-----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, NPCBK6VTCLR1R94qaeLI5Mc8RHEUvSXOHi7ow+8RRBrRTyotdNsUfMMFDl8teeH9 L4Da7gDot0LSa8L+uET5CQ== 0001035704-01-000071.txt : 20010213 0001035704-01-000071.hdr.sgml : 20010213 ACCESSION NUMBER: 0001035704-01-000071 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20010212 GROUP MEMBERS: FIRST RESERVE CORP /CT/ /ADV GROUP MEMBERS: FIRST RESERVE FUND VIII, L.P. GROUP MEMBERS: FIRST RESERVE GP VIII, L.P. 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/A SEC ACT: SEC FILE NUMBER: 005-52337 FILM NUMBER: 1534610 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/A 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/A 1 d83954asc13da.txt AMENDMENT NO. 1 TO FORM 13D (CHICAGO BDGE & IRON) 1 SCHEDULE 13D/A (Rule 13d-101) SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Under the Securities Exchange Act of 1934 Amendment No. 1 --- 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) February 7, 2001 ---------------------------------------------------------------------------------------------------------------- (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 SCHEDULE 13D CUSIP NO. N19808109 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 - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES 0 BENEFICIALLY ----------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH REPORTING 6,810,895 PERSON ----------------------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 6,810,895 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,810,895 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 29.11% - -------------------------------------------------------------------------------- 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 SCHEDULE 13D CUSIP NO. N19808109 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 - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES 0 BENEFICIALLY ----------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH REPORTING 6,810,895 PERSON ----------------------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 6,810,895 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,810,895 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 29.11% - -------------------------------------------------------------------------------- 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 SCHEDULE 13D CUSIP NO. N19808109 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 - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF SHARES 0 BENEFICIALLY ----------------------------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH REPORTING 6,810,895 PERSON ----------------------------------------------------------------- WITH 9 SOLE DISPOSITIVE POWER 0 ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 6,810,895 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,810,895 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 29.11% - -------------------------------------------------------------------------------- 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 This Amendment No. 1 to the statement on Schedule 13D (the "Statement"), originally filed on January 8, 2001, is filed by First Reserve Fund VIII, L.P. ("Fund VIII"), First Reserve GP VIII, L.P. ("GP VIII"), and First Reserve Corporation ("First Reserve," and together with the Funds, the "Reporting Persons") and relates to the Common Stock, par value NLG 0.01 per share (the "Common Stock"), of Chicago Bridge & Iron Company N.V., a Company organized under the laws of the Netherlands (the "Issuer" or "CB&I"). That Schedule 13D is hereby amended as set forth below. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby deleted in its entirety and replaced with the following: On December 28, 2000, Wedge Group Incorporated, a Delaware corporation, and WGI 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 82,118 shares of Common Stock at an exercise price of NLG .01 per share, which warrant was granted to Fund VIII on February 6, 2001. On February 7, 2001, the Reporting Persons purchased 1,623,846 shares of Common Stock from the Issuer to fund the purchase by the Issuer of certain assets of Pitt-Des Moines, Inc. (the "PDM Acquisition"). In addition, the issuer granted to Fund VIII (i) a warrant to purchase 251,598 shares of Common Stock (the "Purchase Warrant") at an exercise price of NLG .01 per share and (iii) a warrant to purchase up to 250,000 shares of Common Stock (the "Additional Warrant") (the "PDM Funding Purchase"). The terms of the Additional Warrant are described under Item 6. Collectively, the Reporting Persons have acquired 6,447,179 shares of Common Stock and beneficially own the stock underlying warrants to acquire an additional 333,716 shares of Common Stock, which shares represent beneficial ownership of approximately 29.11 percent of the Common Stock. All shares of Common Stock acquired by the Reporting Persons were acquired for investment purposes. 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, subject to 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, as amended on February 7, 2001 to permit the PDM Funding Purchase (the "Shareholder Agreement"). Following the Fund VIII Purchase, two officers of First Reserve, William F. Macaulay and Ben A Guill, began 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. 