Exhibit 1.1
FLUOR CORPORATION
DEBT SECURITIES
FORM OF UNDERWRITING AGREEMENT
STANDARD PROVISIONS
____________, 20___
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
Fluor Corporation, a Delaware corporation (the "COMPANY"), from time to
time may enter into one or more pricing agreements (each a "PRICING AGREEMENT")
in the form of Annex I, with such additions and deletions as the parties thereto
may determine and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the "UNDERWRITERS" with respect to
such Pricing Agreement and the securities specified therein) certain of its
senior or subordinated debt securities (the "SECURITIES") specified in Schedule
II to such Pricing Agreement (with respect to such Pricing Agreement, the "FIRM
SECURITIES"). If specified in such Pricing Agreement, the Company may grant to
the Underwriters the right to purchase at their election an additional principal
amount of Securities, specified in such Pricing Agreement as provided in Section
2 (the "OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities,
if any, which the Underwriters elect to purchase pursuant to Section 2 are
collectively called the "DESIGNATED SECURITIES." The Pricing Agreement may
designate a lead underwriter or underwriters (collectively, the
"REPRESENTATIVES") for the particular issue of Designated Securities. The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives.
The standard provisions set forth herein to the extent applicable to
securities of the type represented by the Designated Securities will be
incorporated by reference in any such Pricing Agreement relating to a particular
issue of Securities. The terms and rights of any particular issuance of
Designated Securities shall be as specified in the Pricing Agreement relating
thereto and in or pursuant to the indenture (the "INDENTURE") identified in such
Pricing Agreement.
This Underwriting Agreement shall not be construed as an obligation of
the Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase any of the Securities. The obligation of the Company to
issue and sell any of the Designated Securities and the obligation of the
Underwriters to purchase any of the Designated Securities shall be evidenced by
the Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal amount of
the Firm Securities, the maximum aggregate principal amount of the Optional
Securities, if any, the initial public offering price of such Designated
Securities or the manner of determining such price, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, the principal amount of such Designated Securities to be purchased
by each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery of
such Firm Securities and Optional Securities, if any, and payment therefor. The
Pricing Agreement also shall specify, to the extent not set forth in the
Indenture and the Registration Statement and Prospectus with respect thereto,
the terms of such Designated Securities. The Pricing Agreement, including these
standard provisions incorporated therein by reference, is referred to as "THIS
AGREEMENT". A Pricing Agreement shall be in the form of an executed writing,
which may be in counterparts, and may be evidenced by an exchange of email
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and any Pricing Agreement shall be several and
not joint.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each Underwriter named in Schedule I to the applicable Pricing Agreement, as
of the date thereof and as of the Time of Delivery (as defined in Section 3) as
follows:
(a) A registration statement (the "INITIAL REGISTRATION
STATEMENT") in respect of the Designated Securities has been filed with
the Securities and Exchange Commission (the "COMMISSION") under the
Securities Act of 1933, as amended (the "SECURITIES ACT"). The Initial
Registration Statement has been declared effective by the Commission,
and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT"). The term
"REGISTRATION STATEMENT" means the Initial Registration Statement as
amended to the date of this Agreement, including the information, if
any, deemed to be a part thereof pursuant to Rule 434(d) of the rules
and regulations under the Securities Act (the "SECURITIES ACT
REGULATIONS") and any related registration statement filed pursuant to
Rule 462(b) (a "RULE 462(B) REGISTRATION STATEMENT") of the Securities
Act Regulations. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. The Company
proposes to file, pursuant to Rule 424 of the Securities Act
Regulations, a prospectus supplement specifically relating to the
Designated Securities and has advised the Underwriters of all
information to be set forth therein. The term "BASIC PROSPECTUS" means
the prospectus included in the Initial Registration Statement. The term
"PROSPECTUS" means the Basic Prospectus together with the prospectus
supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Designated Securities as first filed with the Commission pursuant to
Rule 424 of the Securities Act Regulations. If the Company elects to
rely upon Rule 434 of the Securities Act Regulations, however, the term
"Prospectus" shall be deemed to refer to the Basic Prospectus and the
term sheet relating to the Designated Securities in the form to be
furnished to the Underwriters by the Company in
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reliance on Rule 434. The term "PRELIMINARY PROSPECTUS" means a
preliminary prospectus supplement specifically relating to the
Designated Securities together with the Basic Prospectus. Any reference
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the information incorporated by reference therein,
as updated or superseded as provided therein, prior to the execution of
the applicable Pricing Agreement. Any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the information incorporated by
reference therein, as updated or superseded as provided therein,
pursuant to any document filed after the date of the execution of the
applicable Pricing Agreement under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) of the Securities Act Regulations in accordance
with Section 4(a). Any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company, as updated or superseded, filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement.
