{"id":43757,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/tax-sharing-agreement-fluor-corp-and-massey-energy-co.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"tax-sharing-agreement-fluor-corp-and-massey-energy-co","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/tax-sharing-agreement-fluor-corp-and-massey-energy-co.html","title":{"rendered":"Tax Sharing Agreement &#8211; Fluor Corp. and Massey Energy Co."},"content":{"rendered":"<pre>                             TAX SHARING AGREEMENT\n\n                                by and between\n\n                               Fluor Corporation\n                            a Delaware corporation\n                             incorporated in 1978\n\n                                      and\n\n                               Fluor Corporation\n                            a Delaware corporation\n                             incorporated in 2000\n\n\n\n                               NOVEMBER 30, 2000\n\n \n                             TAX SHARING AGREEMENT\n\n     This TAX SHARING AGREEMENT (\"Agreement\") is entered into as of November 30,\n2000, by and between Fluor Corporation, a Delaware corporation incorporated in\n1978, which shall be renamed \"Massey Energy Company\" in connection with the\ntransactions contemplated herein (together with its successors and permitted\nassigns, \"Parent\"), Fluor Corporation, a Delaware corporation incorporated in\n2000 (together with its successors and permitted assigns, \"New Fluor\"), and A.T.\nMassey Coal Company, Inc., a Virginia corporation (\"A.T. Massey\").\n\n                                  WITNESSETH\n\n     WHEREAS, as of the date hereof, Parent is the common parent of an\naffiliated group of corporations which has elected to file consolidated Federal\nIncome Tax Returns;\n\n     WHEREAS, Parent and New Fluor have entered into a Distribution Agreement\nsetting forth the corporate transactions pursuant to which Parent will\ndistribute all of the outstanding shares of common stock of New Fluor to Parent\nshareholders in a transaction intended to qualify as a tax-free distribution\nunder section 355 of the Code (as defined below);\n\n     WHEREAS, as a result of the Transactions (as defined below), members of the\nNew Fluor Group and members of the Massey Group will become members of the same\naffiliated group and will be members of the same affiliated group for a portion\nof Parent's taxable year that includes the Distribution Date;\n\n     WHEREAS, as a result of the Distribution, New Fluor and its subsidiaries\nwill cease, effective as of the day after the Distribution Date, to be members\nof the affiliated group of which Parent is the common parent; and\n\n     WHEREAS, the Companies desire to provide for and agree upon the allocation\nbetween the parties of liabilities for Taxes (as defined below) arising prior\nto, as a result of, and subsequent to the Transactions,  and to provide for and\nagree upon other matters relating to Taxes.\n\n     NOW THEREFORE, in consideration of the mutual agreements contained herein,\nthe parties hereby agree as follows:\n\n     Section 1.  Definition of Terms.\n\n          (a)  General.  For purposes of this Agreement (including the recitals\nhereof), the following terms have the following meanings:\n\n     \"Accounting Cutoff Date\" means, with respect to any entity, any date as of\nthe end of which there is a closing of the financial accounting records for such\nentity.\n\n     \"Accounting Firm\" shall have the meaning provided in Section 15.\n\n                                       1\n\n \n     \"Adjustment Request\" means any formal or informal claim or request filed\nwith any Tax Authority, or with any administrative agency or court, for the\nadjustment, refund, or credit of Taxes including (i) any amended Tax Return\nclaiming adjustment to the Taxes as reported on the Tax Return or, if\napplicable, as previously adjusted, or (ii) any claim for refund or credit of\nTaxes previously paid, including any Carryback Adjustment Request (as defined in\nSection 5.04(a) hereof), any Carryover Adjustment Request (as defined in Section\n5.04(b) hereof), and any Audit Adjustment Request (as defined in Section 5.04(c)\nhereof).\n\n     \"Affiliate\" means any entity (and its predecessors) that, directly or\nindirectly, is \"controlled\" by the person or entity in question.  \"Control\"\nmeans the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a person, whether through\nownership of voting securities, by contract or otherwise.  Except as otherwise\nprovided herein, the term \"Affiliate\" shall refer to Affiliates of a person as\ndetermined immediately after the Distribution.\n\n     \"Agreement\" shall mean this Tax Sharing Agreement.\n\n     \"Audit Adjustment\" means any change to a Tax Item or the Tax liability as\npreviously reported or reflected on a Tax Return that is required or otherwise\nresults from or is attributable to an audit, examination or other review of such\nTax Return by a Tax Authority, whether such audit, examination or other review\nis initiated by a Tax Authority or a member of a Group.\n\n     \"Base Rate\" means one-month LIBOR, as in effect from time to time and\nquoted in the Wall Street Journal, Eastern Edition (or, if the Wall Street\nJournal ceases to be published or ceases to publish one-month LIBOR, such other\nreliable source as the parties shall mutually select), compounded quarterly on\nthe basis of a year of 365 or 366 (as applicable) days and actual days elapsed.\n\n     \"Carryback\" means any net operating loss, net capital loss, foreign Tax,\nexcess Tax credit, or other Tax Item which may or must be carried back from one\nTax Period to another Tax Period under the Code or other applicable Tax Law.\n\n     \"Carryover\" means any net operating loss, net capital loss, foreign Tax,\nexcess Tax credit or other Tax Item which may or must be carried forward from\none Tax Period to another Tax Period under the Code or other applicable Tax Law.\n\n     \"Code\" means the U.S. Internal Revenue Code of 1986, as amended, or any\nsuccessor Law.\n\n     \"Companies\" means Parent and New Fluor, collectively, and \"Company\" means\nany one of Parent and New Fluor.\n\n     \"Consolidated or Combined Tax\" means any Tax which applies on a basis\nwhereby one or more members of both Groups are consolidated or combined into a\nsingle group (including through a unitary Tax Return), other than a\nconsolidation or combination in which the members of one Group are subject to\nthe Tax only because members of the other Group are so subject.\n\n                                       2\n\n \n     \"Consolidated or Combined Tax Return\" means any Tax Return which relates to\na Consolidated or Combined Tax.\n\n     \"Consolidated Tax Liability\" means, (i) with respect to any consolidated\nFederal  Income Tax Return, the \"tax liability of the group\" as that term is\nused in Treasury Regulation Section 1.1552-1(b), including any applicable\nalternative minimum tax, interest, penalties, additions to tax and additional\namounts as provided under the Code, and (ii) with respect to any Consolidated or\nCombined Tax Return other than a Tax Return described in the foregoing clause\n(i), the consolidated or combined Tax liability of the group, including any\napplicable interest, penalties, additions to tax and additional amounts, as\ndetermined under applicable Tax Laws.\n\n     \"Distribution\" means the distribution to Parent shareholders on the\nDistribution Date of all of the outstanding stock of New Fluor owned by Parent.\n\n     \"Distribution Agreement\" means the agreement, dated as of the date hereof,\nas amended from time to time, setting forth the corporate transactions required\nto effect the distribution to Parent shareholders of New Fluor Common Shares,\nand to which this Tax Sharing Agreement is attached as an exhibit.\n\n     \"Distribution Date\" means the \"Distribution Date\" as that term is defined\nin the Distribution Agreement.\n\n     \"Federal Income Tax\" means any Income Tax imposed on corporations under the\nCode.\n\n     \"Foreign Income Tax\" means any Income Tax imposed on corporations by any\nforeign country or any possession of the United States, or by any political\nsubdivision of any foreign country or United States possession.\n\n     \"Group\" means the Parent Group, the Massey Group or the New Fluor Group, as\nthe context requires.\n\n     \"Income Tax\" means any Tax based upon, measured by, or calculated with\nrespect to (i) net income or profits (including any capital gains Tax, minimum\nTax and any Tax on items of tax preference, but not including sales, use, real\nor personal property, gross or net receipts, transfer or similar Taxes) or (ii)\nmultiple bases, if one or more of the bases upon which such Tax may be based,\nmeasured by, or calculated with respect to, is described in the foregoing clause\n(i), in each case inclusive of any interest, penalties, additions to tax or\nadditional amounts in respect of or related to the foregoing.\n\n     \"Joint Adjustment\" means any adjustment proposed by a Tax Authority or any\nclaim for refund asserted in a Tax Contest which is neither a New Fluor\nAdjustment nor a Parent Adjustment.\n\n     \"Law\" means any Federal, State, local or other law or governmental\nrequirement of any kind and the rules, regulations and orders (administrative or\njudicial) promulgated thereunder.\n\n                                       3\n\n \n     \"Massey Group\" means A.T. Massey and its direct and indirect subsidiaries\nwhich would be included in its affiliated group pursuant to Code Section 1504 if\nA.T. Massey were the parent of such group, provided, however, for purposes of\nthis Agreement said Code Section 1504 shall be applied by (i) substituting \"50\npercent\" for \"80 percent\" at each place where the words \"80 percent\" appear in\nCode Section 1504(a)(2), and (ii) treating as an \"includible corporation\" any\ncorporation which otherwise would not constitute an includible corporation\npursuant to Code Section 1504(b).\n\n     \"New Fluor Adjustment\" means any adjustment to a Tax Item or Tax liability\nproposed by a Tax Authority or any claim for refund asserted in a Tax Contest to\nthe extent New Fluor would be exclusively liable for any resulting Tax under\nthis Agreement and exclusively entitled to receive any resulting Tax Benefit\nunder this Agreement.\n\n     \"New Fluor Group\" means (i) for periods up to and including the\nDistribution Date, Parent and its direct and indirect subsidiaries which are\nincluded in its affiliated group pursuant to Code Section 1504, but excluding\nmembers of the Massey Group and (ii) for periods after the Distribution Date,\nNew Fluor and its direct and indirect subsidiaries which are included in its\naffiliated group pursuant to section 1504 of the Code, provided, however, for\npurposes of this Agreement said Code Section 1504 shall be applied by (i)\nsubstituting \"50 percent\" for \"80 percent\" at each place where the words \"80\npercent\" appear in Code Section 1504(a)(2), and (ii) treating as an \"includible\ncorporation\" any corporation which otherwise would not constitute an includible\ncorporation pursuant to Code Section 1504(b).\n\n     \"Other Company\" means, with respect to a Tax Return, the Company which is\nnot the Responsible Company with respect to that Tax Return.\n\n     \"Parent Adjustment\" means any adjustment to a Tax Item or Tax liability\nproposed by a Tax Authority or any claim for refund asserted in a Tax Contest to\nthe extent Parent would be exclusively liable for any resulting Tax under this\nAgreement and exclusively entitled to receive any resulting Tax Benefit under\nthis Agreement.\n\n     \"Parent Group\" means (a) for periods up to and including the Distribution\nDate, the Massey Group and (b) for periods after the Distribution Date, Parent\nand the Massey Group.\n\n     \"Payment Date\" means (i) with respect to any consolidated Federal Income\nTax Return which includes members of both the Parent Group and the New Fluor\nGroup, the due date for any required installment of estimated taxes determined\nunder Code Section 6655, the due date (determined without regard to extensions)\nfor filing the return determined under Code Section 6072, and the date the\nreturn is filed, and (ii) with respect to any other Consolidated or Combined Tax\nReturn, the corresponding dates determined under the applicable Tax Law.\n\n     \"Responsible Company\" means, with respect to any Tax Return, the Company\nwhich is responsible for preparing and filing the Tax Return under this\nAgreement.\n\n     \"Restructuring Tax\" means any Tax imposed on or with respect to any income\nor gain recognized as a result of any one or more of the Transactions.\n\n                                       4\n\n \n     \"Ruling\" means the private letter ruling issued by the Internal Revenue\nService in response to the Ruling Request, including any amendments or\nsupplements to such private letter ruling.\n\n     \"Ruling Request\" means the letter filed by Parent with the Internal Revenue\nService requesting a ruling from the Internal Revenue Service regarding certain\nTax consequences of  the Transactions (including all attachments, exhibits, and\nother materials submitted with such ruling request letter) and any amendments or\nsupplements to such ruling request letter.\n\n     \"Section\" means Sections of this Agreement, except where otherwise\nindicated.\n\n     \"Separate Company Tax\" means any Tax applicable only to a member or members\nof a single Group.\n\n     \"Separate Company Tax Return\" means any Tax Return which relates to a\nSeparate Company Tax.\n\n     \"State Income Tax\" means any Income Tax imposed on corporations by any\nState of the United States or by any political subdivision of any such State.\n\n     \"Straddle Period\" means any Tax Period which includes one or more members\nof the New Fluor Group or the Parent Group for the entire Tax Period and which\nincludes one or more members of the other Group for only a portion of such Tax\nPeriod.\n\n     \"Tax\" or \"Taxes\"  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.\n\n     \"Tax Authority\" means, with respect to any Tax, the governmental entity or\npolitical subdivision thereof that imposes such Tax, and the agency (if any)\ncharged with the collection of such Tax for such entity or subdivision.\n\n     \"Tax Benefit\" means any refund, credit, or other reduction in otherwise\nrequired Tax payments (including any reduction in estimated Tax payments),\nincluding, without limitation, any reduction in a Tax liability attributable to\ndeductions resulting from expenses, depreciation, amortization or other sources.\n\n     \"Tax Contest\" means an audit, review, examination, or any other\nadministrative or judicial proceeding with the purpose or effect of\nredetermining Taxes of any of the Companies or their Affiliates (including any\nadministrative or judicial review of any claim for refund) for any Tax Period\nending on or before, or including, the Distribution Date and any Straddle\nPeriod.\n\n     \"Tax Item\" means, with respect to any Income Tax, any item of income, gain,\nloss, deduction, or credit.\n\n                                       5\n\n \n     \"Tax Law\" means the Law of any governmental entity or political subdivision\nthereof relating to any Tax.\n\n     \"Tax Period\" means, with respect to any Tax, the period for which the Tax\nis reported as provided under the Code or other applicable Tax Law.\n\n     \"Tax Records\" means Tax Returns, Tax Return workpapers, documentation\nrelating to any Tax Contests, and any other books of account or records required\nto be maintained under the Code or other applicable Tax Laws or under any record\nretention agreement with any Tax Authority.\n\n     \"Tax Return\" means any report of Taxes due, any claims for refund of Taxes\npaid, any information return with respect to Taxes, or any other similar report,\nstatement, declaration, or document required to be filed under the Code or other\nTax Law, including any attachments, exhibits or other materials submitted with\nany of the foregoing, and including any amendments or supplements to any of the\nforegoing.\n\n     \"Transactions\" means the Distribution and any of the preliminary\ntransactions which members of the New Fluor Group or the Massey Group implement\nor participate in so as to prepare for or otherwise facilitate the Distribution.\n\n     \"Treasury Regulations\" means the regulations promulgated from time to time\nunder the Code as in effect for the relevant Tax Period.\n\n     \"With\/Without Allocation Method\" means, with respect to any Consolidated or\nCombined Tax, the methodology for allocating the liability for such Tax among\nand between the Parent Group and the New Fluor Group in accordance with the\nprinciples and provisions of Section 2.01 or Section 2.02, whichever may be\napplicable.\n\n          (b)  Other Definitional Provisions.\n\n               (i)   Any term not defined above shall have the meaning ascribed\nthereto in the text of this Agreement where such term is first used.\n\n               (ii)  The words \"hereof\", \"herein\", and \"hereunder\" and words of\nsimilar import, when used in this Agreement, shall refer to this Agreement as a\nwhole and not to any particular provision of this Agreement.\n\n               (iii) Terms defined in the singular shall have a comparable\nmeaning when used in the plural, and vice versa.\n\n               (iv)  The words \"includes\" and \"including\" shall be construed as\nthough followed by \"without limitation\" or words of similar import, unless the\ncontext clearly requires otherwise.\n\n                                       6\n\n \n     Section 2.  Allocation of Tax Liabilities.\n\n     2.01  Allocation of United States Federal Income Tax.  Except as provided\nin Section 2.04 and subject to Section 3:\n\n           (a)  Separate Tax Periods. Insofar as the New Fluor Group and\/or the\nParent Group file Federal Income Tax Returns for any Tax Periods which do not\ninclude any member of the other Group, the filing Group shall be liable for (and\nshall indemnify and hold the other Group harmless from) any Federal Income Tax\nthat is attributable to such Tax Periods .\n\n           (b)  Combined Taxable Years. If one or more members of the New Fluor\nGroup and one or more members of the Parent Group are included in the same\nconsolidated Federal Income Tax Return:\n\n                (i)  Allocation of Tax. For any relevant taxable year beginning\nafter October 31, 2000, (1) the Consolidated Tax Liability for the entire\ntaxable year shall be computed by excluding the New Fluor Group (the \"Federal\nWithout Amount\") and (2) the Consolidated Tax Liability for the entire taxable\nyear shall be computed by including the New Fluor Group (but only for the\nportion of such taxable year during which the New Fluor Group is included in the\nconsolidated Federal Income Tax Return) but without taking into account losses\nor other deductions or credits of the Parent Group not used in calculating the\nFederal Without Amount and losses or other deductions or credits of the New\nFluor Group not used in the consolidated Federal Income Tax Return, whether any\nsuch losses, deductions or credits of the Parent Group or the New Fluor Group\narise in such taxable year or are carried forward or back from another taxable\nyear (the \"Federal With Amount\"). The Parent Group shall be allocated and liable\nfor the Federal Without Amount. The New Fluor Group shall be allocated and\nliable for the excess, if any, of the Federal With Amount over the Federal\nWithout Amount. If the Federal With Amount exceeds the Federal Without Amount,\nNew Fluor shall pay the excess amount to Parent in accordance with the\napplicable provisions of Section 5. If the Federal With Amount is less than the\nFederal Without Amount, Parent shall pay the amount of the difference to New\nFluor in accordance with the applicable provisions of Section 5. The allocation\nof Tax liabilities under this Section 2.01(b)(i) is the \"Federal Allocation\nMethod\".\n\n                (ii) Allocation of Consolidated Federal Tax Adjustments. If\nthere is any Audit Adjustment to any Tax Item for any relevant Tax Period\nbeginning after October 31, 2000, the Federal With Amount and the Federal\nWithout Amount shall be recalculated, in accordance with the principles of\nSection 2.01(b)(i), to reflect such Audit Adjustment. New Fluor shall be\nallocated and liable for, and shall pay to Parent in accordance with the\nprovisions of Section 5, the amount described in whichever one (but not more\nthan one) of the following three clauses is applicable: (1) the amount by which\nthe excess of the Federal With Amount over the Federal Without Amount as\nrecalculated is greater than such excess as previously (and most recently)\ncalculated under this Section 2.01(b), (2) the amount by which the excess of the\nFederal Without Amount over the Federal With Amount as recalculated is less than\nsuch excess as previously (and most recently) calculated, or (3) the sum of the\nexcess of the Federal With Amount over the Federal Without Amount as\nrecalculated plus the excess of the Federal Without Amount over the Federal With\nAmount as previously (and most recently) calculated. Parent shall be allocated\nand liable for, and shall pay to New Fluor in accordance with the provisions of\n\n                                       7\n\n \nSection 5, the amount described in whichever one (but not more than one) of the\nfollowing three clauses is applicable: (1) the amount by which the excess of the\nFederal With Amount over the Federal Without Amount as recalculated is less than\nsuch excess as previously (and most recently) calculated under this Section\n2.01(b), (2) the amount by which the excess of the Federal Without Amount over\nthe Federal With Amount as recalculated is greater than such excess as\npreviously (and most recently) calculated, or (3) the sum of the excess of the\nFederal Without Amount over the Federal With Amount as recalculated plus the\nexcess of the Federal With Amount over the Federal Without Amount as previously\n(and most recently) calculated. The parties agree and understand that their\nrespective obligations to make payments hereunder resulting from Audit\nAdjustments shall apply in circumstances wherein there is no additional net Tax\nliability payable to a Tax Authority attributable to the adjustment of one or\nmore Tax Items on the applicable Tax Return but the adjustments result in\nchanges to the Federal With Amount and\/or Federal Without Amount as recalculated\nto reflect all such Audit Adjustments.