5 6 The Reporting Persons intend to review on a continuing basis their investment in the Issuer and may purchase or dispose of additional shares, on the open market or otherwise. Any purchases would depend on various factors, including 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; or (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 7,060,895 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 shares, the Reporting Persons will consider proposals from the Company relating to additional purchases by Fund VIII. Any dispositions would depend on various factors, including 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. Item 5 is hereby deleted in its entirety and replaced with the following: As of February 7, 2001, the Reporting Persons beneficially owned an aggregate of 6,810,895 shares of Common Stock, constituting approximately 29.11% of the Common Stock based on 23,386,726 shares of Common Stock outstanding as of February 7, 2001 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: 6 7
REPORTING PARTY NUMBER OF SHARES PERCENTAGE OF CLASS BENEFICIALLY OWNED Fund VIII 6,810,895 29.11% GP VIII (1) 6,810,895 29.11% First Reserve (1) 6,810,895 29.11%
(1) Consists of 6,447,179 shares of Common Stock held directly by Fund VIII and warrants to purchase 333,716 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:
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 $16.25 Common Purchased Fund VIII 12/28/2000 82,118 NLG .01 Warrant Granted(1) Fund VIII 2/7/2001 1,623,846 $16.25 Common Purchased Fund VIII 2/7/2001 251,598 NLG .01 Warrant Granted Fund VIII 2/7/2001 (2) (2) Warrant Granted
(1) On December 28, 2000, the Issuer agreed to grant to Fund VIII the warrant to purchase 82,118 shares of Common Stock as agreed to in connection with Fund VIII's purchase of 530,000 shares. The Issuer issued the warrant on February 6, 2001. (2) The Additional Warrant, as further described in Item 6, is exercisable for the number of shares, if any equal to 250,000 less the product of 250,000 times the quotient of (a) the number of shares of the 2,848,172 shares of Common Stock that were issued by the Issuer to PDM in connection with the PDM Acquisition and that are repurchased by the Issuer between the closing of the PDM Acquisition and June 30, 2001 (excluding any shares that are reissued or shares repurchased with the proceeds of an issuance of other shares), divided by (b) 1,457,726. The exercise price per share for the shares subject to the Additional Warrant will be the average of the closing prices of the Common Stock of the Company on the New York Stock Exchange over the five trading days ending on May 31, 2001. 7 8 (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. Item 6 is hereby deleted in its entirety and replaced with the following: JOINT FILING AGREEMENT A Joint Filing Agreement dated January 8, 2001, by and between Fund VIII, GP VIII, and First Reserve has been executed by the Reporting Persons, a copy of which was attached to the Statement as Exhibit A and incorporated herein by reference. INITIAL 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 the Statement 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. Standstill Provisions. The Shareholder Agreement contains so-called "standstill" provisions that, 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), except that in an "Opposed Transaction" (as hereinafter defined) Fund VIII may vote the 1,875,444 shares it acquired in the PDM Funding Purchase and 8 9 the any shares it acquires in connection with the Additional Warrant in the same proportion as the "General Shareholders" (as hereinafter defined). Under the terms of the Shareholder Agreement, as amended in connection with the PDM Acquisition, an "Opposed Transaction" means any business combination, recapitalization or other transaction involving the issuance of the Issuer's stock that both of the Fund VIII designees then serving on the Supervisory Board have voted against at the Supervisory Board level, and "General Shareholders" means the shareholders of CB&I other than the Reporting Persons and Wedge and their respective affiliates and associates. Fund VIII may 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. 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 must 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 be released from the standstill provisions, restrictions on transfer and right of first offer requirements of the Shareholder Agreement. 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 that would have a disproportionate material 9 10 and adverse effect on Fund VIII compared to the Issuer's other shareholders that are not contemplated by the Shareholder Agreement. In connection with the PDM Acquisition, the Issuer and Fund VIII entered into an amendment to the Shareholder Agreement (the "Amendment"). Among other things, the Amendment provides that in the case of an Opposed Transaction, Fund VIII may vote its 1,875,444 shares acquired in connection with the PDM Acquisition and any shares it acquires pursuant to the Additional Warrant in the same proportion as the votes of the General Shareholders who vote on the Opposed Transaction. The Amendment 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 hereto and is incorporated by reference herein. 