-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GkJ8uZmu9bCWl8OaRF6l0bZUXX8bmZUxtxRmQUy1lFoCAC6+o+D4cXdVqViXl8eW FnmMxomejlnZV0VAQ0wu2g== 0001035704-01-000010.txt : 20010122 0001035704-01-000010.hdr.sgml : 20010122 ACCESSION NUMBER: 0001035704-01-000010 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20010108 GROUP MEMBERS: FIRST RESERVE CORP /CT/ /ADV GROUP MEMBERS: FIRST RESERVE FUND VIII LP GROUP MEMBERS: FIRST RESERVE GP VIII LP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CHICAGO BRIDGE & IRON CO N V CENTRAL INDEX KEY: 0001027884 STANDARD INDUSTRIAL CLASSIFICATION: CONSTRUCTION SPECIAL TRADE CONTRACTORS [1700] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-52337 FILM NUMBER: 1503592 BUSINESS ADDRESS: STREET 1: P O BOX 74658 CITY: 1075 AD AMSTERDAM STATE: P8 ZIP: 00000 MAIL ADDRESS: STREET 1: POLARISAVENUE 31 STREET 2: 2132 JH HOOFDORP CITY: THE NETHERLANDS FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FIRST RESERVE CORP /CT/ /ADV CENTRAL INDEX KEY: 0000814313 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 061210123 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 475 STEAMBOAT RD CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036616601 FORMER COMPANY: FORMER CONFORMED NAME: FIRST RESERVE CORP /CT/ /ADV DATE OF NAME CHANGE: 19950630 SC 13D 1 d82626sc13d.txt SCHEDULE 13D 1 SCHEDULE 13D (Rule 13d-101) SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Under the Securities Exchange Act of 1934 Amendment No. _____ Chicago Bridge & Iron Company N.V. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value NLG .01 - -------------------------------------------------------------------------------- (Title of Class of Securities) N19808109 ------------------------------------------------------- (CUSIP Number) Thomas R. Denison - First Reserve Corporation, 1801 California St., Suite #4110, Denver, CO 80202, (303) 382-1270 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 28, 2000 ------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 CUSIP No. N19808109 SCHEDULE 13D Page 2 of 11 Pages - ------------------- ------------------ - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON First Reserve Corporation I.R.S. No.: 06-1210123 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 ----------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 5,002,638 ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ----------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 5,002,638 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,002,638 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 28.23% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 3 CUSIP No. N19808109 SCHEDULE 13D Page 3 of 11 Pages - ------------------- ------------------ - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON First Reserve Fund VIII, L.P. I.R.S. No.: 06-1507364 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 ----------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 5,002,638 ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ----------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 5,002,638 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,002,638 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 28.23% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 4 CUSIP No. N19808109 SCHEDULE 13D Page 4 of 11 Pages - ------------------- ------------------ - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON First Reserve GP VIII, L.P. I.R.S. No.: 06-1507318 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* N/A - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 ----------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 5,002,638 ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ----------------------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 5,002,638 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,002,638 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 28.23% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 5 ITEM 1. SECURITY AND ISSUER. This Statement on Schedule 13D (the "Schedule 13D") relates to the Common Stock, par value NLG .01 per share (the "Common Stock"), of Chicago Bridge & Iron Company N.V., a Netherlands company ("CB&I" or the "Issuer"). The principal executive offices of the Issuer are located at Polarisavenue 31, 2132 JH Hoofddorp, The Netherlands. ITEM 2. IDENTITY AND BACKGROUND. This Schedule 13D is being filed jointly by First Reserve Fund VIII, L.P. ("Fund VIII"), First Reserve GP VIII, L.P. ("GP VIII"), and First Reserve Corporation ("First Reserve" and collectively, the "Reporting Persons") to report the acquisition by Fund VIII of Common Stock and warrants to purchase Common Stock. GP VIII is the general partner of Fund VIII, and First Reserve is the general partner of GP VIII. The Reporting Persons, by and through the holdings of Fund VIII, directly own more than 5% of the issued and outstanding shares of Common Stock. Fund VIII is a Delaware limited partnership with a limited term of existence, the principal purpose of which is to make equity, equity-linked and debt investments in companies engaged in various energy and energy related activities. GP VIII is a Delaware limited partnership, the sole purpose of which is to act as the general partner of Fund VIII. First Reserve is a Delaware corporation and is the general partner of GP VIII. The principal business of First Reserve is to provide investment management services to Fund VIII, and to other investment funds managed by First Reserve. The principal business and office address of the Reporting Persons is 411 West Putnam Ave., Suite 109, Greenwich, Connecticut 06830. Information with respect to the executive officers and directors of First Reserve, including name, business address, present principal occupation or employment and the organization in which such employment is conducted, and their citizenship is listed on the attached Schedule I, which is incorporated in this Schedule 13D by reference. During the last five years, none of the Reporting Persons nor any executive officer of director of First Reserve has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding or a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The source of funds for the acquisition of beneficial ownership of Common Stock by Fund VIII is money contributed by limited and general partners for the investment by Fund VIII. Except in relation to its partnership interest in Fund VIII, no funds were acquired directly by GP VIII, or First Reserve, for their indirect acquisition of beneficial ownership of the Common Stock. Page 5 of 11 6 ITEM 4. PURPOSE OF TRANSACTION. On December 28, 2000, Wedge Group Incorporated, a Delaware corporation, and Wedge Tyler, Inc., a Delaware corporation (collectively, "Wedge"), acquired 8,146,665 shares of Common Stock from the Issuer as consideration for Wedge's sale to the Issuer of interests in Howe-Baker International, L.L.C., a Delaware limited liability company (the "Howe-Baker Acquisition"). Immediately following the Howe-Baker Acquisition on December 28, 2000, the Reporting Persons acquired 4,323,333 shares of Common Stock from Wedge Group Incorporated (the "Fund VIII Purchase"). In addition: (i) the Reporting Persons purchased 530,000 shares of Common Stock from Wedge and one of its affiliates, and (ii) the Issuer agreed to grant to Fund VIII a warrant to purchase 149,305 shares of Common Stock at an exercise price of NLG .01 per share. Collectively, the Reporting Persons acquired 4,853,333 shares of Common Stock and a warrant to acquire an additional 149,305 shares of Common Stock (together, the "First Reserve Acquisition"), which shares represent approximately 28.23 percent of the issued and outstanding shares of Common Stock. All shares of Common Stock acquired by the Reporting Persons were acquired for investment purposes. Prior to the First Reserve Acquisition, the Reporting Persons did not own any shares of Common Stock. The Reporting Persons intend to participate in and influence the affairs of the Issuer through the exercise of their voting rights with respect to the shares of Common Stock owned by the Reporting Persons as limited by the Shareholder Agreement entered into by Fund VIII and the Issuer on December 28, 2000 in connection with the closing of the Howe-Baker Acquisition (the "Shareholder Agreement"). Following the First Reserve Acquisition, two officers of First Reserve, William F. Macaulay and Ben A. Guill, will begin serving on the 12 member Board of Supervisory Directors of the Issuer in accordance with the terms of the Shareholder Agreement. The Shareholder Agreement is further described in Item 6 hereof and is filed as an exhibit hereto and incorporated by reference herein. The Reporting Persons intend to review on a continuing basis their investment in the Issuer and may or may not purchase additional shares, on the open market or otherwise, subject to the price and availability of the Issuer's securities; subsequent developments regarding the Issuer's line of business and its business prospects, other investment and business opportunities available to the Reporting Persons; general stock market and economic conditions; certain "standstill provisions" in the Shareholder Agreement (which provisions prohibit the Reporting Persons from acquiring additional shares of the Issuer without the approval of the Supervisory Board, except (i) as a result of a stock split, stock dividend or recapitalization approved by the Supervisory Board; (ii) in connection with a business combination approved by the Supervisory Board; (iii) to maintain a 10% ownership stake; (iv) for Common Stock acquired in connection with equity funding provided by the Reporting Persons for the Issuer's proposed acquisition of two divisions of Pitt-Des Moines, Inc., of Woodlands, Texas (the "PDM Transaction"), so long as any such acquisition of Common Stock does not result in the Reporting Persons owning more than 30%, or the Reporting Persons and Wedge collectively owning more than 48.15%, of the Issuer's outstanding voting securities; or (v) if the PDM Transaction is not consummated, for up to an additional 253,000 shares, so long as such additional purchases will not cause the Reporting Persons and Wedge to collectively own more than 49.9% of the Issuer's outstanding voting securities); and other factors. Although, under the terms of the Shareholder Agreement, the Reporting Persons are prohibited from making a proposal to the Issuer to acquire additional Page 6 of 11 7 shares, the Reporting Persons will consider proposals from the Company relating to additional purchases by Fund VIII. First Reserve and Fund VIII intend to review on a continuing basis the Fund's investment in the Issuer and may or may not dispose of additional shares, on the open market or otherwise, subject to: the price and availability of the Issuer's securities; subsequent developments affecting the energy market as a whole; the Issuer and the Issuer's business and prospects; the provisions of the Shareholder Agreement and the eventual liquidation of the Fund in accordance with its partnership agreement. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. As of December 28, 2000, the Reporting Persons beneficially owned an aggregate of 5,002,638 shares of Common Stock, constituting approximately 28.23% of the 17,720,350 shares of Common Stock outstanding as of December 28, 2000 as represented to the Reporting Persons by the Issuer. (a) As of the date hereof, the Reporting Persons are the beneficial owners of CB&I Common Stock in the numbers and percentages set forth in the table below:
NUMBER OF SHARES PERCENTAGE OF REPORTING PARTY BENEFICIALLY OWNED CLASS --------------- ------------------ ------------- Fund VIII 5,002,638 28.23% GP VIII(1) 5,002,638 28.23% First Reserve(1) 5,002,638 28.23%
(1) Consists of 4,835,333 shares of Common Stock held directly by Fund VIII and a warrant to purchase 149,305 shares of Common Stock held directly by Fund VIII. GP VIII is the general partner of Fund VIII and may be deemed to beneficially own the shares of Common Stock owned by Fund VIII. First Reserve, as the general partner of GP VIII, may be deemed to beneficially own all of the shares of Common Stock owned by Fund VIII. (b) Fund VIII shares with its general partner the power to vote or to direct the vote of the shares directly held by it. GP VIII, as the general partner of Fund VIII, and First Reserve, in its role as general partner of GP VIII, shares with Fund VIII the power to cause Fund VIII to dispose of or vote the shares of Common Stock directly held by Fund VIII. (c) During the past 60 days, the following transactions were effected: Page 7 of 11 8
REPORTING NUMBER OF PARTY DATE SHARES PRICE TRANSACTION ----- ---- --------- ----- ----------- Fund VIII 12/28/2000 4,323,333 $ 16.25 Common Purchased Fund VIII 12/28/2000 530,000(1) $ 16.25 Common Purchased
(1) In connection with the purchase of these 530,000 shares, on December 28, 2000, the Issuer agreed to issue to Fund VIII a warrant to purchase 149,305 shares of Common Stock at an exercise price of NLG .01 per share. (d) To the best knowledge of the Reporting Persons, no other person has the right to receive, or the power to direct the receipt of dividends from, or the power to direct the receipt of proceeds of the sale of the shares of Common Stock owned by the Reporting Persons. ITEM 6. CONTRACTS, ARRANGEMENTS OR UNDERSTANDING WITH RESPECT TO SECURITIES OF THE ISSUER. JOINT FILING AGREEMENT A Joint Filing Agreement dated January 8, 2000, by and between Fund VIII, GP VIII, and First Reserve has been executed by the Reporting Persons, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. STOCK PURCHASE AGREEMENT The purchase price per share for 4,323,333 of the shares (the "Protected Shares") of Common Stock of CB&I sold to Fund VIII by Wedge is $16.25 per share, but is subject to a downward adjustment so long as Fund VIII holds the Protected Shares for at least one year. Under the terms of the Stock Purchase Agreement pursuant to which Fund VIII purchased the shares from Wedge (the "Stock Purchase Agreement"), the amount of the per share downward price adjustment, which cannot exceed $2.75 per share, will equal the amount by which $16.25 exceeds the greater of (i) the average per share sale price realized by Fund VIII on the sale of its Protected Shares and (ii) the highest mean of the daily closing prices per share of CB&I stock for any 40 consecutive trading days prior to Fund VIII's disposition of the Protected Shares. If by July 30, 2010, Fund VIII has not sold all of its Protected Shares purchased in the transaction, Fund VIII shall receive an adjustment amount for those remaining shares as if it had sold those remaining shares at the highest mean of the daily closing prices per share of Common Stock as reported on the New York Stock Exchange for any period of 40 consecutive trading days prior to July 30, 2010. The Stock Purchase Agreement contains other terms and conditions. The foregoing description of such agreement is qualified in its entirety by reference to the text of such agreement, which is filed as an exhibit to this Schedule 13D and is incorporated by reference herein. SHAREHOLDER AGREEMENT Upon closing of the Howe-Baker Acquisition, Fund VIII and the Issuer entered into the Shareholder Agreement. Page 8 of 11 9 Standstill Provisions. The Shareholder Agreement contains so-called "standstill" provisions which, among other things, (i) prohibit the purchase of additional shares by Fund VIII (whether by tender offer or otherwise) except as described in Item 4 herein, and (ii) prohibit acquisition proposals, proxy solicitations, group formation or encouragement of third parties for takeover purposes by Fund VIII. With respect to any proposed business combination or recapitalization involving the Issuer and any third party, Fund VIII must vote or tender its shares or otherwise act as recommended by the Supervisory Board of the Issuer (or any committee of the Issuer constituted for the purpose of evaluating such proposed transaction). Fund VIII will be free to submit a competing offer for the Issuer only in the event that the Supervisory Board of the Issuer determines to sell control of the Issuer to another party. The Shareholder Agreement provides that in the event of a breach of any covenants or agreements contained therein, the aggrieved party (including any present or future shareholders of the Issuer) shall be entitled to the remedy of specific performance, injunction or other equitable relief. In the event of a breach by Fund VIII of the "standstill" provisions discussed above (whether by the launching of a tender offer or otherwise), the Issuer and/or its shareholders may seek injunctive relief. However, as such relief is equitable in nature and at the discretion of the court in which such action is brought, there can be no assurance that such court will grant such relief. Supervisory Board Representation. The Shareholder Agreement contains certain provisions intended to implement the right of Fund VIII to elect Supervisory Directors to the Supervisory Board of the Issuer. The number of Supervisory Directors comprising the Supervisory Board was expanded from eight to twelve and Fund VIII will have the right to designate two Supervisory Directors so long as it owns 3,083,871 shares of the Issuer's voting securities outstanding. The number of Supervisory Directors that Fund VIII is entitled to designate will decrease with a reduction of its percentage ownership of voting securities and will terminate completely once such ownership falls below 10% of the Issuer's voting securities outstanding for any period of 30 consecutive days. The Supervisory Board regulations shall provide that a special committee of the Supervisory Board composed entirely of disinterested, independent Supervisory Directors shall be constituted to evaluate any significant transactions (primarily transactions involving a change of control) and any transactions or issues involving Fund VIII. As long as Fund VIII is entitled to designate at least two Supervisory Directors on the Supervisory Board, it will be entitled to representation on the committees of the Supervisory Board other than the Nominating Committee and the special committee described immediately above. Under the terms of the Shareholder Agreement, if the Fund VIII designees are not included as nominees for the Board of Supervisory Directors or if the Supervisory Board does not solicit proxies for the Fund VIII designees as required by the Shareholder Agreement, after notice of the breach and a time for cure, Fund VIII shall not be required to comply with the standstill provisions, restrictions on transfer and right of first offer requirements of the Shareholder Agreement. Page 9 of 11 10 Voting Restrictions. Pursuant to the Shareholder Agreement, Fund VIII agreed that, with respect to any matter presented to the Issuer's shareholders for vote or approval, Fund VIII will vote "for" the nominees recommended by the Supervisory Board (provided the Issuer is in compliance with its covenants to Fund VIII relating to Supervisory Board representation), "for" any proposal recommended by the Supervisory Board, and "against" any proposal that is not recommended by the Supervisory Board, with the exception of the following matters as to which Fund VIII will have discretionary voting rights: (i) appointment of auditors, (ii) adoption of any rights agreement which would restrict Fund VIII from effecting any transaction not otherwise prohibited by the Shareholder Agreement, (iii) migration of