreement, the provisions of the Tax Sharing Agreement shall prevail.<\/p>\n
Section 10.08. Parties in Interest. Neither party hereto may
\n ——————-
\nassign its rights or delegate any of its duties under this Agreement without the
\nprior written consent of the other party. This Agreement shall be binding upon,
\nand shall inure to the benefit of, the parties hereto and their respective
\nsuccessors and permitted assigns. Except as set forth in Section 3.03, nothing
\ncontained in this Agreement, express or implied, is intended to confer any
\nbenefits, rights or remedies upon any person or entity other than the parties
\nhereto.<\/p>\n
Section 10.09. Attorneys’ Fees. Subject to Section 4.03, in the
\n —————
\nevent any party to this Agreement brings an action or proceeding for the breach
\nor enforcement of this Agreement, the prevailing party in such action or
\nproceeding, whether or not such action or proceeding proceeds to final judgment,
\nshall be entitled to recover as an element of its costs, and not as damages,
\nsuch reasonable attorneys’ fees as may be awarded in the action, proceeding or
\nappeal <\/p>\n
24<\/p>\n
in addition to whatever other relief the prevailing party may be entitled. For
\npurposes of this Section, the “prevailing party” shall be the party who is
\nentitled to recover its costs; a party not entitled to recover its costs shall
\nnot recover attorneys’ fees.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this
\nDistribution Agreement to be duly executed and delivered as of the date and year
\nfirst written above.<\/p>\n
FLUOR CORPORATION,
\n a Delaware corporation incorporated in 1978
\n (to be renamed Massey Energy Company on the
\n Distribution Date)<\/p>\n
By: L. N. Fisher
\n ——————————-
\n Name: L. N. Fisher
\n Title: Senior Vice President-Law and
\n Secretary<\/p>\n
FLUOR CORPORATION
\n a Delaware corporation incorporated in 2000<\/p>\n
By: S. F. Hull
\n ——————————–
\n Name: S. F. Hull
\n Title: Vice President and Treasurer<\/p>\n
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