Exhibit 1.1
FLUOR CORPORATION
2,000,000 Shares of Common Stock
(par value $0.01 per share)
EQUITY DISTRIBUTION AGREEMENT
March 14, 2005
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Fluor Corporation (the "Company"), confirms its agreement with UBS
Securities LLC (the "Manager"), as follows:
SECTION 1. Description of Securities. The Company proposes to issue and
sell through or to the Manager, as sales agent and/or principal, up to 2,000,000
shares (the "Shares") of the Company's common stock, par value $0.01 per share
(the "Common Stock"), on the terms set forth in Section 3 of this Agreement. The
Company agrees that whenever it determines to sell Shares directly to the
Manager as principal, it will enter into a separate agreement (each, a "Terms
Agreement") in substantially the form of Annex I hereto, relating to such sale
in accordance with Section 3 of this Agreement.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the Manager that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"). A registration statement on Form S-3
(Registration No. 333-121626) including a form of prospectus and such amendments
or supplements to such registration statement as may have been required prior to
the date of this Agreement, has been prepared by the Company under the
provisions of the Act, has been filed with the Securities and Exchange
Commission (the "Commission"), and has become effective and which incorporates
by reference documents which the Company has filed in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act"). The Company has
prepared a prospectus supplement with respect to the Shares (the "Prospectus
Supplement"), including the prospectus included in the registration statement
referred to above and the documents incorporated by reference therein, setting
forth the terms of the offering, sale and plan of distribution of the Shares and
additional information concerning the Company and its business. No stop order
suspending the effectiveness of the registration statement or any post-effective
amendment thereto has been issued and served on the Company, and no proceedings
for that purpose are pending or, to the
knowledge of the Company, threatened by the Commission. Copies of such
registration statement and prospectus, any such amendment or supplement and all
documents incorporated by reference therein that were filed with the Commission
on or prior to the date of this Agreement have been made available or delivered
to the Manager. Such registration statement, as it may have heretofore been
amended, is referred to herein as the "Registration Statement," and the
Prospectus Supplement, including the final form of prospectus included in the
Registration Statement, as the same may be amended or supplemented from time to
time, other than by a prospectus supplement relating solely to the offering of
securities other than the Shares, is referred to herein as the "Prospectus." Any
reference herein to the Registration Statement, the Prospectus or any amendment
or supplement thereto shall be deemed to refer to and include the documents
incorporated (or deemed to be incorporated) by reference therein, and any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement or Prospectus shall be deemed to refer to and
include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein. As of the close of
business on March 10, 2005, 8,787,346 shares of the Common Stock were available
for issuance pursuant to the Registration Statement, which permits their sale in
the manner contemplated by this Agreement.
(b) The Registration Statement, when it became effective, and the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at each Filing Date (as defined below), did or
will in all material respects comply with all applicable provisions of the Act
and the Exchange Act. The Registration Statement, when it became effective, did
not or will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading. The Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission, did not
or will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed. The foregoing
representations and warranties in this Section 2(b) do not apply to any
statements or omissions made in reliance on and in conformity with information
relating to the Manager furnished in writing to the Company by the Manager
specifically for inclusion in the Registration Statement or Prospectus or any
amendment or supplement thereto. The Company has not distributed any offering
material in connection with the offering or sale of the Shares other than the
Registration Statement, the Prospectus or any other materials, if any, permitted
by the Act.
(c) The documents which are incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or from
which information is so incorporated by reference, when they become effective or
were filed with the Commission, as the case may be, complied in all material
respects with the requirements of the Act or the Exchange Act, as applicable,
and none of such
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documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading and any further documents so filed and incorporated by
reference shall, when they became or become effective under the Act or when they
were or are filed with the Commission, as the case may be, conform in all
material respects with the requirements of the Act or the Exchange Act, as
applicable.
(d) Fluor Enterprises, Inc. is the Company's only "significant subsidiary"
as that term is defined in Rule 1-02 of Regulation S-X. Complete and correct
copies of the certificates of incorporation or other organizational documents
and of the bylaws of the Company and Fluor Enterprises, Inc. (the "Subsidiary")
and all amendments thereto have been made available or delivered to the Manager.
The Company and the Subsidiary are each a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. The Company and the Subsidiary each has the corporate power and
authority to conduct all the activities conducted by it, to own or lease all the
assets owned or leased by it and to conduct its business as described in the
Prospectus. The Company and the Subsidiary each is duly licensed or qualified to
do business and is in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it, or the
character of the assets owned or leased by it, makes such licensing or
qualification necessary, except where the failure to so qualify would not
reasonably be expected to have a material adverse effect on the condition,
financial or otherwise, earnings, business, operations or prospects, whether or
not arising from transactions in the ordinary course of business of the Company
and the Subsidiary taken as a whole (a "Material Adverse Effect"). All of the
outstanding shares of the capital stock of the Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned by the Company free and clear of all liens, encumbrances and claims
whatsoever. Except for the stock of the Subsidiary and as disclosed in the
Prospectus, the Company does not own, directly or indirectly, any shares of
stock or any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture, association or
other entity.
(e) Ernst & Young LLP (the "Accountants"), who have expressed their opinion
with respect to the financial statements (which term as used in this Agreement
includes the related notes thereto) filed with the Commission as a part of the
Registration Statement and included in the Prospectus, are, to the knowledge of
the Company, independent public or certified public accountants as required by
the Exchange Act. The financial statements filed with the Commission as a part
of the Registration Statement and included in the Prospectus present fairly, in
all material respects, the consolidated financial position of the Company and
its subsidiaries as of and at the dates indicated and the consolidated results
of operations and cash flows of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles as applied in the United States applied
on a consistent basis throughout the periods involved, except as may be
otherwise disclosed in
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the Prospectus, including the financial statements and supporting schedules
required to be included in the Registration Statement
(f) All of the outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and non-assessable, have been issued in
compliance with all federal and state securities laws and were not issued in
violation of any preemptive right, right of first refusal or similar right; the
Shares to be issued and sold by the Company pursuant to this Agreement and any
Terms Agreement have been duly authorized and upon such issuance will be validly
issued, fully paid and non-assessable and are not subject to any preemptive
right, right of first refusal or similar right and the holders of the Shares
will not be subject to personal liability by reason of being such holders under
the Delaware General Corporation Law or the Company's Certificate of
Incorporation or bylaws. The description of the Common Stock in the Prospectus
is complete and accurate in all material respects. Except as set forth in the
Prospectus and except for such amounts that would not have a Material Adverse
Effect, there are no options to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible or exchangeable into, or any
contracts, commitments, plans or arrangements to issue or sell, any shares of
capital stock of the Company, any shares of capital stock of the Subsidiary or
any such warrants, convertible or exchangeable securities or obligations. The
descriptions of the Company's stock option and other stock plans or
arrangements, and the options or other rights granted and exercised thereunder,
set forth in the Prospectus, accurately present the information required to be
shown with respect to such plans, arrangements, options and rights.
(g) The Company maintains a system of accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles as applied in the
United States and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(h) Subsequent to the respective dates as of which information is given in
the Prospectus, except as set forth in or contemplated by the Prospectus, (i)
there has not been and will not have been any material change in the
capitalization of the Company or the Subsidiary, or any material adverse change
in the condition, financial or otherwise, earnings, business, operations or
prospects of the Company and the Subsidiary, taken as a whole, (ii) neither the
Company nor the Subsidiary has incurred nor will incur any material liabilities
or obligations, direct or contingent, nor has it entered into nor will it enter
into any material transactions other than pursuant to this Agreement and the
transactions referred to herein or in the ordinary course of business or as
otherwise disclosed on a Current Report on Form 8-K filed with the Commission
and (iii) except for dividends on shares of its capital stock, if and when
declared, neither the Company
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nor the Subsidiary has and neither of them will have paid or declared any
dividends or other distributions of any kind on any class of their respective
classes of capital stock.
(i) Except as set forth in the Prospectus, there are no legal or
governmental actions, suits or proceedings pending, or to the knowledge of the
Company, after due inquiry threatened (i) against or affecting the Company or
the Subsidiary, (ii) which has as the subject thereof any officer or director
of, or property owned or leased by, the Company or the Subsidiary or (iii)
relating to environmental or discrimination matters, where in any such case (A)
it is reasonably expected that such action, suit or proceeding will be
determined against the Company or the Subsidiary and (B) any such action, suit
or proceeding, if so determined adversely would have a Material Adverse Effect
on the Company or the Subsidiary or on the transactions contemplated hereby.