the Issuer to another organizational jurisdiction (other than in connection with a business combination), (iv) conversion of the Issuer's corporate form (other than in connection with a business combination), and (v) proposed amendments to the Issuer's Articles of Association which would have a disproportionate material and adverse effect on Fund VIII versus the Issuer's other shareholders not contemplated by the Shareholder Agreement. Transfer Restrictions and Registration Rights. The Shareholder Agreement contains certain restrictions on the transfer of shares held by Fund VIII. Without the Issuer's consent, Fund VIII may not sell any of its shares to (a) any person or group who is or would be required to file a Schedule 13D under the Exchange Act, (b) any person or group who would own more than 10% of the Issuer's voting securities, or (c) a competitor of the Issuer. Any sale of shares by Fund VIII will be subject to the Issuer's right of first offer, except for the following types of transfers: (i) pursuant to a bona fide underwritten public offering, (ii) pursuant to a Rule 144 sale under the Securities Act in an unsolicited broker's transaction in which Fund VIII has no knowledge that the purchaser is any of the persons described in (a), (b) or (c) immediately above, (iii) pursuant to a business combination or recapitalization transaction recommended by the Supervisory Board, (iv) to any affiliate of Fund VIII who agrees to be bound by the terms of the applicable Shareholder Agreement, (v) a pledge or hypothecation to a financial institution to secure a bona fide loan, and (vi) a transfer or transfers, once per calendar quarter, to any institutional investor which, together with its affiliates, would beneficially own no more than 5% of the Issuer's voting securities outstanding. The Shareholder Agreement grants Fund VIII certain registration rights with respect to the shares it owns. The Shareholder Agreement requires the Issuer, at the request of the holders of 75% of the shares held by Fund VIII and its assignees, to register all or any portion of those shares under the Securities Act; provided that the Issuer is required to effect no more than two of such "demand" registrations for Fund VIII. The Shareholder Agreement also requires the Issuer to give notice to Fund VIII when the Issuer proposes to register any of the Issuer's securities under the Securities Act (other than registrations on Forms S8 or S4), and, if Fund VIII so requests, to include its shares in the registration, provided that under certain circumstances the number of shares such holders can include in these "piggyback" registrations will be limited. In all registrations the Issuer will be required to pay the expenses of registration, excluding underwriting discounts and commissions, and to provide customary indemnification, except that the Issuer will not be obligated to pay more than $400,000 in the aggregate for registration expenses with respect to demand registrations. Page 10 of 11 11 Duration. The Shareholder Agreement will remain in effect so long as Fund VIII continues to own 10% or more of the voting securities of the Issuer outstanding, except that the registration rights shall continue as long as Fund VIII continues to own 5% or more of the voting securities of the Issuer outstanding. The Shareholder Agreement contains other terms and conditions. The foregoing description of such agreement is qualified in its entirety by reference to the text of such agreement, which is filed as an exhibit to this Schedule 13D and is incorporated by reference herein. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit A. Joint Filing Agreement of Schedule 13D. Exhibit B. Stock Purchase Agreement dated July 30, 2000 between WEDGE Group Incorporated, WGI Tyler, Inc. and First Reserve Fund VIII, L.P. Exhibit C. Amendment of Stock Purchase Agreement dated July 30, 2000 by and between WEDGE Group Incorporated, WGI Tyler, Inc. and First Reserve Fund VIII, L.P. dated October 31, 2000. Exhibit D. Shareholder Agreement dated December 28, 2000 by and among the Issuer and Fund VIII. Exhibit E. Stock Purchase Agreement dated December 28, 2000 by and among Wedge, Minefa Holdings, B.V. and Fund VIII. Exhibit F. Consent to Transaction dated December 28, 2000 executed by Chicago Bridge & Iron Company N.V. Page 11 of 11 12 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Dated: January 8, 2000. FIRST RESERVE FUND VIII, L.P. By: First Reserve GP VIII, L.P., General Partner By: First Reserve Corporation, General Partner By: /s/ Thomas R. Denison -------------------------------- Name: Thomas R. Denison Title: Managing Director FIRST RESERVE GP VIII, L.P. By: First Reserve Corporation, General Partner By: /s/ Thomas R. Denison -------------------------------- Name: Thomas R. Denison Title: Managing Director FIRST RESERVE CORPORATION By: /s/ Thomas R. Denison ------------------------------------ Name: Thomas R. Denison Title: Managing Director 13 SCHEDULE I The name, business address and present principal occupation or employment of each of the executive officers and directors of the First Reserve Corporation are set forth below. Unless otherwise indicated, (i) the business address of each is 411 West Putnam Ave., Suite 109, Greenwich, Connecticut 06830, (ii) each such person is a citizen of the United States, and (iii) such person does not have any other principal occupation:
Name Position with First Reserve Corporation ---- --------------------------------------- William E. Macaulay Chairman, CEO, Managing Director and Director John A. Hill Vice Chairman, Managing Director and Director Ben A. Guill President, Managing Director and Director Will Honeybourne Managing Director Jonathan S. Linker Managing Director Thomas R. Denison Managing Director, General Counsel, Secretary Cathleen M. Ellsworth Managing Director Mary Ness Managing Director Jennifer G. Kornfield Controller, Vice President, Treasurer, Assistant Secretary Valerie A. Thomason Assistant Treasurer, Assistant Secretary
14 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION ------- ----------- A. Joint Filing Agreement. B. Stock Purchase Agreement dated July 30, 2000 between WEDGE Group Incorporated, WGI Tyler, Inc. and First Reserve Fund VIII, L.P. C. Amendment to Stock Purchase Agreement dated July 30, 2000 by and between WEDGE Group, Incorporated, WGI Tyler, Inc. and First Reserve Fund VIII, L.P. dated October 31, 2000. D. Shareholder Agreement dated December 28, 2000 by and among the Issuer and Fund VIII. E. Stock Purchase Agreement dated December 28, 2000 by and among Wedge, Minefa Holdings, B.V. and Fund VIII. F. Consent to Transaction dated December 28, 2000 executed by Chicago Bridge & Iron Company N.V.
EX-99.A 2 d82626ex99-a.txt JOINT FILING AGREEMENT 1 EXHIBIT A JOINT FILING AGREEMENT We, the signatories of the statement on Schedule 13D filed with respect to the Common Stock of Chicago Bridge & Iron Company N.V., to which this Agreement is attached, hereby agree that such statement is, and any amendments thereto filed by any of us will be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) of the Securities Exchange Act of 1934. FIRST RESERVE FUND VIII, L.P. By: First Reserve GP VIII, L.P., General Partner By: First Reserve Corporation, General Partner By: /s/ Thomas R. Denison --------------------------- Name: Thomas R. Denison Title: Managing Director FIRST RESERVE GP VIII, L.P. By: First Reserve Corporation, General Partner By: /s/ Thomas R. Denison --------------------------- Name: Thomas R. Denison Title: Managing Director FIRST RESERVE CORPORATION By: /s/ Thomas R. Denison ----------------------------------------- Name: Thomas R. Denison Title: Managing Director EX-99.B 3 d82626ex99-b.txt STOCK PURCHASE AGREEMENT DATED JULY 30, 2000 1 EXHIBIT B Execution Copy ================================================================================ STOCK PURCHASE AGREEMENT DATED JULY 30, 2000 BETWEEN WEDGE GROUP INCORPORATED, WGI TYLER, INC. AND FIRST RESERVE FUND VIII, L.P. ================================================================================ 2 TABLE OF CONTENTS
Page ---- SECTION 1. SALE AND PURCHASE OF CBI STOCK......................................1 SECTION 2. THE CLOSING.........................................................1 SECTION 3. DEFINITIONS.........................................................2 SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.......................4 4.1 Corporate Existence, Power and Authority..............................4 4.2 Title to Shares.......................................................4 4.3 Representations and Warranties of CBI and Sellers.....................4 SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.....................4 5.1. Corporate Power and Authority........................................5 5.2. Investment Intent....................................................5 5.3. Brokers..............................................................5 5.4. Access...............................................................5 5.5. Purchaser Qualification..............................................5 SECTION 6. ASSIGNMENT OF RIGHTS UNDER THE HBI PURCHASE AGREEMENT...............6 6.1. Assignment...........................................................6 6.2. No Assumption of Liabilities.........................................6 6.3. Enforcement of Rights under the HBI Purchase Agreement...............6 6.4. Cooperation..........................................................6 SECTION 7. ADJUSTMENT TO PURCHASE PRICE........................................6 SECTION 8. CONDITIONS TO PURCHASER'S OBLIGATIONS...............................7 8.1. HBI Purchase Agreement; Shareholders' Agreement......................7 8.2. Certificates for Shares..............................................7
i 3 TABLE OF CONTENTS (CONTINUED)
Page ---- 8.3. Accuracy of Representations and Warranties...........................7 8.4. Compliance with Agreements...........................................7 8.5. Officers' Certificates...............................................7 8.6. Proceedings..........................................................7 8.7. Legality; Governmental and Other Authorization.......................8 8.8. No Material Adverse Change...........................................8 8.9. Opinion of Counsel...................................................8 8.10. Other Documents.....................................................8 SECTION 8A. CONDITIONS TO SELLERS' OBLIGATIONS.................................8 8A.1. HBI Purchase Agreement; Shareholders' Agreement.....................8 8A.2. Intentionally Omitted...............................................8 8A.3. Accuracy of Representations and Warranties..........................8 8A.4. Compliance with Agreements..........................................9 8A.5. Officers' Certificates..............................................9 8A.6. Proceedings.........................................................9 8A.7. Legality; Governmental and Other Authorization......................9 8A.8. Other Documents.....................................................9 SECTION 9. INDEMNIFICATION FOR BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS............................................9 SECTION 10. AMENDMENTS AND WAIVERS............................................10 SECTION 11. NOTICES...........................................................10 SECTION 12. MISCELLANEOUS.....................................................10
ii 4 STOCK PURCHASE AGREEMENT This STOCK PURCHASE AGREEMENT is dated as of July 30, 2000 between WEDGE Group Incorporated, a Delaware corporation ("Wedge"), WGI Tyler, Inc., a Delaware corporation (collectively with Wedge, the "Sellers," and individually with Wedge, each a "Seller") and First Reserve Fund VIII, L.P. (the "Purchaser"). WITNESSETH: WHEREAS, upon the Closing of the Purchase Agreement dated July 30, 2000, by and between the Sellers, Chicago Bridge & Iron Company N.V. ("CBI") and CB&I Tyler Company with respect to the sale of all of the issued and outstanding capital stock of Howe-Baker International, Inc. (the "HBI Purchase Agreement"), the Sellers will acquire 8,146,665 shares of Common Stock, par value NGL .01 per share of Chicago Bridge & Iron Company N.V. (the "CBI Stock"); WHEREAS, the Sellers desire to sell to the Purchaser, and the Purchaser desires to purchase from the Sellers, upon the terms and provisions hereinafter set forth herein, certain shares of CBI Stock; NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: SECTION 1. SALE AND PURCHASE OF CBI STOCK. (a) The Sellers agree to sell to the Purchaser and, subject to the terms and conditions hereof and in reliance upon the representations and warranties of the Sellers contained herein, the Purchaser agrees to purchase from the Sellers on the Closing Date specified in Section 2 hereof, the number of shares of CBI Stock set forth opposite each of the Seller's name on Schedule 1 hereto. The shares of CBI Stock being acquired under this Agreement are collectively referred to herein as the "Shares". (b) The purchase price to be paid to the Sellers by the Purchaser for the Shares to be purchased by the Purchaser pursuant to this Agreement shall be the amount set forth opposite the Seller's name on Schedule 1 hereto. The purchase price shall be subject to adjustment as provided in Section 7 hereof. No further payment shall be required from the Purchaser for the Shares. SECTION 2. THE CLOSING. (a) Subject to the terms and conditions hereof, the closing of the purchase and sale of the Shares to be purchased by the Purchaser (the "Closing") will take place at the offices of Winston & Strawn, 35 West Wacker Drive, Chicago, Illinois at 10:00 A.M., Chicago time, immediately following the closing of the HBI Purchase Agreement or such other time and date as shall be mutually agreed to by the Sellers and the Purchaser, but in any event no later than December 31, 2000. Such time and date are herein referred to as the "Closing Date." (b) Subject to the terms and conditions hereof, on the Closing Date (i) each of the Sellers will deliver to the Purchaser a certificate registered in the Purchaser's name (or the name of its nominee, if any, as specified on Schedule 1 hereto) evidencing the number of Shares set forth opposite the Seller's name on Schedule 1 hereto and (ii) the Purchaser will deliver to each 1 5 Seller a certified or official bank check (or wire transfer) in an amount equal to the purchase price set forth opposite the Seller's name on Schedule 1 hereto payable to the order of such Seller in federal or other immediately available (same-day) funds. (c) If the HBI Purchase Agreement shall fail to close under the terms described in Section 6.06(b) of that Agreement, the Purchaser shall be entitled to 40% of any termination, expense, or other fees paid to the Sellers pursuant to that Section, which shall be paid to Purchaser by the Sellers immediately upon receipt thereof by the Sellers. SECTION 3. DEFINITIONS. (a) For purposes of this Agreement, the following definitions shall apply (such definitions to be equally applicable to both the singular and plural forms of the terms defined): "Affiliate", when used with respect to any Person, means (i) if such Person is a corporation, any officer or director thereof and any Person which is, directly or indirectly, the beneficial owner (by itself or as part of any group) of more than ten percent (10%) of any class of any equity security (within the meaning of the Securities Exchange Act) thereof, and, if such beneficial owner is a partnership, any general partner thereof, or if such beneficial owner is a corporation, any Person controlling, controlled by or under common control with such beneficial owner, or any officer or director of such beneficial owner or of any corporation occupying any such control relationship, (ii) if such Person is a partnership, any general or limited partner thereof, and (iii) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person. For purposes of this definition, "control" (including the correlative terms "controlling", "controlled by" and "under common control with"), with respect to any Person, shall mean possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. The holding of Shares and the rights under this Stock Purchase Agreement or under the Shareholders' Agreement, or the exercise of any such rights, shall not cause Purchaser to be deemed to be an "Affiliate" of the Sellers or of any Subsidiary. "Agreement" means this Stock Purchase Agreement (together with exhibits and schedules) as from time to time supplemented or amended or as the terms hereof may be waived. "Closing" and "Closing Date" have the meanings set forth in Section 2(a) hereof. "Person" or "person" means an individual, corporation, limited liability company, partnership, firm, association, joint venture, trust, unincorporated organization, government, governmental body, agency, political subdivision or other entity. "Purchaser" has the meaning set forth in the first paragraph of this Agreement and includes its successors and assigns. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder. "Sellers" and "Seller" have the meanings given to them in the first paragraph of this Agreement, and includes each of their successors and assigns. "Shares" has the meaning set forth in Section 1(a) hereof. 2 6 "Shareholders' Agreement" means the Shareholders' Agreement, dated as of the Closing Date, between Wedge and CBI and the Shareholders' Agreement, dated as of the Closing Date between the Purchaser and CBI, or either of those agreements as the case may be. "Subsidiary", with respect to any Person, means any corporation, association or other entity of which more than 50% of the total voting power of shares of stock or other equity interests (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is, at the time as of which any determination is being made, owned or controlled, directly or indirectly, by such Person or one or more of its Subsidiaries, or both. The term "Subsidiary" or "Subsidiaries" when used herein without reference to any particular Person, means a Subsidiary or Subsidiaries of one of the Sellers. (b) For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (i) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; (ii) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles consistently applied (except as otherwise provided herein); (iii) all computations provided for herein, if any, shall be made in accordance with United States generally accepted accounting principles consistently applied (except as otherwise provided herein); (iv) any uses of the masculine, feminine or neuter gender shall also be deemed to include any other gender, as appropriate; (v) all references herein to actions by the Sellers or any Subsidiary, such as "create", "sell", "transfer", "dispose of", etc., mean such action whether voluntary or involuntary, by operation of law or otherwise; (vi) the exhibits and schedules to this Agreement shall be deemed a part of this Agreement; (vii) each of the representations and warranties of the Sellers contained in Section 4 hereof is separate and is not limited, qualified or modified by the existence, wording or satisfaction of any other representation or warranty of the Sellers in Section 4 or otherwise; (viii) each of the covenants of the Sellers contained herein is separate and is not limited or satisfied by the existence, wording or satisfaction of any other covenant of the Sellers; and (ix) all references herein (in covenants or otherwise) to any action(s) which are to be taken (or which are prohibited from being taken) by any Person, the Sellers or any Subsidiary shall apply to such Person, the Sellers or such Subsidiary, as the case may be, whether such action is taken directly or indirectly. 