(b) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder. Any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(d) The Registration Statement as of its effective date did
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. The Prospectus does not contain an
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. The
representations and warranties in this Section 2(d) shall not apply to
(i) any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
of Designated Securities through the Representatives expressly for use
in the Prospectus or (ii) any Form T-1 Statement of Eligibility and
Qualification included as an exhibit to the Registration Statement.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as
set forth therein or contemplated thereby, there has not been any
material adverse change, or any development reasonably likely to result
in a material adverse change, in the business, financial condition or
results of operations of the Company and its subsidiaries taken as a
whole.
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(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus.
(g) The Designated Securities have been duly authorized. When
the Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to the Firm
Securities, and in the case of any Optional Securities pursuant to
Over-allotment Options (as defined in Section 2) with respect to such
Optional Securities, such Designated Securities will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(h) The Indenture has been duly authorized. At each Time of
Delivery (as defined in Section 3) for the Designated Securities, the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles. The Indenture conforms, and the Designated Securities will
conform, to the descriptions thereof contained in the Prospectus.
(i) The issue and sale of the Designated Securities by the
Company to the Underwriters will not conflict with or result in a
breach or violation of any term or provision of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company is a party that
is material to the Company and its subsidiaries taken as a whole, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company, other than any such
conflict, breach, violation or default that is not reasonably likely to
result in a material adverse change in the business, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole. No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body will be required to be obtained by the Company for the
issue and sale by the Company of the Designated Securities being
delivered at such Time of Delivery, except such as have been, or will
have been prior to such Time of Delivery, obtained under the Securities
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters.
2. SALE AND DELIVERY.
(a) Pursuant to a Pricing Agreement applicable to any
Designated Securities, and upon the basis of the representations and
warranties, and subject to the conditions set forth, in this Agreement,
the Company will agree to sell to the several Underwriters named in
such Pricing Agreement and such Underwriters will agree to purchase
from the Company, severally and not jointly, at the respective purchase
prices set forth in the Pricing Agreement, plus accrued interest, if
any, from the date set forth therein to the date of payment and
delivery, the principal amounts of Designated Securities set forth
opposite their names in Schedule I to such Pricing Agreement, less
their respective amounts of the Contract Securities (as defined
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below), if any, as determined as provided below. Designated Securities
to be purchased pursuant to delayed delivery contracts are referred to
as the "CONTRACT SECURITIES."
(b) The Company may specify in the Pricing Agreement
applicable to any Designated Securities that the Company thereby grants
to the Underwriters the right (an "OVERALLOTMENT OPTION") to purchase
at their election up to the aggregate principal amount of Optional
Securities specified in such Pricing Agreement, on the same terms as
the Firm Securities, for the sole purpose of covering over-allotments
in the sale of the Firm Securities. Any such election to purchase
Optional Securities may be exercised by written notice from the
Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate principal amount of
Optional Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by the Representatives
but in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, earlier
than or later than the respective number of business days after the
date of such notice set forth in such Pricing Agreement.