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 Securities Exchange Act of 1934, (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) a bona fide underwritten public offering, (ii) 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) a business combination or recapitalization transaction recommended by the Supervisory Board, (iv) a transfer 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 that, together with its affiliates, would beneficially own no more than 5% of the Issuer's voting securities outstanding after giving effect to such transfer(s). 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 of 1933; provided that the Issuer is required to effect no more than two 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 S-8 or S-4), 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. 10 11 Duration. The Shareholder Agreement will remain in effect so long as Fund VIII continues to own 10% or more of the outstanding voting securities of the Issuer, except that the registration rights shall continue as long as Fund VIII continues to own 5% or more of the outstanding voting securities of the Issuer. 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 and the Amendment, which are both filed as exhibits to this Schedule 13D and are incorporated by reference herein. ADDITIONAL WARRANT In connection with the PDM Funding Purchase, the Issuer granted to Fund VIII a warrant to purchase additional shares of Common Stock. The number of shares subject to the warrant, if any, will be 250,000 less the product of 250,000 times the quotient of (a) the number of shares of the 2,848,172 shares of Common Stock that were issued by the Issuer to PDM in connection with the PDM Acquisition and that are repurchased by the Issuer between the closing of the PDM Acquisition and June 30, 2001 (excluding any shares that are reissued or shares repurchased with the proceeds of an issuance of other shares), divided by (b) 1,457,726. The number of shares repurchased shall be adjusted for any stock splits, stock dividends or similar transactions between the date of the issuance of the Additional Warrant and July 1, 2001. The exercise price per share for the shares subject to the Additional Warrant will be the average of the closing prices of the Common Stock of the Company on the New York Stock Exchange over the five trading days ending on May 31, 2001. The Additional Warrant contains other terms and conditions. The foregoing description of such warrant is qualified in its entirety by reference to the text of such warrant, which is filed as an exhibit hereto and is incorporated by reference herein. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. The following item is hereby added to the documents filed as Exhibits: Exhibit 99(G) Warrant to Purchase Common Stock issued to First Reserve Fund VIII, L.P. on February 6, 2001. Exhibit 99(H) Amendment to Shareholder Agreement dated February 7, 2001, by and among First Reserve Fund VIII, L.P., Chicago Bridge & Iron Company N.V. and certain shareholders of Chicago Bridge & Iron Company N.V. Exhibit 99(I) Stock Purchase Agreement, dated as of February 7, 2001, by and between Chicago Bridge & Iron Company N.V. and First Reserve Fund VIII, L.P. in connection with the funding of the purchase of certain assets of Pitt-Des Moines, Inc. by Chicago Bridge & Iron Company N.V. 11 12 Exhibit 99(J) Purchase Warrant to Purchase Common Stock granted to First Reserve Fund VIII, L.P. on February 7, 2001. Exhibit 99(K) Additional Warrant to Purchase Common Stock granted to First Reserve Fund VIII, L.P. on February 7, 2001. 12 13 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: February 12, 2001. 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 14 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - ------- ----------- 99(G) Warrant to Purchase Common Stock issued to First Reserve Fund VIII, L.P. on February 6, 2001. 99(H) Amendment to Shareholder Agreement dated February 7, 2001, by and among First Reserve Fund VIII, L.P., Chicago Bridge & Iron Company N.V. and certain shareholders of Chicago Bridge & Iron Company N.V. 99(I) Stock Purchase Agreement, dated as of February 7, 2001, by and between Chicago Bridge & Iron Company N.V. and First Reserve Fund VIII, L.P. in connection with the funding of the purchase of certain assets of Pitt-Des Moines, Inc. by Chicago Bridge & Iron Company N.V. 99(J) Purchase Warrant to Purchase Common Stock granted to First Reserve Fund VIII, L.P. on February 7, 2001. 99(K) Additional Warrant to Purchase Common Stock granted to First Reserve Fund VIII, L.P. on February 7, 2001. EX-99.