Except as set forth in the Prospectus, no material labor dispute with the
employees of the Company or the Subsidiary exists or the knowledge of the
Company, is threatened or imminent.
(j) The Company and the Subsidiary each has (i) all governmental licenses,
permits, consents, orders, approvals and other authorizations, and has made all
governmental or regulatory filings, as are necessary to carry on its business as
contemplated in the Prospectus, (ii) complied in all respects with all laws,
regulations and orders applicable to it or its business and (iii) performed all
its obligations required to be performed by it, and is not in breach of or
default under, any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement, lease, contract or other
agreement or instrument (collectively, a "contract or other agreement") to which
it is a party or by which its property is bound or affected, except where the
effect such failures to obtain, make, comply or perform or such breaches,
individually or in the aggregate, would not reasonably be expected result in a
Material Adverse Effect and no event has occurred which with notice, lapse of
time or both would result in such breach or default. Neither the Company nor the
Subsidiary is in violation of any provision of its charter or by-laws.
(k) The Company has corporate power and authority to enter into this
Agreement and will have, at the time of execution thereof, corporate power and
authority to enter into any Terms Agreement. This Agreement has been and any
Terms Agreement will have been, at the time of execution and delivery thereof,
duly authorized, executed and delivered by the Company and constitutes and, in
the case of any Terms Agreement, will constitute, a valid and binding agreement
of the Company and is enforceable, and, in the case of any Terms Agreement, will
be enforceable, against the Company in accordance with its terms, except as the
enforceability hereof and thereof may be limited by applicable bankruptcy,
insolvency, reorganization and similar laws affecting creditors' rights
generally and moratorium laws in effect from time to time and by equitable
principles restricting the availability of equitable remedies. The execution and
delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement and any Terms Agreement and the consummation
of the transactions contemplated hereby will not result in the creation or
imposition of any lien, charge or
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encumbrance upon any of the assets of the Company or the Subsidiary pursuant to
the terms or provisions of, or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or give any other party a
right to terminate any of its obligations under, or result in the acceleration
of any obligation under, the charter or by-laws of the Company or the
Subsidiary, any contract or other agreement to which the Company or the
Subsidiary is a party or by which the Company or the Subsidiary or any of its
properties is bound or affected, or violate or conflict with any judgment,
ruling, decree, order, statute, rule or regulation of any court or other
governmental agency or body applicable to the business or properties of the
Company or the Subsidiary the effect of any of which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
(l) No consent, approval, authorization or order of, or any filing or
declaration with, any court or any national, state or local governmental agency,
regulatory commission, board, authority or body is required in connection with
the (i) authorization, issuance, sale or delivery of the Shares by the Company,
(ii) the execution, delivery and performance of this Agreement and any Terms
Agreement by the Company or (iii) the taking by the Company of any other action
contemplated hereby, except in each case as have been obtained under the Act and
such as may be required under state securities or Blue Sky laws or the by-laws
and rules of the National Association of Securities Dealers, Inc. (the "NASD")
in connection with the offer and sale through the Manager of the Shares.
(m) Except as set forth in the Prospectus, the Company and the Subsidiary
each has good and marketable title to all the properties and assets reflected as
owned by it in the financial statements referred to in paragraph (e) above (or
elsewhere in the Prospectus), in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and other defects,
except such as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The real property, improvements,
equipment and personal property held under lease by the Company or the
Subsidiary are held under valid and enforceable leases, with such exceptions as
would not reasonably be expected to have a Material Adverse Effect.
(n) The Company and the Subsidiary each own, license or otherwise have the
full and exclusive right to use sufficient trademarks and trade names which are
reasonably necessary for the conduct of their respective businesses as described
in the Prospectus. To the Company's knowledge, no claims have been asserted by
any person to the use of any such trademarks or trade names or challenging or
questioning the validity or effectiveness of any such trademark or trade name
that, if the subject of an unfavorable decision, would have a Material Adverse
Effect. The use, in connection with the business and operations of the Company
and its Subsidiary, of such trademarks and trade names does not, to the
Company's knowledge, infringe on the rights of any person.
(o) The Company is not, and after receipt of payment for the Shares and
application of the proceeds as described in the Prospectus, will not be,
required to register
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as an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(p) The Company has not taken, directly or indirectly, any action intended,
or which might reasonably be expected, to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(q) No person has the right, contractual or otherwise, to cause the Company
to issue to it, or register pursuant to the Act, any securities of the Company
because of the filing of the Registration Statement or the offering of the
Shares, nor does any person have preemptive rights, co-sale rights, rights of
first refusal or other rights to purchase any of the Shares other than those
that have been expressly waived prior to the date hereof.
(r) The Shares are duly authorized for listing, subject to official notice
of issuance, on the New York Stock Exchange (the "NYSE").
(s) Neither the Company nor the Subsidiary nor, to the knowledge of the
Company, any officer, director, employee or agent acting on behalf of the
Company or the Subsidiary is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the FCPA,
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company and the
Subsidiary have conducted their respective businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith, except where failure to be so in compliance would not
reasonably be expected to result in a Material Adverse Effect. "FCPA" means the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder.
(t) The Company and the Subsidiary have insurance of the types and in such
amounts as are generally deemed adequate in the business in which they engage as
described in the Prospectus; and the Company has no reason to believe that it or
the Subsidiary will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its proposed business at a cost that would not
reasonably be expected to result in a Material Adverse Effect.
(u) Except as set forth in the Prospectus, the Company and the Subsidiary
and any "employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, the
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Subsidiary or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA, except to the extent that any such
noncompliance would not result in a Material Adverse Effect. "ERISA Affiliate"
means, with respect to the Company or the Subsidiary, any member of any group of
organizations described in Sections 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or the Subsidiary
is a member. No "reportable event" (as defined under section 4043 of ERISA) for
which reporting has not been waived has occurred in the past three (3) years or
is reasonably expected to occur with respect to any "employee benefit plan"
established or maintained by the Company, the Subsidiary or any of their ERISA
Affiliates. No "employee benefit plan" established or maintained by the Company,
the Subsidiary or any of their ERISA Affiliates, if such "employee benefit plan"
were terminated, would have any "amount of unfunded benefit liabilities" (as
defined under ERISA) that would have a Material Adverse Effect. Neither the
Company, the Subsidiary nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any material liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "employee benefit plan"
or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit
plan" established or maintained by the Company, the Subsidiary or any of their
ERISA Affiliates that is intended to be qualified under Section 401(a) of the
Code is so qualified and nothing has occurred, whether by action or failure to
act, which would reasonably be expected to cause the loss of such qualification.
(v) Neither the Company nor the Subsidiary is, and if operated in the
manner described in the Prospectus, will not be a "broker" within the meaning of
Section 3(a)(4) of the Exchange Act or a "dealer" within the meaning of Section
3(a)(5) of the Exchange Act or required to be registered pursuant to Section
15(a) of the Exchange Act.
(w) The Common Stock is an "actively-traded security" excepted from the
requirements of Rule 101 of Regulation M under the Exchange Act by subsection
(c)(1) of such rule.
(x) Except as contemplated by Section 3 of this Agreement, the Company has
not incurred any liability for any finder's fees or similar payments for the
shares in connection with the transactions herein contemplated.
(y) The Company has not entered into any other sales agency agreements or
other similar arrangements with any agent or other representative in respect of
the Shares.
(z) Each of the Company and the Subsidiary employs disclosure controls and
procedures that are designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified
in the Commission's rules and forms, and is accumulated and communicated to the
Company's
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management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate to allow timely decisions
regarding disclosure.
(aa) Each of the principal executive officer and the principal financial
officer of the Company (or each former principal executive officer of the
Company and each former principal financial officer of the Company as
applicable) has made all certifications required by Sections 302 and 906 of the
Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (the "Sarbanes-Oxley Act") with respect to all reports,
schedules, forms, statements and other documents required to be filed by it or
furnished by it to the Commission. For purposes of the preceding sentence,
"principal executive officer" and "principal financial officer" shall have the
meanings given to such terms in the Sarbanes-Oxley Act.
SECTION 3. Sale and Delivery of Securities. (a) On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell
through the Manager, as sales agent, and the Manager agrees to use its
reasonable efforts to sell, as sales agent for the Company, the Shares on the
following terms.