(c) The aggregate principal amount of Optional Securities to
be added to the aggregate principal amount of Firm Securities to be
purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Securities shall be, in each
case, the aggregate principal amount of Optional Securities that the
Company has been advised by the Representatives have been attributed to
such Underwriter. If the Company has not been so advised, the aggregate
principal amount of Optional Securities to be so added shall be, in
each case, that aggregate principal amount of Optional Securities which
the aggregate principal amount of Firm Securities to be purchased by
such Underwriter under such Pricing Agreement bears to the aggregate
principal amount of Firm Securities (rounded as the Representatives may
determine to the nearest $1000). The aggregate principal amount of
Designated Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate principal amount of
Firm Securities set forth in Schedule I to such Pricing Agreement plus
the aggregate principal amount of Optional Securities which the
Underwriters elect to purchase.
(d) (i) If so indicated in the applicable Pricing
Agreement, the Company may authorize the Underwriters to
solicit offers to purchase Contract Securities on the terms
and subject to the conditions set forth therein pursuant to
delayed delivery contracts substantially in the form of
Exhibit __ but with such changes therein as the Company may
authorize or approve ("DELAYED DELIVERY CONTRACTS"). Delayed
Delivery Contracts are to be with institutional investors
approved by the Company and described in the Prospectus. The
aggregate principal amount of Contract Securities shall not
exceed the amounts set forth in the Pricing Agreement. As of
the applicable Time of Delivery, the Company will pay to the
Representative as compensation, for the accounts of the
Underwriters, the fee specified in the Pricing Agreement in
respect of all Contract Securities. The Underwriters will not
have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts.
(ii) The deduction for the Contract Securities
referred to above shall become effective upon the execution
and delivery by the Company and the several institutional
investors of the Delayed Delivery Contracts. Such deduction
for each
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Underwriter shall be in the amount which shall bear the same
proportion to the total principal amount of Contract
Securities as the principal amount of Designated Securities
set forth opposite its name in such Pricing Agreement bears to
the aggregate principal amount of Designated Securities set
forth in such Pricing Agreement.
3. PAYMENT. Firm Securities and Optional Securities to be purchased by
each Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement and in such authorized denominations and
registered in such names as the Representatives may request upon at least 48
hours' prior notice to the Company, shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Company to the Representatives at least 48 hours in advance as specified in such
Pricing Agreement:
(i) with respect to the Firm Securities, all in the manner and
at the place and time and date specified in such Pricing Agreement or
at such other place and time and date as the Representatives and the
Company may agree upon in writing, such time and date being called the
"FIRST TIME OF DELIVERY"; and
(ii) with respect to the Optional Securities, if any, in the
manner and at the time and date specified by the Representatives in the
written notice given by the Representatives of the Underwriters'
election to purchase such Optional Securities, or at such other time
and date as the Representatives and the Company may agree upon in
writing, such time and date, if not the First Time of Delivery, herein
called the "SECOND TIME OF DELIVERY".
Each such time and date for delivery is called a "TIME OF DELIVERY".
4. COVENANTS. The Company agrees with each of the Underwriters of any
Designated Securities that:
(a) It will prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives and will file such Prospectus pursuant to Rule
424(b) of the Securities Act Regulations not later than the
Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such earlier time
as may be required by Rule 424(b).
(b) It will not make any further amendment or supplement to
the Registration Statement or Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such Designated
Securities and prior to the Time of Delivery for such Designated
Securities that shall be disapproved by the Representatives for such
Designated Securities promptly after reasonable notice thereof.
(c) It will advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery for such Designated
Securities and will furnish the Representatives with copies thereof.
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(d) It promptly will file all reports and any definitive proxy
or information statements required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with
the offering or sale of such Designated Securities, and during such
same period it will advise the Representatives, promptly after it
receives notice thereof, of:
(i) the time when any amendment to the Registration
Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has
been filed with the Commission;
(ii) the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any
prospectus relating to the Designated Securities;
(iii) the suspension of the qualification of such
Designated Securities for offering or sale in any
jurisdiction; and
(iv) the initiation or threatening of any proceeding
for any such purpose or of any request by the Commission with
respect to amending or supplementing the Registration
Statement or Prospectus or for additional information and, in
the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus
relating to the Designated Securities or suspending any such
qualification, promptly use its best efforts to obtain the
withdrawal of such order.
(e) It promptly will take such action as the Representatives
reasonably may request to qualify such Designated Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives reasonably may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities. In connection therewith,
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction.