3 7 SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the Sellers represents and warrants to the Purchaser as follows as of the date hereof and as of the Closing Date: 4.1 Corporate Existence, Power and Authority (a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware. The Seller is duly qualified, licensed and authorized to do business and is in good standing in each jurisdiction in which it owns or leases any property or in which the conduct of its business requires it to so qualify or be so licensed, except for such jurisdictions where the failure to so qualify or be so licensed would not have a Material Adverse Effect. (b) No proceeding has been commenced for the dissolution or merger of the Seller or the amendment of its certificate or articles of incorporation. (c) The Seller has all requisite power, authority (corporate and other) and legal right to execute, deliver, enter into, consummate the transactions contemplated by and perform its obligations under (i) this Agreement, (ii) the Shareholders' Agreement and (iii) the HBI Purchase Agreement. The execution, delivery and performance of this Agreement, the Shareholders' Agreement and the HBI Purchase Agreement by the Seller (including, without limitation, the sale by the Seller of the Shares) have been duly authorized by all required corporate and other actions. The Seller has duly executed and delivered this Agreement, the Shareholders' Agreement and the HBI Purchase Agreement. This Agreement, the Shareholders' Agreement and the HBI Purchase Agreement constitute the legal, valid and binding obligations of the Seller enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws relating to the rights of creditors generally from time to time in effect and to general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether in a proceeding in equity or at law. 4.2 Title to Shares. Upon Closing of the HBI Purchase Agreement, each Seller shall have good title to the Shares described opposite its name on Schedule I hereto free and clear of any lien, claim, option or other encumbrance, including any right of first refusal, agreement, limitation or restriction which would preclude the purchase of such Shares contemplated hereunder. Upon Closing of the HBI Purchase Agreement, each Seller shall have full voting power over such Shares subject to no proxy, shareholders' agreement (other than the Shareholders Agreement) or voting trust, and has the full power and authority to sell and transfer such Shares to the Purchaser in the manner provided for in this Agreement. Upon consummation of the sale of such Shares as contemplated hereby, the Sellers will transfer to the Purchaser good title to the Shares free and clear of any lien or adverse claim. 4.3 Representations and Warranties of CBI and Sellers. The Sellers have no reason to believe that any of the representations and warranties given by CBI or Sellers in the HBI Purchase Agreement are inaccurate in any material respect. SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser represents and warrants to the Sellers as follows as of the date hereof and as of the Closing Date: 4 8 5.1. Corporate Power and Authority. The Purchaser has all requisite power, authority and legal right to execute, deliver, enter into, consummate the transactions contemplated by and perform its obligations under this Agreement. The execution, delivery and performance of this Agreement by the Purchaser have been duly authorized by all required corporate and other actions. The Purchaser has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligations of the Purchaser enforceable against the Purchaser in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws relating to the rights of creditors generally from time to time in effect and to general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether in a proceeding in equity or at law. 5.2. Investment Intent. The Purchaser is purchasing the Shares to be purchased by it for its own account for investment and not with a view to any distribution thereof in violation of applicable securities laws; provided, however, that the Purchaser may transfer record and/or beneficial ownership of the Shares to one or more of its Affiliates, officers or employees of Affiliates or investment funds managed by Affiliates of the Purchaser so long as such transfer is made in compliance with the Securities Act and any applicable state securities laws. It is understood that the disposition of the Purchaser's property shall at all times be within the Purchaser's control. If the Purchaser should in the future decide to dispose of any of its Shares, it is understood that it may do so only in compliance with the Securities Act, applicable securities laws and this Agreement. The Purchaser is an "accredited investor" as defined in Rule 501(a) under the Securities Act. 5.3. Brokers. No broker, finder or investment banker or other party is entitled to any brokerage, finder's or other similar fee or commission in connection with this Agreement, the Shareholders' Agreement or any of the transactions contemplated hereby or thereby, based upon arrangements made by or on behalf of the Purchaser or any of its Subsidiaries or Affiliates. 5.4. Access. The Purchaser has had access to such financial and other information, and has been afforded the opportunity to ask such questions of representatives of the Sellers and CBI and its affiliates and receive answers thereto, as the Purchaser deems necessary in connection with its decision to purchase the Shares. 5.5 Purchaser Qualification. (a) The Purchaser (alone or with the aid of its investment advisors) has such knowledge and experience in financial and business matters that the Purchaser is capable of evaluating the merits and risks of its investment in the Shares; (b) The Purchaser is able to bear the economic risk of an investment in the Shares and has the ability to hold the Shares acquired by such Purchaser indefinitely and the ability to suffer a complete loss of such investment; (c) The Purchaser is familiar with the type of investment which the Shares constitute and has reviewed the purchase of the Shares subscribed for herein with tax and legal counsel and investment representatives to the extent deemed advisable. The Purchaser believes that the Shares are securities of the kind such Purchaser wishes to acquire and that the nature of the Shares and the amount of such Purchaser's investment are consistent with such Purchaser's overall investment program and financial position; and 5 9 (d) The Purchaser will immediately notify the Sellers if any of the representations and warranties made herein become untrue. SECTION 6. ASSIGNMENT OF RIGHTS UNDER THE HBI PURCHASE AGREEMENT. 6.1 Assignment. The Sellers hereby assign to the Purchaser all the rights held by the Sellers with respect to their purchase of the Shares under the terms of the HBI Purchase Agreement, such rights to be a portion of those of Sellers under the HBI Agreement among Sellers and Purchaser. These rights with respect to the HBI Purchase Agreement and the Shares shall include, but not be limited to, all rights to indemnification provided in the HBI Purchase Agreement with respect to the purchase of the Shares, any rights relating to the HSR Act (as defined in the HBI Agreement), and all rights for breach of contract, fraud, or other remedies at law or in equity available to the Sellers as a result of their entry into the HBI Purchase Agreement and their purchase of the Shares. 6.2 No Assumption of Liabilities. Notwithstanding anything to the contrary contained herein, the Purchaser shall not acquire any liability of the Sellers created under the terms and provisions of the HBI Purchase Agreement or as a result of the Sellers' purchase of the Shares. 6.3 Enforcement of Rights under the HBI Purchase Agreement. If the Purchaser is for any reason unable to assert or otherwise enforce directly against CBI or CBI Tyler Company any of the rights under the HBI Purchase Agreement assigned to the Purchaser under this Agreement, the Sellers agree to promptly so assert and enforce such rights on behalf of the Purchaser and in accordance with Purchaser's directions upon receipt of (i) a written request to that effect from the Purchaser, and (ii) an undertaking from the Purchaser to indemnify the Sellers for all out-of-pocket expenses incurred by the Sellers in any such activities undertaken at the request of the Purchaser. 6.4 Cooperation. Each of the Sellers and Purchaser agrees that it will cooperate in the prosecution of any litigation relating to the CBI Stock or with respect to the CBI Purchase Agreement and agrees that, in light of the fact that the indemnification available under that Agreement is limited by a "Ceiling Amount," it will give all other parties hereto ten (10) days written notice prior to asserting any claim against CBI or CB&I Tyler Company for indemnification under the terms of the CBI Purchase Agreement. SECTION 7. ADJUSTMENT TO PURCHASE PRICE. (a) The purchase price set forth in Section 1(b) of this Agreement shall be subject to adjustments as follows: If the higher of (i) the highest mean of the daily closing prices per share of CBI Stock as reported on the New York Stock Exchange for any period of 40 consecutive trading days until the sale of all of the Shares by Purchaser or (ii) the average price per share realized by Purchaser upon sale of all of the Shares (collectively, the "Realized Price") does not exceed $16.25, the Purchaser shall be entitled to a cash payment from the Sellers equal to the Adjustment Amount. (b) The "Adjustment Amount" shall be equal to the amount by which $16.25 exceeds the Realized Price multiplied by the number of Shares purchased by the Purchaser hereunder, provided, however, that in no case shall the Adjustment Amount exceed an amount equal to $2.75 multiplied by the number of Shares purchased by the Purchaser hereunder. 6 10 (c) The Adjustment Amount is payable after the first anniversary of the Closing, upon ten days written notice by Purchaser to Sellers that Purchaser has sold its Shares, provided such sale must also have occurred after the first anniversary of the Closing. (d) If at any time after the first anniversary of the Closing, Purchaser becomes "reasonably insecure," as such term is used in the context of the Uniform Commercial Code, that Sellers can fund the Adjustment Amount, Sellers will, upon ten days written notice from Purchaser, secure Sellers' obligation to pay the Adjustment Amount with a letter of credit reasonably acceptable to Purchaser. SECTION 8. CONDITIONS TO PURCHASER'S OBLIGATIONS. The Purchaser's obligation to purchase Shares hereunder is subject to satisfaction of the following conditions at the Closing (any of which may be waived by the Purchaser): 8.1. HBI Purchase Agreement; Shareholders' Agreement. (a) The HBI Purchase Agreement shall have closed and the transactions contemplated thereby shall have been completed, with no amendments or waivers of the terms of the HBI Purchase Agreement other than those agreed to by Purchaser (provided Purchaser may not unreasonably withhold its consent to any such amendment or waiver). (b) CBI and the Purchaser shall have entered into a Shareholders' Agreement substantially in the form of Annex B to the Shareholder's Agreement between Wedge and CBI. 8.2. Certificates for Shares. The Purchaser shall concurrently receive the certificates for Shares contemplated by Section 2(b) hereof. 8.3. Accuracy of Representations and Warranties. All of the representations and warranties of Sellers in this Agreement or Seller and Buyer in the HBI Purchase Agreement (as such terms Seller and Buyer are defined therein) shall be true and correct on and as of the Closing Date as though made at that date other than such changes or exceptions that (i) are contemplated by this Agreement or the HBI Purchase Agreement or (ii) with respect to the HBI Purchase Agreement, could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect (as defined in the HBI Purchase Agreement). 8.4. Compliance with Agreements. The Sellers shall have performed and complied in all material respects with all agreements, covenants and conditions contained in this Agreement and any other document contemplated hereby which are required to be performed or complied with by the Sellers on or before the Closing Date. 8.5. Officers' Certificates. The Purchaser shall have received a certificate dated the Closing Date and signed by the President or Chief Executive Officer and by the Secretary or the Treasurer of each of the Sellers, to the effect that the conditions of Sections 8.1(a), 8.3, 8.4 and 8.8 have been satisfied. 8.6. Proceedings. All corporate and other proceedings in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall be in form and substance satisfactory to the Purchaser and its counsel, and the Purchaser shall have received all such originals or certified or other copies of such documents as the Purchaser or its counsel may reasonably request. 7 11 8.7. Legality; Governmental and Other Authorization. The purchase of and payment for the Shares shall not be prohibited by any law or governmental order, rule, ruling, regulation, release, interpretation or opinion applicable to the Purchaser and shall not subject the Purchaser to any penalty, tax, liability or other onerous condition. Any necessary consents, approvals, licenses, permits, orders and authorizations of, and any filings, registrations or qualifications (including, but not limited to, the expiration of the HSR waiting period) with, any governmental or administrative agency or other Person, with respect to the transactions contemplated by this Agreement, shall have been obtained or made and shall be in full force and effect. The Sellers shall have delivered to the Purchaser, upon its reasonable request setting forth what is required, factual certificates or other evidence, in form and substance reasonably satisfactory to the Purchaser and its special counsel, to enable the Purchaser to establish compliance with this condition. 8.8. No Material Adverse Change. The Sellers shall not have any reason to believe that any Material Adverse Effect in the assets, properties, liabilities, business, affairs, results of operations or condition (financial or otherwise) of CBI has occurred since December 31, 1999. 8.9. Opinion of Counsel. The Purchaser shall have received an opinion, dated the Closing Date and addressed to the Purchaser, of U.S. counsel and Dutch counsel reasonably acceptable to Purchaser, which opinions shall be in form and substance satisfactory to the Purchaser and its counsel. 8.10. Other Documents. The Purchaser shall have received such other documents, in form and substance satisfactory to the Purchaser and its counsel, relating to matters incident to the transactions contemplated hereby as the Purchaser may reasonably request. SECTION 8A. CONDITIONS TO SELLERS' OBLIGATIONS. The Sellers' obligation to sell Shares hereunder is subject to satisfaction of the following conditions at the Closing (any of which may be waived by Sellers): 8A.1. HBI Purchase Agreement; Shareholders' Agreement. (a) The HBI Purchase Agreement shall have closed and the transactions contemplated thereby shall have been completed. (b) CBI and the Purchaser shall have entered into a Shareholders' Agreement substantially in the form of Annex B to the Shareholder's Agreement between Wedge and CBI. 8A.2. Intentionally Omitted 8A.3. Accuracy of Representations and Warranties. All of the representations and warranties of the Purchaser in this Agreement or Buyer in the HBI Purchase Agreement (as such term Buyer is defined therein) shall be true and correct on and as of the Closing Date as though made at that date other than such changes or exceptions that (i) are contemplated by this Agreement or the Purchase Agreement or (ii) with respect to the HBI Purchase Agreement, could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect (as defined in the HBI Purchase Agreement). 8 12 8A.4. Compliance with Agreements. The Purchaser shall have performed and complied in all material respects with all agreements, covenants and conditions contained in this Agreement and any other document contemplated hereby which are required to be performed or complied with by the Purchaser on or before the Closing Date. 8A.5. Officers' Certificates. Seller's shall have received a certificate dated the Closing Date and signed by an officer of the Purchaser, to the effect that the conditions of Sections 8A.1(b), 8A.3, and 8A.4 have been satisfied. 8A.6. Proceedings. All corporate and other proceedings in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall be in form and substance satisfactory to the Sellers on advice of their counsel, and Sellers shall have received all such originals or certified or other copies of such documents as Sellers on advice of their counsel may reasonably request. 8A.7. Legality; Governmental and Other Authorization. The sale of the Shares shall not be prohibited by any law or governmental order, rule, ruling, regulation, release, interpretation or opinion applicable to the Sellers and shall not subject the Sellers to any penalty, tax, liability or other onerous condition. Any necessary consents, approvals, licenses, permits, orders and authorizations of, and any filings, registrations or qualifications (including, but not limited to, the expiration of the HSR waiting period) with, any governmental or administrative agency or other Person, with respect to the transactions contemplated by this Agreement, shall have been obtained or made and shall be in full force and effect. The Purchaser shall have delivered to the Seller, upon their reasonable request setting forth what is required, factual certificates or other evidence, in form and substance reasonably satisfactory to the Sellers upon advice of their counsel, to enable the Sellers to establish compliance with this condition. 8A.8. Other Documents. The Sellers shall have received such other documents, in form and substance satisfactory to the Sellers on advice of their counsel, relating to matters incident to the transactions contemplated hereby as the Sellers may reasonably request. SECTION 9. INDEMNIFICATION FOR BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS. (a) The representations, warranties, covenants and agreements of the Sellers and the Purchaser contained in this Agreement or in any document or certificate delivered pursuant hereto or thereto or in connection herewith shall survive, and shall continue in effect following, the execution and delivery of this Agreement, the closing hereunder, any investigation at any time made by the Purchaser or on its behalf or by any other Person, the issuance, sale and delivery of the Shares, any disposition thereof and any payment, conversion or cancellation of the Shares. All statements contained in any certificate or other document delivered by or on behalf of the Sellers at Closing pursuant hereto shall constitute representations and warranties by the Sellers hereunder. (b) The Sellers jointly and severally agree to indemnify and hold the Purchaser harmless from and against and will pay to the Purchaser the full amount of any loss, damage, liability or expense (including amounts paid in settlement and reasonable attorneys' fees and expenses) to the Purchaser resulting either directly or indirectly from any breach of the representations, warranties, covenants or agreements of the Sellers contained in this Agreement or any other document or certificate delivered pursuant hereto or thereto or in connection herewith or therewith. 