\n\n                (iii) Compensation for Loss of Tax Credits.  This paragraph\napplies if, as a result of including members of the Parent Group and members of\nthe New Fluor Group in a consolidated Federal Income Tax Return for a Tax Period\n(such Tax Period, an \"Applicable Tax Period,\" and such return, an \"Applicable\nConsolidated Return\"), (A) the minimum tax credits or other Federal Income Tax\ncredits generated by the Parent Group and available as a carryover to a\nsubsequent Tax Period are less than such carryover credits would be if such\nmembers of the New Fluor Group had not been included in such Applicable\nConsolidated Return (the excess of (1) the amount of credits that would have\nbeen generated and available as a carryover if the New Fluor Group had not been\nincluded in the Applicable Consolidated Return, over (2) the amount of such\ncredits generated and available as a carryover by the Parent Group is referred\nto herein as the \"Displaced Credits\"); (B) the portion of the Federal Income Tax\nliability for such Applicable Tax Period that is allocated to the New Fluor\nGroup under this Section 2.01 is less than the Federal Income Tax that the New\nFluor Group would have incurred, if it had not been included in such Applicable\nConsolidated Return, for the portion of the Applicable Tax Period during which\nthe New Fluor Group is included in the Applicable Consolidated Return (the\nexcess of (1) the amount of Federal Income Tax liability that would have been\nincurred by the New Fluor Group had it not been included in the Applicable\nConsolidated Return over (2) the amount of such Federal Income Tax liability\nallocated to the New Fluor Group under this Section 2.01 is referred to herein\nas the \"New Fluor Group Tax Savings\"); and (C) in a subsequent Tax year (a\n\"Credit Deficiency Year\") the Parent Group incurs a Federal Income Tax liability\nthat it would not have incurred if it had available to it all or any portion of\nthe Displaced Credits, with such availability to be determined after giving\neffect to any limitation on the Displaced Credits, including any limitation on\nthe number of Tax Periods to which the Displaced Credits could have been carried\nunder applicable Federal Income Tax Law (such Tax liability is referred to\nherein as the \"Parent Group Additional Tax Liability\"). For purposes of this\nparagraph, if, in a subsequent Tax year to which Displaced Credits would have\nbeen available to carry, the Parent Group does not incur a Parent Group\nAdditional Tax Liability because the Parent Group uses other Federal Income Tax\ncredits which are actually available (\"Replacement Credits\"), such Replacement\nCredits shall replace Displaced Credits (on a dollar-for-dollar basis) and shall\nthereafter be treated as Displaced Credits if and to the extent that the\nReplacement Credits (had they not been so used) would have been available for\nuse by the Parent Group for periods following the expiration of the period\nduring which the replaced Displaced Credits would have been available for use by\nthe Parent Group, provided, however, such Replacement Credits shall not replace\nDisplaced Credits \n\n                                       8\n\n \nwhich are taken into account with respect to a subsequent Tax year under this\nparagraph (it being intended that a Parent Group Additional Tax Liability shall\nnot be deemed to result from both a Replacement Credit and the Displaced Credit\nwhich it replaces). For each such Credit Deficiency Year, New Fluor shall pay to\nParent the amount of such Parent Group Additional Tax Liability, provided,\nhowever, that in no event shall New Fluor be obligated hereunder to make\npayments to Parent in excess of the aggregate New Fluor Group Tax Savings,\nprovided further, however, for purposes of this Section 2.01(b)(iii), the amount\nof such New Fluor Group Tax Savings shall be adjusted, in accordance with the\nprovisions of Section 2.01(b)(iv). New Fluor's payment to Parent will be due\nwithin 20 business days following Parent's written demand therefor, which shall\nnot be made earlier than the due date, determined without regard to extensions,\nfor the Parent Group's Federal Income Tax Return for the Credit Deficiency Year.\nWhen making its demand for payment, Parent shall provide New Fluor with Parent's\ncomputation, in reasonable detail, of the amount payable by New Fluor pursuant\nto the provisions of this Section 2.01(b)(iii) together with such other\ninformation reasonably necessary to allow New Fluor to verify that a payment is\ndue hereunder and the amount thereof. In addition to such payment, if New Fluor\ndoes not make the payment due hereunder to Parent within 3 business days after\nNew Fluor's receipt of such written demand containing such computation and other\nnecessary information, then New Fluor shall also pay to Parent interest on such\npayment amount at the Base Rate from the due date of such Tax Return to the date\nof payment by New Fluor of the payment required hereunder. By way of\nillustration (and not limitation) of the foregoing provisions, assume: (1) the\nDistribution Date is November 30, 2000, and Parent files an Applicable\nConsolidated Return for the Tax Period ending October 31, 2001 (the \"2001\nPeriod\"); (2) the Parent Group has $40 Million of minimum tax credits available\nfor carryover into the 2001 Period; (3) but for the inclusion of the New Fluor\nGroup in the Applicable Consolidated Return for the 2001 Period, Parent would\nhave generated in the 2001 Period an additional $4 Million of minimum tax\ncredits available for carryover to subsequent Tax Periods; (4) as a result of\nthe inclusion of the New Fluor Group in the Applicable Consolidated Return for\nthe 2001 Period, the minimum tax credits generated by the Parent Group in the\n2001 Period and available for carryover are reduced to $2 Million, thereby\nresulting in an aggregate minimum tax credit of $42 Million available for\ncarryover to Tax Periods after the 2001 Period; (5) the Federal Income Tax\nliability allocated to the New Fluor Group for the 2001 Period under this\nSection 2.01 is $2 million less than the Federal Income Tax the New Fluor Group\nwould have incurred for the period November 1 through November 30, 2000 if it\nhad not been included in the Applicable Consolidated Return; (6) in the\nsubsequent two Tax Periods of the Parent Group (ending October 31 in the years\n2002 and 2003), the Parent Group generates an additional $8 Million of minimum\ntax credits available for carryover to subsequent Tax Periods, thereby resulting\nin an aggregate minimum tax credit of $50 Million available for carryover to Tax\nPeriods ending after October 31, 2003; (7) in the 3 subsequent Tax Periods of\nthe Parent Group (ending October 31 in the years 2004, 2005 and 2006), the\nParent Group uses $50 Million of minimum tax credits to reduce its Federal\nIncome Tax liability in such Tax Periods and does not generate any further\nminimum tax credits in such Tax Periods which are available for carryover to Tax\nPeriods after the Tax Period ending October 31, 2006; and (8) in the Tax Period\nending October 31, 2007 (the \"2007 Period\"), the Parent Group incurs a Federal\nIncome Tax liability of $2 Million which it would not have incurred if it had\nuse of the Displaced Credits. Under the circumstances described in the preceding\nsentence, the New Fluor Group Tax Savings amount is $2 Million, the 2007 Period\nis a Credit Deficiency Year, and, upon receipt of the\n\n                                       9\n\n \nParent Group's written demand on or after the due date (without extension) for\nthe Parent Group's Federal Income Tax Return for the 2007 Period, New Fluor\nshall be obligated to pay $2 Million to Parent within 20 business days following\nNew Fluor's receipt of such written demand. This paragraph shall also apply, and\nNew Fluor shall have identical rights and Parent shall have identical\nobligations, inclusive of rights and obligations comparable to those provided\nunder Section 2.01(b)(iv), in the event that, as a result of the inclusion of\nmembers of the New Fluor Group and members of the Parent Group in a consolidated\nFederal Income Tax Return, the carryover credits otherwise generated by the New\nFluor Group and available as a carryover are reduced and the Parent Group\nrealizes a reduction in its Federal Income Tax liability for the Applicable Tax\nPeriod on such consolidated Federal Income Tax Return.\n\n                    (iv)   Further Provisions Regarding Compensation for Lost\n                           Tax Credits.\n\n                           (A)  This paragraph (iv)(A) applies if (1), as a\nresult of the inclusion of the New Fluor Group in an Applicable Consolidated\nReturn, (x) the amount of Federal Income Tax credits that are available to the\nNew Fluor Group as a carryover to Tax Periods following the Applicable Tax\nPeriod exceeds (y) the amount of such credits that would have been available to\nthe New Fluor Group as a carryover to such subsequent Tax Periods had it not\nbeen included in the Applicable Consolidated Return (the excess of the amount\ndescribed in the foregoing clause (x) over the amount described in the foregoing\nclause (y) is referred to herein as the \"Excess Credits\"), and (2) in a\nsubsequent Tax year (an \"Excess Credit Recovery Year\") the Federal Income Tax\nliability incurred by the New Fluor Group is reduced as a result of its use of\nall or any portion of such Excess Credits, provided, however, for such purposes\nsuch Excess Credits shall not be deemed to have been used until all other\nFederal Income Tax credits available to the New Fluor Group in such Excess\nCredit Recovery Year have been used (the amount of any such Federal Tax\nreduction is referred to herein as an \"Excess Credit Reduction\"). Effective as\nof the due date (determined without regard to extensions) for the New Fluor\nGroup's Federal Income Tax Return for such Excess Credit Recovery Year, the\namount of such Excess Credit Reduction shall be added to the then remaining New\nFluor Group Tax Savings (as previously adjusted under this Section 2.01(b)(iv),\nif applicable), with such adjusted New Fluor Group Tax Savings to be the\nlimitation on New Fluor Group's payment obligations under Section 2.01(b)(iii).\nPromptly after filing such Federal Income Tax Return, New Fluor shall notify\nParent of the amount added to the New Fluor Group Tax Savings, and shall provide\nto Parent New Fluor's computation thereof (in reasonable detail) and such other\ninformation reasonably necessary to allow Parent to verify such amount.\n\n                           (B)  This paragraph (iv)(B) applies if (1) as a\nresult of the inclusion of the New Fluor Group in an Applicable Consolidated\nReturn, (x) the amount of Federal Income Tax credits that are available to the\nNew Fluor Group as a carryover to Tax Periods following the Applicable Tax\nPeriod is less than (y) the amount of such credits that would have been\navailable to the New Fluor Group as a carryover to such subsequent Tax Periods\nhad it not been included in the Applicable Consolidated Return (the excess of\nthe amount described in the foregoing clause (y) over the amount described in\nthe foregoing clause (x) is referred to herein as the \"Displaced NFG Tax\nCredits\"), and (2) in a subsequent Tax year (an \"NFG Tax Credit Deficiency\nYear\") (x) the Federal Income Tax liability incurred by the New Fluor Group\nexceeds (y) the amount of such Tax liability that the New Fluor Group would have\nincurred if it had available to it as a carryover all or any portion of the\nDisplaced NFG Tax\n\n                                       10\n\n \nCredits, with such availability to be determined after giving effect to any\nlimitation on the use of the Displaced NFG Tax Credits, including without\nlimitation the number of Tax Periods to which the Displaced NFG Tax Credits\ncould have been carried under applicable Federal Income Tax Law (the excess of\nthe amount described in the foregoing clause (x) over the amount described in\nthe foregoing clause (y) is referred to herein as the \"NFG Additional Tax\nAmount\"). For purposes of this paragraph, if, in a subsequent Tax year to which\nDisplaced NFG Tax Credits would have been available to carry, the New Fluor\nGroup does not incur an NFG Additional Tax Amount because the New Fluor Group\nuses other Federal Income Tax credits which are actually available (\"Replacement\nNFG Credits\"), such Replacement NFG Credits shall replace Displaced NFG Tax\nCredits (on a dollar-for-dollar basis) and shall thereafter be treated as\nDisplaced NFG Tax Credits if and to the extent that the Replacement NFG Credits\n(had they not been so used) would have been available for use by the New Fluor\nGroup for periods following the expiration of the period during which the\nreplaced Displaced NFG Tax Credits would have been available for use by the New\nFluor Group, provided, however, such Replacement NFG Credits shall not replace\nDisplaced NFG Tax Credits which are taken into account with respect to a\nsubsequent Tax year under this paragraph (it being intended that an NFG\nAdditional Tax Amount shall not be deemed to result from both a Replacement NFG\nCredit and the Displaced NFG Tax Credit which it replaces). Effective as of the\ndue date (determined without regard to extensions) for the New Fluor Group's\nFederal Income Tax Return for such NFG Tax Credit Deficiency Year, the amount of\nthe then remaining New Fluor Group Tax Savings (as previously adjusted under\nthis Section 2.01(b)(iv), if applicable) shall be reduced by such NFG Additional\nTax Amount, with such adjusted New Fluor Group Tax Savings to be the limitation\non New Fluor Group's payment obligations under Section 2.01(b)(iii). Promptly\nafter filing such Federal Income Tax Return, New Fluor shall notify Parent of\nthe amount subtracted from the New Fluor Group Tax Savings, and shall provide to\nParent New Fluor's computation thereof (in reasonable detail) and such other\ninformation reasonably necessary to allow Parent to verify such amount.\n\n               (v)   Payments Related to Displaced Tax Losses and Section 29\nCredits. This paragraph applies if (A) as a result of including members of the\nParent Group and members of the New Fluor Group in a consolidated Federal Income\nTax Return for a Tax Period (such Tax Period, an \"Applicable Tax Period,\" and\nsuch return, an \"Applicable Consolidated Return\"), the Federal net operating\nloss (\"NOL\") or other Federal losses generated by the Parent Group and available\n(after taking into account any carryback of any such loss) as a carryover to a\nsubsequent Tax Period are less than such loss carryovers would be if such\nmembers of the New Fluor Group had not been included in such Applicable\nConsolidated Return (the excess of (1) the amount of losses that would have been\ngenerated and available as a carryover if the New Fluor Group had not been\nincluded in the Applicable Consolidated Return, over (2) the amount of such\nlosses generated and available as a carryover by the Parent Group is referred to\nherein as the \"Displaced Losses\"); and (B) the use of the Displaced Losses in\nthe Applicable Consolidated Return prevents the use in the Applicable\nConsolidated Return of credits under Code Section 29 that the New Fluor Group\nwould have used, if none of its members were included in the Applicable\nConsolidated Return, in the Tax year including the portion of the Applicable Tax\nPeriod for which members of the New Fluor Group are included in the Applicable\nConsolidated Return (any such Section 29 credits, minus the amount of such\ncredits that, in effect, increase minimum tax credits of the New Fluor Group\nunder Code Section 53(d)(1)(B)(iii), \"Displaced Section 29 Credits\"). If the\npreceding conditions (A) and (B) are satisfied, (i) the amount of Federal Income\nTax liability that otherwise would be allocated to New Fluor under this Section\n\n                                       11\n\n \n2.01 for the Applicable Tax Period shall be reduced (for all purposes of this\nAgreement) by the amount of Displaced Section 29 Credits, and (ii) New Fluor\nshall pay to Parent, as provided in the next sentence, one or more amounts up to\nan aggregate amount equal to 50% of the amount of Displaced Section 29 Credits\n(the \"Credit Sharing Amount\"). If, in any one or more subsequent Tax years (each\na \"Loss Deficiency Year\"), the Parent Group would have been able to claim a\ndeduction for all or any portion of the Displaced Losses if the Displaced Losses\nwere available, with such availability to be determined after giving effect to\nany limitation on the use of the Displaced Losses, including any limitation on\nthe number of Tax Periods to which the Displaced Losses could have been carried\nunder applicable Federal Income Tax Law, New Fluor shall pay to Parent, with\nrespect to each such Loss Deficiency Year, an amount equal to the product of (1)\nthe Credit Sharing Amount and (2) the ratio of (x) the amount of Displaced\nLosses that the Parent Group would have been able to claim as a deduction for\nthe Loss Deficiency Year to (y) the total amount of Displaced Losses. New\nFluor's payment to Parent will be due within 20 business days following Parent's\nwritten demand therefor, which shall not be made earlier than the due date,\ndetermined without regard to extensions, for the Parent Group's Federal Income\nTax Return for the Loss Deficiency Year. When making its demand for payment,\nParent shall provide New Fluor with Parent's computation, in reasonable detail,\nof the amount payable by New Fluor pursuant to the provisions of this Section\n2.01(b)(v) together with such other information reasonably necessary to allow\nNew Fluor to verify that a payment is due hereunder and the amount thereof. In\naddition to such payment, if New Fluor does not make the payment due hereunder\nto Parent within 3 business days after New Fluor's receipt of such written\ndemand containing such computation and other necessary information, then New\nFluor shall also pay to Parent interest on such payment amount at the Base Rate\nfrom the due date of such Tax Return to the date of payment by New Fluor of the\npayment required hereunder. By way of illustration (and not limitation) of the\nforegoing provisions, assume: (1) for the Applicable Tax Period the Federal\nWithout Amount is zero and the Parent Group has $8 Million of NOL that would,\nbut for the inclusion of the New Fluor Group in the Applicable Consolidated\nReturn for the Applicable Tax Period and after taking into account any carryback\nof the NOL, be available for carryover to subsequent Tax Periods; (2) for the\nportion of such Applicable Tax Period in which the New Fluor Group is included\nin the Applicable Consolidated Return, the New Fluor Group has $8 Million of\ntaxable income and $2 Million of Section 29 Credits, resulting in a Tax\nliability (at a 35% rate) of $2.8 Million before taking such credits into\naccount and a Tax liability of $800,000 after taking such credits into account\n(in each case without taking into account the Parent Group's $8 Million NOL);\n(3) based on the foregoing, (A) the Federal Income Tax Liability allocated to\nNew Fluor is $800,000 (rather than $2.8 Million), which is calculated by\nreducing the $2.8 Million of Federal Income Tax Liability otherwise allocable to\nNew Fluor by the $2 Million of Section 29 Credits which would have been taken\ninto account but for the use of the Parent Group $8 Million NOL in the\nApplicable Consolidated Return and which do not, in effect, increase minimum tax\ncredits of the New Fluor Group pursuant to Code Section 53(d)(1)(B)(iii), and\n(B) the Parent Group has $8 Million of Displaced Losses; (4) in the Tax year\nfollowing the Applicable Tax Period (\"Year 2\"), the Parent Group has $8 Million\nof taxable income against which all $8 Million of Displaced Losses could have\nbeen used if they had not been displaced. Under the circumstances described in\nthe preceding sentence, the payment which New Fluor would make to Parent with\nrespect to Year 2 would be $1 Million (i.e., the entire Credit Sharing Amount of\n50% of the Displaced Section 29 Credits). By way of further illustration, if the\nfacts were the same as in the foregoing illustration except that the Parent\n\n                                       12\n\n \nGroup has $4 Million of taxable income in each of the two subsequent years\n(\"Year 2\" and \"Year 3\") against which it could have used its Displaced Losses,\nNew Fluor would have a payment obligation of $500,000 under this paragraph with\nrespect to Year 2 ($1 Million Credit Sharing Amount multiplied by ($4 Million\ndivided by $8 Million) = $500,000) and a payment obligation of $500,000 under\nthis paragraph with respect to Year 3 ($1 Million Credit Sharing Amount\nmultiplied by ($4 Million divided by $8 Million) = $500,000).\n\n               (vi)   This paragraph applies with respect to any period during\nwhich (1) the sum of the New Fluor Group Tax Savings as determined under Section\n2.01(b)(iii), as adjusted under Section 2.01(b)(iv), plus the Credit Sharing\nAmount determined under Section 2.01(b)(v), exceeds $1,750,000 (such aggregate\namount, as adjusted from time to time, is referred to herein as the \"Aggregate\nParent Recovery Amount\"), and (2) neither Moody's Investors Services, Inc.\n(\"Moody's\") nor Standard &amp; Poor's Ratings Services, a division of McGraw-Hill\nCompany (\"S&amp;P\"), or any successor to either of them, issues or otherwise assigns\nan investment grade credit rating to New Fluor. For this purpose, investment\ngrade means a rating of Baa-2 or higher by Moody's and BBB or higher by S&amp;P.\nWithin 20 business days after the first day as of which both conditions\ndescribed in the foregoing clauses (1) and (2) are satisfied, New Fluor, unless\naffirmatively waived by Parent, shall secure its obligation to make payments to\nParent pursuant to the provisions of Section 2.01(b)(iii) or Section 2.01(b)(v),\nwhichever may be applicable, through a letter of credit in favor of Parent\nissued by a bank or other financial institution having reported assets of at\nleast $10 billion and approved by Parent, which approval shall not be\nunreasonably withheld, with such letter of credit to have a face amount equal to\n100% of the Aggregate Parent Recovery Amount, provided, however, such face\namount shall be reduced to the extent that the amount of the remaining balance\nof the Aggregate Parent Recovery Amount is reduced by reason of payments\npursuant to Section 2.01(b)(iii), reduction adjustments under Section\n2.01(b)(iv)(B) or payments pursuant to Section 2.01(b)(v), and such face amount\nshall be increased to the extent the Aggregate Parent Recovery Amount is\nincreased under Section 2.01(b)(iv)(A). Such letter of credit shall remain in\neffect or be renewed by New Fluor until the earlier of (x) the date as of which\nthe remaining balance of the Aggregate Parent Recovery Amount is less than\n$1,750,000 or (y) the effective date as of which New Fluor regains an investment\ngrade credit rating, at which time such letter of credit shall no longer be\nrequired and may be revoked, subject to reinstatement or replacement if and when\nthe two conditions described in the first sentence of this paragraph again\nexist.