(G) 2 d83954aex99-g.txt WARRANT TO PURCHASE STOCK 1 EXHIBIT 99(G) WARRANT THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH WARRANT OR 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 WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, 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., AS AMENDED (THE "SHAREHOLDER AGREEMENT"). NO TRANSFER OF THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, 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 EVIDENCE 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 WARRANT TO PURCHASE COMMON STOCK OF CHICAGO BRIDGE & IRON COMPANY N.V. FEBRUARY 6, 2001 THIS CERTIFIES THAT, for value received, First Reserve Fund VIII, L.P., or its permitted registered assigns ("Holder"), is entitled, subject to the terms and conditions of this Warrant, at any time or from time to time after the issuance date of this Warrant (the "Effective Date"), and before 5:00 p.m. Eastern Time on the third anniversary of the Effective Date (the "Expiration Date"), to purchase from Chicago Bridge & Iron Company N.V., a company organized under the laws of the Netherlands (the "Company"), Eighty Two Thousand, One Hundred Eighteen (82,118) shares of Common Stock, par value NLG .01, of the Company (the "Common Stock") at a price per share of NLG .01 (the "Purchase Price"). Both the number of shares of Common 1 2 Stock purchasable upon exercise of this Warrant and the Purchase Price are subject to adjustment and change as provided herein. 1. CERTAIN DEFINITIONS. As used in this Warrant the following terms shall have the following respective meanings: 1.1. "Fair Market Value" of a share of Common Stock as of a particular date shall mean: (a) If traded on a securities exchange or the Nasdaq National Market, the Fair Market Value shall be deemed to be the average of the closing prices of the Common Stock of the Company on such exchange or market over the five (5) trading days ending immediately prior to the applicable date of valuation; If actively traded over-the-counter, the Fair Market Value shall be deemed to be the average of the closing bid prices over the thirty (30)-day period ending immediately prior to the applicable date of valuation; and If there is no active public market, the Fair Market Value shall be the value thereof, as agreed upon by the Company and the Holder; provided, however, that if the Company and the Holder cannot agree on such value, such value shall be determined by an independent valuation firm experienced in valuing businesses such as the Company and jointly selected in good faith by the Company and the Holder. Fees and expenses of the valuation firm shall be paid for by the Company. 1.2. "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. 1.3. "Registered Holder" shall mean any Holder in whose name this Warrant is registered upon the books and records maintained by the Company. 1.4. "Shareholder Agreement" shall mean the Shareholder agreement between First Reserve Fund VIII, L.P. and the Company dated December 28, 2000. 1.5. "Warrant" as used herein, shall include this Warrant and any warrant delivered in substitution or exchange therefor as provided herein. 1.6. "Common Stock" shall mean the registered ordinary shares not convertible in bearer shares of the Company and any other securities at any time receivable or issuable upon exercise of this Warrant. 2. EXERCISE OF WARRANT 2.1. Payment. Subject to compliance with the terms and conditions of this Warrant and applicable securities laws, this Warrant may be exercised, in whole or in part 2 3 at any time or from time to time, on or before the Expiration Date by the delivery (including, without limitation, delivery by facsimile) of the form of Notice of Exercise attached hereto as Exhibit 1 (the "Notice of Exercise"), duly executed by the Holder, at the principal office of the Company, and as soon as practicable after such date, surrendering (a) this Warrant at the principal office of the Company, and (b) payment (i) in cash (by check) or by wire transfer; (ii) by cancellation by the Holder of indebtedness of the Company to the Holder; or (iii) by a combination of (i) and (ii), of an amount equal to the product obtained by multiplying the number of shares of Common Stock being purchased upon such exercise by the then effective Purchase Price (the "Exercise Amount"), except that if Holder is subject to HSR Act Restrictions (as defined in Section 2.5 below), the Exercise Amount shall be paid to the Company within five (5) business days of the termination of all HSR Act Restrictions. 2.2. Net Issue Exercise. In lieu of the payment methods set forth in Section 2.1(b) above, the Holder may elect to exchange all or some of this Warrant for shares of Common Stock equal to the value of the amount of the Warrant being exchanged on the date of exchange. If Holder elects to exchange this Warrant as provided in this Section 2.2, Holder shall tender to the Company the Warrant for the amount being exchanged, along with written notice of Holder's election to exchange some or all of the Warrant, and the Company shall issue to Holder the number of shares of the Common Stock computed using the following formula: X = Y (A-B) ------- A Where X = the number of shares of Common Stock to be issued to Holder. Y = the number of shares of Common Stock purchasable under the amount of the Warrant being exchanged (as adjusted to the date of such calculation). A = the Fair Market Value of one share of the Common Stock. B = the Purchase Price (as adjusted to the date of such calculation). 