9 13 SECTION 10. AMENDMENTS AND WAIVERS. The terms and provisions of this Agreement may be amended, waived, modified or terminated only with the written consent of (1) the Sellers, and (2) the Purchaser. SECTION 11. NOTICES. All notices, requests, demands, consents and other communications hereunder shall be in writing and shall be delivered by hand or shall be sent by telex or telecopy (confirmed by registered, certified or overnight mail or courier, postage and delivery charges prepaid), (i) if to the Sellers, to Wedge Group Incorporated, 1415 Louisiana, Suite 3000, Houston, Texas 77002, Attention: President, with a copy to the General Counsel at the same address or (ii) if to the Purchaser, First Reserve Corporation, 1801 California Street, Suite 4110, Denver, Colorado 80202, Attention: Tom Denison, with a copy to Gibson, Dunn & Crutcher LLP, 1801 California Street, Suite 4100, Denver, Colorado 80202, Attention: Richard M. Russo or at such other address as a party may from time to time designate as its address in writing to the other party to this Agreement. Whenever any notice is required to be given hereunder, such notice shall be deemed given and such requirement satisfied only when such notice is delivered or, if sent by telex or telecopier, when received. SECTION 12. MISCELLANEOUS. (a) This Agreement and the Shareholders' Agreement contain the entire agreement between the Purchaser and the Sellers, and supersede any prior oral or written agreements, commitments, terms or understandings, regarding the subject matter hereof. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. (b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, whether so expressed or not; provided, however, that (other than with respect to a transfer to an Affiliate of the Purchaser) no party to this Agreement may assign any of its rights, duties or obligations under this Agreement without the other party's prior written consent, which consent shall not be unreasonably withheld. If permitted pursuant to the prior sentence, the Purchaser may assign, in whole or in part, any or all of its rights (and/or obligations) under this Agreement to any permitted transferee of any or all of its Shares, and (unless such assignment expressly provides otherwise) any such assignment shall not diminish the rights the Purchaser would otherwise have under this Agreement or with respect to any remaining Shares held by the Purchaser. (c) Each party (each a "Disclosing Party") to this Agreement agrees that it will not issue any press releases or other public disclosure using the name of the other party or any of its Affiliates without at least two (2) business days' prior written notice to the other party and without the prior written consent of the other party unless the Disclosing Party is required to do so under law and then, in any event, the Disclosing Party or its Affiliate will consult with the other party before issuing such press release or other public disclosure and with as much advance notice to the other party as is reasonably practicable under the circumstances. (d) The headings and captions in this Agreement are for convenience of reference only and shall not define, limit or otherwise affect any of the terms or provisions hereof. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument, and all signatures need not appear on any one counterpart. 10 14 (e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York (other than any conflict of laws rule which might result in the application of the laws of any other jurisdiction). (f) THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR THE SHARES WILL BE LITIGATED IN SUCH COURTS. THE PARTIES ACCEPT FOR THEMSELVES AND IN CONNECTION WITH THEIR PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF, OR CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SHARES, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE SELLERS AND THE PURCHASER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS AGREEMENT, OR THE SHARES. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT. 11 15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. WEDGE GROUP INCORPORATED FIRST RESERVE FUND VII, LIMITED PARTNERSHIP By: /s/ James M. Tidwell By: FIRST RESERVE GP VII, L.P. --------------------------------- its general partner Name: James M. Tidwell By: FIRST RESERVE CORPORATION, Title: Vice President its general partner WGI TYLER, INC. By: /s/ Thomas R. Denison --------------------------------- Name: Thomas R. Denison By: /s/ James M. Tidwell Title: Managing Director --------------------------------- Name: James M. Tidwell Title: President [Stock Purchase Agreement Signature Page] 16 SCHEDULE 1 TO THE STOCK PURCHASE AGREEMENT
NUMBER OF PURCHASE SHARES PRICE --------- -------- WEDGE Group Incorporated 4,323,333 $70,254,161 WGI Tyler, Inc. 0 0
EX-99.C 4 d82626ex99-c.txt AMENDMENT TO STOCK PURCHASE AGREEMENT 1 EXHIBIT C [WEDGE GROUP INCORPORATED LETTERHEAD] October 31, 2000 First Reserve Corporation 1801 California Street, Suite 4110 Denver, Colorado 80202 Attention: Tom Denison Via Fax: (303) 382-2782 Re: Amendment of Stock Purchase Agreement dated July 30, 2000 by and between WEDGE Group Incorporated, WGI Tyler, Inc., and First Reserve Fund VIII, L.P. Dear Sirs: This letter agreement (the "Letter Agreement") is to confirm our agreement to amend the Stock Purchase Agreement dated July 30, 2000 (the "Purchase Agreement") by and between WEDGE Group Incorporated ("WGI"), WGI Tyler, Inc., and First Reserve Fund VIII, L.P. ("First Reserve"). All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Purchase Agreement. The parties hereto have agreed as follows: 1. The current Section 7(c) shall be deleted in its entirety and replaced with the following: "(c) The Adjustment Amount is payable after the first anniversary of the Closing, upon ten days written notice by Purchaser to Sellers that Purchaser has sold its Shares; provided however, such sale must also have occurred after the first anniversary of the Closing and before the tenth anniversary of the Closing." 2. The current Section 7(d) shall be deleted in its entirety and replaced with the following: "(d) If at any time after the first anniversary of the Closing but before the tenth anniversary of the Closing, Purchaser becomes "reasonably insecure," as such term is used in the context of the Uniform Commercial Code, that Sellers can fund the Adjustment Amount, Sellers will, upon ten days written notice from Purchaser, secure Sellers' obligation to pay the Adjustment Amount with a letter of credit reasonably acceptable to Purchaser." 3. The following provision shall be added as Section 7(e): "(e) If upon the tenth anniversary of the Closing Purchaser has not sold all of its Shares, Purchaser shall be deemed for the purposes of determining the Adjustment Amount due to 2 Letter to First Reserve Corp. October 31, 2000 Page 2 Purchaser as specified in this Section 7 to have sold on the tenth anniversary of the Closing any remaining portion of its Shares at the highest mean of the daily closing prices per share of CBI Stock as reported on the New York Stock Exchange for any period of 40 consecutive trading days prior to such tenth anniversary." 4. The following provision shall be added as Section 8.1(c): "(c) The shareholders of CBI shall have elected the FRF Designees (as that term is defined in the Shareholders' Agreement ("the First Reserve Shareholders' Agreement") attached as Annex B to the Shareholder Agreement between Wedge and CBI)." 5. This Letter Agreement complies with Sections 10 and 11 of the Purchase Agreement. No action taken in accordance with this Letter Agreement shall be deemed or interpreted as a violation of any provision of the Purchase Agreement. [signature page to the Letter Agreement of October 31, 2000 follows] 3 WEDGE GROUP INCORPORATED By: /s/ Richard E. Blohm, Jr. -------------------------------------- Title: Vice President ----------------------------------- WGI TYLER, INC. By: /s/ Richard E. Blohm, Jr. -------------------------------------- Title: Vice President ----------------------------------- ACCEPTED AND AGREED: FIRST RESERVE FUND VIII, L.P. By: FIRST RESERVE GP VIII, L.P. its general partner By: FIRST RESERVE CORPORATION, its general partner By: /s/ Thomas R. Denison -------------------------------------- Title: Managing Director ----------------------------------- cc: (by telefax) Gibson, Dunn & Crutcher LLP 1801 California Street, Suite 4100 Denver, Colorado 80202 Attention: Richard M. Russo Fax: (303) 313-2838 [signature page to Letter Agreement of October 31, 2000] EX-99.D 5 d82626ex99-d.txt SHAREHOLDER AGREEMENT DATED DECEMBER 28, 2000 1 EXHIBIT D [Execution] SHAREHOLDER AGREEMENT This Shareholder Agreement (this "Agreement") dated as of December 28, 2000 is by and between First Reserve Fund VIII, L.P., a limited partnership organized under the laws of the State of Delaware ("FRF"), and Chicago Bridge & Iron Company N.V., a company organized under the laws of the Netherlands ("CB&I"), and certain shareholders of CB&I. WHEREAS, FRF is party to a Stock Purchase Agreement dated as of July 30, 2000 (as amended by an amendment thereto dated October 31, 2000) with WEDGE Group Incorporated, a Delaware corporation ("WGI"), and WGI Tyler, Inc., a Delaware corporation, pursuant to which FRF has agreed to purchase 4,323,333 shares of CB&I Stock (as defined below), representing approximately 24.5% of the outstanding CB&I Stock (the "First Reserve Deal"); WHEREAS, it is a condition to the consummation of such transaction that FRF and CB&I enter into this Agreement; and WHEREAS, the parties hereto desire to enter into this Agreement to provide for certain rights and restrictions with respect to the Holders' Securities (as defined below) for the benefit of CB&I, its shareholders and other constituencies so as to serve the long-term interests of CB&I, its shareholders and other constituencies. NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained in this Agreement, the parties hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01 Certain Definitions. "Affiliate" means any corporation, partnership or other person directly, or indirectly through one or more intermediaries, controlling, controlled by or under common control with any Holder or any Shareholder, as the case may be, and shall include any person acting on behalf of any Holder or any Shareholder or Affiliate of any of them, as the case may be. For purposes of the preceding sentence, "control" (including the terms "controlling," "controlled by" and "under common control with") means possession, directly or indirectly, of the power to direct or cause direction of management and policies of a person through ownership of securities, by contract, pursuant to a voting trust or otherwise. Notwithstanding the foregoing, a company will not be an Affiliate of FRF due solely to a minority stock or board position. 2 "Applicable Acceptance Period" has the meaning provided in Section 5.01(c). "Articles of Association" means the articles of association of CB&I, as amended from time to time. "Assignee" means an assignee or transferee of FRF pursuant to Section 7.01. "Associate" has the meaning assigned to such term in Rule 12b-2 under the Exchange Act. A Person shall be deemed to "beneficially own," to have "beneficial ownership" of, or to be "beneficially owning" any Securities (which Securities shall also be deemed "beneficially owned" by such Person) that such Person is deemed to "beneficially own" within the meaning of Rule 13d-3 under the Exchange Act. "Business Combination" means a merger, combination or consolidation (whether or not CB&I or a Subsidiary of CB&I is the surviving entity in such transaction), tender offer or share exchange (whether for all or part of the outstanding Securities of CB&I or any Subsidiary), business combination, sale of significant assets, dissolution, liquidation or similar transaction involving CB&I or any Subsidiary or division of CB&I. "CB&I Stock" means the common stock, NLG .01 par value per share, of CB&I. "Commission" means the Securities and Exchange Commission of the United States or any other U.S. federal agency at the time administering the Securities Act. "Competitor" means any Person or any of such Person's Affiliates or Associates who has as a significant business activity (i) the design and engineering, fabrication, field erection or repair of bulk liquid terminals, storage tanks, process vessels, low temperature or cryogenic storage facilities, or other steel plate structures and their associated systems, or (ii) the provision of engineering services (including plant engineering, procurement and construction services) or specialized equipment similar to that provided by HBI or the HBI Subsidiaries. "Continuing Directors" means, as of any date of determination, any member of the Supervisory Board who (i) was a member of the Supervisory Board on the date of this Agreement or (ii) was nominated for election to the Supervisory Board with the affirmative vote of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election, or who was elected or appointed in the ordinary course by Continuing Directors or other directors so elected or appointed. "Demand Registration" has the meaning provided in Section 3.01(a). 2 3 "Exchange Act" means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "FRF Designee" has the meaning provided in Section 6.01(a). "First Offer" has the meaning provided in Section 5.01(a). "First Reserve Deal" has the meaning provided in the recitals to this Agreement. "Holder" means FRF, its Affiliates and its Assignees as permitted by Section 7.01 hereof, holding Holders' Securities or securities convertible into, exchangeable or exercisable for Holders' Securities. "Holders' Securities" means (i) any shares of CB&I Stock held by a Holder on the date hereof, (ii) any other Securities held by a Holder on the date hereof or acquired hereafter and (iii) any shares of stock issued or issuable in respect of such CB&I Stock or other Securities upon any Recapitalization, in each case, held by Holders or any Affiliate of any Holder; provided however, that Holders' Securities shall not include shares sold in a transaction in which the rights conferred by this Agreement are not assigned or transferred as provided in Section 7.01 hereof. "Indemnified Party" has the meaning provided in Section 3.06(c). "Indemnifying Party" has the meaning provided in Section 3.06(c). "Independent Director" means any individual who (i) qualifies as a "non-employee director" as defined in Rule 16b-3(b)(3)(i) promulgated by the Commission under the Exchange Act and (ii) is not a "person associated with the issuer" as defined in Appendix X of the Listing and Issuing Rules of Euronext Amsterdam N.V., where, for purposes of both such definitions, "issuer" is deemed to refer both to FRF and its Affiliates and to CB&I and its Affiliates. "Institutional Investor" means a bank, investment company, insurance company, as those terms are used in Rule 13(d)-1(b) of the Exchange Act, or similar financial institution or any other Person that does not acquire Voting Securities for the purpose of or having the effect of changing or influencing the control of an issuer or in connection with or as a participant in any transaction having such purpose or effect, and that would be eligible to file, on the date of Transfer and after giving effect to such Transfer, a Schedule 13G statement under the Exchange Act with respect to all Voting Securities. "Noninvestor Director" has the meaning provided in Section 6.01(a). "Notice of Exercise" has the meaning provided in Section 5.01(c). 3 4 "Notice of Intention" has the meaning provided in Section 5.01(b). "Offered Shares" has the meaning provided in Section 5.01(b). "Offer Price" has the meaning provided in Section 5.01(b). "outstanding", when used in reference to equity or Voting Securities, means all such equity or Voting Securities issued and held by Persons other than CB&I. "Person" means any individual, group, corporation, firm, partnership, joint venture, trust, business association, organization, governmental entity or other entity. "Piggyback Registration" has the meaning provided in Section 3.02(a). "Purchase Agreement" means that certain Purchase Agreement dated as of July 30, 2000 among CB&I, WGI and certain other parties, as amended by an amendment thereto dated November 17, 2000. "Recapitalization" means any stock split, stock dividend, stock combination, a significant recapitalization, reorganization, or restructuring, or similar event involving CB&I or any Significant Subsidiary (as defined in Regulation S-X of the Commission) of CB&I. The terms "register," "registered" and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act (and all applicable blue sky or other national, state or provincial securities laws), and the declaration or ordering of the effectiveness of such registration statement (and qualification or compliance with such laws). "Registration Expenses" has the meaning provided in Section 3.04(b). "Securities" means (i) any and all securities issued and outstanding by CB&I at any time, (ii) any shares of stock issued or issuable in respect of such securities and (iii) any right to acquire by contract or otherwise from CB&I or any Person, and whether or not then exercisable, any security described in (i) or (ii). "Securities Act" means the United States Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "Selling Holder" means each Holder who holds Holders' Securities to be included in a registration statement under the Securities Act pursuant to this Agreement. "Shareholder" means a holder of Securities other than a Holder. 