\n\n               (vii)  This paragraph applies if, as a result of the use in a\nconsolidated Federal Income Tax Return of an NOL or other loss of the Parent\nGroup that is not taken into account in computing the Federal With Amount, the\namount of Federal Income Tax liability allocated to New Fluor and paid by New\nFluor to Parent exceeds the amount of the actual Federal Income Tax liability\nfor the Tax Period (the \"Initial Period\") for which the consolidated Federal\nIncome Tax Return is filed (any such excess, the \"Excess Payment Amount\"). In\nsuch case, the Excess Payment Amount (or pro rata portion thereof) shall be\ncompared to the amount of Federal Income Tax (the \"Tax Detriment Amount\")\nincurred by the Parent Group, as a result of not having available such NOL or\nother loss, for each Tax Period (an \"Other Period\") when such NOL or other loss\n(or pro rata portion thereof) would have been used, either as a carryback or a\ncarryforward, had the NOL or other loss not been used in the consolidated\nFederal Income Tax Return for the Initial Period. If the Excess Payment Amount\n(or pro rata portion thereof) exceeds the Tax Detriment Amount for an Other\nPeriod because the Federal With Amount for \n\n                                       13\n\n \nthe Initial Period was based on the regular tax rate but the Parent Group is\ntaxable at the alternative minimum tax rate for the Other Period, Parent shall\npay to New Fluor an amount equal to 50% of the difference between the Excess\nPayment Amount and the Tax Detriment Amount; provided, however, that New Fluor\nshall repay such amount to Parent if the Parent Group subsequently becomes\ntaxable at the regular tax rate for any Tax Period. If the Excess Payment Amount\n(or pro rata portion thereof) is less than the Tax Detriment Amount for an Other\nPeriod because the Federal With Amount was based on the alternative minimum tax\nrate but the Parent Group is taxable at the regular tax rate for the Other\nPeriod, New Fluor shall pay to Parent an amount equal to 50% of the difference\nbetween the Excess Payment Amount and the Tax Detriment Amount. Any payment\nunder this paragraph will be due within 20 business days following the payee's\nwritten demand therefor, which shall not be made earlier than the due date,\ndetermined with regard to extensions, for (i) the Parent Group's Federal Income\nTax Return for the Other Period with respect to which the payment is to be made,\nor (ii) if such Other Period precedes the Initial Period, the Initial Period, or\n(iii) in the case of a repayment to Parent, the Parent Group's Tax Period for\nwhich it becomes taxable at the regular tax rate. As soon as practicable after\nthe end of the applicable Tax Period described in the preceding sentence, Parent\nshall provide New Fluor with Parent's computation, in reasonable detail, of the\namount payable by New Fluor or by Parent pursuant to the provisions of this\nSection 2.01(b)(vii), together with such other information reasonably necessary\nto allow New Fluor to verify that a payment is due hereunder and the amount\nthereof. In addition to such payment, if the payor does not make the payment due\nhereunder to the payee within 3 business days after the payee's receipt of the\nwritten demand therefor, then the payor shall also pay to the payee interest on\nsuch payment amount at the Base Rate from the due date (determined with regard\nto extensions) of such Tax Return to the date of payment by the payor of the\npayment required hereunder.\n\n               (viii)  The parties agree and acknowledge that the provisions of\nSections 2.01(b)(iii) through 2.01(b)(vii) shall be applied after giving effect\nto any adjustments resulting from any Adjustment Requests or Audit Adjustments.\n\n         2.02  Allocation of State Income Taxes and Foreign Income Taxes.\nExcept as provided in Section 2.04 and subject to Section 3, State Income Taxes\nand Foreign Income Taxes shall be allocated as follow:\n\n               (a)  Separate Company Taxes. In the case of any State Income Tax\nor Foreign Income Tax which is a Separate Company Tax, the Parent Group and the\nNew Fluor Group shall be allocated and liable for such Tax imposed on any member\nor members of their respective Groups, but only for such periods as such\nmembership existed. For such purposes, the parties agree that New Fluor shall be\nallocated and liable for all State Income Taxes and Foreign Income Taxes of\nParent with respect to all Tax Periods (or portions thereof) through the\nDistribution Date, provided further, however, for such purposes any Tax Period\nof Parent that includes but does not end on the Distribution Date shall be\ntreated as ending on the Distribution Date, with New Fluor to be allocated and\nliable for only the State Income Tax liability or Foreign Income Tax liability\n(as applicable) with respect to the Tax Items apportioned to the portion of such\nTax Period through the Distribution Date in accordance with the principles of\nSection 3. All such Separate Company Taxes shall be paid by the party to whom\nthey are allocated hereunder in accordance with the provisions of Section 5.\n\n                                       14\n\n \n               (b)  Consolidated or Combined Taxes. In the case of any State\nIncome Tax or Foreign Income Tax which is a Consolidated or Combined Tax, the\nliability of the parties with respect to such Tax for any Tax Period shall be\ncomputed and allocated as follows:\n\n                    (i)   Allocation of Tax. For any relevant taxable year\nbeginning after October 31, 2000, (1) the Consolidated or Combined State Income\nTax or Foreign Income Tax (whichever may be applicable) for the entire taxable\nyear shall be computed by excluding the New Fluor Group (the \"State\/Foreign\nWithout Amount\") and (2) the Consolidated or Combined State Income Tax or\nForeign Income Tax (whichever may be applicable) for the entire taxable year\nshall be computed by including the New Fluor Group (but only for the portion of\nsuch taxable year during which the New Fluor Group is included in the\nConsolidated or Combined Tax Return) but without taking into account losses or\nother deductions or credits of the Parent Group not used in calculating the\nState\/Foreign Without Amount and losses or other deductions or credits of the\nNew Fluor Group not used in the Consolidated or Combined Tax Return, whether any\nsuch losses, deductions or credits of the Parent Group or the New Fluor Group\narise in such taxable year or are carried forward or back from another taxable\nyear (the \"State\/Foreign With Amount\"). The Parent Group shall be allocated and\nliable for the State\/Foreign Without Amount. New Fluor shall be allocated and\nliable for the excess, if any, of the State\/Foreign With Amount over the\nState\/Foreign Without Amount. If the State\/Foreign With Amount exceeds the\nState\/Foreign Without Amount, New Fluor shall pay the excess amount to Parent in\naccordance with the provisions of Section 5. If the State\/Foreign With Amount is\nless than the State\/Foreign Without Amount, Parent shall pay the amount of the\ndifference to New Fluor in accordance with the provisions of Section 5.\nNotwithstanding the foregoing, with respect to any Tax Period ending after\nOctober 31, 2000 and on or before October 31, 2001, (i) the amount of\nConsolidated or Combined State Income Tax or Foreign Income Tax allocated to,\nand payable by, the Parent Group shall be zero in the case of any jurisdiction\nwhere no member of the Massey Group would be subject to State Income Tax or\nForeign Income Tax, as applicable, but for (A) affiliation with one or more\nmembers of the New Fluor Group prior to the Distribution, or (B) affiliation\nwith Parent following the Distribution, provided, however, this clause (B) shall\nnot apply if and to the extent that such State Income Tax or Foreign Income Tax\nis attributable to operations or activities in which Parent engages following\nthe Distribution; (ii) in the case of any jurisdiction where no member of the\nNew Fluor Group would be subject to State Income Tax but for affiliation with\none or more members of the Massey Group prior to the Distribution, the amount of\nConsolidated or Combined State Income Tax in such jurisdiction that is allocable\nto the New Fluor Group shall be 50% of the amount otherwise allocable under the\nforegoing provisions of this Section 2.02(b)(i), in which case the remaining 50%\nshall be allocable to and paid by Parent; and (iii) Parent shall be allocated\nand shall pay 50% of the excess (if any) of (A) the amount of Kentucky, Virginia\nand West Virginia State Income Taxes that are otherwise allocable to the New\nFluor Group under the foregoing provisions of this Section 2.02(b)(i), over (B)\nthe amount of Kentucky, Virginia and West Virginia State Income Taxes that would\nhave been incurred by the members of the New Fluor Group had the New Fluor Group\n(or any members thereof) filed State Separate Company Income Tax Returns in such\nStates on a basis consistent with the State Separate Company Income Tax Returns\n(if any) filed by such New Fluor Group members in such States prior to the\nDistribution.\n\n                    (ii)  Allocation of Combined or Consolidated State Income\nTax and Foreign Income Tax Adjustments. If there is any Audit Adjustment to any\nTax Item for any\n\n                                       15\n\n \nrelevant Tax Period beginning after October 31, 2000, the State\/Foreign With\nAmount and the State\/Foreign Without Amount shall be recalculated, in accordance\nwith the principles of Section 2.02(b)(i), to reflect such Audit Adjustment.\nWith respect to each such recalculation, New Fluor shall be allocated and liable\nfor, and shall pay to Parent in accordance with the provisions of Section 5, the\namount described in whichever one (but not more than one) of the following three\nclauses is applicable:  (1) the amount by which the excess of the State\/Foreign\nWith Amount over the State\/Foreign Without Amount as recalculated is greater\nthan such excess as previously (and most recently) calculated under this Section\n2.02(b), (2) the amount by which the excess of the State\/Foreign Without Amount\nover the State\/Foreign With Amount as recalculated is less than such excess as\npreviously (and most recently) calculated or (3) the sum of the excess of the\nState\/Foreign With Amount over the State\/Foreign Without Amount as recalculated\nplus the excess of the State\/Foreign Without Amount over the State\/Foreign With\nAmount as previously (and most recently) calculated.  With respect to each such\nrecalculation, Parent shall be allocated and liable for, and shall pay to New\nFluor in accordance with the provisions of Section 5, the amount described in\nwhichever one (but not more than one) of the following three clauses is\napplicable:  (1) the amount by which the excess of the State\/Foreign With Amount\nover the State\/Foreign Without Amount as recalculated is less than such excess\nas previously (and most recently) calculated under this Section 2.02(b), (2) the\namount by which the excess of the State\/Foreign Without Amount over the\nState\/Foreign With Amount as recalculated is greater than such excess as\npreviously (and most recently) calculated, or (3) the sum of the excess of the\nState\/Foreign Without Amount over the State\/Foreign With Amount as recalculated\nplus the excess of the State\/Foreign With Amount over the State\/Foreign Without\nAmount as previously (and most recently) calculated.  The parties agree and\nunderstand that their respective obligations to make payments hereunder\nresulting from Audit Adjustments shall apply in circumstances wherein there is\nno additional net Tax liability payable to a Tax Authority attributable to the\nadjustment of one or more Tax Items on the applicable Tax Return but the Audit\nAdjustments result in changes to the State\/Foreign With Amount and\/or\nState\/Foreign Without Amount as recalculated to reflect such Audit Adjustments.\nNotwithstanding the foregoing, with respect to any Tax Period ending after\nOctober 31, 2000 and on or before October 31, 2001, (i) the amount of\nConsolidated or Combined State Income Tax or Foreign Income Tax allocated to,\nand payable by, the Parent Group shall be zero in the case of any jurisdiction\nwhere no member of the Massey Group would be subject to State Income Tax or\nForeign Income Tax, as applicable, but for (A) affiliation with one or more\nmembers of the New Fluor Group prior to the Distribution, or (B) affiliation\nwith Parent following the Distribution, provided, however, this clause (B) shall\nnot apply if and to the extent that such State Income Tax or Foreign Income Tax\nis attributable to operations or activities in which Parent engages following\nthe Distribution; (ii) in the case of any jurisdiction where no member of the\nNew Fluor Group would be subject to State Income Tax but for affiliation with\none or more members of the Massey Group prior to the Distribution, the amount of\nConsolidated or Combined State Income Tax in such jurisdiction that is allocable\nto the New Fluor Group shall be 50% of the amount otherwise allocable under the\nforegoing provisions of this Section 2.02(b)(ii), in which case the remaining\n50% shall be allocable to and paid by Parent; and (iii) Parent shall be\nallocated and shall pay 50% of the excess (if any) of (A) the amount of\nKentucky, Virginia and West Virginia State Income Taxes that are otherwise\nallocable to the New Fluor Group under the foregoing provisions of this Section\n2.02(b)(ii), over (B) the amount of Kentucky, Virginia and West Virginia State\nIncome Taxes that would have been incurred by the members of the New Fluor \n\n                                       16\n\n \nGroup had the New Fluor Group (or any members thereof) filed State Separate\nCompany Income Tax Returns in such States on a basis consistent with the State\nSeparate Company Income Tax Returns (if any) filed by such New Fluor Group\nmembers in such States prior to the Distribution.\n\n         2.03  Allocation of Other Taxes. Except as provided in Section 2.04,\nall Taxes other than those allocated pursuant to Sections 2.01 and 2.02, (herein\n\"Other Taxes\") shall be allocated to the legal entity on which the legal\nincidence of the Other Tax is imposed. For such purposes, the parties agree that\nNew Fluor shall be allocated and liable for all such Other Taxes imposed on\nParent with respect to all Tax Periods (or portions thereof) through the\nDistribution Date, provided further, however, for such purposes any Tax Period\nof Parent that includes but does not end on the Distribution Date shall be\ntreated as ending on the Distribution Date, with New Fluor to be allocated and\nliable for only (1) the Other Tax liability with respect to the Tax Items\napportioned to the portion of such Period through the Distribution Date in\naccordance with the principles of Section 3, and (2) the Other Tax liability\nwith respect to Tax Items apportioned to the portion of the Period after the\nDistribution Date to the extent that such Other Tax liability would not have\nbeen incurred absent the activities or existence of Parent during such portion\nof the Period through the Distribution Date. As between the parties to this\nAgreement, New Fluor shall be allocated and liable for all Other Taxes imposed\non any member of the New Fluor Group and, except as expressly provided otherwise\nin the immediately preceding sentence with respect to Other Taxes imposed on\nParent with respect to portions of a Tax Period through the Distribution Date,\nParent shall be allocated and liable for all Other Taxes imposed on any member\nof the Parent Group. The Companies believe that there is no Other Tax not\nallocated pursuant to this Section 2.03 which is legally imposed on more than\none legal entity (e.g., joint and several liability); provided, however, if\nthere is any such Other Tax, it shall be allocated in accordance with past\npractices as reasonably determined by the affected Companies, or in the absence\nof such practices, in accordance with any allocation method agreed upon by the\naffected Companies, it being agreed that \"with and without\" principles\ncomparable to those described in Sections 2.01 and 2.02 will be applied unless\nto do so would be clearly inequitable. All such Other Taxes shall be paid by the\nparty to whom they are allocated hereunder in accordance with the provisions of\nSection 5.\n\n         2.04  Transaction Taxes and Certain Other Taxes.\n\n               (a)  General Allocations of Tax Liabilities.\n\n                    (i)   Except as otherwise provided in this Section 2.04, New\nFluor shall be liable for and obligated hereunder to pay 60%, and Parent shall\nbe liable for and obligated hereunder to pay 40%, of any liability for Taxes\nimposed on any member of the Parent Group or the New Fluor Group as a result of\nor with respect to any of the Transactions, including, without limitation, any\nTax resulting from any income or gain recognized as a result of any of the\nTransactions, but excluding any Tax resulting from any income or gain recognized\nunder Treasury Regulation Sections 1.1502-13 or 1.1502-19 (or any corresponding\nprovisions of other applicable Tax Laws) as a result of, but not generated by,\nthe Transactions.\n\n                    (ii)  Except to the extent provided otherwise under Sections\n2.04(b) and 2.04(d), if, pursuant to applicable Federal Income Tax Laws or State\nIncome Tax Laws, the Distribution does not qualify for tax-free treatment under\nCode Section 355 and\/or comparable \n\n                                       17\n\n \nState Income Tax Laws and as a result the Distribution is treated for Income Tax\npurposes as a taxable transaction with respect to which Parent is required to\nrecognize taxable income, the resulting Tax liability shall be allocated 40% to\nParent and 60% to New Fluor.\n\n                    (iii)  Notwithstanding the provisions of Section 2.04(a)(i),\nNew Fluor shall be liable for and obligated hereunder to pay 100% of any sales,\nuse, gross receipts or other transfer Taxes imposed on or with respect to any\ntransfers occurring pursuant to the Transactions.\n\n                    (iv)   Notwithstanding the provisions of Section 2.04(a)(i)\nor any other provision of this Agreement, there shall be allocated to New Fluor,\nand New Fluor shall be liable to the Parent Group for, any Specified State Taxes\n(as defined herein) that otherwise would be allocable under Sections 2.02 and\/or\n2.03 of this Agreement to the Parent Group (including Specified State Taxes\narising in Tax Periods beginning after the Distribution Date) to the extent that\nthe aggregate amount of such Specified State Taxes exceeds the aggregate amount\nof such Specified State Taxes that members of the Massey Group would have\nincurred if the Transactions had not occurred (such excess, the \"Incremental\nTaxes\"), provided, however, that (i) the liability of New Fluor under this\nSection 2.04(a)(iv) shall be limited to the first $1 Million of Incremental\nTaxes plus 50% of the next $2 Million of Incremental Taxes, for a total\npotential liability of $2 Million of Incremental Taxes, and (ii) New Fluor shall\nnot be liable under this Section 2.04(a)(iv) for Incremental Taxes attributable\nto or imposed as a result of operations or activities in which Parent engages\nfollowing the Distribution. As used herein the term \"Specified State Taxes\"\nshall mean (A) State Income Taxes, State franchise Taxes (whether based on\nincome or capital, including without limitation West Virginia franchise Taxes)\nand Kentucky license Taxes; and (B) all other State Taxes, provided, however,\nthat in the case of State Taxes not described in clause (A), only 50% of the\nexcess of such State Taxes over the amount of such State Taxes that members of\nthe Massey Group would have incurred if the Transactions had not occurred are to\nbe treated as Incremental Taxes; and provided further, the term Specified State\nTaxes shall not mean or include State Taxes the allocation and liability for\nwhich is determined pursuant to the provisions of Section 2.04(a)(ii), Section\n2.04(a)(iii), Section 2.04(b), Section 2.04(c) or Section 2.04(d). The parties\nintend and agree that (A) Parent shall be liable for and obligated to pay all\nIncremental Taxes otherwise allocated to Parent under this Agreement other than\nthe $2,000,000 of Incremental Taxes allocated to New Fluor hereunder, and (B)\nthe provisions of Section 2.04(a)(i) shall not apply to Incremental Taxes.\n\n               (b)  Certain Other Allocations.\n\n                    (i)    New Fluor shall be allocated, and shall be solely\nliable and obligated hereunder to pay, any liability for any Restructuring Tax\nto the extent that such liability arises from: (A) any breach of New Fluor's\ncovenants under Section 11 or under the Distribution Agreement, or (B) the\nmaterial inaccuracy of factual statements or representations made with respect\nto members of the New Fluor Group in the Ruling Request, but only to the extent\nthat (1) such inaccuracy arises from facts in existence prior to the\nDistribution Date and (2) Parent has actual knowledge of such inaccuracy as of\nthe Distribution Date.\n\n                    (ii)   Parent shall be allocated, and shall be solely liable\nand obligated hereunder to pay, any liability for any Restructuring Tax to the\nextent that such liability arises \n\n                                       18\n\n \nfrom: (A) any breach of Parent's covenants under Section 11 or under the\nDistribution Agreement; or (B) the material inaccuracy of factual statements or\nrepresentations made with respect to members of the Massey Group in the Ruling\nRequest, but only to the extent that (1) such inaccuracy arises from facts in\nexistence prior to the Distribution Date and (2) A.T. Massey has actual\nknowledge of such inaccuracy as of the Distribution Date.\n\n               (c)  Tax Liability in Connection with Appalachian Synfuel, LLC.