(f) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, it will deliver written and electronic copies of the
Prospectus as amended or supplemented to the Underwriters in New York
City, in such quantities as the Representatives reasonably may request.
If the delivery of a prospectus is required at any time in connection
with the offering or sale of the Designated Securities and if at such
time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act, the Exchange Act or the
Trust Indenture Act, the Company will notify the Representatives and
upon their request will file such document and prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many written and electronic copies as the Representatives from time to
time reasonably may request of an amended Prospectus or a
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supplement to the Prospectus that will correct such statement or
omission or effect such compliance.
(g) It will make generally available to its securityholders as
soon as practicable, but in any event not later than 18 months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Securities Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Securities Act Regulations.
(h) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities as notified to the Company by the
Representatives and (ii) the last Time of Delivery for such Designated
Securities, it will not offer, sell, contract to sell or otherwise
dispose of any debt securities that mature more than one year after
such Time of Delivery and that are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives.
(i) If it elects to rely upon Rule 462(b), it will file a Rule
462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 p.m., Washington, DC time, on the date of this
Agreement, and at the time of filing it either will pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Securities Act.
5. PAYMENT OF EXPENSES. The Company will pay or cause to be paid the
following:
(i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Securities under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers;
(ii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as
provided in Section 4(e), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any Blue Sky Memorandum or Legal
Investment Survey;
(iii) any fees charged by securities rating services for
rating the Securities;
(iv) any filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, any
required review by the National Association of Securities Dealers, Inc.
of the terms of the sale of the Securities;
(v) the cost of printing or reproducing the Securities; and
(vii) the fees and expenses of any Trustee and any agent of
any Trustee and the reasonable fees and disbursements of counsel for
any Trustee in connection with any Indenture and the Securities.
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Except as provided in this Section 5, and Sections 7 and 10, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Designated Securities by them
and any advertising expenses connected with any offers they may make.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Company in or incorporated by reference in the Pricing
Agreement relating to such Designated Securities are, at and as of each Time of
Delivery for such Designated Securities, true and correct, the condition that
the Company shall have performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
such Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with Section 4(a). If the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 p.m., Washington, DC time, on the date of
this Agreement. No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission. All requests for additional information on the part
of the Commission shall have been complied with to the Representatives'
reasonable satisfaction.
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated each Time of
Delivery for such Designated Securities, with respect to the valid
existence of the Company, the validity of the Designated Securities,
the Registration Statement, the Prospectus and such other related
matters as the Representatives reasonably may request, and such counsel
shall have received such documents and information as they reasonably
may request to enable them to pass upon such matters.
(c) The Company's General Counsel shall have furnished to the
Representatives his or her written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) 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
Prospectus as amended or supplemented.
(ii) The Company has the corporate power and
authority to execute and deliver this Agreement, the Indenture
and the Designated Securities and to perform its obligations
thereunder.
(iii) 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.
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(iv) The execution, delivery and performance of the
Designated Securities have been duly authorized by all
necessary corporate action, The Designated Securities, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles. The
Designated Securities conform to the description thereof in
the Prospectus as amended or supplemented.
(v) The execution, delivery and performance of the
Indenture have been duly authorized by all necessary corporate
action. The Indenture has been duly executed and delivered by
the Company and constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles. The Indenture conforms to the description
thereof in the Prospectus as amended or supplemented.
(vi) The issue and sale of the Designated Securities
by the Company to the Underwriters will not conflict with or
result in a breach or violation of any term or provision of,
or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to
which the Company is a party that is material to the Company
and its subsidiaries taken as a whole, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, other
than any such conflict, breach, violation or default that is
not reasonably likely to result in a material adverse change
in the business, financial condition or results of operations
of the Company and its subsidiaries taken as a whole. No
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body having jurisdiction over the Company is required to be
obtained by the Company for the issue and sale by the Company
of the Designated Securities being delivered at such Time of
Delivery, except such as have been obtained under the
Securities Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Securities by the Underwriters.