4 5 "Significant Transaction" means any transaction or activity that results in, or is intended to result in, or may reasonably be expected to result in, (i) the acquisition by any Person, alone or together with such Person's Affiliates and Associates, of 33-1/3% or more of the Voting Securities outstanding after such acquisition; (ii) any sale of all or substantially all of CB&I's assets; (iii) any Business Combination in which CB&I is not the surviving entity; (iv) any Business Combination or Recapitalization in which the shareholders of CB&I (other than the Holders) immediately prior to such Business Combination or Recapitalization own less than 33-1/3% of the Voting Securities outstanding after such event; and (v) any change in the Supervisory Board not consistent with Article VI of this Agreement or which would result in a majority of the members of the Supervisory Board not being Continuing Directors. "Supervisory Board" means the Board of Supervisory Directors of CB&I. "Third Party" means a Person other than CB&I, a Holder, a Shareholder or their respective Affiliates. "Transfer" means, with respect to all or any part of the Securities, to directly or indirectly (whether or not through an underwriter) offer, sell, convey, distribute, transfer (by merger or otherwise), assign, devise, exchange, encumber, gift, pledge, grant any option with respect to, hypothecate or otherwise dispose of such Securities, or enter into any agreement, arrangement or understanding with respect to the foregoing. "Voting Securities" means Securities then outstanding which ordinarily have voting power for the election of directors (or Persons performing similar functions) of CB&I, whether at all times or only so long as no senior class of Securities has such voting power by reason of any contingency. "WGI" has the meaning provided in the recitals to this Agreement. "WGI Designee" has the meaning provided in Section 6.01(a). "WEDGE Shareholder Agreement" means that certain Shareholder Agreement of even date hereof between CB&I and WGI. Section 1.02 Other Defined Terms. All capitalized terms used herein and not otherwise defined shall have the respective meanings specified in the Purchase Agreement. ARTICLE II STANDSTILL AND VOTING PROVISIONS Section 2.01 Agreement of FRF. Unless specifically requested or permitted in writing in advance by the Supervisory Board, FRF agrees that, so long as this Agreement remains in 5 6 effect, and except as contemplated elsewhere herein, neither it nor any of its Affiliates or Associates shall, directly or indirectly: (a) acquire, offer to acquire, announce an intention to acquire, solicit an offer to sell or agree to acquire by purchase or otherwise, any Securities, except (i) as a result of a stock split, stock dividend or Recapitalization approved by the Supervisory Board, (ii) in connection with a Business Combination approved by the Supervisory Board, (iii) as funding for and contemporaneous with the acquisition by CB&I of certain assets of Pitt-Des Moines, Inc. ("PDM") relating to PDM's engineering and construction and water divisions, if, as a result of such transaction, (A) the total number of shares of Voting Securities beneficially owned (including as a member of a group, regardless of whether such beneficial ownership is disclaimed) by (x) FRF and its Affiliates and Associates, (y) WGI and its Affiliates and Associates and (z) any other Person acquiring Voting Securities in the PDM transaction, provided that such Person's Voting Securities will be deemed not to be so aggregated if such Person is neither an Affiliate or Associate of WGI or FRF and provides to CB&I, at the time of purchase of such Voting Securities, written assurances that it has no arrangement, contract, understanding or relationship with FRF, WGI or any of their respective Affiliates with respect to voting power or investment power (which shall include the meaning ascribed to such terms under Rule 13d-3(a) under the Exchange Act) with respect to any Voting Securities (in this regard, CB&I agrees to provide, in advance of the consummation of any sale of Voting Securities, notice to WGI and FRF of the failure of any such Person to provide such assurance, so that neither WGI or FRF are inadvertently prejudiced hereunder by such a sale), in the aggregate does not, after giving effect to such transaction, exceed 48.15% of the total number of shares of Voting Securities then outstanding and (B) the total number of shares of Voting Securities owned by FRF and its Affiliates and Associates does not, after giving effect to such transaction, exceed 30% of the total number of shares of Voting Securities then outstanding, (iv) if the PDM transaction referred to in clause (iii) immediately above shall not be consummated, up to an additional 253,000 shares of CB&I Stock (including any shares acquired between the execution of the First Reserve Deal and the execution of this Agreement) so long as the total number of Voting Securities beneficially owned (including as a member of a group, regardless of whether such beneficial ownership is disclaimed) by FRF and its Affiliates and Associates and WGI and its Affiliates and Associates in the aggregate does not exceed 49.9% of the total number of shares of Voting Securities then outstanding, or (v) if, as a result of such acquisition of Voting Securities, FRF and its Affiliates and Associates would beneficially own (including as a member of a group, regardless of whether such beneficial ownership is disclaimed) in the aggregate no more than 10.1% of the total number of Voting Securities outstanding; (b) acquire, offer to acquire, announce an intention to acquire, solicit an offer to sell or agree to acquire by purchase or otherwise, directly or indirectly, a material portion of assets of CB&I or any of its Subsidiaries; (c) initiate, solicit, propose, seek to effect or negotiate, or announce an intent to effect, directly or indirectly, alone or with any other Person, (i) any form of Business 6 7 Combination or joint venture transaction involving CB&I or any Affiliate thereof, or (ii) any Recapitalization or similar transaction with respect to CB&I or any Affiliate thereof; (d) initiate, solicit, propose, seek to effect or negotiate, or announce an intent to make, directly or indirectly, any merger, tender or exchange offer, consolidation, share exchange for any Securities, or disclose an intent, purpose, plan or proposal with respect to CB&I, any of its Affiliates or any Securities inconsistent with the provisions of this Agreement; (e) initiate, cause, encourage, "solicit," or become a "participant" in the "solicitation" of, "proxies" (as such terms are defined or used in Rule 14a-1 under the Exchange Act) in opposition to the recommendation of the majority of the Supervisory Board or become a "participant" in an election contest with respect to the election of directors of CB&I or with respect to any Significant Transaction; (f) initiate, solicit (or participate in a solicitation) or propose the approval of one or more shareholder proposals with respect to CB&I or any of its Affiliates or induce or encourage or attempt to induce or encourage any other Person to initiate any such shareholder proposal; (g) form, join, or in any way participate in, or encourage the formation, of a partnership, limited partnership, syndicate or other "group" (as defined in Section 13(d)(3) of the Exchange Act) or "person" (as defined in Section 13(d)(3) of the Exchange Act and Section 2(2) of the Securities Act) or enter into any contract, arrangement, understanding or relationship or otherwise act in concert with any other Person for the purpose of acquiring or voting Securities; (h) except as expressly provided in Article VI herein, seek election to or seek to place a representative on the Supervisory Board of CB&I or any of its Affiliates or seek the removal of any member of the Supervisory Board of CB&I or any of its Affiliates; (i) except for participation by any FRF Designee on the Supervisory Board, act in concert with any other Person not an executive of CB&I to seek to affect the management or Supervisory Board of CB&I or any of its Affiliates or the business, operations or affairs of CB&I or any of its Affiliates; (j) request CB&I to, or seek to cause CB&I (or its directors) to, call any meeting of the shareholders of CB&I or any of its Affiliates; (k) grant or agree to grant any proxy or other voting power to any Person other than CB&I or the Persons designated by CB&I to vote at any meeting of the shareholders of CB&I, or deposit any Voting Securities in a voting trust or, except as specifically contemplated by this Agreement, subject them to a voting agreement or other agreement or arrangement with respect to the voting of such Voting Securities; (l) disclose to any third party or in any filing with any governmental authority any intention, plan or arrangement inconsistent with any of the foregoing or with the restrictions on transfer set forth in this Agreement; 7 8 (m) make any public statements (or statements that must be publicly disclosed) inconsistent with the provisions of this Agreement; (n) (i) disclose any intention, enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or (ii) initiate, advise, assist, induce or attempt to induce, encourage or influence another Person to take any action with respect to any of the foregoing or take any other action inconsistent with the foregoing; or (o) request a waiver, modification or amendment by the Supervisory Board or CB&I of any of the foregoing restrictions. Nothing in this Section 2.01 shall be construed to limit the right of any director to communicate with any member of the Supervisory Board, any executive officer of CB&I, counsel to CB&I or auditors for CB&I, as may be necessary in such director's reasonable judgment, for the normal conduct and discharge of such director's duties as a CB&I director in such manner as will preserve the confidentiality thereof and will not result in an obligation of CB&I or FRF or any of their respective Affiliates to make a public disclosure with respect thereto. Nothing in this Article II or in Article IV is intended to disadvantage FRF from receiving securities, rights to acquire securities, or other assets available to other shareholders on a pro rata basis in a Recapitalization or Business Combination, provided that FRF is in material compliance with the relevant provisions and restrictions of this Agreement. Section 2.02 Business Combinations. (a) FRF agrees that, so long as this Agreement remains in effect, with respect to any proposed Business Combination or Recapitalization involving CB&I or any Affiliate of CB&I and any third party, each class of Holders' Securities owned by FRF and its Affiliates and Associates will only be voted, or tendered or exchanged (or withheld or withdrawn from tender or exchange), and FRF and its Affiliates and Associates will otherwise act, only in accordance with the recommendation of the Supervisory Board (and any special committee of the Supervisory Board constituted for the purpose of evaluating one or more such proposals). Subject to such restriction, FRF shall not be prohibited by the provisions of Section 2.01 from submitting a competing Business Combination or Recapitalization proposal to the Supervisory Board in the event that the Supervisory Board publicly announces its determination to recommend a Significant Transaction to CB&I shareholders subsequent to the Effective Time. (b) The parties hereto agree that the Articles of Association shall be amended (i) to provide that any affiliate transaction involving FRF or its Affiliates or any Business Combination with a Third Party or Recapitalization otherwise requiring a shareholder vote shall require approval by at least 80% of the Voting Securities then outstanding at a time when any Person (and its Affiliates and Associates) or "group" owns 15% or more of the Voting Securities then outstanding, and (ii) in such other respects listed on Annex A hereto as is necessary or desirable to carry out the provisions and purposes of this Agreement. 8 9 Section 2.03 Voting of Holders' Securities. FRF agrees that during the term of this Agreement, with respect to any matter presented to shareholders of CB&I for vote or approval (whether at a meeting or by written consent), each class of Holders' Securities owned by FRF and its Affiliates and Associates shall be present and voted (i) "for" the nominees recommended by the Supervisory Board, provided CB&I is in compliance with the terms of Section 6.01 of this Agreement, and (ii) "for" any proposal which is recommended by the Supervisory Board and "against" any proposal that is not recommended by the Supervisory Board; provided, however, that FRF and its Affiliates may, in their sole discretion, vote the Securities held by them on any matter involving (i) the appointment of auditors; (ii) the adoption of any Rights Agreement or any other "poison pill" or similar shareholder rights plan which would preclude FRF from effecting any transaction otherwise permitted herein; (iii) the migration of CB&I from its current Organization State to any other Organization State (other than in connection with a Business Combination with a Third Party); (iv) the conversion of CB&I from its current corporate form to any other corporate form (other than in connection with a Business Combination with a Third Party); or (v) the amendment of the Articles of Association as to matters not contemplated by this Agreement which would have a disproportionate material and adverse effect on FRF versus other CB&I shareholders not contemplated by this Agreement. The provisions of this Section 2.03 shall apply to both the casting of votes at general meetings of shareholders and any execution of shareholder action by written consent. FRF agrees, and shall cause its Affiliates, to execute and deliver to the Secretary of CB&I not later than 20 days prior to the date of any general meeting of shareholders of CB&I a proxy (in such form as provided by and on behalf of the Supervisory Board) representing all Voting Securities beneficially owned by FRF and its Affiliates and Associates voted in accordance with the provisions of this Section 2.03 and this Agreement. ARTICLE III REGISTRATION RIGHTS Section 3.01 Demand Registration. (a) Subject to the terms of this Agreement, at any time after the date hereof, the Holders of at least 75% of the then outstanding Holders' Securities may request registration under the Securities Act of all or part of their Holders' Securities on Form S-1 or S-3 or any similar registration (other than a shelf registration); provided, that any such request shall cover either (i) at least 20% of such Holders' Securities calculated as of the date of this Agreement or (ii) such smaller number to the extent it represents all of the remaining Holders' Securities. Within ten (10) days after receipt of any request pursuant to this Section 3.01, CB&I will give written notice of such request to all other Holders of Holders' Securities and will include in such registration all Holders' Securities with respect to which CB&I has received written requests for inclusion within thirty (30) days after delivery of CB&I's notice. All registrations requested pursuant to this Section 3.01 are referred to herein as "Demand Registrations." 9 10 (b) CB&I will not include in any Demand Registration any Securities which are not Holders' Securities without the written consent of the Holders of a majority of the Holders' Securities to be included in such Demand Registration. If a Demand Registration is an underwritten public offering and the managing underwriters advise CB&I in writing that in their opinion the inclusion of the number of Holders' Securities and other Securities requested to be included creates a substantial risk that the price per share of Securities will be reduced, CB&I will include in such registration, prior to the inclusion of any Securities which are not Holders' Securities, the number of Holders' Securities requested to be included which in the opinion of such underwriters can be sold without creating such a risk, pro rata among the respective Holders of Holders' Securities on the basis of the number of Holders' Securities owned by such Holders, with further successive pro rata allocations among the Holders of Holders' Securities if any such Holder of Holders' Securities has requested the registration of less than all such Holders' Securities such Holder is entitled to register. (c) Notwithstanding any of the foregoing, CB&I shall not be obligated to effect any Demand Registration as follows: (i) CB&I will not be obligated to effect more than one Demand Registration within any twelve month period; (ii) CB&I will not be obligated to effect any Demand Registration during the period starting on the date 60 days prior to CB&I's estimated date of filing of, and ending on the date 90 days immediately following the effective date of, any registration statement pertaining to Securities of CB&I sold by CB&I, provided that CB&I is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; and provided further that CB&I may not, pursuant to this Section 3.01(c)(ii), delay implementation of a Demand Registration more than once in any twelve (12) month period; (iii) With respect to any Demand Registration, if (A) the Supervisory Board reasonably and in good faith determines that such filing would be materially detrimental to CB&I or require a disclosure of a material fact that might reasonably be expected to have a Material Adverse Effect on CB&I or on any plan or proposal by CB&I or any of its subsidiaries to engage in any acquisition or disposition of assets or equity securities (other than in the ordinary course of business) or any merger, consolidation, tender offer, material financing or other significant transaction and (B) CB&I shall furnish the Holders of Holders' Securities who have requested a Demand Registration a certificate signed by an executive officer of CB&I to such effect, CB&I may postpone for up to ninety (90) days the filing or the effectiveness of a registration statement for a Demand Registration; provided, however, that CB&I may not postpone the filing or effectiveness of a registration statement for a Demand Registration for more than ninety (90) days during any twelve (12) month period; and (iv) CB&I will not be obligated to effect any Demand Registration after CB&I has effected two (2) Demand Registrations pursuant to this Section 3.01, and such registrations have been declared or ordered effective. 10 11 Section 3.02 Piggyback Registration. (a) Whenever CB&I proposes to register any of its Securities under the Securities Act (other than pursuant to a Demand Registration hereunder) and the registration form to be used may be used for the registration of any Holders' Securities (a "Piggyback Registration") (except Forms S-8 or S-4), CB&I will give written notice, at least thirty (30) days prior to the proposed filing of a registration statement, to all Holders of the Holders' Securities of its intention to effect such a registration and will use reasonable best efforts to include in such registration all Holders' Securities (in accordance with the priorities set forth in Sections 3.02(b) and 3.02(c) below) with respect to which CB&I has received written requests for inclusion within fifteen (15) days after the delivery of CB&I's notice, specifying the number of Securities intended to be registered. (b) If a Piggyback Registration is an underwritten primary registration on behalf of CB&I and the managing underwriters advise CB&I in writing that in their opinion the number of Securities requested to be included in the registration creates a substantial risk that the price per share of Securities will be reduced, CB&I will include in such registration first, the securities that CB&I proposes to sell, second, the Holders' Securities requested to be included in such registration under this Agreement together with any Holders' Securities requested to be included in such registration under the WEDGE Shareholder Agreement, pro rata among all the Holders of such Holders' Securities on the basis of the number of shares which are owned by such Holders, and third, other Securities requested to be included in such registration to be allocated pro rata among the holders thereof. (c) If a Piggyback Registration is an underwritten secondary registration on behalf of holders of CB&I's securities and the managing underwriters advise CB&I in writing that in their opinion the number of Securities requested to be included in the registration creates a substantial risk that the price per share of Securities will be reduced, CB&I will include in such registration first, the Securities requested to be included therein by the holders requesting such registration if and only if pursuant to a demand registration exercised by PDM, second, the Securities requested to be included therein by the holders requesting such registration, and the Holders' Securities requested to be included in such registration under this Agreement together with any Holders' Securities requested to be included in such registration under the WEDGE Shareholder Agreement, pro rata among all the holders of such securities on the basis of the number of shares of Securities or Holders' Securities which are owned by such holders, and third, other Securities requested to be included in such registration. (d) If CB&I has previously filed a registration statement with respect to Holders' Securities pursuant to Section 3.01 or pursuant to this Section 3.02, and if such previous registration has not been withdrawn or abandoned, CB&I will not file or cause to be effected any other registration of any of its Securities or Securities convertible or exchangeable into or exercisable for its Securities under the Securities Act (except on Form S-8 or Form S-4 or any successor form thereto), whether on its own behalf or at the request of any holder or holders of such Securities, until a period of at least one hundred eighty (180) days has elapsed from the effective date of such previous registration. 