(i) The Shares are to be sold on a daily basis or otherwise as shall be
agreed to by the Company and the Manager on any day that is a trading day for
the NYSE (other than a day on which the NYSE is scheduled to close prior to its
regular weekday closing time). The Company will designate the maximum amount of
Shares to be sold by the Manager daily as reasonably agreed to by the Manager
and in any event not in excess of the amount available for issuance under the
currently effective Registration Statement. Subject to the terms and conditions
hereof, the Manager shall use its reasonable efforts to sell all of the
designated Shares. The gross sales price of any Shares sold under this Section
3(a) shall be the aggregate market price for shares of the Company's Common
Stock sold by the Manager under this Section 3(a) on the NYSE at the time of
such sale for such Shares.
(ii) Notwithstanding the foregoing, the Company may, at any time from time
to time, instruct the Manager by telephone (confirmed promptly by facsimile) not
to sell Shares if such sales cannot be effected at or above the price designated
by the Company in any such instruction. Furthermore, the Company shall not
authorize the issuance and sale of, and the Manager shall not be obligated to
use its reasonable efforts to sell, any Share at a price lower than the minimum
price therefor designated from time to time by the Company's Board of Directors
and notified to the Manager in writing. In addition, the Company or the Manager
may, upon notice to the other party hereto by telephone (confirmed promptly by
facsimile), suspend the offering of the Shares for any reason and at any time;
provided, however, that such suspension shall not affect or impair the parties'
respective obligations with respect to the Shares sold hereunder prior to the
giving of such notice.
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(iii) The Manager hereby covenants and agrees not to make any sales of
Shares on behalf of the Company, pursuant to this Section 3(a), other than (a)
by means of ordinary brokers' transactions between members of the NYSE that
qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153
under the Act (such transactions are hereinafter referred to as "At the Market
Offerings") and (b) such other sales of Shares on behalf of the Company in its
capacity as agent of the Company as shall be agreed by the Company and the
Manager. The Company acknowledges and agrees that in the event a sale of Shares
on behalf of the Company would constitute the sale of a "block" under Rule
10b-18(a)(5) under the Exchange Act or a "distribution" within the meaning of
Rule 100 of Regulation M under the Exchange Act or the Manager reasonably
believes it may be deemed an "underwriter" under the Act in a transaction that
is not an At the Market Offering, the Company will provide to the Manager, at
the Manager's request and upon reasonable advance notice to the Company, on or
prior to the Settlement Date (as defined below), the opinions of counsel,
accountants' letters and officers' certificates pursuant to Section 5 hereof
that the Company would be required to provide to the Manager in connection with
a sale of Shares pursuant to a Terms Agreement, each dated the Settlement Date,
and such other documents and information as the Manager shall reasonably
request.
(iv) The compensation to the Manager for sales of Shares, as an agent of
the Company, shall be 2.0% of the gross sales price of the Shares sold pursuant
to this Section 3(a), and such rate of compensation shall not apply when the
Manager acts as principal. The remaining proceeds, after further deduction for
any transaction fees imposed on the Manager by any governmental or
self-regulatory organization in respect of such sales, shall constitute the net
proceeds to the Company for such Shares (the "Net Proceeds").
(v) The Manager shall provide written confirmation to the Company following
the close of trading on the NYSE each day in which Shares are sold under this
Section 3(a) setting forth the number of Shares sold on such day, the gross
sales price, the Net Proceeds to the Company, and the compensation payable by
the Company to the Manager with respect to such sales.
(vi) Settlement for sales of Shares pursuant to this Section 3(a) will
occur on the third business day following the date on which such sales are made
(each such day, a "Settlement Date"). On each Settlement Date, the Shares sold
through the Manager for settlement on such date shall be issued and delivered by
the Company to the Manager against payment of the Net Proceeds for the sale of
such Shares. Settlement for all such Shares shall be effected by free delivery
of Shares to the Manager's account at The Depository Trust Company in return for
payments in same day funds delivered to the account designated by the Company.
If the Company shall default on its obligation to deliver Shares on any
Settlement Date, the Company shall (a) hold the Manager harmless against any
loss, claim or damage arising from or as a result of such default by the Company
and (b) pay the Manager any commission to which it would otherwise be entitled
absent such default. If the Manager breaches this Agreement by failing to
deliver
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proceeds on any Settlement Date for Shares delivered by the Company, the Manager
shall pay the Company interest on the amount of the proceeds to which the
Company is entitled based on the effective overnight Federal Funds Rate (as
defined below) until such proceeds plus interest are paid. For purposes of this
Agreement, "Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding business day by the Federal Reserve Bank of New York or, if such is
not published for any day that is a business day, the average quotations, for
the day, of such transactions received by the Manager from three Federal funds
brokers of recognized standing.
(vii) At each Settlement Date and Filing Date, the Company shall be deemed
to have affirmed each representation and warranty contained in this Agreement,
except that the Company shall be deemed to have affirmed the representations and
warranties contained in Sections 2(s), 2(u) and 2(aa) only at each Filing Date.
The Company covenants and agrees with the Manager that (a) on or prior to each
Filing Date for periods in which sales of Shares were made by the Manager
pursuant to this Section 3(a), the Company will file a prospectus supplement
with the Commission under the applicable paragraph of Rule 424(b), which
prospectus supplement will set forth, with regard to such quarter, the number of
Shares sold through the Manager as agent pursuant to this Section 3(a) in At the
Market Offerings, the Net Proceeds to the Company and the compensation paid by
the Company to the Manager with respect to such sales of Shares pursuant to this
Section 3(a) and deliver such number of copies of each such prospectus
supplement to the NYSE as are required by such Exchange. For purposes of this
Agreement, "Filing Date" shall mean each date on which the Company is required
under the Exchange Act to file a quarterly report on Form 10-Q or an annual
report on Form 10-K, as applicable. Any obligation of the Manager to use its
reasonable efforts to sell the Shares on behalf of the Company shall be subject
to the continuing accuracy of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder and to
the continuing satisfaction of the additional conditions specified in Section 5
of this Agreement.
(b) (i) If the Company wishes to issue and sell Shares other than as set
forth in Section 3(a) of this Agreement (each, a "Placement"), it will notify
the Manager of the proposed terms of such Placement. If the Manager, acting as
principal, wishes to accept such proposed terms (which it may decline to do for
any reason in its sole discretion) or, following discussions with the Company,
wishes to accept amended terms, the Manager and the Company will enter into a
Terms Agreement setting forth the terms of such Placement.
(ii) The terms set forth in a Terms Agreement will not be binding on the
Company or the Manager unless and until the Company and the Manager have each
executed and delivered such Terms Agreement accepting all of the terms of such
Terms Agreement. In the event of a conflict between the terms of this Agreement
and the terms of a Terms Agreement, the terms of such Terms Agreement will
control.
11
(c) (i) Under no circumstances shall the number of Shares sold pursuant to
this Agreement and any Terms Agreement exceed the number set forth in Section 1
or the number of shares of Common Stock available for issuance under the
currently effective Registration Statement.
(ii) If either party has reason to believe that the exemptive provisions
set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not
satisfied with respect to the Shares, it shall promptly notify the other party
and sales of Shares under this Agreement and any Terms Agreement shall be
suspended until that or other exemptive provisions have been satisfied in the
judgment of each party. The Manager shall calculate on a weekly basis the ADTV
(as defined by Rule 100 of Regulation M under the Exchange Act) of the Common
Stock.
(d) Each sale of Shares to the Manager shall be made in accordance with the
terms of this Agreement and, if applicable, a Terms Agreement, which will
provide for the sale of such Shares to, and the purchase thereof by, the
Manager. A Terms Agreement may also specify certain provisions relating to the
reoffering of such Shares by the Manager. The commitment of the Manager to
purchase Shares pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each Terms Agreement shall specify the number of Shares to be purchased by the
Manager pursuant thereto, the price to be paid to the Company for such Shares,
any provisions relating to rights of, and default by, underwriters acting
together with the Manager in the reoffering of the Shares, and the time and date
(each such time and date being referred to herein as a "Time of Delivery") and
place of delivery of and payment for such Shares. Such Terms Agreement shall
also specify any requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 5 of this Agreement and any other
information or documents reasonably required by the Manager.