\nParent shall be allocated and shall be solely liable hereunder for all Taxes\nwhich arise in connection with, or as a result of (i) the transfer (by sale,\ndividend or otherwise) by Fluor Enterprises, Inc., a member of the New Fluor\nGroup (\"FEI\"), of all or part of its ownership interest in Appalachian Synfuel,\nLLC to Parent or to a member or members of the Parent Group or to an entity in\nwhich Parent or a member or members of the Parent Group have an equity interest,\nor as otherwise directed by Parent, or (ii) a liquidation or redemption of FEI's\ninterest in Appalachian Synfuel, LLC (all such Taxes allocated hereunder to\nParent shall be referred to herein as \"ASLLC Transfer Taxes\"). Such ASLLC\nTransfer Taxes shall include, without limitation, Taxes resulting from FEI's\ndeferred intercompany gain which arises in connection with such transfer,\nliquidation or redemption. For purposes of implementing the foregoing provisions\nof this Section 2.04(c), the parties agree that the gain or income to which such\nASLLC Transfer Taxes are attributable shall be treated as the gain or income of\nthe Parent Group (and not of the New Fluor Group) for purposes of calculating\nthe Federal With and Without Amounts and the State\/Foreign With and Without\nAmounts under Section 2.01(b)(i) and Section 2.02(b)(i), respectively.\n\n               (d)  Allocation of Tax Incurred Pursuant to Code Section 355(e).\nIf Parent incurs a Restructuring Tax liability as a result of the application of\nthe provisions of Code Section 355(e) and\/or a comparable State Income Tax Law\n(or comparable provisions of successor Federal or State Income Tax Laws), Parent\nshall be allocated and solely liable hereunder to pay 100% of such Restructuring\nTax liability if it is incurred because of a plan (or series of related\ntransactions) pursuant to which one or more persons acquire, directly or\nindirectly, stock or assets representing a 50% or greater interest (within the\nmeaning of Code Section 355(e) or such comparable or successor Tax Laws) in\nParent. New Fluor shall be allocated and solely liable hereunder to pay 100% of\nsuch Restructuring Tax liability if it is incurred because of a plan (or series\nof related transactions) pursuant to which one or more persons acquire, directly\nor indirectly, stock or assets representing a 50% or greater interest (within\nthe meaning of Code Section 355(e) or such comparable or successor Tax Laws) in\nNew Fluor. For purposes of this Section 2.04(d), the value of any Tax Benefits\nused or lost by reason of Parent's recognition of gain under Code Section 355(e)\nor such comparable or successor Tax Laws will be treated as a Restructuring Tax\nliability.\n\n               (e)  Payment. All Tax liabilities allocated pursuant to the\nforegoing provisions of this Section 2.04 shall be paid by the party to whom\nthey are allocated in accordance with the provisions of Section 5.\n\n          Section 3.  Proration of Taxes for Straddle Periods. In the case of\nany Straddle Period for which a Consolidated or Combined Tax Return is filed (a\n\"Straddle Period Consolidated or Combined Tax Return\"), Tax Items of the members\nof the Group which are included for only a portion of the Straddle Period (the\n\"Short Period Group\") shall be apportioned between (i) the portion of such\nStraddle Period during which such Short Period Group members are so included \n\n                                       19\n\n \nand (ii) the portion of such Straddle Period during which such Short Period\nGroup members are not so included. This apportionment shall be in accordance\nwith the principles of Treasury Regulation Section 1.1502-76(b) as reasonably\ninterpreted and applied by the Companies. In the case of any Federal or State\nIncome Tax Return which is a Straddle Period Consolidated or Combined Tax Return\nas to which the New Fluor Group is the Short Period Group, if so requested by\nNew Fluor, Parent (and to the extent required, other members of the Parent\nGroup) shall make or, if applicable, join with any necessary or appropriate\nmembers of the New Fluor Group in making, an election under Treasury Regulation\nSection 1.1502-76(b)(2)(ii)(D), or comparable State Tax Law, to have the Tax\nItems (other than extraordinary items) of the New Fluor Group ratably allocated.\nIf the Distribution date is not an Accounting Cutoff Date, the provisions of\nTreasury Regulations Section 1.1502-76(b)(2)(iii) and comparable State Tax Law\nshall be applied to ratably allocate the items (other than extraordinary items)\nfor the month which includes the Distribution Date.\n\n     Section 4.  Preparation and Filing of Tax Returns.\n\n     4.01  General.  Except as otherwise provided in this Section 4, Tax Returns\nshall be prepared and filed when due (including extensions) by the person\nobligated to file such Tax Returns under the Code or applicable Tax Law.  Each\nCompany shall assist and cooperate (and shall cause its Affiliates to do\nlikewise) with the other Company in accordance with Section 7 with respect to\nthe preparation and filing of Tax Returns, including providing information\nrequired to be provided in Section 7. Except as otherwise provided herein,\nneither Company shall amend a Tax Return for which the other Company has\nresponsibility pursuant to this Section 4 unless written consent (which shall\nnot be unreasonably withheld) to such amended return is secured from the other\nCompany before the amended return is filed.\n\n     4.02  New Fluor's Responsibility.  New Fluor has the exclusive obligation\nand right to prepare and\/or file (as specified hereinbelow) the following Tax\nReturns (including original and amended returns and refund claims) or to cause\nsuch Tax Returns to be prepared and filed:\n\n           (a)  Prepare and file Consolidated or Combined Tax Returns for all\nTax Periods ending on or before October 31, 2000;\n\n           (b)  Prepare and file Separate Company Tax Returns for any member or\nmembers of the New Fluor Group;\n\n           (c)  Prepare and file all Tax Returns, for periods ending on or after\nOctober 31, 2000, for Massey Coal Company, a Delaware limited partnership that\nwill be wholly-owned by members of the New Fluor Group following the\nDistribution; and\n\n           (d)  Prepare, for filing by Parent, the Consolidated or Combined\nState Income Tax Returns for the Applicable States (as defined herein) for Tax\nPeriods beginning on or after November 1, 2000 and ending on or before October\n31, 2001 (the \"Applicable State Consolidated or Combined Tax Returns\"). As used\nherein the term \"Applicable States\" means Alaska, Arizona, California, Illinois,\nMinnesota, Nebraska and South Carolina.\n\n     In preparing any such Consolidated or Combined Tax Returns described in\nSection 4.02(a), New Fluor shall accept the pro forma Tax returns, Tax\nworkpapers and other \n\n                                       20\n\n \nTax Item positions and calculations that pertain exclusively to the Massey Group\nas prepared and furnished to New Fluor by A.T. Massey or (after the Distribution\nDate) by Parent, provided that such materials are prepared in accordance with\nthe requirements of Sections 4.04 and 4.05, and provided further, that New Fluor\nshall not be obligated to report any Tax Item as proposed by A.T. Massey or\nParent (whichever is applicable) if New Fluor believes in good faith that there\nis no reasonable basis for the tax treatment of such Tax Item as proposed by\nA.T. Massey or by Parent (whichever is applicable), provided, however, if such\nTax Item relates to a tax shelter as defined in Code Section 6662(d)(2)(C), New\nFluor shall not be obligated to report such Tax Item as proposed by A.T. Massey\nor Parent (whichever is applicable) if New Fluor reasonably concludes that it is\nmore likely than not that the tax treatment of such Tax Item as proposed by A.T.\nMassey or Parent (whichever is applicable) does not comply with applicable Tax\nLaws.\n\n     4.03  Parent's Responsibility. Parent has the exclusive obligation and\nright to  prepare and\/or file (as specified hereinbelow) the following Tax\nReturns (including original and amended returns and refund claims) or to cause\nsuch Tax Returns to be prepared and filed:\n\n           (a) Prepare and file Consolidated or Combined Tax Returns for all Tax\nPeriods beginning on or after November 1, 2000, provided, however, in the case\nof the Applicable State Consolidated or Combined Tax Returns, such Returns shall\nbe prepared by New Fluor pursuant to Section 4.02(d) and Parent shall file such\nReturns as submitted by New Fluor to Parent; and\n\n           (b) Prepare and file Separate Company Tax Returns for any member or\nmembers of the Parent Group.\n\n     In preparing any such Consolidated or Combined Tax Returns described in\nSection 4.03(a), other than Applicable State Consolidated or Combined Tax\nReturns, Parent shall accept the pro forma Tax Returns, Tax workpapers and other\nTax Item positions and calculations that pertain exclusively to the New Fluor\nGroup as prepared and furnished to Parent by New Fluor, provided that such\nmaterials are prepared in accordance with the requirements of Sections 4.04 and\n4.05, and provided further, that Parent shall not be obligated to report any Tax\nItem as proposed by New Fluor if Parent believes in good faith that there is no\nreasonable basis for the tax treatment of such Tax Item as proposed by New\nFluor, provided, however, if such Tax Item relates to a tax shelter as defined\nin Code Section 6662(d)(2)(C), Parent shall not be obligated to report such Tax\nItem as proposed by New Fluor if Parent reasonably concludes that it is more\nlikely than not that the tax treatment of such Tax Item as proposed by New Fluor\ndoes not comply with applicable Tax Laws.\n\n     4.04  Tax Accounting Practices and Tax Elections.\n\n           (a) General Rule.  Except as otherwise provided in this Section 4.04,\nConsolidated or Combined Tax Returns shall be prepared in accordance with past\nTax accounting practices used and past Tax elections made with respect to such\nTax Returns (unless such past practices or elections are no longer permissible\nunder the Code or other applicable Tax Law) and, to the extent any items are not\ncovered by past practices or elections (or, in the event such past practices or\nelections are no longer permissible under the Code or other applicable Tax Law),\nin accordance with reasonable Tax accounting practices and elections selected by\n(i) New \n\n                                       21\n\n \nFluor, to the extent such election applies solely to members of the New Fluor\nGroup, (ii) Parent, to the extent such election applies solely to members of the\nParent Group, or (iii) in the case of any election not described in the\nforegoing clause (i) or clause (ii), the agreement of Parent and New Fluor (or\npursuant to Section 15 if no such agreement is reached). Without limitation on\nthe foregoing, the parties agree that, for purposes of the consolidated Federal\nIncome Tax Return to be filed by Parent for the Tax Period ending October 31,\n2001 (A) Parent shall, at the request of New Fluor, make any election that does\nnot adversely affect to a material degree any member of the Parent Group (as\ndetermined by Parent), and (B) Parent shall be entitled to make any other\nelection that does not adversely affect to a material degree any member of the\nNew Fluor Group (as determined by New Fluor).\n\n          (b)  Reporting Transaction Tax Items. The Tax treatment reported on\nTax Returns of Tax Items relating to the Transactions shall be consistent with\nthe treatment of such items in the Ruling, unless such treatment is not\npermissible under the Code. To the extent there is a Tax Item relating to the\nTransactions which is not covered by the Ruling, the Companies shall agree on\nthe Tax treatment of any such Tax Item reported on any Tax Return. For this\npurpose, the Tax treatment of such Tax Item on a Tax Return shall be determined\nby the Responsible Company with respect to such Tax Return and shall be agreed\nto by the other Company unless either (i) there is no reasonable basis for such\nTax treatment, or (ii) such Tax treatment is inconsistent with the Tax treatment\ncontemplated in the Ruling Request or the Ruling. Such Tax Return shall be\nsubmitted for review pursuant to Section 4.06(a), and any dispute regarding such\nproper Tax treatment shall be referred for resolution pursuant to Section 15\nsufficiently in advance of the filing date of such Tax Return (including\nextensions) to permit the timely filing of the Tax Return.\n\n     4.05  Consolidated or Combined Tax Returns. Neither Company shall elect or\njoin, and shall cause their respective Affiliates not to elect or join, in\nfiling consolidated, unitary, combined, or other similar joint Tax Returns with\nany member of the other Group, except to the extent that the filing of such Tax\nReturns is consistent with past reporting practices or, in the absence of\napplicable past practices, is required by Tax Law; provided, however, that the\nCompanies shall (to the extent permitted by Law) elect or join, or cause their\nrespective Affiliates to elect or join, in filing consolidated, combined or\nunitary Tax Returns in Virginia, West Virginia, and Kentucky if and to the\nextent necessary to permit members of the Massey Group who previously have filed\nconsolidated, combined or unitary returns in such states to continue to do so.\n\n     4.06  Right to Review Tax Returns.\n\n           (a) General. In the case of any Tax Return which relates to any\nextent to (i) Taxes for which the Other Company may be liable in whole or in\npart or (ii) a Tax Benefit to which the Other Company may be entitled in whole\nor in part, the Responsible Company shall, at least 30 days prior to the filing\nof any such Tax Return, make such Tax Return and related work papers available\nfor review by the Other Company. The Other Company shall be entitled to provide\nwritten comments to the Responsible Company with respect to any items covered by\nany such Tax Return which the Other Company determines are not being properly\nreported in whole or in part and\/or are not being reported in a manner\nconsistent with the provisions of this Agreement, and, in any such case, the\nCompanies shall attempt in good faith to resolve any\n\n                                       22\n\n \ndisagreement with respect to any such items prior to the filing of such Tax\nReturn. If the parties are not able to reach an agreement with respect to any\nsuch item prior to the filing of such Tax Return, such dispute shall be subject\nto the provisions of Section 15, provided, however, that the Responsible Company\nshall be entitled to file such Tax Return reflecting such item as reasonably\ndetermined by the Responsible Company, provided further, however, such\ndetermination must be consistent with the provisions of this Agreement, and if,\nfollowing the filing of such Tax Return, the Accounting Firm shall determine\nthat the item in dispute was not reflected in such Tax Return in a manner\nconsistent with applicable Tax Law and the provisions of this Agreement, the\nResponsible Company shall be obligated, unless agreed otherwise by the Other\nCompany in writing, to file an amended Tax Return reflecting the items as\ndetermined by the Accounting Firm.\n\n          (b)  Execution of Returns Prepared by Other Party. In the case of any\nTax Return which is required to be prepared and filed by one Company under this\nAgreement and which is required by law to be signed by another Company or a\nmember of such other Company's Group (or by an authorized representative\nthereof), the Company (or such member) which is legally required to sign such\nTax Return shall not be required under this Agreement to sign such Tax Return\nif, with respect to any material Tax Item, such Company believes in good faith\nthat there is no reasonable basis for the tax treatment of such Tax Item as\nproposed to be reported on the Tax Return.\n\n     4.07  Section 732(f) Elections. The parties agree and acknowledge that as\nof October 31, 2000, all of the stock of A.T. Massey was distributed by Fluor\nManagement Company, a Delaware general partnership (\"FMC\"), to Allegheny Coal\nCorporation, a Delaware corporation (\"Allegheny\") and St. Joe Carbon Fuels\nCorporation, a Delaware corporation (\"SJCF\"), each of which was a member of the\nNew Fluor Group and a partner of FMC at the time of such distribution of the\nA.T. Massey stock. The parties further agree that New Fluor and Parent shall\nmake and take, and each of them shall cause their respective Affiliates to make\nand take, such elections and actions as may be reasonably necessary to cause the\nprovisions of Code Section 732(f) (and any corresponding provision of State Tax\nLaw) to be inapplicable with respect to or as a result of such distribution of\nthe A.T. Massey stock. Without limitation on the foregoing, the parties agree as\nfollows:\n\n           (a) On the consolidated Federal Income Tax Return of Parent for the\nTax year ending October 31, 2000, Parent and, to the extent required by\napplicable Tax Law, Allegheny and SJCF or their successors in interest, shall\nmake an election to have the transitional rule of Section 538(b)(2) of Public\nLaw 106-170 apply to FMC's distribution of the A.T. Massey stock (such election,\na \"Section 732(f) Election\"); and\n\n           (b) Parent and, to the extent required by applicable Tax Law,\nAllegheny and SJCF or their successors in interest, also shall make a Section\n732(f) Election on the consolidated Federal Income Tax Return filed by Parent\nfor the Tax year ending October 31, 2001.\n\n     4.08  Section 382 Items. At the request of New Fluor, Parent shall make\n(or, to the extent applicable, join with members of the New Fluor Group in\nmaking) an election, under Treasury Regulation Section 1.1502-95(c)(1) and any\ncomparable State Tax Law, to apportion to New Fluor, or to such subsidiary or\nsubsidiaries of New Fluor as New Fluor may direct, the\n\n                                       23\n\n \nconsolidated section 382 limitation (or subgroup section 382 limitation) and net\nunrealized built-in gain (or subgroup net unrealized built-in gain) as of the\nDistribution Date for the consolidated Federal Income Tax Return group which has\nParent as its common parent, but only to the extent any such limitation and\nbuilt-in gain resulted from an \"ownership change\" (within the meaning of Code\nSection 382) of one or more members of the New Fluor Group (including any\npredecessor of such a member). New Fluor shall furnish, or cause to be\nfurnished, to Parent such information as is required by Parent for purposes of\nmaking this election.\n\n           Section 5.  Tax Liability Payments and Tax Benefit Payments.\n\n     5.01  Payment of Taxes With Respect to Consolidated or Combined Tax Returns\nFiled After the Distribution Date. In the case of any Consolidated or Combined\nTax Returns for which the due date (including extensions) is after the\nDistribution Date:\n\n           (a) Computation and Payment of Tax Due. Subject to the provisions of\nSection 4.06, at least three business days prior to any Payment Date pertaining\nto such a Tax Return the Responsible Company shall compute the amount of Tax\nrequired to be paid on such Payment Date to the applicable Tax Authority with\nrespect to such Tax Return (whether for estimated Tax, a request for an\nextension of the time to file or the original Tax Return for the Tax Period) and\nshall notify the Other Company of its allocable share of such Tax as determined\nin accordance with the provisions of this Agreement, including, without\nlimitation, the provisions of Sections 4.04 and 4.05. On or before such Payment\nDate, the Responsible Company shall pay such Tax to the applicable Tax Authority\n(whether or not it has theretofore received, pursuant to Section 5.01(b),\npayment from the Other Company of its allocable share of such Tax payment).\n\n           (b) Payments With Respect to Allocations of Tax Liabilities. Within\nfive business days following the applicable Payment Date, the Other Company\nshall pay to the Responsible Company the excess (if any) of (i) the portion of\nthe Tax liability determined as of such Payment Date with respect to the\napplicable Tax Period that is allocable to the Other Company as determined by\nthe Responsible Company in accordance with the provisions of this Agreement (the\n\"Allocated Tax Liability\"), over (ii) the cumulative net payment with respect to\nsuch Tax Period made prior to such Payment Date by the Other Company (the\n\"Cumulative Tax Payment\"). The Other Company also shall pay to the Responsible\nCompany, together with the Tax liability payment required hereunder, interest\nthereon at the Base Rate calculated from the Payment Date to the date of the\nOther Company's payment hereunder to the Responsible Company. If the Other\nCompany's Cumulative Tax Payment is in excess of the Other Company's Allocated\nTax Liability for such Tax Period as of such Payment Date (such excess, the\n\"Other Company Overpayment\"), then within 20 business days following each date\n(herein the \"Overpayment Tax Benefit Date\") as of which the Responsible Company\nreceives any Tax refund and\/or is credited with or otherwise receives any Tax\nreduction which is attributable to all or any portion of the Other Company\nOverpayment, the Responsible Company shall pay to the Other Company the amount\nof such Tax refund, credit or reduction that is attributable to the Other\nCompany Overpayment. If the Responsible Company does not make the foregoing\npayment within 3 business days following the Overpayment Tax Benefit Date, then\nthe Responsible Company also shall pay to the Other Company, together with the\nforegoing payment required hereunder, interest thereon calculated at the Base\nRate from the Overpayment Tax\n\n                                       24\n\n \nBenefit Date to the date of the Responsible Company's payment hereunder to the\nOther Company.