11 12 Section 3.03 Right to Terminate Registration. CB&I shall have the right to terminate or withdraw any registration initiated by it under Section 3.02 prior to the effectiveness of such registration provided that no Holder has elected to include Holders' Securities in such registration. Section 3.04 Expenses of Registration. (a) CB&I will pay all Registration Expenses for Demand Registrations pursuant to Section 3.01 and for an unlimited number of Piggyback Registrations pursuant to Section 3.02, provided, however, that CB&I shall not be obligated to pay more than $400,000 in the aggregate for Registration Expenses with respect to Demand Registrations. A registration will not count as one of the CB&I paid Demand Registrations until it has become effective; provided, however, that in any event CB&I will pay all Registration Expenses in connection with any registration initiated as a Demand Registration for which CB&I was obligated to pay. In excess of $400,000, the Registration Expenses for Demand Registrations shall be borne by the Holders of Holders' Securities to be registered thereunder pro rata based on the number of Holders' Securities and other Securities requested or permitted to be included in such registration pursuant to the terms of this Agreement. If FRF effects a Piggyback Registration right hereunder relating to a Demand Registration by WGI under the WEDGE Shareholder Agreement, FRF agrees to share pro rata with WEDGE Group Incorporated any Registration Expenses which exceed the amount CB&I is obligated to pay, and CB&I will cause any other Person which has a right to effect a Piggyback Registration relating to a Demand Registration by FRF hereunder to agree to similarly share such Registration Expenses. (b) Except as provided in Section 3.04(a) hereof, all expenses incident to CB&I's performance of or compliance with this Agreement, including, but not limited to, all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for CB&I and all independent certified public accountants, underwriters (excluding discounts and commissions) and other Persons retained by CB&I (all such expenses being herein called "Registration Expenses"), will be borne by CB&I, provided that CB&I shall not be required to pay sales commissions, discounts or transfer taxes or the cost of legal counsel for the Holders. In addition, CB&I will pay its internal expenses (including, but not limited to, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance obtained by CB&I, and the expenses and fees for listing the Securities to be registered on each securities exchange. If the registration request is subsequently withdrawn at the request of a majority of the Holders of Holders' Securities to be registered, the Holders of Holders' Securities shall forfeit their right to reimbursement of expenses with respect to one Demand Registration unless the Holders of Holders' Securities to be registered pay for all of the Registration Expenses for such withdrawn registration or unless such registration is withdrawn due to a material adverse change in the operations or results of CB&I. 12 13 Section 3.05 Registration Procedures. Whenever the Holders of Holders' Securities have requested that any Holders' Securities be registered pursuant to this Agreement, CB&I will use its reasonable best efforts to effect the registration and sale of such Holders' Securities in accordance with the intended method of disposition thereof and, pursuant thereto, CB&I will as expeditiously as possible: (a) prepare and file with the Commission a registration statement with respect to such Holders' Securities and use its reasonable best efforts to cause such registration statement to become effective (provided that before filing a registration statement or prospectus, or any amendments or supplements thereto, CB&I will furnish copies of all such documents proposed to be filed to the counsel or counsels for the Selling Holders of the Holders' Securities covered by such registration statement); (b) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus(es) used in connection therewith as may be necessary to keep such registration statement effective until the earlier of such time as all of such Holders' Securities have been disposed of in accordance with the intended methods of disposition set forth in such registration statement or the expiration of 135 days after such registration statement becomes effective (provided that such 135-day period shall be extended (i) in the case of a Demand Registration for such number of days that equals the number of days elapsing from (A) the date written notice contemplated by Section 3.05(e) hereof is given by CB&I to (B) the date on which CB&I delivers to the Selling Holders the supplement or amendment contemplated by Section 3.05(e) hereof and (ii) for a period of time equal to the period the Holder refrains from selling any Holders' Securities included in such registration at the request of CB&I or an underwriter), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the Selling Holders thereof set forth in such registration statement; (c) furnish to each Selling Holder of Holders' Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus(es) included in such registration statement (including each preliminary prospectus) and such other documents as such Selling Holder may reasonably request in order to facilitate the disposition of the Holders' Securities owned by such Selling Holder; (d) use its reasonable best efforts to register or qualify such Holders' Securities under such other securities or blue sky laws of such jurisdictions as any Selling Holder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition in such jurisdictions of the Holders' Securities owned by such Selling Holder (provided that CB&I will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) consent to general service of process in any such jurisdiction, or (iii) subject itself to taxation in any such jurisdiction); 13 14 (e) notify each Selling Holder of such Holders' Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, CB&I will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Holders' Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading; (f) cause all such Holders' Securities to be listed on each securities exchange on which similar securities issued by CB&I are then listed or if no such securities are then listed, such securities exchange as the Selling Holders of a majority of the Holders' Securities included in such registration may request; (g) provide a transfer agent and registrar for all such Holders' Securities not later than the effective date of such registration statement; (h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other customary actions as the Selling Holders of a majority of the Holders' Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Holders' Securities (including, but not limited to, effecting a stock split or a combination of shares); (i) make available for inspection by any Selling Holder of Holders' Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent retained by any such Selling Holder or underwriter, all financial and other records, pertinent corporate documents and properties of CB&I, and cause CB&I's officers, directors, employees and independent accountants to supply all information reasonably requested by any such Selling Holder, underwriter, attorney, accountant or agent in connection with such registration statement; provided, however, that any records, information or documents that are furnished by CB&I and that are non-public shall be used only in connection with such registration and shall be kept strictly confidential by any Selling Holder of Holders' Securities except to the extent disclosure of such records, information or documents is required by written order of a court or other governmental authority having jurisdiction; (j) advise each Selling Holder of such Holders' Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued; and (k) furnish on the date or dates provided for in the underwriting agreement: (i) an opinion of counsel, addressed to the underwriters, covering such matters as such counsel and underwriters may reasonably agree upon, including such matters as are customarily furnished in 14 15 connection with an underwritten offering, and (ii) a letter or letters from the independent certified public accountants of CB&I addressed to the underwriters, covering such matters as such accountants and underwriters may reasonably agree upon, in which letter(s) such accountants shall state, without limiting the generality of the foregoing, that they are independent certified public accountants within the meaning of the Securities Act and that in their opinion the financial statements and other financial data of CB&I included in the registration statement, the prospectus(es), or any amendment or supplement thereto, comply in all material respects with the applicable accounting requirements of the Securities Act. Section 3.06 Indemnification; Contribution. (a) By CB&I. To the extent permitted by law, (i) CB&I will indemnify each Selling Holder, each of its officers and directors, and each person controlling such Selling Holder within the meaning of Section 15 of the Securities Act, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages or liabilities (or actions or proceedings in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (except insofar as the same are caused by or contained in any information furnished in writing to CB&I by such Holder expressly for use therein or by such Holder's failure to deliver a copy of the prospectus or any amendments or supplements thereto after CB&I has furnished such Holder with a sufficient number of copies of the same), or any violation by CB&I of the Securities Act or any rule or regulation promulgated under the Securities Act applicable to CB&I in connection with any such registration, qualification or compliance, and (ii) CB&I will reimburse each such Selling Holder, each of its officers, directors, and each person controlling such Selling Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing, settling or defending any such claim, loss, damage, liability or action, provided, in the case of (i) and (ii), any indemnification by CB&I shall be proportionate to reflect the relative fault of CB&I on the one hand, and the Selling Holder on the other, with respect to the statements or omissions which resulted in such expenses, claims, losses, damages, liabilities or action in respect thereof, as well as any other equitable considerations. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by CB&I or the Selling Holder, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission, but not by reference to stock ownership in CB&I. 15 16 (b) By Selling Holders. To the extent permitted by law, each Selling Holder (i) will indemnify CB&I, each of its officers and directors, and each underwriter, if any, of Securities covered by such a registration statement, each person who controls CB&I or such underwriter within the meaning of Section 15 of the Securities Act, and each other Selling Holder, each of its officers and directors, and each person controlling such Selling Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions or proceedings in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any 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 (ii) will reimburse CB&I, such Selling Holders, such officers, directors, partners, legal counsel, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating, settling or defending any such claim, loss, damage, liability or action, but, in the case of (i) and (ii), only to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to CB&I for the acknowledged purpose of inclusion in such registration statement, prospectus or preliminary prospectus. Notwithstanding the foregoing, the liability of each Selling Holder under this subsection (b) shall be limited in an amount equal to the net proceeds of the shares sold by such Selling Holder, unless such liability arises out of or is based on willful misconduct by such Selling Holder. (c) Procedure for Indemnification. Each party indemnified under subsection (a) or (b) of this Section 3.06 (the "Indemnified Party") shall, promptly after receipt of actual notice of any claim or the commencement of any action against such Indemnified Party in respect of which indemnity may be sought, notify the party required to provide indemnification (the "Indemnifying Party") in writing of the claim or the commencement thereof, provided that the failure of the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to an Indemnified Party on account of the indemnity agreement contained in subsection (a) or (b) of this Section 3.06, unless the Indemnifying Party was materially prejudiced by such failure, and in no event shall relieve the Indemnifying Party from any other liability which it may have to such Indemnified Party. If any such claim or action shall be brought against an Indemnified Party, it shall notify the Indemnifying Party thereof and the Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action, the Indemnifying Party shall not be liable (except to the extent the proviso to this sentence is applicable, in which event it will be so liable) to the Indemnified Party under this Section 3.06 for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided that each Indemnified Party shall have the right to employ separate counsel to represent it and assume its defense (in which case, the Indemnifying Party shall not represent it) if (i) upon the advice of counsel, the representation of both parties by the same counsel would be 16 17 inappropriate due to actual or potential differing interests between them, or (ii) in the event the Indemnifying Party has not assumed the defense thereof within 10 days of receipt of notice of such claim or commencement of action, and in which case the fees and expenses of one such separate counsel shall be paid by the Indemnifying Party. The Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one firm for all such Indemnified Parties, unless conflicting interests of the Indemnified Parties make the retention of one firm on behalf of all of them unreasonable. If any Indemnified Party employs such separate counsel it will not enter into any settlement agreement which is not approved by the Indemnifying Party, such approval not to be unreasonably withheld. If the Indemnifying Party so assumes the defense thereof, it may not agree to any settlement of any such claim or action as the result of which any remedy or relief, other than monetary damages for which the Indemnifying Party shall be responsible hereunder, shall be applied to or against the Indemnified Party, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld. In any action hereunder as to which the Indemnifying Party has assumed the defense thereof with counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall continue to be entitled to participate in the defense thereof with counsel of its own choice, but, except as set forth above, the Indemnifying Party shall not be obligated hereunder to reimburse the Indemnified Party for the costs thereof. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with defense of such claim and litigation resulting therefrom. (d) Contribution. If the indemnification provided for in this Section 3.06 shall for any reason be unavailable to an Indemnified Party in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability, or action in respect thereof, in such proportion as shall be appropriate to reflect the relative fault of the Indemnifying Party on the one hand, and the Indemnified Party on the other, with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party on the one hand, or the Indemnified Party on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission, but not by reference to any Indemnified Party's stock ownership in CB&I. In no event, however, shall a Selling Holder be required to contribute in excess of the amount of the net proceeds received by such Selling Holder in connection with the sale of Holders' Securities in the offering which is the subject of such loss, claim, damage or liability. The amount paid or payable by an Indemnified Party as a result of the loss, claim, damage or liability, or action in respect thereof referred to above in this subsection (d) shall be deemed to include, for purposes of this paragraph, any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating, settling or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall 17 18 be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) Conflicts and Controlling Language. Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with an underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. Section 3.07 Participation in Underwritten Registrations. No Person may participate in any registration hereunder which is underwritten unless such Person (a) agrees to sell its Securities on the basis provided in any underwriting arrangements approved by such Person or Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, custody agreements, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. The foregoing notwithstanding, with respect to any of the documents and/or agreements referred to in this Section 3.07, (i) no Selling Holder of Holders' Securities shall be required to make any representations and warranties with respect to or on behalf of CB&I or any other shareholder of CB&I and (ii) the liability of any holder of Holders' Securities shall be limited as provided in Section 3.06(b). Section 3.08 Information by Selling Holder. Selling Holders shall promptly furnish to CB&I such information regarding such Selling Holders as shall be necessary to enable CB&I to comply with the provisions hereof in connection with any registration referred to in this Agreement. Section 3.09 Rule 144 Reporting. At the request of any Selling Holder of Holders' Securities who proposes to sell securities in compliance with Rule 144 of the Commission, CB&I will (i) forthwith furnish to such Selling Holder a written statement of compliance with the filing requirements of the Commission as set forth in Rule 144, as such rule may be amended from time to time and (ii) make available to the public and such holders such information as will enable the Selling Holders of Holders' Securities to make sales pursuant to Rule 144. Section 3.10 Consistent Restrictions on Transfer. CB&I shall be permitted, and it shall not constitute a breach of the terms of this Article III, to impose restrictions on transfer of Holders' Securities under a registration statement consistent with the terms of Article IV hereof. ARTICLE IV TRANSFERS OF HOLDERS' SECURITIES Section 4.01 Restrictions on Transfer. (a) During the term of this Agreement, FRF agrees that it will not, and it will cause each of its Affiliates who acquire Holders' Securities pursuant to Section 4.02(d) of this Agreement not to, (i) Transfer any Holders' Securities, except as permitted by or in accordance 18 19 with this Agreement, or (ii) convert registered shares of Holders' Securities into bearer shares of Holders' Securities or acquire beneficial ownership of bearer shares of Holders' Securities, and the parties hereby agree that notwithstanding the provisions of the Articles of Association, FRF will not request and CB&I will not be bound to honor a request for such conversion. All Holders' Securities will be held in certificated form. (b) Except for Transfers pursuant to Section 4.02, FRF and its Affiliates may not, without the prior written consent of CB&I, transfer any Holders' Securities to any Person who FRF or its Affiliates has reason to believe after reasonable investigation (which shall include receipt of appropriate written representations from the proposed transferee and a review of statements filed with the Commission pursuant to Section 13(d) of the Exchange Act) (i) either has filed a Schedule 13D under the Exchange Act with respect to CB&I or would be required to file a Schedule 13D under the Exchange Act with respect to CB&I due to a change in intent or percentage ownership, (ii) as a result of such Transfer, would beneficially own more than 10% of Voting Securities then outstanding, or (iii) is a Competitor. Section 4.02 Exceptions to Restrictions. Subject to all applicable laws, the restrictions on Transfer set forth in Section 4.01 hereof shall not apply to any of the following: (a) a Transfer of some or all of the Holders' Securities pursuant to a bona fide underwritten public offering; (b) a Transfer of some or all of the Holders' Securities as permitted under Rule 144 of the Securities Act in an unsolicited "broker's transaction" (as defined in Rule 144) on a securities exchange in compliance with the volume limitations of Rule 144 where FRF has no knowledge that the purchaser of such Securities is any of the Persons described in subsections 4.01(b)(i), (ii) or (iii) above; (c) a Transfer of some or all of the Holders' Securities in any Business Combination or Recapitalization which is recommended to shareholders of CB&I by the Supervisory Board; (d) a Transfer of some or all of the Holders' Securities to an Affiliate of FRF, provided that such Affiliate shall agree to the provisions of this Agreement and FRF will remain liable for the performance by such Affiliate of its obligations under this Agreement; (e) a Transfer of some or all of the Holders' Securities in connection with a pledge or hypothecation to a financial institution to secure a bona fide loan; provided, however, that any foreclosure or enforcement of such pledge or hypothecation by the pledgee shall be subject to the procedures set forth in Article V; and (f) a Transfer or Transfers, once per calendar quarter, to any Institutional Investor which, together with its Affiliates as a result of such Transfer, would beneficially own Securities not representing more than 5% of Voting Securities. 19 20 Section 4.03 Other Transfers. In the event that FRF desires to Transfer the Holders' Securities in a manner not specifically permitted under Section 4.02 of this Agreement, FRF may submit a written Notice of Intention to CB&I in accordance with the procedures set forth in Article V. Section 4.04 Improper Transfer. Any attempt to Transfer any shares of Holders' Securities during the term of this Agreement not in accordance with this Agreement will be null and void and CB&I will not give, nor permit the transfer agent of CB&I to give, any effect to such attempted Transfer in its stock records. Section 4.05 Restrictive Legend. (a) A copy of this Agreement will be filed with the Secretary of CB&I and kept with the records of CB&I. All certificates representing shares of Holders' Securities hereafter issued to or acquired by FRF or its Affiliates will bear the following legend noted conspicuously on such certificates: "THE ISSUANCE OF THE SHARES REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE OFFERED, SOLD, TRANSFERRED (BY MERGER OR OTHERWISE), ASSIGNED, DEVISED, EXCHANGED, GIFTED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH TRANSFER IS EXEMPT FROM REGISTRATION, AND CHICAGO BRIDGE & IRON COMPANY N.V. (THE "COMPANY") SHALL HAVE BEEN FURNISHED WITH AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, TO SUCH EFFECT. THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER AS SET FORTH IN THAT CERTAIN SHAREHOLDER AGREEMENT DATED AS OF DECEMBER 28, 2000 BETWEEN THE COMPANY AND FIRST RESERVE FUND VIII, L.P. (THE "SHAREHOLDER AGREEMENT"). NO TRANSFER OF THESE SHARES WILL BE EFFECTIVE UNLESS AND UNTIL THE TERMS AND CONDITIONS OF SUCH SHAREHOLDER AGREEMENT HAVE BEEN COMPLIED WITH IN FULL AND NO PERSON MAY REQUEST THE COMPANY TO RECORD THE TRANSFER OF ANY SHARES IF SUCH TRANSFER IS IN VIOLATION OF SUCH SHAREHOLDER AGREEMENT. A COPY OF THE SHAREHOLDER AGREEMENT IS ON FILE AT THE ADMINISTRATIVE OFFICES OF THE COMPANY IN PLAINFIELD, ILLINOIS AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES UPON WRITTEN REQUEST. THE SHARES 20 21 EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON VOTING PROVIDED FOR IN THE SHAREHOLDER AGREEMENT AND NO VOTE OF SUCH SHARES THAT CONTRAVENES THE SHAREHOLDER AGREEMENT SHALL BE EFFECTIVE." (b) Until such time as the Holders' Securities have been registered pursuant to a registration statement under the Securities Act or sold pursuant to Rule 144 under the Securities Act, the certificates representing the Holders' Securities (including, without limitation, all certificates issued upon Transfer or in exchange thereof or substitution therefor) will also bear any legend required under any other applicable laws, including state securities or blue sky laws. (c) CB&I may make a notation on its records or give stop-transfer instructions to any transfer agents or registrars for the Holders' Securities in order to implement the restrictions set forth in this Article IV. (d) In the event FRF acquires any other or additional Holders' Securities, FRF will submit all certificates representing such Holders' Securities to CB&I so that the legend or legends required by this Section 4.05 may be placed thereon. ARTICLE V RIGHTS OF FIRST OFFER Section 5.01 Sale by FRF. (a) Except for Transfers permitted by Section 4.02, during the term of this Agreement, FRF shall not, and shall cause each of its Affiliates not to, sell any shares of Holders' Securities to any Person until it has first made an offer (the "First Offer") to sell such shares to CB&I in accordance with this Article V and such First Offer shall have been rejected or not accepted within the Applicable Acceptance Period (as hereinafter defined). (b) The First Offer to CB&I shall be set forth in the form of a notice made in writing (the "Notice of Intention") to the Chief Financial Officer (fax (815) 439-6010) or General Counsel (fax (815) 439-6600) of CB&I setting forth (i) FRF's desire to make a sale; (ii) the number of shares of Holders' Securities proposed to be sold (the "Offered Shares"); and (iii) the price (the "Offer Price") and other terms on which the Holders' intend to offer to sell the Offered Shares. (c) Upon receipt of the Notice of Intention, CB&I will have the right to purchase the Offered Shares at the Offer Price, exercisable by the delivery of an acceptance in the form of a notice in writing to FRF by CB&I (the "Notice of Exercise") at any time within one business day from the date of CB&I's receipt of the Notice of Intention (the "Applicable Acceptance Period"). In any case, CB&I will use its best efforts to respond as promptly as possible to any Notice of Intention and, at the request of FRF, may, in its sole discretion, provide advance approval of certain Transfers or a waiver of its rights under this Article V. The right of CB&I to purchase 21 22 the Offered Shares will terminate if such Notice of Exercise is not delivered within the Applicable Acceptable Period or if CB&I sooner notifies FRF that it declines to exercise such right. CB&I may assign its right to purchase the Offered Shares pursuant to a specific Notice of Intention, once received by CB&I, to any Person, but may not otherwise assign its rights under this Article V. (d) In the event that CB&I exercises its right to purchase the Offered Shares in accordance with Section 5.01(c) hereof, then FRF must sell, and CB&I must purchase, the Offered Shares to CB&I at the Offer Price within thirty (30) days from the date of receipt of the Notice of Exercise delivered by CB&I, subject to receipt of any required material third-party or governmental approvals, compliance with applicable laws and the absence of any injunction or similar legal order preventing such transaction. Section 5.02 Purchase of the Offered Shares. In the event CB&I rejects the First Offer or fails to deliver a Notice of Exercise within the Applicable Acceptance Period, then FRF and its Affiliates may sell such Offered Shares at the Offer Price or higher within sixty (60) days after the delivery of such rejection or, in the case of a failure to deliver a Notice of Exercise, within sixty (60) days after the expiration of the Applicable Acceptance Period, subject to the other terms and conditions of this Agreement. If FRF and its Affiliates do not sell all of the Offered Shares during such sixty (60) day period, any unsold Offered Shares shall again become subject to the Right of First Offer contained in this Article V. ARTICLE VI BOARD REPRESENTATION Section 6.01 Supervisory Board Composition. (a) As part of the transactions contemplated by the Purchase Agreement and the First Reserve Deal, pursuant to resolutions adopted by the Supervisory Board and by CB&I shareholders at the December 15, 2000 Shareholders' Meeting, (i) the number of directors comprising the Supervisory Board increased from eight (8) to twelve (12) members and (ii) two (2) FRF director nominees, William E. Macaulay and Ben A. Guill (whom FRF had designated, together with a back-up nominee for each position, prior to the mailing of the CB&I Proxy Statement), were appointed to serve, effective three days after the date hereof, in the classes of Supervisory Board directors expiring in 2001 and 2003, respectively. Directors nominated by FRF pursuant to this Article VI are referred to herein as "FRF Designees," directors nominated by WGI pursuant to the WEDGE Shareholder Agreement are referred to herein as "WGI Designees," and all other directors are referred to herein as "Noninvestor Directors". (b) Beginning with CB&I's 2001 annual general meeting of shareholders and at each shareholders meeting for the appointment of directors thereafter at a time when FRF and its Affiliates and Associates beneficially own at least 3,083,871 shares of Voting Securities (which for this purpose shall exclude derivative Securities), CB&I will cause the Supervisory Board to include as nominees for directors (pursuant to a binding nomination, if permitted by the Articles 22 23 of Association) and to solicit proxies for that number of FRF Designees such that the total number of FRF Designees on the Supervisory Board immediately after such election will be two (2). FRF shall provide the Secretary of CB&I in writing within 10 days after CB&I notifies FRF that CB&I is preparing its proxy statement with (i) the names, (ii) required background information under Regulation 14A of the Exchange Act, Dutch law and the rules of any securities exchange and (iii) such other information regarding such individuals and their affiliations as CB&I may reasonably request, regarding the FRF Designees (and back-up nominees, who shall be designated by FRF and who shall be the second nominee for each position for which the FRF Designees are nominated) for the next election of directors. The nominees for the remaining directors comprising the Supervisory Board, other than any WGI Designees, shall be selected by the Noninvestor Directors (upon recommendation of the CB&I Nominating Committee or otherwise), and FRF and the FRF Designees shall use their best efforts (including voting as shareholders) to cause the election of the slate of directors recommended by the Supervisory Board; provided, however, that FRF and the FRF Designees shall not be so obligated if the FRF Designees are not included in such slate of directors. (c) Each FRF Designee shall have such business or technical experience, stature and character as is commensurate with service on the board of directors of a publicly-held enterprise (any managing director of First Reserve Corporation and current Supervisory Board members shall be deemed to have such qualifications). No FRF Designee who is an officer, director, partner or principal shareholder of a Competitor shall serve as a director of CB&I. (d) In the event that the aggregate beneficial ownership of FRF and its Affiliates and Associates shall be less than 3,083,871 shares of Voting Securities, the number of FRF Designees shall be reduced as follows:
FRF Ownership Number of of Voting Securities FRF Designees -------------------- ------------- Less than 3,083,871 shares, but at least 10% one (1) of Voting Securities outstanding Less than 10% of Voting Securities outstanding 0
If for any period of 30 consecutive days FRF and its Affiliates and Associates beneficially own such number of Voting Securities then outstanding that would entitle them to fewer than the number of FRF Designees that were in office immediately after the last shareholders meeting to appoint directors, at the request of the Supervisory Board, FRF shall use its best efforts to cause the resignation of such number of FRF Designees in excess of the number to which it would be entitled pursuant to this Section 6.01(d). If for any period of 30 consecutive days FRF and its Affiliates and Associates beneficially own in the aggregate less than 10% of the Voting Securities then outstanding, FRF shall not then or thereafter be entitled to designate any nominee to the Supervisory Board. 23 24 (e) So long as FRF and its Affiliates and Associates are entitled to designate at least two (2) FRF Designees, each committee of the Supervisory Board (other than the Nominating Committee or any special committee of Independent Directors constituted for the purposes set forth in the last sentence of this Section 6.01(e)) shall at all times include at least one FRF Designee and no action by any such committee shall be valid unless taken at a meeting for which adequate notice has been duly given to or waived by the members of such committee. The FRF Designee designated by FRF to serve on any committee of the Supervisory Board may designate as his alternate another FRF Designee designated by FRF. The parties hereto agree that the regulations of the Supervisory Board shall provide that a special committee of the Supervisory Board composed entirely of disinterested Independent Directors shall be constituted for the purpose of evaluating (i) any Significant Transaction or (ii) any transaction, issue or matter involving FRF or its Affiliates or Associates, which special committee shall report its conclusions and recommendations to the Supervisory Board as a whole. (f) So long as FRF and its Affiliates and Associates are entitled to designate at least one FRF Designee, FRF shall have a right (i) to receive all notices, reports and other communications sent to CB&I directors at such time as they are transmitted to CB&I directors and to receive reasonable notice, and to have one representative attend, any meeting of the Supervisory Board and the Management Board, (ii) to consult with and advise members of senior management of CB&I, and (iii) upon reasonable notice, to have equivalent access to the books and records of CB&I as that generally afforded to CB&I directors. (g) Notwithstanding anything contained herein, if the FRF Designee(s) are not included as nominees for directors by the Supervisory Board or if the Supervisory Board does not solicit proxies for such FRF Designees at any shareholders meeting as required by the provisions of Section 6.01(b) (whether or not such obligation is enforceable), and the Company shall not have complied with said Section 6.01(b) within 20 days after written notice of such breach is provided by FRF to the Company (or the Company shall have given written notice to FRF during such period that it does not intend to comply), the provisions of Articles II, IV and V of this Agreement shall terminate and be of no further force and effect. Section 6.02 Director Compensation. FRF Designees will be compensated in the same manner as other nominees or directors (including reimbursement of expenses). Section 6.03 Indemnification. Upon the election of any FRF Designee to the Supervisory Board, CB&I shall (a) indemnify and hold harmless (and exculpate) against any and all liabilities and claims against him as a result of his affiliation with CB&I and (b) provide to any FRF Designee liability insurance, in each case of clause (a) and (b) above to the same extent provided or made available to other members of the Supervisory Board. 