SECTION 4. Covenants of the Company. The Company agrees with the Manager:
(a) During the period in which a prospectus relating to the Shares is
required to be delivered under the Act, (i) to notify the Manager promptly of
the time when any subsequent amendment to the Registration Statement has become
effective or any subsequent supplement to the Prospectus has been filed and of
any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or for additional information with respect
thereto; (ii) provided that the Company has not suspended the offering of the
Shares in accordance with Section 3(a)(ii), to prepare and file with the
Commission, promptly upon the Manager's request, any amendments or supplements
to the Registration Statement or Prospectus that, in the Manager's reasonable
opinion, may be necessary or advisable in connection with the offering of the
Shares by the Manager; (iii) not to file any amendment or supplement to the
Registration Statement or Prospectus (other than any prospectus supplement
relating
12
to the offering of other securities (including, without limitation, Common
Stock) other than pursuant to this Agreement) unless a copy thereof has been
submitted to the Manager a reasonable period of time before the filing; (iv) to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and to advise the Manager of any
such filing; and (v) to cause each amendment or supplement to the Prospectus to
be filed with the Commission as required pursuant to the applicable paragraph of
Rule 424(b) of the Act or, in the case of any document to be incorporated
therein by reference, to be filed with the Commission as required pursuant to
the Exchange Act, within the time period prescribed.
(b) To promptly advise the Manager, of any request by the Commission for
amendments or supplements to the Registration Statement or Prospectus or for
additional information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order suspending the effectiveness of
the Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, and provided that
the Company has not suspended the offering of the Shares in accordance with
Section 3(a)(ii), to make every reasonable effort to obtain the lifting or
removal of such order as soon as possible; to promptly advise the Manager of any
proposal to amend or supplement the Registration Statement or Prospectus,
including by filing any documents that would be incorporated therein by
reference, and to file no such amendment or supplement to which the Manager
shall reasonably object in writing within one business day.
(c) To make available to the Manager, as soon as practicable after the
Registration Statement becomes effective, and thereafter from time to time to
furnish to the Manager, copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration Statement) in
such quantities and at such locations as the Manager may reasonably request for
the purposes contemplated by the Act, which Prospectus and any amendments or
supplements thereto furnished to the Manager will be materially identical to the
version created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T; and for so long as this Agreement is
in effect and provided that the Company has not suspended the offering of the
Shares in accordance with Section 3(a)(ii), the Company will prepare and file
promptly such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to comply with the requirements of Section
10(a)(3) of the Act.
(d) To promptly notify the Manager to suspend the offering of Shares upon
the happening of any event known to the Company within the time during which a
Prospectus relating to the Shares is required to be delivered under the Act
which, in the judgment of the Company, would require the making of any change in
the Prospectus then being used, or in the information incorporated therein by
reference, so that the Prospectus would not include an untrue statement of
material fact or omit to state a
13
material fact necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and, provided that the
Company has not suspended the offering of the Shares in accordance with Section
3(a)(ii), to prepare and furnish, at the Company's expense, to the Manager
promptly such amendments or supplements to such Prospectus as may be necessary
to reflect any such change and, to the extent it relates solely to the Shares,
to furnish the Manager with a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission and
thereafter promptly to furnish at the Company's own expense to the Manager,
copies in such quantities and at such locations as the Manager may from time to
time reasonably request of an appropriate amendment to the Registration
Statement or supplement to the Prospectus so that the Prospectus as so amended
or supplemented will (i) reflect such change, or (ii) not, in the light of the
circumstances when it is so made, be misleading, or (iii) comply with applicable
securities laws.
(e) To furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as the Manager may reasonably designate and to
maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the laws of
any such state (except service of process with respect to the offering and sale
of the Shares); and to promptly advise the Manager of the receipt by the Company
of any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening in writing
of any proceeding for such purpose.
(f) To furnish to the Manager any of the following items that are not filed
with the Commission via EDGAR (i) copies of any reports or other communications
which the Company shall send directly to all of its stockholders (except with
respect to information on the Company's website) and (ii) copies of any
financial statements or reports filed with any national securities exchange on
which any class of securities of the Company is listed, in each case as soon as
such reports, communications, documents or information becomes available.
(g) Whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, to pay all of its expenses incident to the
performance of its obligations hereunder, including, but not limited to, such
costs, expenses, fees and taxes in connection with (i) the preparation and
filing of the Registration Statement, the Prospectus, each Prospectus
Supplement, and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Manager (including costs of mailing
and shipment), (ii) the registration, issue, sale and delivery of the Shares,
(iii) any power of attorney with respect to the Company and any closing
documents (including compilations thereof) and the reproduction and/or printing
and furnishing of copies of each thereof to the Manager (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state laws and the determination of their eligibility for investment
under
14
state law as aforesaid (including the reasonable legal fees and filing fees and
other reasonable and documented disbursements of counsel for the Manager in
connection with such qualifications) and the printing and furnishing of copies
of any blue sky surveys to the Manager, (v) the listing of the Shares on the
NYSE and any registration thereof under the Exchange Act, (vi) any filing for
review of the public offering of the Shares by the NASD (including the
reasonable legal fees and other reasonable disbursements of counsel for the
Manager in connection with any such filing) and (vii) the reasonable fees and
disbursements of the Company's counsel and accountants. The Manager will pay its
own out-of-pocket costs and expenses incurred in connection with entering into
this Agreement and the transactions contemplated by this Agreement, including,
without limitation, travel, reproduction, printing and similar expenses as well
as the fees and disbursements of its legal counsel; provided, however, that if,
within one year of the date of this Agreement, the Company terminates this
Agreement and 500,000 shares of the Shares have not been sold through the
Manager pursuant to the terms of this Agreement or to the Manager pursuant to
any Terms Agreement then the Company will promptly, upon the request of the
Manager, reimburse the Manager for the reasonable fees and disbursements of the
Manager's legal counsel incurred in connection with the entering into of this
Agreement and the matters contemplated hereby but not to exceed an aggregate of
$50,000.
(h) To apply the net proceeds from the sale of the Shares in the manner set
forth in the Prospectus.
(i) Not to sell, offer or agree to sell, contract to sell, grant any option
to sell or otherwise dispose of, directly or indirectly, any shares of Common
Stock or securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock or
permit the registration under the Act of any shares of Common Stock, except for
(i) the registration of the Shares and the sales through the Manager pursuant to
this Agreement or to the Manager pursuant to any Terms Agreement, (ii) sales of
shares through any dividend reinvestment and stock purchase plan of the Company
and (iii) shares and/or options granted pursuant to employee benefit and
executive compensation plans and shares of Common Stock issuable upon the
exercise of such outstanding options during the period from the date of this
Agreement through the final Filing Date for the sale of Shares pursuant to
Section 3(a) of this Agreement, (iv) issuances of shares in private transactions
exempt from registration under the Act and (v) the exercise or conversion of any
security which can be converted into Common Stock, without giving the Manager at
least one business day's prior written notice as provided in Section 3(a)(ii)
requiring the Manager to suspend activity under this program for such period of
time as requested by the Company.
(j) Upon commencement of the offering of Shares under this Agreement, and
each time that (i) the Registration Statement or the Prospectus shall be amended
or supplemented (other than a Prospectus Supplement filed pursuant to Rule
424(b) under the Act pursuant to Section 3(a) of this Agreement or relating
solely to the offering of
15
securities other than the Shares), (ii) there is filed with the Commission any
document incorporated by reference into the Prospectus (other than a Current
Report on Form 8-K, unless the Manager shall otherwise reasonably request), or
(iii) Shares are delivered to the Manager pursuant to a Terms Agreement, to
furnish or cause to be furnished to the Manager forthwith a certificate dated
and delivered the date of effectiveness of such amendment, the date of filing
with the Commission of such supplement or other document, or the Time of
Delivery, as the case may be, in form reasonably satisfactory to the Manager to
the effect that the statements contained in the certificate referred to in
Section 5(f) of this Agreement which were last furnished to the Manager are true
and correct at the time of such amendment, supplement, filing, or delivery, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(f), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(k) Upon commencement of the offering of Shares under this Agreement, and
each time that (i) the Registration Statement or the Prospectus is amended or
supplemented (other than a Prospectus Supplement filed pursuant to Rule 424(b)
under the Act pursuant to Section 3(a) of this Agreement or a prospectus
supplement relating solely to the offering of securities other than the Shares
or there is filed with the Commission any document incorporated by reference
into the Prospectus), or (ii) Shares are delivered to the Manager pursuant to a
Terms Agreement, to furnish or cause to be furnished forthwith to the Manager
and to counsel to the Manager a written opinion of Gibson, Dunn & Crutcher LLP,
counsel to the Company ("Company Counsel"), or other counsel reasonably
satisfactory to the Manager, dated and delivered the date of effectiveness of
such amendment, the date of filing with the Commission of such supplement or
other document, or the Time of Delivery, as the case may be, in form and
substance reasonably satisfactory to the Manager, of the same tenor as the
opinions referred to in Exhibit A of this Agreement, but modified as necessary
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion.