\n\n     5.02  Payments Resulting From Audit Adjustments. In the event that, as a\nresult of an audit or examination by any Tax Authority, there are Audit\nAdjustments of one or more Tax Items on a Consolidated or Combined Tax Return,\nwhether or not such Audit Adjustments result in an additional Consolidated or\nCombined Tax liability being imposed, assessed or agreed to with respect to the\nTax Period covered by such Tax Return (a \"Tax Underpayment Liability\"), the\nparties agree that the allocation of each party's share of the liability for\nsuch Consolidated or Combined Tax liability as so adjusted, including any Tax\nUnderpayment Liability and the Consolidated or Combined Tax liability as\npreviously (and most recently) adjusted and allocated (collectively, the\n\"Adjusted Consolidated or Combined Tax Liability\"), shall be redetermined and\nreallocated in accordance with the With\/Without Allocation Method of Section\n2.01 or Section 2.02 and subject to the provisions of Section 2.04 and Section 3\n(whichever of such Sections may be applicable and to the extent thereof) and\ngiving effect to such Audit Adjustments. The Company which is the Responsible\nCompany with respect to such Tax Return (i) shall, if there is a Tax\nUnderpayment Liability, pay such Tax Underpayment Liability to the applicable\nTax Authority on or before the applicable payment date therefor, and (ii) shall\ncompute and determine the allocation or reallocation of the Adjusted\nConsolidated or Combined Tax Liability as hereinabove provided. As soon as\npracticable after the earliest of (1) such payment date, and (2) any other date\non which a Tax Underpayment Liability is paid, the Responsible Company shall\ngive written notice (a \"Tax Liability Reallocation Notice\") to the Other Company\nspecifying (v) each Company's allocable share of the Adjusted Consolidated or\nCombined Tax Liability, including all relevant calculations and data required to\nreasonably inform the Other Company of the manner in which the Tax liability has\nbeen reallocated, (w) the amount, if any (a \"Reallocation Deficit\"), which is\npayable by New Fluor to Parent, or Parent to New Fluor, in accordance with the\nprovisions of Section 2.01(b) or Section 2.02(b) and\/or subject to the\nprovisions of Section 2.04 and Section 3 (whichever of such Sections may be\napplicable and to the extent thereof), and (x) if applicable, evidence of\npayment by the Responsible Company of any Tax Underpayment Liability. Within 20\nbusiness days following the date of such Tax Liability Reallocation Notice, New\nFluor shall pay to Parent, or Parent shall pay to New Fluor (whichever may be\napplicable), the full amount of the Reallocation Deficit. The Company required\nto make such payment (the \"First Company\") shall, together with its payment of\nthe Reallocation Deficit amount, pay to the other Company (the \"Second Company\")\n(y) to the extent the Reallocation Deficit involves a shifting or reallocation\nof Tax liabilities from that as previously (and most recently) allocated,\ninterest on such portion of the Reallocation Deficit calculated at the Base Rate\nfrom the due date (determined without regard to extensions) for the Tax Return\nto which the Audit Adjustments apply to the date of payment of the payment\nrequired hereunder, and (z) to the extent the Reallocation Deficit involves a\nTax Underpayment Liability paid by the Second Company, interest on such portion\nof the Reallocation Deficit calculated at the Base Rate from the date of such\npayment of the Tax Underpayment Liability to the date of payment of the payment\nrequired hereunder. By way of illustration (and not limitation) of the foregoing\nprovisions, if: (1) on the original Consolidated or Combined Tax Return there\nwas a Consolidated or Combined Tax Liability of $50,000,000 consisting of a\n$30,000,000 Federal Without Amount allocated to Parent and a balance of\n$20,000,000 allocated to New Fluor; (2) in connection with a Tax audit, the New\nFluor Group has increased income items and\/or decreased deduction items of\n$1,000,000 which are offset by decreased income\n\n                                       25\n\n \nitems and\/or increased deduction items of the Parent Group in the amount of\n$1,000,000; and (3) as a result of giving effect to all of such increases and\ndecreases, the Federal With Amount remains at $50,000,000, the Federal Without\nAmount is reduced to $29,650,000 and the balance of $20,350,000 is allocated to\nthe New Fluor Group, then New Fluor shall be obligated to pay a Reallocation\nDeficit to Parent in the amount of $350,000, plus interest at the Base Rate on\n$350,000 from the due date (determined without regard to extensions) of the Tax\nReturn to which the Audit Adjustments apply to the date of payment of the\nReallocation Deficit hereunder.\n\n     5.03  Payment of Separate Company Taxes. On or before the required payment\ndate therefore, each Company shall pay, or shall cause to be paid, to the\napplicable Tax Authority all Separate Company Taxes which are allocable to and\npayable by such Company or a member of such Company's Group in accordance with\nthe provisions of this Agreement, including any Separate Company Taxes which are\nassessed or imposed by a Tax Authority as a result of any audit or examination\nof a Separate Company Tax Return.\n\n     5.04  Carrybacks, Carryovers and Audit Adjustment Benefits.\n\n           (a)   Carrybacks. If any member of the New Fluor Group incurs a\nCarryback item which may be carried back to (i) a Tax Period ending on or\nbefore, or which includes, the Distribution Date with respect to which a\nSeparate Company Tax Return was filed by or on behalf of the New Fluor Group or\nany member thereof, or (ii) a Tax Period with respect to which a Consolidated or\nCombined Tax Return was filed, the New Fluor Group (or such member thereof)\nshall be entitled, to the extent permitted or required by Law, to carry back\nsuch Carryback item to the Tax Period covered by such Tax Return. Such member's\nright hereunder shall include, but not be limited to, the filing of a refund\nclaim pursuant to Code Section 6411, the filing of amended Tax Returns, and the\nfiling of refund claims based on the applicable Carryback item, in each case to\nthe extent such a filing is permissible (any such filing, a \"Carryback\nAdjustment Request\"). In the event that any such filing of a Carryback\nAdjustment Request or other action with respect to the Carryback item must be\nfiled or taken by Parent to be effective, Parent shall effect such filing or\ntake such action as reasonably requested by New Fluor, and Parent shall\notherwise cooperate with the New Fluor Group in seeking from the appropriate Tax\nAuthority any Tax refund or other Tax Benefit that may reasonably be\nattributable to the Carryback item. Tax refunds or other Tax Benefits resulting\nfrom Carrybacks with respect to Separate Company Returns, and Tax refunds, Tax\nBenefits and reallocations of Consolidated or Combined Tax liabilities resulting\nfrom Carrybacks to Consolidated or Combined Tax Returns, shall be paid, credited\nand\/or allocated in accordance with, and otherwise shall be subject to, the\nprovisions of Section 5.04(d). The New Fluor Group (or applicable members\nthereof) may, at its sole discretion, choose not to carry back any one or more\nCarryback items as to which it is entitled hereunder to file a Carryback\nAdjustment Request. Parent and the members of the Parent Group shall have\nidentical rights, and New Fluor shall have identical obligations, with respect\nto Carryback items incurred by Parent or any other member of the Parent Group\nwhich may be carried back to (i) a Tax Period ending on or before, or which\nincludes, the Distribution Date with respect to which a Separate Company Tax\nReturn was filed by or on behalf of the Parent Group or any member thereof, or\n(ii) a Tax Period covered by a Consolidated or Combined Tax Return.\n\n                                       26\n\n \n     (b)  Carryovers. The New Fluor Group and its members shall be entitled to\nthe benefit, following the Distribution, of any Carryover item incurred by any\nsuch member in (i) any Tax Period ending on or before, or which includes, the\nDistribution Date with respect to which a Separate Company Tax Return was filed\nby or on behalf of the New Fluor Group or any member thereof, and (ii) any Tax\nPeriod covered by a Consolidated or Combined Return. Any such member which\nincurred any such Carryover item shall be entitled, to the extent permitted or\nrequired by Law, to obtain the benefit of such Carryover item by filing, if\nnecessary, amended returns or refund claims based on the applicable Carryover\nitem with the appropriate Tax Authority (any such filing, a \"Carryover\nAdjustment Request\"). Any Carryover item of Parent for any Tax Period including\nthe Distribution Date will be treated as incurred by a member of the New Fluor\nGroup only to the extent such Carryover item is apportioned hereunder to the\nportion of such Tax Period through the Distribution Date. In the event that any\nsuch filing of such a Carryover Adjustment Request or other action must be filed\nor taken by Parent to be effective, Parent shall effect such filing or take such\naction as is reasonably requested by New Fluor, and Parent shall otherwise\ncooperate with the New Fluor Group in seeking from the appropriate Tax Authority\nany Tax refund or other Tax Benefits that may reasonably be attributable to the\nCarryover item. Tax refunds or other Tax Benefits resulting from Carryovers to\nSeparate Company Returns, and Tax refunds, Tax Benefits and reallocations of\nConsolidated or Combined Tax liabilities resulting from Carryovers to\nConsolidated or Combined Tax Returns, shall be paid, credited and\/or allocated\nin accordance with, and shall be otherwise subject to, the provisions of Section\n5.04(d). Parent and the members of the Parent Group shall have identical rights,\nand New Fluor shall have identical obligations, with respect to Carryover items\nincurred by Parent or any other member of the Parent Group in (i) any Tax Period\nending on or before, or which includes, the Distribution Date with respect to\nwhich a Separate Company Tax Return was filed by or on behalf of the Parent\nGroup or any member thereof, or (ii) any Tax Period covered by a Consolidated or\nCombined Tax Return. The parties agree that the Tax Benefits attributable to any\nCarryover items which Parent has as of the Distribution Date with respect to any\nTax Periods (or portions thereof) through the Distribution Date shall be\nallocable to New Fluor, and the provisions of this Section 5.04(b) shall apply\nto such Carryover items as if incurred by members of the New Fluor Group.\n\n     (c)  Other Audit Adjustment Requests. In the case of Tax Items other than\nCarrybacks and Carryovers, in the event that any member of the New Fluor Group\ndetermines that it is entitled to a Tax refund or other Tax Benefit pertaining\nto (i) a Tax Period ending on or before, or which includes, the Distribution\nDate with respect to which a Separate Company Tax Return was filed by or on\nbehalf of the New Fluor Group or any member thereof, or (ii) a Tax Period with\nrespect to which a Consolidated or Combined Tax Return was filed, whether such\ndetermination results from an audit or examination of any such Tax Return by any\nTax Authority or from a determination by the applicable New Fluor Group member\nthat one or more Tax Items were not properly reported and treated on any such\nTax Return, then the New Fluor Group or the applicable member thereof shall be\nentitled, to the extent permitted or required by Law, to obtain the benefit of\nsuch Tax refund or other Tax Benefit by filing amended returns or refund claims\nbased on the applicable adjusted Tax Items with the appropriate Tax Authority\n(any such filing, an \"Audit Adjustment Request\").  It is intended that the\nprovisions of this Section 5.04(c) shall apply (but not be limited) to an Audit\nAdjustment Request that results from and corresponds to an adjustment made by a\nTax Authority in connection with any such Tax Return.  By way of illustration,\nand without limitation, if, as a result of an examination of New Fluor Group's\n\n                                       27\n\n \nconsolidated Federal Income Tax Return for its 1997 taxable year, the Internal\nRevenue Service requires the New Fluor Group to capitalize an item that had been\ndeducted on such return, the New Fluor Group shall be entitled hereunder to\nrequire the Parent to file an Audit Adjustment Request for the 1998 taxable year\n(and later years, if applicable) to obtain a Tax refund or other Tax Benefit\nattributable to depreciation or amortization deductions in such years related to\nsuch items capitalized in 1997. In the event that any such filing of an Audit\nAdjustment Request or other action must be filed or taken by Parent to be\neffective, Parent shall effect such filing or take such action as is reasonably\nrequested by New Fluor, and Parent shall otherwise cooperate with the New Fluor\nGroup in seeking from the appropriate Tax Authority any such Tax refund or other\nTax Benefit. Tax refunds or other Tax Benefits resulting from such Audit\nAdjustment Requests with respect to Separate Company Returns, and Tax refunds,\nTax Benefits and reallocations of Consolidated or Combined Tax liabilities\nresulting from such Audit Adjustment Requests with respect to Consolidated or\nCombined Tax Returns, shall be paid, credited and\/or allocated in accordance\nwith, and shall be otherwise subject to, the provisions of Section 5.04(d).\nParent and the members of the Parent Group shall have identical rights, and New\nFluor shall have identical obligations, with respect to Audit Adjustment\nRequests by any member of the Parent Group related to (i) any Tax Period ending\non or before, or which includes, the Distribution Date with respect to which a\nSeparate Company Tax Return was filed by or on behalf of the Parent Group or any\nmember thereof, and (ii) any Tax Period covered by a Consolidated or Combined\nReturn.\n\n          (d)  Audit Adjustment Reallocations and Payments.\n\n               (i)  General.\n\n          (A)  The parties agree that any Tax refund or other Tax Benefit\nresulting from or attributable to an Audit Adjustment of a Separate Company Tax\nReturn of the New Fluor Group shall be payable or otherwise allocable to New\nFluor or other applicable members of the New Fluor Group, and any Tax refund or\nother Tax Benefit resulting from or attributable to an Audit Adjustment of a\nSeparate Company Tax Return of the Parent Group shall be payable or otherwise\nallocable to Parent or other applicable member of the Parent Group, provided,\nhowever, such Tax refund or Tax Benefit shall be allocated to New Fluor to the\nextent it relates to a Separate Company Tax of the Parent with respect to a Tax\nPeriod ending on or before the Distribution Date (or any portion thereof treated\nas ending on the Distribution Date pursuant to Section 2.02(a) or Section 2.03)\nfor which New Fluor is liable pursuant to the provisions of Section 2. In the\ncase of any Audit Adjustments with respect to a Consolidated or Combined Tax\nReturn resulting from a Carryback Adjustment Request, Carryforward Adjustment\nRequest or Audit Adjustment Request, the following provisions shall apply: (A)\nthe Responsible Company shall recompute and reallocate the Consolidated or\nCombined Tax liability, as adjusted, and issue a Tax Liability Reallocation\nNotice, in accordance with the principles and provisions of Section 5.02; (B)\nany Reallocation Deficit, together with interest thereon, shall be paid by New\nFluor or Parent, as the case may be, in accordance with the provisions of\nSection 5.02; (C) in applying the With\/Without Allocation Method, the Tax\nBenefits attributable to any Audit Adjustment shall be those which result from\nthe application of the Audit Adjustment to a Tax Return as previously (and most\nrecently) adjusted, if applicable; for example, if one Company (the \"First\nCompany\") incurs a Carryback to a Consolidated or Combined Tax Return that\nabsorbs the full Tax Benefit available on such Tax Return with\n\n                                       28\n\n \nrespect to that type of Carryback, and in a subsequent Tax Period the second\nCompany (the \"Second Company\") incurs a similar Carryback which would have\ngenerated a Tax Benefit on such Consolidated or Combined Tax Return had the\nFirst Company's Carryback not occurred, such Second Company's Carryback shall\nnot be deemed to result in any Tax Benefit on such Consolidated or Combined Tax\nReturn that is not realized under applicable Law, and there shall be no\nreallocation or apportionment required (by reason of such unrealized Tax\nBenefit) with respect to the Tax Benefit derived by the First Company from its\nprior Carryback adjustment; and (D) if, as a result of such Audit Adjustments, a\nmember of one Group (the \"First Group Member\") receives a Tax refund or Tax\nreduction which, under the foregoing principles, is payable or allocable to a\nmember of the other Group (the \"Second Group Member\"), the First Group Member\nshall pay the amount thereof to the Second Group Member in accordance with the\nfollowing provisions of this Section 5.04(d).\n\n     (B)  For purposes of applying the provisions of the foregoing Section\n5.04(d)(i)(A) and other provisions of this Agreement involving Audit\nAdjustments, the parties' priority of entitlement to Audit Adjustments shall be\ndetermined, to the extent applicable, in accordance with statutory priorities,\nincluding priorities based on the Tax Periods in which the relevant Tax Items\narise.\n\n          (ii)   Tax Refunds. If a member of the Parent Group receives from a\nTax Authority a Tax refund payment, including but not limited to a payment of\ninterest with respect to a Tax refund or other Tax adjustment (any such refund\nor interest payment, a \"Tax Adjustment Payment\"), and a member of the New Fluor\nGroup is entitled to such Tax Adjustment Payment pursuant to the provisions of\nSection 5.04(d)(i) and other applicable provisions of this Agreement, Parent\nshall pay, or cause to be paid, to New Fluor the amount of such Tax Adjustment\nPayment within 20 business days following receipt of the Tax Adjustment Payment\nby Parent or other member of the Parent Group (the \"TAP Receipt Date\"). If\nParent does not pay such amount within 3 business days following such TAP\nReceipt Date, then Parent also shall pay to New Fluor, together with its payment\nto New Fluor of such Tax Adjustment Payment, interest on the amount of such Tax\nAdjustment Payment calculated at the Base Rate from the TAP Receipt Date to the\ndate of Parent's payment hereunder to New Fluor. New Fluor shall have an\nidentical obligation to pay to Parent any Tax Adjustment Payment, together with\ninterest thereon, to which any member of the Parent Company is entitled pursuant\nto the provisions of Section 5.04(d)(i) and other applicable provisions of this\nAgreement.\n\n          (iii)  Tax Reductions. If, in lieu of a Tax Adjustment Payment that,\nif paid, would be payable to New Fluor pursuant to Section 5.04(d)(ii), a member\nof the Parent Group receives a reduction of Taxes otherwise payable by such\nmember, including but not limited to a reduction of an interest obligation or\nother credit against interest obligations otherwise payable by such member (any\nsuch reduction or credit, a \"Tax Adjustment Credit\"), Parent shall pay to New\nFluor, within 20 business days following the date on which the applicable Tax\nAuthority gives effect to such Tax Adjustment Credit (the \"TAC Adjustment\nDate\"), the full amount of such Tax Adjustment Credit. If Parent does not pay\nsuch amount within 3 business days following the TAC Adjustment Date, then\nParent also shall pay to New Fluor, together with its payment to New Fluor of\nthe amount of such Tax Adjustment Credit, interest on the amount of such Tax\nAdjustment Credit calculated at the Base Rate from the TAC Adjustment Date to\nthe date of Parent's payment hereunder to New Fluor. New Fluor shall have\n\n                                       29\n\n \nan identical obligation to pay to Parent the amount of any Tax Adjustment\nCredit, together with interest thereon, which any member of the New Fluor Group\nreceives in lieu of a Tax Adjustment Payment that, if paid to a member of the\nNew Fluor Group, would be payable by New Fluor to Parent pursuant to Section\n5.04(d)(ii).\n\n          (iv) Future Tax Benefits. If any member of the Parent Group receives\nor is credited with any Tax Item that will or may result in a Tax Benefit to\nsuch Parent Group member in future Tax Periods and which is allocable to a\nmember of the New Fluor Group pursuant to the provisions of Section 5.04(d)(i)\nand other applicable provisions of this Agreement, Parent shall pay to New\nFluor, within 20 business days following the due date (excluding extensions) of\nthe Tax Return (the \"TR Due Date\") for any Tax Period in which the Parent Group\n(or any member thereof) realizes any portion of such Tax Benefit, the amount of\nsuch Tax Benefit realized in such Tax Period. If Parent does not pay such amount\nwithin 3 business days following such TR Due Date, then Parent also shall pay to\nNew Fluor, together with its payment to New Fluor of such Tax Benefit amount,\ninterest thereon calculated at the Base Rate from such TR Due Date to the date\nof Parent's payment to New Fluor of the payment required hereunder. New Fluor\nshall have an identical obligation to pay to Parent the amount of any future Tax\nBenefits realized by a member of the New Fluor Group which are allocable to\nmembers of the Parent Group pursuant to the provisions of Section 5.04(d)(i) and\nother applicable provisions of this Agreement.\n\n          (v)   Certain Transferred Obligation Tax Benefits. The parties agree\nas follows:\n\n                (A)  In connection with the Transactions and pursuant to the\nprovisions of the Distribution Agreement and\/or its related agreements among the\nparties, certain fixed or contingent obligations of Parent and Massey relating\nto periods prior to the Distribution Date, including, without limitation,\ncompensation and benefit related obligations to or with respect to Pre-\nDistribution Parent Employees or Pre-Distribution Massey Employees (as those\nterms are defined in Section 5.04(vi)(D)), other than obligations related to\nSubstituted Equity Incentives as provided for under Section 5.04(d)(vi), are\nbeing paid by (or reimbursed to Parent by), or assigned to and assumed by, New\nFluor and\/or other members of the New Fluor Group (collectively, the\n\"Transferred Obligations\"). Without limitation on the foregoing, it is intended\nthat the provisions of this Section 5.04(v)(A) shall apply to (1) New Fluor's\npayment or other satisfaction (or reimbursement to Parent for its payment or\nother satisfaction) of deferred compensation obligations to Pre-Distribution\nEmployees, as defined in Section 5.04(vi)(D), and (2) New Fluor's payment or\nother satisfaction (or reimbursement to Parent or A.T. Massey for its payment or\nother satisfaction) of amounts payable to Don L. Blankenship pursuant to the\namendment to his employment agreement entered into in connection with the\nDistribution. Any Tax deduction or other Tax Benefit resulting from or\nattributable to the payment, reimbursement or other satisfaction of all or any\nportion of any such Transferred Obligation shall be allocable to the New Fluor\nGroup member which pays, reimburses or otherwise satisfies such Transferred\nObligation. Unless required otherwise by applicable Tax Law or the actions of a\nTax Authority, the parties agree that the New Fluor Group shall be entitled to\nclaim such Tax Benefit on the appropriate New Fluor Group Tax Return filed after\nthe Distribution Date, and, except as provided under Section 5.04(d)(v)(B)\nbelow, the Parent Group shall not claim any such Tax Benefit on any Tax Return\nof the Parent Group.