2.3. Stock Certificates; Fractional Shares. As soon as practicable on or after the date of any exercise of this Warrant, the Company shall issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of whole shares of Common Stock issuable upon such exercise, together with cash in lieu of any fraction of a share equal to such fraction of the current Fair Market 3 4 Value of one whole share of Common Stock as of such date of exercise. No fractional shares or scrip representing fractional shares shall be issued upon an exercise of this Warrant. 2.4. HSR Act. The Company hereby acknowledges that exercise of this Warrant by Holder may subject the Company and/or the Holder to the filing requirements of the HSR Act and that Holder may be prevented from exercising this Warrant until the expiration or early termination of all waiting periods imposed by the HSR Act ("HSR Act Restrictions"). If on or before the Expiration Date Holder has sent the Notice of Exercise to Company and Holder has not been able to complete the exercise of this Warrant prior to the Expiration Date because of HSR Act Restrictions, the Holder shall be entitled to complete the process of exercising this Warrant in accordance with the procedures contained herein notwithstanding the fact that completion of the exercise of this Warrant would take place after the Expiration Date. 2.5. Partial Exercise; Effective Date of Exercise. In case of any partial exercise of this Warrant, the Company shall cancel this Warrant upon surrender hereof and shall execute and deliver a new Warrant of like tenor and date for the balance of the shares of Common Stock purchasable hereunder. This Warrant shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above. However, if Holder is subject to HSR Act filing requirements this Warrant shall be deemed to have been exercised on the date immediately following the date of the expiration of all HSR Act Restrictions. The person entitled to receive the shares of Common Stock issuable upon exercise of this Warrant shall be treated for all purposes as the holder of record of such shares as of the close of business on the date the Holder is deemed to have exercised this Warrant. 3. VALID ISSUANCE: TAXES. All shares of Common Stock issued upon the exercise of this Warrant shall be validly issued, fully paid and non-assessable, and the Company shall pay all taxes and other governmental charges that may be imposed in respect of the issue or delivery thereof. The Company shall not be required to pay any tax or other charge imposed in connection with any transfer involved in the issuance of any certificate for shares of Common Stock in any name other than that of the Registered Holder of this Warrant, and in such case the Company shall not be required to issue or deliver any stock certificate or security until such tax or other charge has been paid, or it has been established to the Company's reasonable satisfaction that no tax or other charge is due. 4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities or property receivable or issuable upon exercise of this Warrant) and the Purchase Price are subject to adjustment upon occurrence of the following events: 4 5 4.1. Adjustment for Stock Splits, Stock Subdivisions or Combinations of Shares. The Purchase Price of this Warrant shall be proportionally decreased and the number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities at the time issuable upon exercise of this Warrant) shall be proportionally increased to reflect any stock split or subdivision of the Company's Common Stock. The Purchase Price of this Warrant shall be proportionally increased and the number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities at the time issuable upon exercise of this Warrant) shall be proportionally decreased to reflect any combination of the Company's Common Stock. 4.2. Adjustment for Dividends or Distributions of Stock or Other Securities or Property. In case the Company shall make or issue, or shall fix a record date for the determination of eligible holders entitled to receive, a dividend or other distribution with respect to the Common Stock (or any shares of stock or other securities at the time issuable upon exercise of the Warrant) payable in (a) securities of the Company or (b) assets (including cash dividends paid or payable solely out of retained earnings), then, in each such case, the Holder of this Warrant on exercise hereof at any time after the consummation, effective date or record date of such dividend or other distribution, shall receive, in addition to the shares of Common Stock (or such other stock or securities) issuable on such exercise prior to such date, and without the payment of additional consideration therefor, the securities or such other assets of the Company to which such Holder would have been entitled upon such date if such Holder had exercised this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and all such additional securities or other assets distributed with respect to such shares as aforesaid during such period giving effect to all adjustments called for by this Section 4. 