(l) Upon commencement of the offering of Shares under this Agreement, and
each time that (i) the Registration Statement or the Prospectus is amended or
supplemented (other than a Prospectus Supplement filed pursuant to Rule 424(b)
under the Act pursuant to Section 3(a) of this Agreement or a prospectus
supplement relating solely to the offering of securities other than the Shares),
(ii) there is filed with the Commission any document incorporated by reference
into the Prospectus (other than a Current Report on Form 8-K, unless the Manager
shall otherwise reasonably request), or (iii) Shares are delivered to the
Manager pursuant to a Terms Agreement, to furnish or cause to be furnished
forthwith to the Manager and to counsel to the Manager a written opinion of Eric
Helm, or such other attorney reasonably satisfactory to the Manager, in-house
counsel to the Company ("General Counsel"), dated and delivered the date of
16
effectiveness of such amendment, the date of filing with the Commission of such
supplement or other document, or the Time of Delivery, as the case may be, in
form and substance reasonably satisfactory to the Manager of the same tenor as
the opinions referred to in Exhibit B of this Agreement, but modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion.
(m) Upon commencement of the offering of Shares under this Agreement, and
each time that (i) the Registration Statement or the Prospectus shall be amended
or supplemented to include additional amended financial information, (ii) at the
Manager's oral or written request and upon reasonable advance oral or written
notice to the Company, Shares are delivered to the Manager pursuant to a Terms
Agreement, (iii) the Company shall file an annual report on Form 10-K or (iv) at
the Manager's request and upon reasonable advance notice to the Company, there
is filed with the Commission any document (other than an annual report on Form
10-K) incorporated by reference into the Prospectus which contains additional
amended financial information, to cause the Accountants, or other independent
accountants reasonably satisfactory to the Manager, forthwith to furnish the
Manager a letter, dated the date of effectiveness of such amendment, the date of
filing of such supplement or other document with the Commission, or the Time of
Delivery, as the case may be, in form reasonably satisfactory to the Manager, of
the same tenor as the letter referred to in Section 5(d) of this Agreement but
modified to relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such letter.
(n) That it consents to the Manager trading in the Company's Common Stock
for the Manager's own account and for the account of its clients at the same
time as sales of Shares occur pursuant to this Agreement or pursuant to a Terms
Agreement.
(o) For three years from the date of this Agreement or of any Terms
Agreement, to furnish to its stockholders within 120 days after the end of each
fiscal year, for so long as the Company shall not be required to file annual and
periodic reports with the Commission under the Exchange Act, audited financial
statements (including a balance sheet and statements of income, stockholders'
equity and of cash flow of the Company for such fiscal year), accompanied by a
copy of the certificate or report thereon of nationally recognized independent
certified public accountants.
(p) If to the knowledge of the Company, any condition set forth in Section
5(a) or 5(h) of this Agreement shall not have been satisfied on the applicable
Settlement Date, to offer to any person who has agreed to purchase Shares from
the Company as the result of an offer to purchase solicited by the Manager the
right to refuse to purchase and pay for such Shares.
(q) Not to at any time, directly or indirectly, take any action intended,
or which might reasonably be expected, to cause or result in, or which will
constitute,
17
stabilization of the price of the shares of Common Stock to facilitate the sale
or resale of any of the Shares.
(r) To disclose, as required by the Exchange Act, in the Company's
quarterly reports on Form 10-Q and annual report on Form 10-K, the information
with respect to sales of Shares pursuant to this Agreement.
(s) That each acceptance by the Company of an offer to purchase Shares
hereunder through the Manager as sales agent, and each execution and delivery by
the Company of a Terms Agreement, shall be deemed to be an affirmation to the
Manager that the representations and warranties of the Company contained in or
made pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement as though made at and as of such date, and
an undertaking that such representations and warranties will be true and correct
as of the Settlement Date for the Shares relating to such acceptance or as of
the Time of Delivery relating to such sale, as the case may be, as though made
at and as of such date (except that such representations and warranties shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Shares).
SECTION 5. Conditions of Manager's Obligations. The obligations of the
Manager hereunder and under any Terms Agreement are subject to (i) the accuracy
of the representations and warranties on the part of the Company on the date
hereof, any applicable date referred to in Section 4(j) of this Agreement, the
date of any executed Terms Agreement and as of each Settlement Date and Time of
Delivery, (ii) the performance by the Company of its obligations hereunder and
(iii) to the following additional conditions precedent.
(a) (i) No stop order with respect to the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings initiated under
Section 8(d) or 8(e) of the Act, and no order directed at or in relation to any
document incorporated by reference therein and no order preventing or suspending
the use of the Prospectus has been issued by the Commission, and no suspension
of the qualification of the Shares for offering or sale in any jurisdiction, or
to the knowledge of the Company or the Manager of the initiation or threatening
of any proceedings for any of such purposes, has occurred; (ii) the Registration
Statement and all amendments thereto, or modifications thereof, if any, shall
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and (iii) the Prospectus and all amendments or supplements
thereto, or modifications thereof, if any, shall not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(b) No material and unfavorable change, financial or otherwise (other than
as referred to in the Registration Statement and Prospectus), in the business,
18
condition or prospects of the Company and the Subsidiary taken as a whole shall
occur or become known and no transaction which is material and unfavorable to
the Company (other than as referred to in the Registration Statement and
Prospectus) shall have been entered into by the Company or the Subsidiary.
(c) The Company shall furnish to the Manager, at every date specified in
Section 4(k) of this Agreement, an opinion of Company Counsel, addressed to the
Manager, and dated as of such date, and in the form set forth on Exhibit A to
this Agreement.
In rendering the foregoing opinion, counsel may rely, to the extent it
deems such reliance proper, on the opinions (in form and substance reasonably
satisfactory to the Manager) of other counsel acceptable to the Manager as to
matters governed by the laws of jurisdictions other than the United States, the
State of Delaware and the State of New York, and as to matters of fact, upon
certificates of officers of the Company and of government officials; provided
that such counsel shall state that the opinion of any other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, such counsel and
the Manager are justified in relying on such opinions of other counsel.
(d) At the dates specified in Section 4(m) of this Agreement, the Manager
shall have received from the Accountants letters dated the date of delivery
thereof and addressed to the Manager in form and substance reasonably
satisfactory to the Manager.
(e) The Manager shall have received, at every date specified in Section
4(l) of this Agreement, the favorable opinion of the General Counsel, dated as
of such date, and in the form set forth on Exhibit B to this Agreement;
provided, however, that, on any date that (x) the General Counsel is required to
deliver an opinion pursuant to Section 4(l) of this Agreement, and (y) the
Company Counsel is not required to deliver an opinion pursuant to Section 4(k)
of this Agreement, the opinion to be provided by the General Counsel on such
date pursuant to this Section 5(i) shall also include the opinions set forth in
paragraphs (a) through (c), (f) and (g) of Exhibit A of this Agreement.
(f) The Company will deliver to the Manager a certificate of the Company,
(i) dated as of and delivered on each Filing Date and (ii) dated as of and
delivered on the Time of Delivery pursuant to any Terms Agreement (each, a
"Certificate Date"), executed on behalf of the Company by two of its executive
officers to the effect that (i) the representations and warranties of the
Company as set forth in this Agreement are true and correct as of the
Certificate Date, (ii) the Company has performed such of its obligations under
this Agreement as are to be performed at or before each such Certificate Date,
and (ii) the conditions set forth in paragraphs (a) and (b) of Section 5 have
been met.