\n\n                                       30\n\n \n               (B) If, pursuant to applicable Tax Law or the actions of a Tax\nAuthority, a member of the Parent Group is required to, or if New Fluor and\nParent mutually agree that Parent shall, claim a deduction or other Tax Benefit\nattributable to the payment or other satisfaction by a New Fluor Group member of\na Transferred Obligation, Parent shall pay to New Fluor the excess of (i) the\namount of any Tax refund or Tax reduction which the Parent Group obtains as a\nresult of, or which is otherwise attributable to, claiming such deduction or\nother Tax Benefit on its Tax Returns, over (ii) the amount of any Tax incurred\nby the Parent Group as a result of, or which is otherwise attributable to, the\nassumption, payment, reimbursement or other satisfaction of the Transferred\nObligation by New Fluor and\/or other members of the New Fluor Group (any such\nexcess amount, the \"Transferred Obligation Tax Benefit Amount\"). Such\nTransferred Obligation Tax Benefit Amount shall be paid by Parent to New Fluor\nwithin 20 business days following the date (herein the \"Transferred Obligation\nTax Benefit Date\") as of which the Parent Group receives any such Tax refund\nand\/or is credited with or otherwise receives the benefit of any such Tax\nreduction (which Date, in the case of a Parent Tax Return on which Parent\noriginally claims a deduction or other Tax Benefit attributable to the payment\nor other satisfaction of a Transferred Obligation, shall be the due date\n(determined without regard to extensions) for the filing of such Return). If\nParent does not make such payment within 3 business days following the\nTransferred Obligation Tax Benefit Date, then Parent also shall pay to New\nFluor, together with such payment to New Fluor, interest on such Transferred\nObligation Tax Benefit Amount calculated at the Base Rate from the Transferred\nObligation Tax Benefit Date to the date of the payment hereunder. If, pursuant\nto an Audit Adjustment, a Tax Authority disallows a Tax Benefit claimed by the\nNew Fluor Group on its Tax Returns with respect to the payment or other\nsatisfaction of such a Transferred Obligation, New Fluor shall be entitled to\nrequire Parent to seek to obtain the Tax Benefits attributable thereto pursuant\nto the provisions of Section 5.04(c), in which case Parent shall be obligated to\npay to New Fluor the amount of any Tax Benefits obtained, together with\ninterest, in accordance with the provisions of this Section 5.04(d)(v)(B) and\nthe foregoing provisions of this Section 5.04(d).\n\n               (C) In connection with its payment or other satisfaction of all\nor any portion of a Transferred Obligation, New Fluor shall pay, make, withhold\nand\/or deposit all employment and payroll Taxes and Tax withholdings as required\nunder applicable Tax Laws. If, pursuant to applicable Tax Law or the actions of\na Tax Authority, a member of the Parent Group is required to, or if New Fluor\nand Parent mutually agree that Parent shall, claim a deduction or other Tax\nBenefit attributable to the payment or other satisfaction of all or any portion\nof a Transferred Obligation, or if a member of the Parent Group is otherwise\nrequired to pay employment or payroll Taxes with respect to the payment or other\nsatisfaction of all or any portion of a Transferred Obligation, then New Fluor\nshall reimburse Parent for the full amount of such employment and payroll Taxes\npaid by Parent, with such reimbursement to be made within three business days\nfollowing New Fluor's receipt of demand therefor from Parent.\n\n          (vi) Certain Equity Incentive Tax Benefits. The parties agree as\nfollows:\n\n               (A) In connection with the Transactions and pursuant to the\nprovisions of the Distribution Agreement and\/or its related agreements among the\nparties, certain Pre-Distribution Equity Incentives (as defined herein) will be\ncancelled and in lieu thereof New\n\n                                       31\n\n \nFluor will, effective as of the Distribution, issue or grant New Fluor\nSubstituted Equity Incentives (as defined herein) to the parties holding such\ncancelled Pre-Distribution Equity Incentives immediately prior to the\nDistribution. Any Tax deduction or other Tax Benefit resulting from or\nattributable to the vesting, exercise, purchase, cancellation, payment or other\ndisposition or satisfaction of all or any portion of a New Fluor Substituted\nEquity Incentive, including, without limitation, a payment of cash in lieu of\nissuing a New Fluor Substituted Equity Incentive (any such action or event, a\n\"Satisfying\" or \"Satisfaction\") shall be allocable to the New Fluor Group member\nwhich Satisfies such New Fluor Substituted Equity Incentive. Without limitation\non the foregoing, the parties agree that if New Fluor pays cash to, or pays cash\ninto a fund or account for the benefit of, a Pre-Distribution Massey Employee\n(as defined below) in consideration for the sale or cancellation of, or in lieu\nof the issuance of, a New Fluor Substituted Equity Incentive issued or otherwise\nissuable (as applicable) to such Employee (whether or not the vesting thereof is\naccelerated as a result of the Distribution), such payment by New Fluor shall be\ndeemed a Satisfaction to which the provisions of this section 5.04(d)(vi) apply.\nAlso in connection with the Transactions, New Fluor will be making payments to,\nor into an account on behalf of, Pre-Distribution Massey Employees (including\nreimbursements to Parent or A.T. Massey for such payments) in cancellation or\nother Satisfaction of Parent Substituted Equity Incentives (as defined herein),\nand the parties agree that any Tax deduction or other Tax Benefit resulting from\nor attributable to the purchase or other Satisfaction of any such Parent\nSubstituted Equity Incentive shall be allocated to the New Fluor Group member\nwhich Satisfies such Parent Substituted Equity Incentive. Without limitation on\nthe foregoing, it is intended that the foregoing provisions of this Section\n5.04(vi)(A) shall apply to New Fluor's payment or other satisfaction (or\nreimbursement to Parent or A.T. Massey for its payment or other satisfaction) of\n(1) amounts payable to Pre-Distribution Employees in cancellation of, or with\nrespect to, options to acquire Parent stock, and (2) amounts payable to Don L.\nBlankenship in cancellation of, or with respect to, Pre-Distribution Equity\nIncentives pursuant to the amendment to his employment agreement entered into in\nconnection with the Distribution. Unless required otherwise by applicable Tax\nLaw or the actions of a Tax Authority, the parties agree that the New Fluor\nGroup shall be entitled to claim such deduction or other Tax Benefit on the\nappropriate New Fluor Group Tax Return filed after the Distribution Date, and,\nexcept as provided under Section 5.04(d)(vi)(B) below, the Parent Group shall\nnot claim any such deduction or other Tax Benefit on any Tax Return of the\nParent Group.\n\n               (B) If, pursuant to applicable Tax Law or the actions of a Tax\nAuthority, a member of the Parent Group is required to, or if New Fluor and\nParent mutually agree that Parent shall, claim a deduction or other Tax Benefit\nattributable to the Satisfaction by a New Fluor Group member of a New Fluor\nSubstituted Equity Incentive, Parent shall pay to New Fluor the excess of (i)\nthe amount of any Tax refund or Tax reduction which the Parent Group obtains as\na result of, or which is otherwise attributable to, claiming such deduction or\nother Tax Benefit on its Tax Returns, over (ii) the amount of any Tax incurred\nby the Parent Group as a result of, or which is otherwise attributable to, the\nassumption, payment, reimbursement or other Satisfaction of the New Fluor\nSubstituted Equity Incentive by New Fluor and\/or other members of the New Fluor\nGroup (any such excess amount, the \"Substituted Incentive Tax Benefit Amount\").\nSuch Substituted Incentive Tax Benefit Amount shall be paid by Parent to New\nFluor within 20 business days following the date (herein the \"Substituted\nIncentive Tax Benefit Date\") as of which the Parent Group receives any such Tax\nrefund and\/or is credited with or otherwise receives the benefit of any such Tax\nreduction (which Date, in the\n\n                                       32\n\n \ncase of a Parent Tax Return on which Parent originally claims a deduction or\nother Tax Benefit attributable to the Satisfaction of a New Fluor Substituted\nEquity Incentive, shall be the due date (determined without regard to\nextensions) for the filing of such Return). If Parent does not make such payment\nwithin 3 business days following the Substituted Incentive Tax Benefit Date,\nthen Parent also shall pay to New Fluor, together with such payment to New\nFluor, interest on such Substituted Incentive Tax Benefit Amount calculated at\nthe Base Rate from the Substituted Incentive Tax Benefit Date to the date of the\npayment hereunder. If, pursuant to an Audit Adjustment, a Tax Authority\ndisallows a Tax Benefit claimed by the New Fluor Group on its Tax Returns with\nrespect to the Satisfaction of such a New Fluor Substituted Equity Incentive,\nNew Fluor shall be entitled to require Parent to seek to obtain the Tax Benefits\nattributable thereto pursuant to the provisions of Section 5.04(c), in which\ncase Parent shall be obligated to pay to New Fluor the amount or value of any\nTax Benefits obtained, together with interest, in accordance with the provisions\nof this Section 5.04(d)(vi)(B) and the foregoing provisions of this Section\n5.04(d). The parties agree that if, pursuant to the foregoing provisions, Parent\nclaims a Tax Benefit on behalf of New Fluor with respect to an unvested New\nFluor Substituted Equity Incentive (or if Parent claimed a Tax Benefit with\nrespect to a Pre-Distribution Equity Incentive) and such Tax Benefit is\ndisallowed and recaptured to any extent by reason of a failure to satisfy\n(including but not limited to termination of employment by the holder of such\nIncentive prior to satisfaction) all or any portion of the applicable vesting\nrequirement, the recaptured Tax Benefit shall be a Disallowed Tax Benefit\nsubject to the provisions of Section 5.04(f)(i)(B).\n\n               (C) In connection with its Satisfaction of any New Fluor\nSubstituted Equity Incentive, New Fluor shall pay, make, withhold and\/or deposit\nall employment and payroll Taxes and Tax withholdings as required under\napplicable Tax Laws. If, pursuant to applicable Tax Law or the actions of a Tax\nAuthority, a member of the Parent Group is required to, or if New Fluor and\nParent mutually agree that Parent shall, claim a deduction or other Tax Benefit\nattributable to the Satisfaction of a New Fluor Substituted Equity Incentive, or\nif a member of the Parent Group is otherwise required to pay employment or\npayroll Taxes with respect to a Satisfaction of a New Fluor Substituted Equity\nIncentive, then New Fluor shall reimburse Parent for the full amount of such\nemployment and payroll Taxes paid by Parent, with such reimbursement to be made\nwithin three business days following New Fluor's receipt of demand therefor from\nParent.\n\n               (D) For purposes of Section 5.04(d)(v) and this Section\n5.04(d)(vi), the following definitions shall apply:\n\n                   (1) The term \"Equity Incentive\" shall mean any restricted\nstock (or related unit), stock appreciation right, stock option, shadow stock or\nother equity-based compensation which is issued, granted or otherwise\ntransferred by a corporation to its (or its Affiliate's) employees, directors or\nconsultants.\n\n                   (2) The term \"New Fluor Substituted Equity Incentive\" shall\nmean an Equity Incentive which was issued or granted by New Fluor in exchange or\nsubstitution for a Pre-Distribution Equity Incentive.\n\n                                       33\n\n \n                    (3) The term \"Parent Substituted Equity Incentive\" shall\nmean an Equity Incentive which was issued or granted by Parent in exchange or\nsubstitution for a Pre-Distribution Equity Incentive.\n\n                    (4) The term \"Pre-Distribution Employee\" shall mean any Pre-\nDistribution Parent Employee and any Pre-Distribution Massey Employee.\n\n                    (5) The term \"Pre-Distribution Equity Incentive\" shall mean\nan Equity Incentive which was issued or granted by Parent and which is\noutstanding immediately prior to the Distribution.\n\n                    (6) The term \"Pre-Distribution Massey Employee\" shall mean\nan individual who was employed by one or more members of the Massey Group prior\nto the Distribution, including former employees who retired or otherwise\nterminated employment prior to the Distribution.\n\n                    (7) The term \"Pre-Distribution Parent Employee\" shall mean\nan individual who was employed by Parent prior to the Distribution, including\nformer employees who retired or otherwise terminated employment prior to the\nDistribution.\n\n                    (8) The term \"Substituted Equity Incentives\" shall mean,\ncollectively, New Fluor Substituted Equity Incentives and Parent Substituted\nEquity Incentives.\n\n          (vii)  Other Tax Benefits. If any member of one group (the \"First\nGroup Member\") receives any Tax Benefit not described in the foregoing clauses\n(i), (ii), (iii), (iv), (v) and (vi) but which is payable or allocable to a\nmember of the other Group (the \"Second Group Member\") in accordance with the\nprinciples underlying the Tax liability and Tax Benefit allocation provisions of\nSection 2 and the foregoing provisions of this Section 5, such First Group\nMember shall pay the amount of such Tax Benefit to the Second Group Member\nwithin 20 business days following the date on which the First Group Member\nreceives such Tax Benefit through a refund of or reduction in Tax (the \"Other\nTax Benefit Date\"). If the First Group Member does not make such payment within\n3 business days following the Other Tax Benefit Date, such First Group Member\nshall also pay to the Second Group Member, together with such payment, interest\nthereon calculated at the Base Rate from such Other Tax Benefit Date to the date\nof the First Group Member's payment hereunder to the Second Group Member.\n\n     (e)  Offset For Federal Income Tax Burdens. Notwithstanding the provisions\nof Section 5.04 specifying the amount of payment to be made by one Group (the\n\"First Group\") to a member of the other Group (the \"Second Group\") by reason of\nthe receipt or accrual by the First Group of a Tax refund, Tax reduction or\nother Tax Benefit that under this Agreement is allocable to the Second Group\n(any such refund, reduction or other benefit, the \"Reallocable Tax Benefit\"), if\n(i) the First Group is required, for Federal Income Tax purposes, to recognize\nincome with respect to its receipt or accrual of all or any portion of such\nReallocable Tax Benefit (any such portion, the \"Taxable Portion\"), and (ii) such\nTaxable Portion exceeds the amount of the Federal Income Tax deduction to which\nthe First Group is entitled by reason of its payment of (or accrual of the\nobligation to pay) the Reallocable Tax Benefit to the Second Group (such\n\n                                       34\n\n \nexcess, the \"Taxable Excess\"), then (iii) the amount of the Reallocable Tax\nBenefit shall be reduced by the First Group's Federal Income Tax liability\nattributable to such Taxable Excess.\n\n          (f) Additional Audit Adjustment Rules. Notwithstanding the foregoing\nprovisions of this Section 5.04, the parties agree as follows:\n\n              (i)    If a member of one Group (the \"First Group Member\") is\nrequired, pursuant to the provisions of subsection (a), (b), (c), (d)(v)(B) or\n(d)(vi)B) of this Section 5.04, to file amended returns or refund claims or to\ntake other actions to obtain a Tax refund or other Tax Benefit on behalf of a\nmember of the other Group (the \"Second Group Member\"), the reasonable costs and\nexpenses incurred by such First Group Member in connection with such filing or\nother action shall be paid by the Second Group Member, and to the extent such\ncosts and expenses have not been paid at the time of any payment pursuant to\nSection 5.04(d), the amount of such costs and expenses may be offset against\nsuch payment.\n\n              (ii)   If, pursuant to the actions of any Tax Authority, all or\nany portion of the Tax Benefit obtained by a member of one Group (the \"First\nGroup Member\") on behalf of a member of the other Group (the \"Second Group\nMember\") is disallowed or otherwise reversed (such portion, the \"Disallowed Tax\nBenefit), then (1) if the relevant Tax Benefit payment has not yet been paid by\nthe First Group Member to the Second Group Member, such Tax Benefit payment\nshall be reduced by the amount of the Federal Income Tax liability incurred by\nthe First Group Member as a result of the disallowance or other reversal of the\nDisallowed Tax Benefit (such liability, the \"Disallowed Tax Benefit Tax\nLiability\"), or (2) if such Tax Benefit payment has been paid, the Second Group\nMember shall pay to the First Group Member an amount equal to the Disallowed Tax\nBenefit Tax Liability plus interest at the Base Rate on the amount of such\nDisallowed Tax Benefit Tax Liability from the date of the payment of the Tax\nBenefit by the First Group Member to the Second Group Member to the date of\npayment hereunder of said Disallowed Tax Benefit Tax Liability to the First\nGroup Member.\n\n              (iii)  If a member of the Parent Group or a member of the New\nFluor Group, as the case may be, receives a Carryback Adjustment Request,\nCarryforward Adjustment Request or an Audit Adjustment Request from a member of\nthe other Group, the party receiving such request may, in lieu of filing or\notherwise processing the amended return or refund claim or taking any other\naction so requested, pay to the requesting party the amount of the Tax refund,\ninterest payment or other Tax Benefit which the requesting party wishes to\nobtain pursuant to the applicable Adjustment Request.\n\n              (iv)   Notwithstanding the foregoing provisions of this Section\n5.04, neither Company shall be obligated to take any action with respect to any\nCarryback Adjustment Request, Carryforward Adjustment Request or Audit\nAdjustment Request if the amount of Tax Benefit to be obtained through such\nRequest does not exceed $10,000 (any such Request, a \"Nonmandatory Request\"),\nprovided, however, at such time as the aggregate amount of all such Nonmandatory\nRequests made by a Group and which are not barred by an applicable statute of\nlimitations exceeds $50,000, then all such Nonmandatory Requests must be acted\non without regard to the $10,000 threshold provided for hereunder, provided,\nhowever, no action shall be required with respect to subsequent Nonmandatory\nRequests until such time as such subsequent\n\n                                       35\n\n \nNonmandatory Requests not barred by the statute of limitations exceed $50,000\n(with the foregoing provisions to apply to ongoing series of Nonmandatory\nRequests).\n\n     5.05  Treatment of Payments; Tax Gross-Up; Certain Tax Offsets.\n\n           (a)  General. The parties agree that, except as otherwise\ncontemplated under Section 5.05(b) or as otherwise required pursuant to a change\nin applicable Tax Laws or an action of a Tax Authority following the\nDistribution Date, any payment by a member of one Group to a member of the other\nGroup pursuant to Section 5.01, Section 5.02 or Section 5.04 shall be treated\nfor Income Tax purposes by the payor and the recipient as a non-taxable capital\ncontribution or non-taxable distribution, as appropriate, occurring prior to the\nDistribution, but only to the extent such payment does not relate to a Tax\nallocated to the payor in accordance with Treasury Regulation 1.1502-33(d) or\nunder comparable principles of other applicable Tax Laws.\n\n           (b)  Interest Payments. The parties agree as follows:\n\n                (i)   To the extent that any payment pursuant to Section 5.04 by\na member of one Group to a member of the other Group is attributable to interest\nreceived by or credited to the payor from a Tax Authority, then to the extent\npermitted by Law the parties shall either (A) treat the payor as receiving such\ninterest portion as agent for the recipient, in which case the recipient shall\ntreat such interest portion as interest income to the recipient (includable in\nincome to the extent provided by Law), or (B) both payor and recipient shall\ntreat such interest portion of the payment as an expense paid by the payor\n(deductible to the extent provided by Law) and income to the recipient\n(includable in income to the extent provided by Law).\n\n                (ii)  To the extent that any payment pursuant to Section 5.04 by\na member of one Group to a member of the other Group is attributable to interest\npaid by the recipient to a Tax Authority, then to the extent permitted by Law\nthe parties shall either (A) treat the recipient as paying such interest portion\nto the Tax Authority as agent for the payor, in which case the recipient shall\nnot treat such interest portion as interest income to or interest expense of the\nrecipient and the payor shall treat such interest portion as interest expense of\nthe payor (deductible to the extent provided by Law), or (B) both payor and\nrecipient shall treat such interest portion of the payment as an expense paid by\nthe payor (deductible to the extent provided by Law) and income to the recipient\n(includable in income to the extent provided by Law).\n\n                (iii) To the extent that any payment pursuant to Section 5.01 or\nSection 5.02 or Section 5.04 constitutes (A) a payment of interest by the payor\nunder Section 5.01 or Section 5.02 with respect to the period from the date the\nrecipient paid a Tax liability allocable to the payor until the date of the\npayment under Section 5.01 or Section 5.02, or (B) a payment of interest by the\npayor under Section 5.04 with respect to the period from the date the payor\nreceived a Tax Benefit allocable to the recipient until the date of the payment\nunder Section 5.04, both payor and recipient shall treat such interest portion\nof the payment as interest expense paid by the payor (deductible to the extent\nprovided by Law) and interest income to the recipient (includible in income to\nthe extent provided by Law).