(vii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented. The
Underlying Securities initially issuable upon conversion of
the Designated Securities have been duly authorized and
reserved for issuance and, when issued and delivered in
accordance with the provisions of the Designated Securities
and the Indenture, will be validly issued and fully paid and
nonassessable. The Underlying Securities conform to the
description thereof in the Prospectus as amended or
supplemented. The Underlying Securities issuable upon
conversion of the Designated Securities have been approved for
listing on the New
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York Stock Exchange, subject to official notice of issuance.
The issuance of the Underlying Securities will not be subject
to any preemptive or similar rights.
(viii) Insofar as the statements in the Prospectus
under the captions "Description of Securities", "Description
of Capital Stock" and "Underwriting" 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 Securities Act and the rules and
regulations of the Commission relating to registration
statements on Form S-3 and prospectuses.
(ix) The Registration Statement has become effective
under the Securities Act and the Indenture has been qualified
under the Trust Indenture Act.
In addition, such counsel shall state that, although 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, such counsel has no
reason to believe: (a) that the Registration Statement, at the time it
became effective (which, for purposes of such counsel's expression of
belief, shall have the meaning set forth in Rule 158(c) under the
Securities Act) or the Prospectus, as of its date or as of such Time of
Delivery, was not appropriately responsive in all material respects to
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder; or (b)(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 such Time of Delivery, 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. In expressing
its belief, such counsel may state that it expresses no belief as to
the financial statements and related schedules, or the Statement of
Eligibility on Form T-1, contained or incorporated by reference in the
Registration Statement or the Prospectus.
(d) Xxxxxx, Xxxx & Xxxxxxxx LLP, or other counsel for the
Company satisfactory to the Representatives, shall have furnished to
the Representatives a written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a validly existing corporation in
good standing under the laws of the State of Delaware.
(ii) This Agreement has been duly executed and
delivered by the Company.
(iii) The Designated Securities, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement and
the Pricing Agreement, will be legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating
11
to or affecting creditors' rights and to general equity
principles. The Designated Securities conform to the
description thereof in the Prospectus as amended or
supplemented.
(iv) The Indenture has been duly executed and
delivered by the Company and constitutes a legal, valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles. The Indenture conforms to the
description thereof in the Prospectus as amended or
supplemented.
(v) The Underlying Securities conform to the
description thereof in the Prospectus as amended or
supplemented. The Underlying Securities issuable upon
conversion of the Designated Securities have been approved for
listing on the New York Stock Exchange, subject to official
notice of issuance.
(vi) Insofar as the statements in the Prospectus
under the captions "Description of Securities", "Description
of Capital Stock" and "Underwriting" 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 Securities Act and the rules and
regulations of the Commission relating to registration
statements on Form S-3 and prospectuses.
(vii) The Registration Statement has become effective
under the Securities Act and the Indenture has been qualified
under the Trust Indenture Act.
In addition, such counsel shall state that, although 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, such counsel has no
reason to believe: (a) that the Registration Statement, at the time it
became effective (which, for purposes of such counsel's expression of
belief, shall have the meaning set forth in Rule 158(c) under the
Securities Act) or the Prospectus, as of its date or as of such Time of
Delivery, was not appropriately responsive in all material respects to
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder; or (b)(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 such Time of Delivery, 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. In expressing
its belief, such counsel may state that it expresses no belief as to
the financial statements and related schedules, or the Statement of
Eligibility on Form T-1, contained or incorporated by reference in the
Registration Statement or the Prospectus.
(e) At each Time of Delivery for such Designated Securities,
the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated such Time of Delivery,
containing statements
12
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the Company's
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the
Prospectus.
(f) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, there shall not have occurred any change,
or any development reasonably likely to result in a change, in or
affecting the business, financial condition or results of operations of
the Company and its subsidiaries taken as a whole, the effect of which
is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Firm Securities or Optional Securities
or both on the terms and in the manner contemplated in the Prospectus
as amended relating to the Designated Securities.
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities: (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or preferred stock or
the Company's financial strength or claims paying ability by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock or the Company's financial strength or
claims paying ability.
(h) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv)
the outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or
(v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the
Designated Securities.