24 25 ARTICLE VII MISCELLANEOUS Section 7.01 Assignment of Holders' Rights; Third Party Beneficiaries. (a) The rights and obligations of FRF under this Agreement may be assigned or transferred by any Holder to an Assignee, provided that all of the following conditions are satisfied: (i) such assignment is effected in accordance with applicable securities laws and the provisions of this Agreement; (ii) such Assignee agrees in writing to become subject to the terms of this Agreement (provided, however, that such Assignee other than an Affiliate of FRF shall not have the rights of FRF under Article VI hereof unless specifically agreed to by CB&I in writing); and (iii) CB&I is given written notice by such Holder of such assignment, stating the name and address of the Assignee and identifying the Holders' Securities with respect to which such rights are being assigned. (b) Except as provided in Section 7.01(a), this Agreement and the rights of the parties hereunder may not be assigned and shall be binding on and inure to the benefit of the parties hereto and their successors. (c) This Agreement is expressly intended to confer upon the present and future shareholders of CB&I (including Gerald M. Glenn and Timothy J. Wiggins as signatories hereto), as third party beneficiaries, the benefits of all covenants and agreements made by FRF herein with privity to enforce such provisions with all rights and remedies under applicable law, including the right of specific performance and injunctive relief set forth in Section 7.08. Each CB&I shareholder not signatory to this Agreement shall be deemed to have been notified of such intended third party benefit by disclosure thereof in any public filing by CB&I concerning this Agreement and, to the extent acknowledgment of such benefits is required by the law of any jurisdiction, to have acknowledged and accepted such benefits as a third party beneficiary by casting his vote concerning the transactions contemplated by this Agreement and the Purchase Agreement at the Shareholders' Meeting. Section 7.02 Term; Effectiveness. The term of this Agreement will begin (and this Agreement will become effective) upon the date hereof and will continue until the date on which FRF and its Affiliates and Associates no longer beneficially own Securities representing in the aggregate at least ten percent (10%) of the total number of shares of Voting Securities then outstanding; provided, however, that the Holders shall continue to have the rights provided for in Article III of this Agreement as long as they beneficially own in the aggregate at least five percent (5%) of the total number of shares of Voting Securities then outstanding. The provisions of Sections 3.04, 3.06 and 6.03 hereof shall survive the termination of this Agreement. Section 7.03 Entire Agreement; Amendment; Waivers. This Agreement constitutes the entire agreement and understanding between FRF and CB&I and supersedes all prior agreements and understandings, both written and oral, relating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented, and any right hereunder may be waived, if, but only if, that amendment, modification, supplement or waiver is in writing and 25 26 signed by FRF and CB&I and approved by a majority of the members of a special committee of the Supervisory Board of the type referred to in Section 6.01(e) (but shall not require the consent of any third party beneficiaries referred to in Section 7.01(c)). The waiver of any of the terms and conditions hereof shall not be construed or interpreted as, or deemed to be, a waiver of any other term or condition hereof. Section 7.04 Notices. All notices required or permitted hereunder shall be in writing, and shall be deemed to be delivered and received (a) if personally delivered or if delivered by facsimile, telex or courier service, when actually received by the party to whom notice is sent or (b) if delivered by mail (whether actually received or not), at the close of business on the third business day next following the day when placed in the mail, postage prepaid, certified or registered, addressed to the appropriate party or parties, at the address of such party set forth below (or at such other address as such party may designate by written notice to all other parties in accordance herewith): (1) if to CB&I, addressed to it at: Chicago Bridge & Iron Company N.V. c/o Chicago Bridge & Iron Company 1501 North Division Street Plainfield, Illinois 60544 Attn: Chairman of the Supervisory Board Fax: (815) 439-6297 with a copy to: Chicago Bridge & Iron Company N.V. c/o Chicago Bridge & Iron Company 1501 North Division Street Plainfield, Illinois 60544 Attn: Secretary Fax: (815) 439-6600 ; and (2) if to Seller, addressed to it at: First Reserve Corporation 475 Steamboat Road Greenwich, Connecticut 06830 Attn: William E. Macaulay Fax: (203) 661-6729 26 27 with a copy to: First Reserve Corporation 1801 California Street Suite 4110 Denver, Colorado 80202 Attn: Tom Denison Fax: (303) 382-1275 Section 7.05 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY (A) NEW YORK COURT, OR FEDERAL COURT OF THE UNITED STATES OF AMERICA, SITTING IN THE STATE OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, OR (B) DUTCH COURT SITTING IN THE NETHERLANDS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RELATING THERETO, AND EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY (i) AGREES THAT ANY CLAIM IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT (OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT) OR IN SUCH DUTCH COURT, (ii) WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH NEW YORK STATE OR FEDERAL COURT OR IN SUCH DUTCH COURT, AND (iii) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH NEW YORK STATE OR FEDERAL COURT OR IN SUCH DUTCH COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 7.04. Section 7.06 WAIVER OF CERTAIN CLAIMS. NEITHER FRF NOR CB&I SHALL BE ENTITLED TO RECOVER FROM THE OTHER ANY LOSSES, COSTS, EXPENSES OR DAMAGES ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT IN ANY AMOUNT IN EXCESS OF THE ACTUAL COMPENSATORY DAMAGES, COURT OR ARBITRATION COSTS AND REASONABLE ATTORNEY FEES AND EXPENSES, 27 28 SUFFERED BY SUCH PARTY. FRF AND CB&I HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO ASSERT ANY CLAIM FOR INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING IN CONNECTION WITH OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT. THE WAIVER PROVISIONS PROVIDED FOR IN THIS AGREEMENT SHALL BE APPLICABLE WHETHER OR NOT THE LOSSES, COSTS, EXPENSES AND DAMAGES IN QUESTION AROSE SOLELY OR IN PART FROM THE GROSS, ACTIVE, PASSIVE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF ANY PERSON WHICH SEEKS THE BENEFIT OF SUCH PROVISION. FRF AND CB&I ACKNOWLEDGE THAT THIS STATEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND IS CONSPICUOUS. Section 7.07 Exercise of Rights and Remedies. Except as otherwise provided herein, no delay or omission in the exercise of any right, power or remedy accruing to any party hereto as a result of any breach or default hereunder by any other party hereto shall impair any such right, power or remedy, nor shall it be construed, deemed or interpreted as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any waiver of any single breach or default be construed, deemed or interpreted as a waiver of any other breach or default hereunder occurring before or after that waiver. Section 7.08 Specific Performance. Each of the parties hereto recognizes and acknowledges that a breach by a party of any covenants or agreements contained in this Agreement will cause the other party to sustain injury for which it would not have an adequate remedy at law for money damages. Therefore each of the parties hereto agrees that in the event of any such breach, the aggrieved party (including any present or future shareholder of CB&I) shall be entitled to the remedy of specific performance of such covenants and agreements and preliminary and permanent injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity, and the parties hereto further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief. Section 7.09 Conflict with Articles. It is expressly agreed that whether or not the Articles of Association fully incorporate the provisions hereof, or any of them, the parties' rights and obligations shall be governed by this Agreement which shall prevail, to the extent lawful, in the event of any ambiguity or inconsistency between this Agreement and the Articles of Association. Section 7.10 Reformation and Severability. If any provision of this Agreement is invalid, illegal or unenforceable, that provision shall, to the extent possible, be modified in such manner as to be valid, legal and enforceable but so as to most nearly retain the intent of the parties hereto as expressed herein, and if such a modification is not possible, that provision shall be severed from this Agreement, and in either case the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. 28 29 Section 7.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Section 7.12 Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof. Section 7.13 Approval/Recommendation by Supervisory Board. Any references herein to "approval by the Supervisory Board", "recommended by the Supervisory Board" or any similar phrase shall mean any approval or recommendation of the Supervisory Board or any approval or recommendation of any committee or other corporate body, including the shareholders, to which the Supervisory Board expressly delegates or assigns the power to approve or recommend. [signature page follows] 29 30 IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as of the date first written above. FIRST RESERVE FUND VIII, L.P. BY ITS GENERAL PARTNER, FIRST RESERVE GP VIII, L.P. BY ITS GENERAL PARTNER, FIRST RESERVE CORPORATION By: /s/ Thomas R. Denison ---------------------------------------- Title: Managing Director CHICAGO BRIDGE & IRON COMPANY N.V. BY: CHICAGO BRIDGE & IRON COMPANY B.V., ITS MANAGING DIRECTOR By: /s/ Gerald M. Glenn ---------------------------------------- Title: Managing Director GERALD M. GLENN /s/ Gerald M. Glenn ------------------------------------------- CB&I Shareholder TIMOTHY J. WIGGINS /s/ T. Wiggins ------------------------------------------- CB&I Shareholder 31 Annex A 1. Amend the Articles of Association to provide that any transaction involving WGI or First Reserve (or their respective Affiliates) or any Business Combination or Recapitalization otherwise requiring a shareholder vote shall require approval by at least 80% of the Voting Securities then outstanding at a time when any Person (and its Affiliates and Associates) or "group" owns 15% or more of the Voting Securities then outstanding. 2. Amend the Articles of Association to provide that registered shares shall be converted into bearer shares at the written request of a shareholder, unless such conversion has been limited or excluded upon issuance of those shares. 3. Amend the Articles of Association to add the requirement in a transfer of registered shares that the endorsement by the company or its transfer agent be made upon the share certificate and that the share certificate must be delivered to the company or its agent upon transfer; transfers not consistent with this requirement will not be enforceable against the company. 4. Amend the Articles of Association to provide that the Supervisory Board may draw up rules and regulations pertaining to voting, including the nomination of directors, and provisions relating to Board composition and governance, and to give effect to the matters agreed upon in the Shareholder Agreements. EX-99.E 6 d82626ex99-e.txt STOCK PURCHASE AGREEMENT DATED DECEMBER 28, 2000 1 EXHIBIT E STOCK PURCHASE AGREEMENT This STOCK PURCHASE AGREEMENT is dated as of December 28, 2000 between WEDGE Group Incorporated, a Delaware corporation ("Wedge"), Minefa Holdings, B.V., a Netherlands company ("Wedge Affiliate" and, collectively with Wedge, "Transferors") and First Reserve Fund VIII, L.P. (the "Purchaser"). WITNESSETH: WHEREAS, in connection with the Closing of the Purchase Agreement dated July 30, 2000, by and between Wedge, WGI Tyler, Inc., Chicago Bridge & Iron Company N.V. ("CBI") and CB&I Tyler Company with respect to the sale of all of the issued and outstanding Capital Stock of Howe-Baker International L.L.C. (the "HBI Purchase Agreement"), Wedge will acquire 8,146,665 shares of Common Stock, par value NLG .01 per share, of Chicago Bridge & Iron Company N.V. (the "CBI Stock"); WHEREAS, Wedge Affiliate already owns 400,000 of CBI Stock (the "Currently Owned Shares"); WHEREAS, Transferors desire to sell to the Purchaser, and the Purchaser desires to purchase from Transferors, 530,000 shares of CBI Stock from Transferors and desire to enter into this agreement prior to the closing of the transactions contemplated by the HBI Purchase Agreement; WHEREAS, the stock purchase contemplated herein is in addition to the purchases made pursuant to the Stock Purchase Agreement between Wedge, WGI Tyler, Inc. and Purchaser, dated July 30, 2000, as amended (the "Existing Agreement"); NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: SECTION 1. SALE AND PURCHASE OF CBI STOCK. (a) Transferors agree to sell to the Purchaser and the Purchaser agrees to purchase from Transferors on the date hereof, 530,000 shares of CBI Stock. The shares of CBI Stock being acquired under this Agreement are collectively referred to herein as the "Purchased Shares". (b) The purchase price to be paid to the Transferors by the Purchaser for the Purchased Shares shall be $8,612,500 as set forth on Schedule 1 hereto. No further payment shall be required from the Purchaser for the Purchased Shares. SECTION 2. DELIVERIES. (a) As soon as practicable, but no later than January 19, 2001, each of the Transferors will deliver to the Purchaser certificates registered in the Purchaser's name evidencing the Purchased Shares set forth opposite the Transferor's name on Schedule 1 hereto and (ii) on or before January 19, 2001, the Purchaser will deliver to each of the Transferors a certified or official bank checks (or wire transfers) in an amount equal to the 2 purchase price set forth opposite the Transferor's name on Schedule 1 hereto payable to the order of such Transferor in federal or other immediately available (same-day) funds. SECTION 3. DEFINITIONS. The Definitions in the Existing Agreement are hereby incorporated herein by reference to the Existing Agreement as if fully set forth herein. SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS. The Representations and Warranties of Section 4 of the Existing Agreement are hereby incorporated herein by reference to the Existing Agreement as if fully set forth herein and as if made, by and with respect to the Transferors and the Purchased Shares on the date hereof. The Representations and Warranties of Section 4 of the Existing Agreement are true and correct as of the date hereof. SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Representations and Warranties of Section 5 of the Existing Agreement are true and correct as of the date hereof. SECTION 6. ASSIGNMENT OF RIGHTS UNDER THE HBI PURCHASE AGREEMENT. 6.1 Assignment. With respect to the Purchased Shares that are not Currently Owned Shares (such shares herein referred to as the "Additional Shares"), Wedge hereby assigns to the Purchaser all the rights held by Wedge with respect to their purchase of the Additional Shares under the terms of the HBI Purchase Agreement, such rights to be a portion of those of Wedge under the HBI Agreement. These rights with respect to the HBI Purchase Agreement and the Additional Shares shall include, but not be limited to, all rights to indemnification provided in the HBI Purchase Agreement with respect to the purchase of the Additional Shares, any rights relating to the HSR Act (as defined in the HBI Agreement), and all rights for breach of contract, fraud, or other remedies at law or in equity available to Wedge as a result of its entry into the HBI Purchase Agreement and their purchase of the Additional Shares. 6.2 The Covenants of Sections 6.2 through and including 6.4 of the Existing Agreement are hereby incorporated herein by reference to the Existing Agreement as if fully set forth herein. SECTION 7. INTENTIONALLY OMITTED. SECTION 8. INTENTIONALLY OMITTED. SECTION 8A. INTENTIONALLY OMITTED. SECTION 9. INDEMNIFICATION FOR BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS. (a) The Indemnification provisions of Sections 9(a) and (b) of the Existing Agreement are hereby incorporated herein by reference to the Existing Agreement as if fully set forth herein and as if the term "Seller" was replaced with "Transferors" and as if the term "Shares" was replaced with "Purchased Shares". 2 3 (b) The Transferors jointly and severally agree to indemnify and hold the Purchaser harmless from and against and will pay to the Purchaser the full amount of any loss, damage liability or expense (including amounts paid in settlement and reasonable attorney's fees and expenses) to the Purchaser that would have been recoverable by the Purchaser under Section 6 of the Existing Agreement if the Currently Owned Shares were covered by that Section. SECTION 10. AMENDMENTS AND WAIVERS. The terms and provisions of this Agreement may be amended, waived, modified or terminated only with the written consent of the Transferors and the Purchaser. SECTION 11. NOTICES. The notice provisions of Section 11 of the Existing Agreement are hereby incorporated by reference to the Existing Agreement as if fully set forth herein. SECTION 12. MISCELLANEOUS. (a) This Agreement, the Existing Agreement and the Shareholders' Agreements contain the entire agreement between the Purchaser and the Transferors, and supersede any prior oral or written agreements, commitments, terms or understandings, regarding the subject matter hereof. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. (b) The Miscellaneous provisions of Section 12(b) through 12(f) of the Existing Agreement are hereby incorporated herein by reference to the Existing Agreement as if fully set forth herein. (c) Nothing in this agreement is intended to or shall be interpreted to amend the Existing Agreement. 3 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. WEDGE GROUP INCORPORATED By: /s/ James M. Tidwell ------------------------------------- Name: James M. Tidwell Title: Vice President MINEFA HOLDINGS, B.V. By: /s/ Richard E. Blohm, Jr. ------------------------------------- Name: Richard E. Blohm, Jr. Title: Authorized Agent FIRST RESERVE FUND VIII, L.P. By: FIRST RESERVE GP VIII, L.P., its general partner By: FIRST RESERVE CORPORATION, its general partner By: /s/ Thomas R. Denison ---------------------------------- Name: Thomas R. Denison Title: Managing Director [Stock Purchase Agreement Signature Page] 5
Transferor Number of Shares Purchase Price - ---------- ---------------- -------------- WEDGE Group Incorporated 130,000 $2,112,500 Minefa Holdings, B.V. 400,000 $6,500,000
1 EX-99.F 7 d82626ex99-f.txt CONSENT TO TRANSACTION DATED DECEMBER 28, 2000 1 EXHIBIT F CONSENT TO TRANSACTION This CONSENT TO TRANSACTION is dated as of December 28, 2000 by Chicago Bridge & Iron Company N.V. ("CB&I") in connection with the purchase of 530,000 shares of Common Stock, par value NLG .01 per share, of CB&I (the "CB&I Stock") by First Reserve Fund VIII, L.P. ("First Reserve") from WEDGE Group Incorporated and one of its affiliates (collectively, "Wedge"). WITNESSETH: ----------- WHEREAS First Reserve and Wedge propose to enter into a Stock Purchase Agreement dated December 28, 2000 (the "New Agreement") pursuant to which First Reserve will acquire 530,000 shares of CB&I Stock (the "CB&I Shares") from Wedge; WHEREAS, in order to induce First Reserve and Wedge to enter into the New Agreement, CB&I is providing this Consent; NOW, THEREFORE, in consideration for and as an inducement for First Reserve and Wedge entering into the New Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, CB&I agrees as follows: 1. Issuance of Warrant. Upon delivery of the payment for the purchase of the CB&I Shares, CB&I shall issue and deliver to First Reserve a warrant representing the right to purchase 149,305 shares of CB&I Stock at an exercise price of .01 NLG per share (the "Warrant"). The Warrant will be exercisable for a period of three years and will contain standard anti-dilution provisions. If the receipt of the Warrant by First Reserve is determined to not be taxable to First Reserve for federal and state income tax purposes to the reasonable satisfaction of First Reserve and its tax advisors after consultation with the tax advisors of the Company, then the Warrant shall be issued as a right to purchase 82,118 shares of Common Stock instead of 149,305 shares of Common Stock. 2. Consent to New Agreement. CB&I's Supervisory Board has, and CB&I hereby does, consent to the New Agreement and waives any restrictions in the Shareholder Agreements with Wedge and First Reserve dated December 28, 2000, that might restrict either (i) Wedge or First Reserve's ability to enter into or consummate the transactions contemplated by the New Agreement or (ii) First Reserve's ability to receive or exercise the Warrant. CB&I hereby consents to the assignment by Wedge of its rights with respect to the CB&I Shares that were purchased by WEDGE Group Incorporated under the Purchase Agreement dated as of July 30, 2000 by and between Wedge Group Incorporated, WGI Tyler, Inc., CB&I and CB&I Tyler Company with respect to the Sale of Howe-Baker International, L.L.C. 2 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. CHICAGO BRIDGE & IRON COMPANY N.V. By: CHICAGO BRIDGE & IRON COMPANY B.V., its Managing Director By: /s/ Gerald M. Glenn ------------------------------------- Name: Gerald M. Glenn Title: Managing Director [Signature Page to Consent to Transaction] 2 -----END PRIVACY-ENHANCED MESSAGE-----