\n\n                                       36\n\n \n          (c)  Gross-Up. If, notwithstanding the tax treatment contemplated\nunder Section 5.05(a) with respect to payments made by a member of one Group\n(the \"First Group Member\") to a member of the other Group (the \"Second Group\nMember\"), the Second Group Member is required to treat as taxable income any\nportion of the payment from the First Group Member other than any interest\nportion thereof as described in Section 5.05(b) (such taxable portion, the\n\"Taxable Intercompany Payment\"), then the First Group Member shall be obligated\nto pay to the Second Group Member an additional payment in an amount such that\n(x) the sum of such additional payment plus the Taxable Intercompany Payment,\nless (y) the amount of Income Taxes payable by the recipient with respect to the\naccrual or receipt of such additional payment and the Taxable Intercompany\nPayment, equals the amount of the Taxable Intercompany Payment.\n\n          (d)  Offset For Certain Federal Tax Benefits. Notwithstanding the\nprovisions of Section 5.01 through 5.04 specifying the amount of payments\n(inclusive of interest, penalties and additions) from one Group to the other\nGroup related to State Income Taxes, Foreign Income Taxes or other Taxes other\nthan Federal Income Taxes (any such payment, an \"Intergroup Non-Federal Tax\nPayment\"), if (i) the Group receiving such Intergroup Non-Federal Tax Payment\n(the \"Recipient Group\") is entitled to claim a Tax deduction or Tax credit for\nFederal Income Tax purposes with respect to its payment or accrual of all or any\nportion of the Tax to which such Intergroup Non-Federal Tax Payment pertains\n(any such portion of such Tax, the \"Federal Tax Benefited Amount\"), and (ii) all\nor any portion of such Federal Tax Benefited Amount is not deductible for\nFederal Income Tax purposes by the paying Group and is not includible in income\nof the Recipient Group for Federal Income Tax purposes (such portion not\ndeductible and not includable, the \"Nontaxable Portion\"), then (iii) the amount\nof such Intergroup Non-Federal Tax Payment shall be reduced by the value of the\nRecipient Group's Federal Income Tax Benefit attributable to such Nontaxable\nPortion. By way of illustration of the foregoing, if New Fluor is otherwise\nobligated under this Agreement to make a payment of $1,000,000 to Parent related\nto a State Income Tax that is allocable under this Agreement to the New Fluor\nGroup but as to which (x) Parent will be entitled to claim a Federal Income Tax\ndeduction, and (y) in accordance with the principles of Section 5.05(a), such\npayment from New Fluor to Parent is neither deductible by New Fluor nor\nincludible in income by Parent, then (y) the amount of the payment from New\nFluor to Parent shall be reduced to $650,000 if Parent's applicable Federal\nIncome Tax rate is 35%.\n\n     5.06 Method of Payment. All payments made by one Company (or its\nAffiliates) to the other Company (or its Affiliates) under this Agreement shall\nbe made in immediately available funds.\n\n     5.07 Late Payments. Any amount payable by one party (the \"first party\") to\nanother party (the \"second party\") under this Agreement which is not paid on or\nbefore expiration of the period within which such payment is required to be made\npursuant to this Agreement shall bear interest from such expiration date until\nsuch payment is made at the Base Rate plus two percentage points, provided,\nhowever, such interest rate shall not exceed the rate permissible under\napplicable usury laws (if such laws are applicable). To the extent interest\nrequired to be paid under this Section 5.07 duplicates interest required to be\npaid under any other provision of this Agreement, interest shall be computed at\nthe higher of the interest rate provided under this Section 5.07 or the interest\nrate provided under such other provision.\n\n                                       37\n\n \n     Section 6.  Intentionally Omitted.\n\n     Section 7.  Assistance and Cooperation.\n\n     7.01  General. After the Distribution Date, each Company shall cooperate\n(and cause its respective Affiliates to cooperate) with the other Company and\nwith the other Company's agents, including accounting firms and legal counsel,\nin connection with Tax matters relating to the other Company and its Affiliates,\nincluding, without limitation, (i) the preparation and filing of Tax Returns,\n(ii) determining the liability for and amount of any Taxes due (including\nestimated Taxes) or the right to and amount of any refund of Taxes, (iii)\nexaminations of Tax Returns, (iv) any administrative or judicial proceeding in\nrespect of Taxes assessed or proposed to be assessed, and (v) establishing the\ntax basis of any asset held by either Company or its Affiliates at any time\nprior to the Distribution. Such cooperation shall include but not be limited to\n(1) making all information and documents in their possession relating to the\nother Company and its Affiliates available to such other Company as provided in\nSection 8.02 and (2) promptly notifying and forwarding to the appropriate\nCompany any notice or other correspondence from any Tax Authority that is\nreceived by one Company but intended for the other Company. Each Company shall\nalso make available to the other Company, as reasonably requested and available,\npersonnel (including officers, directors, employees and agents of the Company or\nits Affiliates) responsible for preparing, maintaining, and interpreting\ninformation and documents relevant to Taxes, and personnel reasonably required\nas witnesses or for purposes of providing information or documents in connection\nwith items (i) through (iv) in the first sentence of this Section 7.01. Any\ninformation or documents provided under this Section 7 shall be kept\nconfidential by the Company receiving the information or documents, except as\nmay otherwise be necessary in connection with the filing of Tax Returns or in\nconnection with any administrative or judicial proceedings relating to Taxes.\n\n     7.02  Income Tax Return Information. Each of the Companies will provide\ninformation and documents relating to its Group to the other Company as required\nfor Tax Return preparation purposes. New Fluor and Parent shall cause the\nmembers of their respective Groups to provide Tax Return information to the\nResponsible Company in a form suitable for filing (except for consolidating and\nother adjustments which would normally be made by the Responsible Company) at\nleast seventy-five days prior to the due date (including extensions) of the\nparticular Tax Return.\n\n     7.03  Shareholder Information Letter. New Fluor shall prepare a letter\n(subject to Parent's review and comments), to be sent to all persons who are\nholders of record of Parent stock immediately prior to the Distribution,\nadvising such shareholders (i) of the principal Federal Income Tax consequences\nto such shareholders resulting from the Distribution as determined pursuant to\nthe Ruling, (ii) the method by which such shareholders can allocate the tax\nbasis in their pre-Distribution stock among the shares of Parent stock and New\nFluor stock that such shareholders hold following the Distribution, and (iii)\nsuch other matters related to the Distribution as New Fluor deems appropriate.\nNew Fluor shall pay (or reimburse Parent for) the costs of printing and mailing\nsuch letter to such shareholders.\n\n                                       38\n\n \n     Section 8.  Tax Records.\n\n     8.01  Retention of Tax Records. The Companies shall preserve and keep all\nTax Records and supporting information and documentation relating to their\nrespective Groups for Tax Periods ending before, on or including the\nDistribution Date for so long as the contents thereof may become material in the\nadministration of any matter under the Code or other applicable Tax Law, but in\nany event until the later of (i) the expiration of any applicable statute of\nlimitation (including extensions thereof) or (ii) seven years after the\nDistribution Date. If, prior to the expiration of the applicable statute of\nlimitation (including extensions thereof) and such seven-year period, a Company\nreasonably determines that any Tax Records which it is required to preserve and\nkeep under this Section 8 are no longer material in the administration of any\nmatter under the Code or other applicable Tax Law, such Company may dispose of\nsuch records upon 90 days prior notice to the other Company. Such notice shall\ninclude a list of the records to be disposed and shall describe in reasonable\ndetail each file, book, or other record accumulation which is to be disposed.\nThe notified Company shall have the opportunity, at its cost and expense, to\ncopy or remove, within such 90-day period, all or any part of such Tax Records.\n\n     8.02  Access to Tax Records. The Companies and their respective Affiliates\nshall make available to each other for inspection and copying, during normal\nbusiness hours and upon reasonable notice, all Tax Records in their possession\nto the extent reasonably required by the other Company in connection with the\npreparation of Tax Returns, refund claims, audits, litigation, or the resolution\nof any matter under this Agreement. Without limitation on the foregoing, each\nCompany (the \"First Company\") shall provide the other Company (the \"Second\nCompany\") with reasonable access to Tax Returns (including the workpapers\nrelated thereto) filed by the First Company or members of its Group following\nthe Distribution Date for the purpose of enabling the Second Company to\ndetermine whether, when and to what extent a Tax Benefit allocable hereunder to\nthe Second Company results in a Tax refund or Tax reduction for the First\nCompany.\n\n     8.03  Copies of Consolidated or Combined Tax Returns. Within ten days after\nfiling any Consolidated or Combined Tax Return, the Responsible Company shall\nprovide a true and correct copy of such Tax Return to the Other Company.\n\n     Section 9.  Tax Contests.\n\n     9.01  Notice Requirement. A party to this Agreement (the \"First Party\")\nshall provide, within 15 business days after such First Party (or any member of\nthe First Party's Group) actually receives official written notification\nthereof, notice to the other party (the \"Second Party\") of any pending or\nthreatened Tax audit, assessment or proceeding or other Tax Contest related to\nTaxes which are, or may reasonably be expected to be, allocable to and payable\nby such Second Party pursuant to the provisions of this Agreement. Such notice\nshall contain factual information (to the extent known by the First Party)\ndescribing any asserted Tax liability in reasonable detail and shall be\naccompanied by copies of any notices or other documents received from any Tax\nAuthority in respect of any such matters. If the First Party fails to give the\nSecond Party such notice of such asserted Tax liability, then (i) if the Second\nParty is precluded from contesting the asserted Tax liability in all otherwise\navailable forums as a result of the failure to give such\n\n                                       39\n\n \nnotice, the Second Party shall have no obligation to pay to the First Party any\nTaxes arising out of such asserted Tax liability which are otherwise allocable\nto the Second Party under this Agreement, unless the Tax Contest Committee (as\ndefined in Section 9.02(b)) determines that it is highly unlikely that\ncontesting the Tax liability would have materially reduced the amount of the Tax\nliability allocable to the Second Party, and (ii) if the Second Party is not\nprecluded from contesting the asserted Tax liability in all otherwise available\nforums, but such failure to give such notice results in a monetary detriment to\nthe Second Party, then any amount which the Second Party is otherwise required\nto pay to the First Party pursuant to this Agreement shall be reduced by the\namount of such detriment, as established to the reasonable satisfaction of the\nTax Contest Committee.\n\n     9.02  Control of Tax Contests.\n\n     (a)  Separate Company Taxes. In the case of any Tax Contest with respect to\nany Separate Company Tax, the Company having liability for the Tax shall have\nexclusive control over the Tax Contest, including exclusive authority with\nrespect to any settlement of any matters involved in such Tax Contest.\n\n     (b)  Consolidated or Combined Taxes. In the case of any Tax Contest with\nrespect to any Consolidated or Combined Tax, (i) Parent shall control the\ndefense or prosecution of the portion of the Tax Contest directly and\nexclusively related to any Parent Adjustment, including settlement of any such\nParent Adjustment, (ii) New Fluor shall control the defense or prosecution of\nthe portion of the Tax Contest directly and exclusively related to any New Fluor\nAdjustment, including settlement of any such New Fluor Adjustment, and (iii) a\ncommittee constituted as provided herein (the \"Tax Contest Committee\") shall\ncontrol the defense or prosecution of Joint Adjustments and any and all\nadministrative matters not directly and exclusively related to any Parent\nAdjustment or New Fluor Adjustment. The Tax Contest Committee shall be comprised\nof two persons, one person selected by Parent (as designated in writing to New\nFluor) and one person selected by New Fluor (as designated in writing to\nParent). Each person serving on the Tax Contest Committee shall continue to\nserve unless and until he or she is replaced by the party designating such\nperson. Any and all matters to be decided by the Tax Contest Committee shall\nrequire the agreement of both persons serving on the Tax Contest Committee. In\nthe event the Tax Contest Committee shall be deadlocked on any matter, the\nprovisions of Section 15 of this Agreement shall apply.\n\n     (c)  Cooperation with Controlling Party. In the event that one or more\nmembers of a Group (the \"First Group Members\") have the responsibility and\nauthority, pursuant to applicable Tax Law, to file or amend Tax Returns and to\ntake and\/or do other actions related to a Tax Contest that, pursuant to this\nSection 9.02, is subject to the control of a member of the other Group (the\n\"Second Group Member\"), such First Group Members shall execute all such\ndocuments and take all such actions as may be reasonably requested by the Second\nGroup Member for the purpose of implementing and effecting the Second Group\nMember's defense and prosecution of such Tax Contest.\n\n     (d)  Powers of Attorney. Each member of the Parent Group shall execute and\ndeliver to New Fluor and\/or the members of the Tax Contest Committee, and each\nmember of the New Fluor Group shall execute and deliver to Parent and\/or to the\nmembers of the Tax\n\n                                       40\n\n \nContest Committee, any power of attorney reasonably requested by any such party\nor person as necessary to allow it\/them to control the defense or prosecution of\na Tax Contest in accordance with the provisions of Section 9.02(a) or Section\n9.02(b), provided, however, that such power of attorney shall not expand the\nrights of such controlling party or person beyond that provided for under\nSection 9.02(a) or Section 9.02(b).\n\n     (e)  Agreements Affecting Other Company. Notwithstanding the foregoing\nprovisions of this Section 9.02, a Company shall not agree to any Tax liability\nfor which the other Company may be liable under this Agreement, or compromise\nany claim for any Tax Benefit to which another Company may be entitled under\nthis Agreement, without such other Company's written consent (which consent may\nnot be unreasonably withheld).\n\n     Section 10.  Effective Date. This Agreement shall be effective on the\nDistribution Date.\n\n     Section 11.  Certain Representations and Covenants.\n\n          (a)  No Inconsistent Plan or Intent. Each of A.T. Massey and New Fluor\nhereby represents and warrants to the other that:\n\n               (i)  neither it nor any member of its Group (which, in the case\nof New Fluor, includes Parent through the Distribution Date) has taken, and as\nof the Distribution Date neither it nor any member of its Group (which, in the\ncase of New Fluor, includes Parent through the Distribution Date) has a plan or\nintention to take, any action that would result in any Tax liability being\nimposed with respect to the Distribution pursuant to the application of the\nprovisions of Code Section 355(e); and\n\n               (ii) neither it nor any member of its Group (which, in the case\nof New Fluor, includes Parent through the Distribution Date) has taken, nor as\nof the Distribution Date has any plan or intention to take, any other action\nwhich is inconsistent with any material factual statements or representations in\nthe Ruling Request.\n\n          (b)  Restriction on Prohibited Actions. Each of Parent and New Fluor\nhereby covenants and agrees that following the Distribution it will not take any\naction, and it will cause its Affiliates to refrain from taking any action,\nwhich would result in a Tax treatment of the Transactions that is inconsistent\nin any material respect with the Tax treatment of the Transactions as\ncontemplated in the Ruling Request or, if different, in the Ruling (any such\naction, a \"Prohibited Action\"), unless such Prohibited Action is required by Law\nor the person taking the action has obtained the prior written consent of the\nother parties to this Agreement. Without limitation on the foregoing, the\nparties intend that the restrictions on Prohibited Actions provided for herein\nshall apply during and following the two-year restriction period described in\nSection 11(c).\n\n          (c)  Restriction on Certain Other Actions. Each of New Fluor and\nParent hereby covenants and agrees that prior to the second anniversary of the\nDistribution it will not take, and it will cause its Affiliates to refrain from\ntaking, any action that would be inconsistent with any representations under\nSection 11(a) if such party had planned or intended (as of the Distribution\nDate) to take such action, provided, however, such an action may be taken during\n\n                                       41\n\n \nsuch two-year period if such action is required by Law or the person taking the\naction has obtained the prior written consent of the other parties to this\nAgreement.\n\n          (d)    Restriction on Amending or Supplementing Ruling Request. Each\nof Parent and New Fluor hereby covenants and agrees that it will not file, and\nit will cause its Affiliates to refrain from filing, any amendment or supplement\nto the Ruling Request subsequent to the Distribution Date without the written\nconsent of the other parties to this Agreement.\n\n     Section 12. Survival of Obligations.  The representations, warranties,\ncovenants and agreements set forth in this Agreement shall be unconditional and\nabsolute and shall remain in effect without limitation as to time.\n\n     Section 13. Employee Matters. Each of the Companies agrees to utilize, or\ncause its Affiliates to utilize, the alternative procedure set forth in Revenue\nProcedure 96-60, 1996-2 C.B. 399 (if such Revenue Procedure is applicable), with\nrespect to wage reporting for employees who transfer from a member of one Group\nto a member of the other Group in connection with the Transactions.\n\n     Section 14. Mutual Covenants and Indemnifications.\n\n          (a)   New Fluor. New Fluor hereby covenants and agrees that it will\n(i) perform or cause to be performed all obligations of the members of the New\nFluor Group under this Agreement, including, without limitation, the obligations\nof the members of the New Fluor Group to pay, when due, Tax liability payments\nto Tax Authorities and payments to members of the Parent Group in accordance\nwith the provisions of Section 5, and (ii) indemnify and hold harmless Parent\nand all other members of the Parent Group from and against any Losses (as\ndefined hereinbelow) incurred by any member of the Parent Group as a result of\nany breach of any covenant, representation or warranty of New Fluor under this\nAgreement or any failure by any member of the New Fluor Group to fully perform\nits obligations under this Agreement.\n\n          (b)   Parent. Parent hereby covenants and agrees that it will (i)\nperform or cause to be performed all obligations of the members of the Parent\nGroup under this Agreement, including, without limitation, the obligations of\nthe members of the Parent Group to pay, when due, Tax liability payments to Tax\nAuthorities and payments to members of the New Fluor Group in accordance with\nthe provisions of Section 5, and (ii) indemnify and hold harmless New Fluor and\nall other members of the New Fluor Group from and against any Losses incurred by\nany member of the New Fluor Group as a result of any breach of any covenant,\nrepresentation or warranty of Parent and\/or A.T. Massey under this Agreement or\nany failure by any member of the Parent Group to fully perform its obligations\nunder this Agreement.\n\n          (c)   Losses. For purposes of this Section 14, the term \"Losses\" means\nany and all damages, liabilities, claims, demands, proceedings, settlements,\njudgments, awards, fees, charges, Taxes, costs or other expenses (including,\nwithout limitation, reasonable costs of attempting to avoid or in opposing the\nimposition thereof, interest, penalties, costs of preparation and investigation,\nand the reasonable fees, disbursements and expenses of attorneys, accountants\n\n                                       42\n\n \nand other professional advisors, but not including the cost of \"in-house\"\nattorneys, accountants and other employees of a party.)\n\n          (d)  Tax Adjustments.