(i) The Company shall have complied with the provisions of
Section 4(f) with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of the Pricing Agreement
relating to such Designated Securities.
(j) The Company shall have furnished or caused to be furnished
to the Representatives at each Time of Delivery for the Designated
Securities a certificate or certificates of the Company, executed on
behalf of the Company by its chief executive officer and its chief
financial officer, satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Company herein at
and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such
Time of Delivery.
13
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated
Securities, or any such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Designated Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Designated Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Designated Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
Section 7(a) or (b) of notice of the commencement of any action, such
indemnified party, if a claim in respect thereof is to be made against
the indemnifying party under Section 7(a) or (b), shall notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified
14
party otherwise than under Section 7(a) or (b). In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under Section 7(a) or (b) for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. Without
the written consent of the indemnified party, no indemnifying party
shall effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or (b) in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters of the Designated Securities on the
other from the offering of the Designated Securities to which such
loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section
7(c), then each indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters of
the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or
such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 7(d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities
15
(or actions in respect thereof) referred to in this Section 7(d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 7(d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the
applicable Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this Section 7(d) to contribute are several in proportion
to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this
Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the
Securities Act.
8. DEFAULT BY ONE OR MORE UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to
purchase the Firm Securities or Optional Securities which it has agreed
to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives in their discretion may arrange for
themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within 36 hours
after such default by any Underwriter the Representatives do not
arrange for the purchase of such Firm Securities or Optional
Securities, as the case may be, then the Company shall be entitled to a
further period of 36 hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such
Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the
Time of Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes thereby may
be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and
the Company promptly will file any amendments or supplements to the
Registration Statement or the Prospectus that in the opinion of the
Representatives thereby may be made necessary. The term "Underwriter"
as used in this Agreement shall include any person substituted under
this Section 8 with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Securities or Optional Securities, as the case may
be, of a defaulting Underwriter or
16
Underwriters by the Representatives and the Company as provided in
Section 8(a), the aggregate principal amount of such Designated
Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Firm Securities or Optional
Securities, as the case may be, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal
amount of Firm Securities or Optional Securities, as the case may be,
that such Underwriter agreed to purchase under the Pricing Agreement
relating to such Firm Securities or Optional Securities, as the case
may be, and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Firm
Securities or Optional Securities, as the case may be, that such
Underwriter agreed to purchase under such Pricing Agreement) of the
Firm Securities or Optional Securities, as the case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Securities or Optional Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in Section 8(a), the aggregate principal
amount of Firm Securities or Optional Securities, as the case may be,
that remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Firm Securities or Optional Securities, as the
case may be, as referred to in Section 8(b), or if the Company shall
not exercise the right described in Section 8(b) to require
non-defaulting Underwriters to purchase the Firm Securities or Optional
Securities, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm
Securities or Optional Securities, as the case may be, shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 5 and the indemnity
and contribution agreements in Section 7; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
9. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation or any statement as to the results thereof made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Designated Securities.
10. TERMINATION. If any Pricing Agreement or Over-allotment Option
shall be terminated pursuant to Section 8, the Company shall not then be under
any liability to any Underwriter with respect to the Firm Securities or Optional
Securities covered by such Pricing Agreement except as provided in Sections 5
and 7; but, if for any other reason Designated Securities are not delivered by
or on behalf of the Company as provided herein, other than the occurrence of an
event described in Section 6(g)(i), (iii), (iv) or (v), the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Sections 5 and 7.
17
11. REPRESENTATIVES. In all dealings hereunder, the Representatives of
the Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
12. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement: Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 7(c) shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. PARTIES. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 7 and 9, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns. No other
person shall acquire or have any right under or by virtue of this Agreement or
any such Pricing Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign merely by reason of such
purchase.
14. TIME. Time shall be of the essence of each Pricing Agreement. As
used herein, the term "business day" shall mean any day when the Commission's
office in Washington, DC is open for business.
15. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. COUNTERPARTS. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
17. TAX DISCLOSURE. The Company is authorized, subject to applicable
law, to disclose any and all aspects of this potential transaction that are
necessary to support any U.S. federal income tax benefits expected to be claimed
with respect to such transaction, and all materials of any kind (including tax
opinions and other tax analyses) related to those benefits, without the
Underwriters imposing any limitation of any kind.