(g) The Manager shall have received, upon commencement of the offering of
shares under this Agreement, and at each time that (i) the Registration
Statement or the Prospectus is amended or supplemented (other than a Prospectus
19
Supplement filed pursuant to Rule 424(b) under the Act pursuant to Section 3(a)
of this Agreement or a prospectus supplement relating solely to the offering of
securities other than the Shares) or (ii) Shares are delivered to the Manager
pursuant to a Terms Agreement, the favorable opinion of Morrison & Foerster LLP,
counsel to the Manager, dated as of such date, and in form and substance
satisfactory to the Manager.
(h) All filings with the Commission required by Rule 424 under the Act to
have been filed by the Settlement Date or the Time of Delivery, as the case may
be, shall have been made within the applicable time period prescribed for such
filing by Rule 424.
(i) The Shares shall have been approved for listing on the NYSE, subject
only to notice of issuance at or prior to the Settlement Date or the Time of
Delivery, as the case may be.
SECTION 6. Indemnification and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless the Manager,
its partners, directors and officers, and any person who controls the Manager
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons from and against
any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which the Manager or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus (the term Prospectus for
the purpose of this Section 6 being deemed to include the Prospectus and the
Prospectus as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or Prospectus or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of the Manager to the Company
expressly for use with reference to the Manager in such Registration Statement
or such Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement or such Prospectus or necessary to
make such information, in light of the circumstances in which they were made,
not misleading.
If any action, suit or proceeding (together, a "Proceeding") is brought
against the Manager or any such person in respect of which indemnity may be
sought against the Company pursuant to the foregoing paragraph, the Manager or
such person shall promptly notify the indemnifying party in writing of the
institution of such Proceeding and the Company shall be entitled to assume the
defense of such Proceeding,
20
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all reasonable and documented fees and expenses; provided,
however, that the omission to so notify the Company shall not relieve the
Company from any liability which the Company may have to the Manager or any such
person or otherwise except to the extent the Company was materially prejudiced
by such omission. The Manager or such person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Manager or of such person unless the employment
of such counsel shall have been authorized in writing by the Company in
connection with the defense of such Proceeding or the Company shall not have,
within a reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to the Company (in which case the Company shall not have
the right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such reasonable and documented fees
and expenses shall be borne by the Company, and paid as incurred (it being
understood, however, that the Company shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings representing the indemnified parties
who are parties to such Proceeding). The Company shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless the Manager and any such person from and against any loss or
liability by reason of such settlement. The Company shall not, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened Proceeding in respect of which any indemnified party is or may be
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) The Manager agrees to indemnify, defend and hold harmless the Company,
its directors and officers and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or on behalf of the
Manager to the Company expressly for use with reference to the Manager in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus, or arises
out of or is based upon any omission or alleged omission to state a material
fact in connection
21
with such information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against the Manager pursuant to the
foregoing paragraph, the Company or such person shall promptly notify the
Manager in writing of the institution of such Proceeding and the Manager shall
be entitled to assume the defense of such Proceeding, including the employment
of counsel reasonably satisfactory to such indemnified party and payment of all
reasonable and documented fees and expenses; provided, however, that the
omission to so notify the Manager shall not relieve the Manager from any
liability which the Manager may have to the Company or any such person or
otherwise. The Company or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by the Manager in connection with the
defense of such Proceeding or the Manager shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to have charge of
the defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to the
Manager (in which case the Manager shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties, but
the Manager may employ counsel and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of the Manager), in
any of which events such reasonable and documented fees and expenses shall be
borne by the Manager and paid as incurred (it being understood, however, that
the Manager shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings representing the indemnified parties who are parties to such
Proceeding). The Manager shall not be liable for any settlement of any such
Proceeding effected without the written consent of the Manager but if settled
with the written consent of the Manager, the Manager agrees to indemnify and
hold harmless the Company and any such person from and against any loss or
liability by reason of such settlement. The Manager shall not, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened Proceeding in respect of which any indemnified party is a party
and indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 6 is unavailable to
an indemnified party under subsections (a) and (b) of this Section 6 in respect
of any losses, damages, expenses, liabilities or claims referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Manager, on the other hand,
22
from the offering of the Shares or (ii) if, the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Manager, on the other, in connection with the statements or omissions which
resulted in such losses, damages, expenses, liabilities or claims, as well as
any other relevant equitable considerations. The relative benefits received by
the Company, on the one hand, and the Manager, on the other, shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
compensation (before deducting expenses) received by the Manager from the sale
of Shares on behalf of the Company or as principal. The relative fault of the
Company, on the one hand, and of the Manager, on the other, shall be determined
by reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Manager and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, damages, expenses, liabilities and claims referred to in this
subsection shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(d) The Company and the Manager agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 6, the Manager shall not be
required to contribute any amount in excess of commissions received by it under
the Agreement or any amount by which the total price at which, in the aggregate,
the Shares sold by the Manager under this Agreement exceeds the amount of any
damage which the Manager has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 6
and the covenants, warranties and representations of the Company contained in
this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of the Manager, its partners, directors or
officers or any person (including each partner, officer or director of such
person) who controls the Manager within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company, its directors
or officers or any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares. The
Company and the Manager agree promptly to notify each other of the commencement
of any Proceeding against it and, in the case of the Company, against any
23
of the Company's officers or directors in connection with the issuance and sale
of the Shares, or in connection with the Registration Statement or Prospectus.
SECTION 7. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Company herein or in
certificates delivered pursuant hereto or any Terms Agreement, and the
agreements of the Manager contained in Section 6 of this Agreement, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Manager or any controlling persons, or the Company (or any
of their officers, directors or controlling persons), and shall survive delivery
of and payment for the Shares.
SECTION 8. Termination.
(a) The Company shall have the right, by giving written notice as
hereinafter specified, to terminate the provisions of this Agreement. Any such
termination shall be without liability of any party to any other party except
that (i) if Shares have been sold through the Manager for the Company, then
Section 4(p) shall remain in full force and effect, (ii) with respect to any
pending sale, through the Manager for the Company, the obligations of the
Company, including in respect of compensation of the Manager, shall remain in
full force and effect notwithstanding the termination and (iii) the provisions
of Section 4(g), Section 6 and Section 7 of this Agreement shall remain in full
force and effect notwithstanding such termination.
(b) The Manager shall have the right, by giving written notice as
hereinafter specified, to terminate the provisions of this Agreement. Any such
termination shall be without liability of any party to any other party except
that the provisions of Section 4(g), Section 6 and Section 7 of this Agreement
shall remain in full force and effect notwithstanding such termination.
(c) This Agreement shall remain in full force and effect unless terminated
pursuant to Sections 8(a) or (b) above or otherwise by mutual agreement of the
parties or upon settlement of the sale of all the Shares in the aggregate in or
more offerings; provided that any such termination by mutual agreement or
following the sale of all of the Shares in the aggregate in one or more
offerings shall in all cases be deemed to provide that Section 4(g), Section 6
and Section 7 shall remain in full force and effect.
(d) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by the Manager or the Company, as the case may be. If such termination
shall occur prior to the Settlement Date for any sale of Shares, such sale shall
settle in accordance with the provisions of Section 3(a)(vi) of this Agreement.
(e) In the case of any purchase by the Manager pursuant to a Terms
Agreement, the obligations of the Manager pursuant to such Terms Agreement shall
be subject to termination in the absolute discretion of the Manager, if, since
the time of
24
execution of the Terms Agreement or the respective dates as of which information
is given in the Registration Statement and Prospectus, there shall have occurred
any actual downgrading in the rating accorded any securities of or guaranteed by
the Company or any subsidiary by any "nationally recognized statistical rating
organization", as that term is defined in Rule 436(g)(2) under the Act or, if,
at any time prior to the Time of Delivery, trading in securities on the New York
Stock Exchange, the AMEX or the Nasdaq National Market shall have been suspended
or limitations or minimum prices shall have been established, trading in the
securities of the Company on the New York Stock Exchange, the AMEX or the Nasdaq
National Market shall have been suspended, or if a banking moratorium shall have
been declared either by the United States or New York State authorities, or if
the United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in the
Manager's judgment, to make it impracticable to market the Shares. If the
Manager elects to terminate its obligations pursuant to this Section 8(e), the
Company shall be notified promptly in writing.