\n\n               (i)  The amount of any indemnification payment otherwise payable\nunder this Agreement or under the Distribution Agreement shall be (i) decreased\nby the amount of any Federal or State Income Tax Benefit actually realized by\nthe indemnified party as a result of the Loss giving rise to the\nindemnification, and (ii) increased by (A) the amount of any Federal or State\nIncome Tax required to be paid by the indemnified party as a result of its\naccrual or receipt of the indemnification payment, plus (B) the amount of any\nFederal or State Income Tax required to be paid by the indemnified party as a\nresult of its accrual or receipt of any payments payable pursuant to this\nSection 14(d)(i). For all purposes of this Section 14(d), (i) the amount of any\nState Income Tax Benefit or cost shall be based on a rate, which is deemed to\ntake into account the Federal Income Tax effect of such benefit or cost, of 4%;\n(ii) a Tax Benefit is a reduction in the amount of Income Tax paid or due and\npayable, whether realized as a refund or as a credit or other reduction in Tax\nliability; (iii) the amount of any Tax Benefit or cost for any taxable period\nwill be the difference between (A) the amount of the indemnified party's Tax\nliability taking into account the amount of Loss or indemnity payment, as\nappropriate, actually included in computing taxable income for the current or\nany prior taxable period and (B) the amount that would be the indemnified\nparty's Tax liability for the current or any prior taxable period (as\napplicable) if such amount of Loss or indemnity payment were not taken into\naccount in computing taxable income; (iv) if the indemnified party files or is\nincluded in a consolidated, combined, unitary or similar Income Tax Return for a\ntaxable period, the preceding amounts will be computed on the appropriate\nconsolidated, combined, unitary or similar basis for that taxable period; and\n(v) the term \"Loss\" shall have the meaning specified in this Agreement or the\nDistribution Agreement depending on whether the indemnification payment arises\nunder this Agreement or the Distribution Agreement. In the year an\nindemnification payment is made, the parties shall cooperate to determine the\namount of adjustment (if any) to be made pursuant to this Section 14(d)(i). In\ndoing so, the amount of any Federal Income Tax Benefit or cost for the taxable\nperiod in which the payment is to be made will be based on the indemnified\nparty's best estimate of such amount, which estimate shall be in writing (an\n\"Adjustment Estimate Notice\") and shall include an explanation, in reasonable\ndetail, of the facts and assumptions underlying such estimate. Any payment\nrequired pursuant to this Section 14(d)(i) shall be made on or before the later\nof (x) the date on which the applicable indemnification payment is made pursuant\nto this Agreement or the Distribution Agreement (as applicable), or (y) 10\nbusiness days following the date on which the indemnified party receives the\nAdjustment Estimate Notice.\n\n               (ii) Promptly after the indemnified party files its Federal\nIncome Tax Return for the taxable period as to which an Adjustment Estimate\nNotice is given pursuant to Section 14(d)(i), the indemnified party shall notify\nthe indemnifying party in writing of the actual amount of the Federal Income Tax\nBenefit or cost that was previously estimated and shall provide to the\nindemnifying party the computation, in reasonable detail, of such actual amount\nand such supporting documentation as the indemnifying party reasonably requests\nto verify the computation. The parties shall cooperate in good faith to\ndetermine the amount of any difference (the \"True-Up Amount\") between (i) the\namount that was paid by the indemnifying party based on the prior estimate (the\n\"Prior Payment\") and (ii) the amount that would have been payable by\n\n                                       43\n\n \nthe indemnifying party if the parties had known the actual amount of such\nbenefit or cost. Within 3 business days following determination of the True-Up\nAmount, the indemnifying party shall pay to the indemnified party or the\nindemnified party shall pay to the indemnifying party, as appropriate, the True-\nUp Amount, plus interest on the True-Up Amount at the Base Rate from the date of\nthe Prior Payment to the date the True-Up Amount is paid. In addition, if the\nTrue-Up Amount is payable by the indemnifying party, the indemnifying party also\nshall pay to the indemnified party the amount necessary to reimburse the\nindemnified party for any Federal or State Income Tax cost incurred as a result\nof its accrual or receipt of the True-Up Amount and any amounts payable pursuant\nto this sentence. For this purpose, the Federal Income Tax rate applicable to\nany taxable portion of the True-Up Amount and the amount payable pursuant to the\npreceding sentence shall be deemed to be the same as the marginal rate\napplicable to the indemnified party for the taxable period in which the Prior\nPayment was made.\n\n               (iii)  No adjustment in the amount of an indemnification payment\nshall be made at the time of payment of such indemnification payment to take\ninto account any Federal or State Income Tax Benefit not actually realized in,\nor any Federal or State Income Tax cost not actually paid or payable for, the\ntaxable period in which the indemnification payment is made or an earlier\nperiod, whether or not any such benefit or cost may, under applicable Tax law,\nbe taken into account and realized or incurred in a future Tax Period. However,\nif a Federal or State Income Tax Benefit or cost described in this Section 14(d)\nis actually realized in or becomes payable for one or more taxable periods\n(each, a \"Subsequent Period\") after the taxable period in which an\nindemnification payment has been made, then (i) the indemnified party shall pay\nto the indemnifying party an amount equal to the excess of such Tax Benefit over\nsuch Tax cost for such Subsequent Period, or (ii) the indemnifying party shall\npay to the indemnified party an amount equal to the excess of such Tax cost over\nsuch Tax Benefit for such Subsequent Period, plus the amount of any Federal or\nState Income Tax required to be paid by the indemnified party as a result of its\naccrual or receipt of any amounts payable by the indemnifying party pursuant to\nthis Section 14(d)(iii). For each Subsequent Period, the indemnified party shall\nnotify the indemnifying party in writing of the amount of any such Tax Benefit\nor Tax cost no later than the date on which the indemnified party files its\nFederal Income Tax Return for the Subsequent Period, with such notice (a\n\"Subsequent Period Adjustment Notice\") to include an explanation, in reasonable\ndetail, of the facts and assumptions underlying the indemnifying party's\ncalculation of the payments required hereunder. The parties shall cooperate in\ngood faith to determine the amount payable by or to the indemnified party under\nthis paragraph with respect to any Subsequent Period. Any payment made more than\n60 calendar days after (i) the date the indemnified party gives such Subsequent\nPeriod Adjustment Notice to the indemnifying party, in the case of a payment to\nthe indemnified party, or (ii) the date the indemnified party files its Federal\nIncome Tax Return for the Subsequent Period, in the case of a payment by the\nindemnified party, shall include interest at the Base Rate from the expiration\nof such 60-day period to the date of payment. A Subsequent Period includes,\nwithout limitation, any taxable period in which the indemnified party would have\nbeen able to use a loss or credit if such loss or credit had not been used (or\nwas prevented from being generated) as a result of the inclusion of all or any\nportion of an indemnification payment in the indemnified party's income.\n\n               (iv)   The purpose of this Section 14(d) is to make the\nindemnified party whole on an actual after-tax basis, and this Section is to be\nconstrued accordingly (including making such adjustments as may be necessary to\ntake into account changes resulting from\n\n                                       44\n\n \namended Tax Returns, Tax audits and similar proceedings). The parties shall at\nall times cooperate with each other in good faith to determine the amounts of\nany payments required under this Section 14(d). The indemnifying party may at\nany time request copies of the Tax Returns (and underlying work papers) for any\nTax Period which is relevant to the determination of adjustments to\nindemnification payments under this Section 14(d) or other payments made\npursuant to this Section 14(d). If an indemnified party fails or refuses to give\nany notice or take any other action required hereunder with respect to the\ndetermination of any decrease to an indemnification payment or any payment\nrequired to be made hereunder by the indemnified party to the indemnifying\nparty, such failure or refusal shall not adversely affect the indemnifying\nparty's rights hereunder, and appropriate action may be brought by the\nindemnifying party to determine and\/or enforce its rights hereunder.\n\n               (v)  The parties agree and acknowledge that the provisions of\nSections 5.04(e), 5.05(c) and 5.05(d), and not the provisions of this Section\n14, shall apply with respect to Tax adjustments related to Tax liability\npayments and Tax Benefit payments made pursuant to Section 5, it being intended\nthat the provisions of this Section 14 are to apply with respect to Losses\nincurred by a member of one Group as a result of a breach described in this\nSection 14 by a member of the other Group.\n\n          Section 15. Disputes; Governing Law; Consent to Jurisdiction;\nAttorneys' Fees.\n\n               (a)  Referral to Accounting Firm. If the parties cannot agree on\nthe application of this Agreement to any matter in dispute (a \"Dispute\"), then,\nsubject to the rights of the parties to seek a judicial resolution or remedy,\nthe Dispute shall be referred for resolution to Ernst &amp; Young LLP or, if Ernst &amp; Young LLP is not then engaged by each Company as its certified public accounting\nfirm for purposes of auditing its financial statements, such other \"Big Five\"\naccounting firm as the Tax Contest Committee shall select by lot (the\n\"Accounting Firm\"). The Accounting Firm shall furnish written notice (the\n\"Accounting Firm Notice\") to the parties of its resolution of any such Dispute\nas soon as practical, but in any event no later than 45 days after its\nacceptance of the matter for resolution, with such notice to set forth in\nwriting the grounds and reasoning underlying the Accounting Firm's decision.\nEach party shall pay its own fees and expenses (including the fees and expenses\nof its representatives) incurred in connection with the referral of the matter\nto the Accounting Firm. All fees and expenses of the Accounting Firm in\nconnection with such referral shall be shared equally by the New Fluor Group and\nthe Parent Group. Notwithstanding any decision of the Accounting Firm, each\nparty shall retain its rights to seek a judicial resolution of (and\/or any\navailable judicial remedies with respect to) any Dispute or any other matter\nunder this Agreement, it being understood that any party may seek such judicial\nresolution or remedies at any time, whether before or after submission of a\nDispute to the Accounting Firm. If any such judicial action with respect to a\nDispute is commenced prior to the submission of the matter for resolution by the\nAccounting Firm, or if submitted, prior to the Accounting Firm rendering its\ndecision, the Dispute shall not be submitted to the Accounting Firm or the\nAccounting Firm shall cease activity on the Dispute without rendering a decision\n(whichever may be applicable). All offers, promises, conduct and statements,\nwhether oral or written, made in the course of any submission of the Dispute to\nthe Accounting Firm by either party or the Accounting Firm or their respective\nagents, members, managers, directors, officers, employees, experts or attorneys,\nwill be confidential, privileged and inadmissible for any purpose, including\nimpeachment, in any judicial proceedings related to the Dispute, provided,\n\n                                       45\n\n \nhowever, that otherwise admissible or discoverable evidence will not be rendered\ninadmissible or non-discoverable as a result of its use in any such submission\nto the Accounting Firm.\n\n          (b)  Governing Law. This Agreement and the transactions contemplated\nhereby shall be construed in accordance with, and governed by, the Laws of the\nState of New York without reference to choice of Law principles.\n\n          (c)  Consent to Jurisdiction. Each of the parties hereto hereby\nirrevocably submits to the nonexclusive jurisdiction of any United States\nFederal or New York State court sitting in New York County in any action or\nproceeding arising out of or relating to this Agreement, and irrevocably agrees\nthat all claims in respect of any such action or proceeding may be heard and\ndetermined in any such United States Federal or New York State court. Each of\nthe 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 18.01 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 (i) the Supreme Court of the State of New York, New York\nCounty or (ii) 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.\n     \n          (iv) Attorneys' Fees. In the event any party to this Agreement brings\nan action or proceeding for the breach or enforcement of this Agreement, the\nprevailing party in such action or proceeding, whether or not such action or\nproceeding proceeds to final judgment, shall be entitled to recover as an\nelement of its costs, and not as damages, such reasonable attorneys' fees as may\nbe awarded in the action, proceeding or appeal in addition to whatever other\nrelief the prevailing party may be entitled. For purposes of this Section, the\n\"prevailing party\" shall be the party who is entitled to recover its costs; a\nparty not entitled to recover its costs shall not recover attorneys' fees. As\nused herein the term \"attorneys' fees\" shall not include the cost of \"in-house\"\nattorneys of any party.\n\n     Section 16.  Intentionally Omitted.\n\n     Section 17.  Expenses. Except as otherwise provided herein, each party and\nits Affiliates shall bear their own expenses incurred in connection with\npreparation of Tax Returns, Tax Contests, and other matters related to Taxes\nunder the provisions of this Agreement, provided, however, that (i) Parent shall\nbear all expenses reasonably incurred by New Fluor or its Affiliates with\nrespect to the portion of any Tax Contest that is directly and exclusively\nrelated to any Parent Adjustment and (ii) New Fluor shall bear all expenses\nreasonably incurred by Parent or its Affiliates with respect to the portion of\nany Tax Contest that is directly and exclusively related to\n\n                                       46\n\n \nany New Fluor Adjustment. For purposes of this Agreement, expenses shall include\nout-of-pocket expenses, but shall not include employee and other \"in-house\"\nresource costs.\n\n     Section 18.  General Provisions.\n\n     18.01  Addresses and Notices. Any notice, demand, request or report\n(collectively, a \"Notice\") required or permitted to be given or made to any\nparty under this Agreement to another party shall be in writing and shall be\ndeemed given or made (i) on the date of delivery, if delivered in person to a\nparty at such party's address as specified hereunder by Federal Express, United\nParcel Service or other nationally recognized courier service; or (ii) two days\nfollowing the date on which the Notice is sent, if sent by first class mail\nreturn receipt requested, postage prepaid and properly addressed to the party's\naddress as specified hereunder; or (iii) upon receipt of confirmation of\ntransmission if transmitted by facsimile to the facsimile number specified\nhereunder, in each case to the relevant party's address and to the attention of\nthe General Counsel and the Chief Financial Officer (one copy to each) as\nfollows:\n\n     If to Parent or      Massey Energy Company                      \n     A.T. Massey:         4 North 4\/th\/ Street                         \n                          Richmond, VA 23219                         \n                                                                     \n                          Att'n: General Counsel                     \n                          Facsimile: (804) 788-1804                 \n                                                                     \n                          Att'n:  Chief Financial Officer            \n                          Facsimile (804) 788-1853                   \n                                                                     \n                                                                     \n     If to New Fluor:     Fluor Corporation                          \n                          One Enterprise Drive                       \n                          Aliso Viejo, CA 92656-2606                 \n                                                                     \n                          Att'n: General Counsel                     \n                          Facsimile: (949) 349-5454                 \n                                                                     \n                          Att'n:  Chief Financial Officer            \n                          Facsimile: (949) 349-5525                 \n\nA party may change the address and\/or facsimile number for receiving Notices\nunder this Agreement by providing written notice of the change of address to the\nother party.\n\n     18.02  Binding Effect. This Agreement shall be binding upon and inure to\nthe benefit of the parties hereto and their respective successors and permitted\nassigns. Neither party may assign all or any part of its rights or interests\nunder this Agreement or delegate all or any part of its duties under this\nAgreement without the express prior written consent of the other party. Nothing\ncontained in this Agreement, express or implied, is intended to confer upon any\nperson\n\n                                       47\n\n \nor entity, other than the parties hereto, their Affiliates and their successors\nand assigns, any rights or remedies under or by reason of this Agreement.\n\n     18.03  Waiver. No failure by any party to insist upon the strict\nperformance of any obligation under this Agreement or to exercise any right or\nremedy under this Agreement shall constitute a waiver of any such obligation,\nright, or remedy or of any other obligations, rights, or remedies under this\nAgreement.\n\n     18.04. Invalidity of Provisions. If any provision of this Agreement is or\nbecomes invalid, illegal or unenforceable in any respect, the validity,\nlegality, and enforceability of the remaining provisions contained herein shall\nnot be affected thereby.\n\n     18.05  Further Action. The parties shall execute and deliver all documents,\nprovide all information, and take or refrain from taking action as may be\nnecessary or appropriate to achieve the purposes of this Agreement.\n\n     18.06  Integration. This Agreement constitutes the entire agreement among\nthe parties pertaining to the subject matter of this Agreement and supersedes\nall prior agreements and understandings pertaining thereto. In the event of any\ninconsistency between this Agreement and the Distribution Agreement or any other\nagreements relating to the transactions contemplated by the Distribution\nAgreement, the provisions of this Agreement shall control.\n\n     18.07  Construction. The language in all parts of this Agreement shall in\nall cases be construed according to its fair meaning and shall not be strictly\nconstrued for or against any party.\n\n     18.08  No Double Recovery; Subrogation. No provision of this Agreement\nshall be construed to provide an indemnity or other recovery for any costs,\ndamages, or other amounts for which the damaged party has been fully compensated\nunder any other provision of this Agreement or under any other agreement or\naction at Law or equity. A party shall not be required to exhaust all remedies\navailable under other agreements or at Law or equity before recovering under the\nremedies provided in this Agreement. Subject to any limitations provided in this\nAgreement, a party making a payment hereunder to or for the benefit of another\nparty shall be subrogated to all rights of the other party for recovery from any\nthird party.\n\n     18.09  Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, and all of which, taken\ntogether, shall constitute one and the same instrument.\n\n     18.10  Amendments. This Agreement may be amended, modified or supplemented\nonly by a written agreement signed by the parties hereto.\n\n                            [SIGNATURE PAGE FOLLOWS]\n\n                                       48\n\n \n     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed\nby their respective officers as of the date set forth above.\n\n                              FLUOR CORPORATION\n                              a Delaware corporation incorporated in 1978\n                              (to be named \"Massey Energy Company\"\n                              following the Distribution)\n\n\n                              By:  \/s\/ L. N. Fisher\n                                   ------------------------------------\n                              Name:  L. N. Fisher\n                              Title: Senior Vice President-Law \n                                     and Secretary\n\n\n                              FLUOR CORPORATION\n                              a Delaware corporation incorporated in 2000\n\n\n                              By:  \/s\/ S. F. Hull\n                                   ------------------------------------\n                              Name:  S. F. Hull\n                              Title: Vice President and Treasurer\n\n\n                              A.T. MASSEY COAL COMPANY, INC.\n\n\n                              By:  \/s\/ Jeffrey M. Jarosinski\n                                   ------------------------------------\n                              Name:  Jeffrey M. Jarosinski\n                              Title: Vice President and Chief Financial Officer\n\n                                       49\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7556,8142],"corporate_contracts_industries":[9479,9483],"corporate_contracts_types":[9622,9628],"class_list":["post-43757","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fluor-corp","corporate_contracts_companies-massey-energy-co","corporate_contracts_industries-construction__construction","corporate_contracts_industries-materials__metals","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43757","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43757"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43757"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43757"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43757"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}