18
ANNEX I
PRICING AGREEMENT
[NAMES OF REPRESENTATIVE(S)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o Book-Running Xxxxxxxxxxxxxx(x)]
[Xxxxxxx]
Xxxx, Xxxxx XXX
, 00
Ladies and Gentlemen:
Fluor Corporation, an Delaware corporation (the "COMPANY"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, Standard Provisions, dated . . . . . . . . . . . ., 20 . . (the
"UNDERWRITING AGREEMENT"), to issue and sell to the Underwriters named in
Schedule I (the "UNDERWRITERS") the Securities specified in Schedule II (the
"DESIGNATED SECURITIES") , consisting of Firm Securities and any Optional
Securities the Underwriters may elect to purchase. Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety and
shall be deemed to be a part of this 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 Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 11 of the Underwriting Agreement and the address
of the Representatives referred to in Section 12 of the Underwriting Agreement
are set forth in Schedule II.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference: (i) the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from
the Company, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II, the principal amount of Firm Securities set forth
opposite the name of such Underwriter in Schedule I; and (ii) in the event and
to the extent that the Underwriters shall exercise the election to purchase
Optional Securities, as provided below, the Company agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at the purchase price to the Underwriters
set forth in Schedule II that portion of the principal amount of Optional
Securities as to which such election shall have been exercised.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the principal amount of Optional Securities set
forth opposite the name of such Underwriter in Schedule I on the terms referred
to in the paragraph above for the sole purpose of covering over-allotments in
the sale of the Firm Securities. Any such election to purchase Optional
Securities may be exercised by written notice from the Representatives to the
Company given within a period of 30 calendar days after the date of this Pricing
Agreement, setting forth the principal amount of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company otherwise agree in
writing, no earlier than two or later than ten business days after the date of
such notice.
2
If the foregoing is in accordance with your understanding, please sign and
return to us _____ counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
FLUOR CORPORATION
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name of Book-Running Representative(s)]
[Name(s) of Co-Representative(s)]
[By:
-----------------------------------
3
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
-----------
Total......................................... $
===========
SCHEDULE II -- DEBT SECURITIES
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Medium-Term] [Notes]
[Debentures] due ,
RANK:
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to
[and accrued amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization[, if any,] from
to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
______ a.m. (New York City time), , 20
INDENTURE:
Indenture dated , 20 , between the Company and
, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 20..]
REGULAR RECORD DATES::
[months and dates, commencing ....................., 20..]
CURRENCY OF DENOMINATIONS:
CURRENCY OF PAYMENT:
OVERSEAS PAYING AGENTS:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
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REDEMPTION
YEAR PRICE
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after , ,
at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on
in each of the years through at 100% of their
principal amount plus accrued interest[, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$ ] principal amount of Designated Securities in the years
through at 100% of their principal amount plus accrued
interest.]
[If Designated Securities are extendable debt securities, insert--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on , and to a
rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert date 15
days prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ][to an annual rate of % above the average rate for -year
[month][securities][certificates of deposit] issued by and
[insert names of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills
plus % of Interest Differential (the excess, if any, of (i) the then
current weekly average per annum secondary market
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yield for -month certificates of deposit over (ii) the then current
interest yield equivalent of the weekly average per annum market discount
rate for -month Treasury bills); [from and thereafter the rate will
be the then current interest yield equivalent plus % of Interest
Differential].]
CONVERSION OR EXCHANGE PROVISIONS:
RESET PROVISIONS:
REMARKETING PROVISIONS:
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
LISTING REQUIREMENTS:
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
DEALER CONCESSIONS:
REALLOWANCE CONCESSION:
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CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
DELAYED DELIVERY CONTRACTS:
DELIVERY DATE:
MINIMUM PRINCIPAL AMOUNT OF EACH CONTRACT:
MAXIMUM AGGREGATE PRINCIPAL AMOUNT OF ALL CONTRACTS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]
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