SECTION 9. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements under this Agreement and any Terms Agreement
shall be in writing and delivered by hand, overnight courier, mail or facsimile
and, if to the Manager, shall be sufficient in all respects if delivered or sent
to UBS Securities LLC, 299 Park Avenue, New York, N.Y. 10171-0026, Attention:
Syndicate Department, Fax No. (212) 821-6186, with a copy for information
purposes to UBS Securities LLC, 677 Washington Blvd., Stamford, CT, 06901,
Attention: Legal and Compliance Department, Fax No. (203) 719-0680; if to the
Company, it shall be sufficient in all respects if delivered or sent to the
Company at the offices of the Company at One Enterprise Drive, Aliso Viejo,
California 92656, Attention: Eric P. Helm, Fax No. (949) 349-4517. Each party to
this Agreement and any Terms Agreement may change such address for notices by
sending to the parties to this Agreement and any Terms Agreement written notice
of a new address for such purpose.
SECTION 10. Parties. The Agreement herein set forth and any Terms Agreement
have been and are made solely for the benefit of the Manager and the Company and
to the extent provided in Section 6 of this Agreement the controlling persons,
directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser of the Shares, as such purchaser, from any of the
Manager) shall acquire or have any right under or by virtue of this Agreement
and any Terms Agreement.
SECTION 11. Adjustments for Stock Splits. The parties acknowledge and agree
that all share related numbers contained in this Agreement and any Terms
Agreement shall be adjusted to take into account any stock split, stock dividend
or combination of shares effected with respect to the Shares.
25
SECTION 12. Additional Sales Agents and/or Principals Other Than in At the
Market Offerings. Notwithstanding any provision in this Agreement to the
contrary, the Manager acknowledges and agrees that the Company may, without
penalty or recourse under this Agreement, enter into separate agreements with
one or more nationally prominent investment banks whereby each such investment
bank shall act as a sales agent and/or principal for the issuance and sale of
shares of the Company's securities in other than at the market offerings as that
term is defined in Rule 415(a)(4) under the Act.
SECTION 13. Entire Agreement. This Agreement and any Terms Agreement
constitute the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof.
SECTION 14. Counterparts. This Agreement and any Terms Agreement may be
signed by the parties in one or more counterparts which together shall
constitute one and the same agreement among the parties.
SECTION 15. Applicable Law. This Agreement, any Terms Agreement and any
claim, counterclaim or dispute of any kind or nature whatsoever arising out of
or in any way relating to this Agreement or any Terms Agreement ("Claim"),
directly or indirectly, shall be governed by, and construed in accordance with,
the internal laws of the State of New York applicable to contracts entered into
and to be performed within such state without regard to conflicts of law
principles.
SECTION 16. Headings. The Section headings in this Agreement and any Terms
Agreement have been inserted as a matter of convenience of reference and are not
a part of this Agreement or any Terms Agreement.
SECTION 17. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Company
consents to the non-exclusive jurisdiction of such courts and personal service
with respect thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement and any Terms Agreement is brought by any third party
against the Manager or any indemnified party. Each of the Manager and the
Company (in the case of the Company on its behalf and, to the extent permitted
by applicable law, on behalf of its stockholders and affiliates) waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
upon contract, tort or otherwise) in any way arising out of or relating to this
Agreement and any Terms Agreement. The Company agrees that a final,
non-appealable judgment in any such action, proceeding or counterclaim brought
in any such court shall
26
be conclusive and binding upon the Company and may be enforced in any other
courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
SECTION 18. Miscellaneous. The Manager, an indirect, wholly-owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS AG. Because the Manager is a
separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by the Manager
are not deposits, are not insured by the Federal Deposit Insurance Corporation,
are not guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
A lending affiliate of the Manager may have lending relationships with
issuers of securities underwritten or privately placed by the Manager. To the
extent required under the securities laws, prospectuses and other disclosure
documents for securities underwritten or privately placed by the Manager will
disclose the existence of any such lending relationships and whether the
proceeds of the issue will be used to repay debts owed to affiliates of the
Manager.
27
If the foregoing correctly sets forth the understanding between the Company
and the Manager, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and the Manager. Alternatively, the execution of this Agreement by the
Company and its acceptance by or on behalf of the Manager may be evidenced by an
exchange of facsimile or other written communications.
Very truly yours,
FLUOR CORPORATION
By: /s/ Joanna Oliva
-------------------------------------
Name: Joanna Oliva
Title: Vice President and Treasurer
ACCEPTED as of the date
first above written
UBS SECURITIES LLC
By: /s/ Stephen A. Cruise
------------------------------
Name: Stephen A. Cruise
Title: Managing Director
UBS SECURITIES LLC
By: /s/ Jason Wortendyke
-------------------------------
Name: Jason Wortendyke
Title: Director
EXHIBIT A
OPINIONS TO BE DELIVERED BY COMPANY COUNSEL
(a) The Company is a validly existing corporation in good standing under
the laws of the State of Delaware with the requisite corporate power and
authority to own its properties and conduct its business as described in the
Registration Statement. The Company is qualified to do business as a foreign
corporation in the jurisdictions listed on Annex A to such opinion.
(b) The Shares have been duly authorized and, when issued and sold to or
through the Manager, and paid for by the Manager, in accordance with the terms
of this Agreement and any applicable Terms Agreement, will be validly issued and
fully paid and nonassessable.
(c) The Company has the corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement have been duly authorized by all
necessary corporate action. This Agreement has been duly executed and delivered
by the Company.
(d) The execution and delivery by the Company of this Agreement and the
issuance and sale by the Company of the Shares to or through the Manager: (i) do
not and will not violate the charter or bylaws of the Company; and (ii) do not
and will not breach the terms of (a) any agreement identified to such counsel in
a certificate (attached to such opinion) by the Company as being material to
which the Company is a party or (b) any order, judgment or decree of any court
or other agency of government identified to such counsel in a certificate
(attached to such opinion) of the Company as constituting all orders, judgments
or decrees binding on the Company, in either case based solely on such counsel's
review of such agreements, orders, judgments or decrees.
(e) The execution, delivery and performance by the Company of this
Agreement:
(i) do not and will not violate any law, rule or regulation currently in
effect of the State of Delaware or the United States of America applicable to
the Company and (ii) do not and will not require any filing with or approval of
any governmental authority or regulatory body of the State of Delaware or the
United States of America under any law or regulation of the State of Delaware or
the United States of America applicable to the Company or the Delaware General
Corporation Law, except for such filings or approvals as already have been made
or obtained under the Act. Other than the last clause of the preceding sentence,
such counsel need not express any opinion in this paragraph regarding federal or
state securities laws.
(f) Insofar as the statements in the Prospectus under the caption
"Description of Common Stock" constitute a summary of the documents referred to
therein, such statements fairly present in all material respects the information
required to
be disclosed under the Act and the rules and regulations of the Securities and
Exchange Commission relating to registration statements on Form S 3 and
prospectuses forming a part thereof.
(g) The Registration Statement, at the time it became effective (which, for
purposes of this opinion, shall have the meaning set forth in Rule 158(c) under
the Act), and the Prospectus (except for the financial statements and schedules,
statistical information that is purported to have been provided on the authority
of an expert or public official and other information of an accounting of
financial nature included or incorporated by reference therein as to which such
counsel expresses no opinion) appear on their face to comply as to form in all
material respects with the Act and the applicable rules and regulations of the
Commission thereunder.
In addition, Company Counsel shall provide a letter that states the
following:
In reliance on the order of the Securities and Exchange Commission
declaring the Registration Statement effective, such counsel is of the opinion
that the Registration Statement has become effective under the Act. To such
counsel's knowledge, based solely upon telephonic confirmation from the Staff of
the Commission on [date], as of the time of such confirmation no stop order
suspending the effectiveness of the Registration Statement has been issued under
the Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
Such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent auditors of
the Company and representatives and counsel of the Manager at which the contents
of the Prospectus and related matters were discussed. Because the purpose of
such counsel's professional engagement was not to establish or confirm factual
matters and because the scope of our examination of the affairs of the Company
did not permit such counsel to verify the accuracy, completeness or fairness of
the statements set forth in the Registration Statement or the Prospectus, such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except insofar as such statements
specifically relate to such counsel.
On the basis of the foregoing, and except for the financial statements and
schedules, statistical information that is purported to have been provided on
the authority of an expert or public official and other information of an
accounting or financial nature included or incorporated by reference therein, as
to which such counsel does not express any opinion or belief, no facts have come
to such counsel's attention that led such counsel to believe: (i) that the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein, or necessary to make the statements therein not misleading or
(ii) that the Prospectus, as of its date or as of the date hereof, contained or
contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
EXHIBIT B
OPINIONS TO BE DELIVERED BY GENERAL COUNSEL
(a) The Company is qualified to do business in each jurisdiction where the
ownership or leasing of the properties or the conduct of its business requires
such qualification, except where the failure to so qualify would not have a
Material Adverse Effect.
(b) The Subsidiary is a validly existing corporation in good standing under
the laws of the State of California. The Subsidiary has the requisite corporate
power and authority to own its properties and conduct its business as described
in the Prospectus. The Subsidiary is qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or leasing
of the properties or the conduct of its business requires such qualification
requires such qualification, except where the failure to so qualify would not
have a Material Adverse Effect.
(c) All of the issued and outstanding capital stock of the Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or, to the knowledge of such counsel, any pending or
threatened claim.
(d) To such counsel's knowledge, the Shares to be sold by the Company when
paid for in accordance with the terms of this Agreement and any applicable Terms
Agreement will not have been issued in violation of any preemptive right, right
of first refusal or similar right and will not be subject to any right of first
refusal or preemptive or similar right under (i) the statutes, judicial and
administrative decisions and the rules and regulations of the governmental
agencies of the State of Delaware, (ii) the Subsidiary's charter or bylaws or
(iii) any instrument, document, contract or other agreement specifically filed
as an exhibit to the documents that were included or incorporated by reference
in the Registration Statement or any instrument, document, contract or agreement
filed as an exhibit to, or incorporated as an exhibit by reference in, the
Registration Statement. Except as described in the Registration Statement or the
Prospectus and except for such amounts that would not have a Material Adverse
Effect, to such counsel's knowledge, there (x) is no commitment or arrangement
to issue, and (y) are no outstanding options, warrants or other rights calling
for the issuance of, any share of capital stock of the Company or the Subsidiary
to any person or any security or other instrument that by its terms is
convertible into, exercisable for or exchangeable for capital stock of the
Company.
(e) To such counsel's knowledge, neither the Company nor the Subsidiary is
in violation of its respective charter or bylaws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of its properties
may be bound, except for such defaults or
violations that would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect.
(f) There is no instrument, document, lease, license, contract or other
agreement (collectively, "Documents") required by the Act to be described or
referred to in the Registration Statement or the Prospectus or to be filed as an
exhibit thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(g) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or the Subsidiary is a
party or of which any property of the Company or the Subsidiary is the subject
which, if determined adversely to the Company or the Subsidiary, would
individually or in the aggregate be reasonably expected to have a Material
Adverse Effect; and, to such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.
(h) None of the Company or the Subsidiary is (i) an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act or
(ii) a "broker" within the meaning of Section 3(a)(4) of the Exchange Act or a
"dealer" within the meaning of Section 3(a)(5) of the Exchange Act or required
to be registered pursuant to Section 15(a) of the Exchange Act.
(i) Insofar as the statements in the Registration Statement under the
caption "Indemnification of Directors and Officers" and the statements
incorporated by reference into the Registration Statement from the Company's
Form 10-K under the caption "Legal Proceedings" constitute a summary of the
documents referred to therein, such statements fairly present in all material
respects the information required to be disclosed under the Act and the rules
and regulations of the Commission relating to registration statements on Form S
3 and prospectuses forming a part thereof.
(j) The Shares have been duly authorized for listing by the NYSE upon
official notice of issuance.
(k) To such counsel's knowledge, except as disclosed in the Registration
Statement or the Prospectus, no person or entity has the right to require the
registration under the Act of shares of Common Stock or other securities of the
Company by reason of the filing or effectiveness of the Registration Statement.
Annex I
FLUOR CORPORATION
Common Stock
TERMS AGREEMENT
______, 200__
UBS SECURITIES LLC
299 Park Avenue
New York, New York 10171
Dear Sirs:
Fluor Corporation (the "Company") proposes, subject to the terms and
conditions stated herein and in the Equity Distribution Agreement, dated
February __, 2005 (the "Equity Distribution Agreement"), between the Company and
UBS Securities LLC, to issue and sell to UBS Securities LLC the securities
specified in the Schedule hereto (the "Purchased Securities") [, and solely for
the purpose of covering over-allotments, to grant to UBS Securities LLC the
option to purchase the additional securities specified in the Schedule hereto
(the "Additional Securities")]*.
[UBS Securities LLC shall have the right to purchase from the Company all
or a portion of the Additional Securities as may be necessary to cover
over-allotments made in connection with the offering of the Purchased
Securities, at the same purchase price per share to be paid by UBS Securities
LLC to the Company for the Purchased Securities. This option may be exercised by
UBS Securities LLC at any time (but not more than once) on or before the
thirtieth day following the date hereof, by written notice to the Company. Such
notice shall set forth the aggregate number of shares of Additional Securities
as to which the option is being exercised, and the date and time when the
Additional Securities are to be delivered (such date and time being herein
referred to as the "Option Closing Date"; provided, however, that the Option
Closing Date shall not be earlier than the Time of Delivery (as set forth in the
Schedule hereto) nor earlier than the second business day after the date on
which the option shall have been exercised nor later than the fifth business day
after the date on which the option shall have been exercised. Payment of the
purchase price for the Additional Securities shall be made at the Option Closing
Date in the same manner and at the same office as the payment for the Purchased
Securities.]*
Each of the provisions of the Equity Distribution Agreement not
specifically related to the solicitation by UBS Securities LLC, as agent of the
Company,
- ------------
* Include only if UBS Securities LLC has an over-allotment option.
of offers to purchase securities is incorporated herein by reference in its
entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement [and] [,] the Time of
Delivery [and any Option Closing Date]*, except that each representation and
warranty in Section 2 of the Equity Distribution Agreement which makes reference
to the Prospectus (as therein defined) shall be deemed to be a representation
and warranty as of the date of the Equity Distribution Agreement in relation to
the Prospectus, and also a representation and warranty as of the date of this
Terms Agreement [and] [,] the Time of Delivery [and any Option Closing Date]* in
relation to the Prospectus as amended and supplemented to relate to the
Purchased Securities.
An amendment to the Registration Statement (as defined in the Equity
Distribution Agreement), or a supplement to the Prospectus, as the case may be,
relating to the Purchased Securities [and the Additional Securities]*, in the
form heretofore delivered to you is now proposed to be filed with the Securities
and Exchange Commission.
Subject to the terms and conditions set forth herein and in the Equity
Distribution Agreement which are incorporated herein by reference, the Company
agrees to issue and sell to UBS Securities LLC and the latter agrees to purchase
from the Company the number of shares of the Purchased Securities at the time
and place and at the purchase price set forth in the Schedule hereto.
- ------------
* Include only if UBS Securities LLC has an over-allotment option.
I-2
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, whereupon this Terms Agreement, including
those provisions of the Equity Distribution Agreement incorporated herein by
reference, shall constitute a binding agreement between you and the Company.
FLUOR CORPORATION
By:
-----------------------------
Name:
Title:
ACCEPTED as of the date
first above written
UBS SECURITIES LLC
By:
-----------------------------
Name:
Title:
UBS SECURITIES LLC
By:
-----------------------------
Name:
Title:
I-3
Schedule to Annex I
Title of Purchased Securities [and Additional Securities]*:
Common Stock, par value $.01 per share
Number of Shares of Purchased Securities:
[Number of Shares of Additional Securities:]*
[Price to Public:]
Purchase Price by UBS Securities LLC:
Method of and Specified Funds for Payment of Purchase Price:
By wire transfer to a bank account specified by the Company in same day
funds.
Method of Delivery:
Free delivery of Shares to the Manager's account at the Depository Trust
Company in return for payment of the purchase price.
Time of Delivery:
Closing Location:
Documents to be Delivered:
The following documents referred to in the Equity Distribution Agreement
shall be delivered as a condition to the Closing:
(1) The opinion referred to in Section 4(k).
(2) The opinion referred to in Section 4(l).
(3) The opinion referred to in Section 5(g)
(4) The accountants' letter referred to in Section 4(m).
(5) The officers' certificate referred to in Section 4(j).
(6) Such other documents as the Manager shall reasonably request.
- ------------
* Include only if UBS Securities LLC has an over-allotment option.