4.3. Reclassification. If the Company, by reclassification of securities or otherwise, shall change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Warrant immediately prior to such reclassification or other change, and the Purchase Price therefor shall be appropriately adjusted, all subject to further adjustment as provided in this Section 4. No adjustment shall be made pursuant to this Section 4.3 upon any conversion or redemption of the Common Stock which is the subject of Section 4.5. 4.4. Adjustment for Capital Reorganization, Merger or Consolidation. In case of any capital reorganization of the capital stock of the Company (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), or any merger or consolidation of the Company with or into 5 6 another corporation, or the sale of all or substantially all the assets of the Company then, and in each such case, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that the Holder of this Warrant shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Purchase Price then in effect, the number of shares of stock or other securities or property of the successor corporation resulting from such reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Warrant had been exercised immediately before such reorganization, merger, consolidation, sale or transfer, all subject to further adjustment as provided in this Section 4. The foregoing provisions of this Section 4.4 shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock or securities of any other corporation that are at the time receivable upon the exercise of this Warrant. If the per-share consideration payable to the Holder hereof for shares in connection with any such transaction is in a form other than cash or marketable securities, then the value of such consideration shall be determined in good faith by the Company's Supervisory Board of Directors. In all events, appropriate adjustment (as determined in good faith by the Company's Board of Directors) shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Holder after the transaction, to the end that the provisions of this Warrant shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant. 4.5. Conversion of Common Stock. In case all or any portion of the authorized and outstanding shares of Common Stock of the Company are redeemed or converted or reclassified into other securities or property pursuant to the Company's Certificate of Incorporation or otherwise, or the Common Stock otherwise ceases to exist, then, in such case, the Holder of this Warrant, upon exercise hereof at any time after the date on which the Common Stock is so redeemed or converted, reclassified or ceases to exist (the "Termination Date"), shall receive, in lieu of the number of shares of Common Stock that would have been issuable upon such exercise immediately prior to the Termination Date, the securities or property that would have been received if this Warrant had been exercised in full and the Common Stock received thereupon had been simultaneously converted immediately prior to the Termination Date, all subject to further adjustment as provided in this Warrant. 4.6. Adjustment for Issuance of Additional Shares of Common Stock. This Section 4.6 shall not apply to the issuance of shares of Common Stock upon an issuance by the Company of options exercisable for the purchase of that number of shares of Common Stock under the Company's existing option plans to existing and future officers, employees, outside directors, consultant, vendors and advisors of the Company, and the subsequent exercise of any such options (collectively, the 6 7 "Exempted Issuances"). Upon issuance by the Company of Common Stock, or any right or option to Common Stock or other stock convertible into Common Stock, or any obligation or any share of stock convertible into or exchangeable for Common Stock for a price per share that is less than the Fair Market Value on the date of such issuance or sale, other than Exempted Issuances (a "Triggering Issuance"), then forthwith upon such issuance or sale the Warrant Price in effect immediately prior to such issuance and the number of shares of Common Stock for which the Warrant is exercisable will be adjusted as follows: (a) Adjustment to Number of Shares of Common Stock for Which Warrant is Exercisable. The number of shares of Common Stock for which this Warrant is exercisable shall be adjusted to equal the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such issue or sale, multiplied by a fraction, (i) the numerator of which is the number of shares of Common Stock outstanding immediately prior to the Triggering Issuance plus the number of shares of Common Stock issued in the Triggering Issuance, and (ii) the denominator of which is the number of shares of Common Stock outstanding immediately prior to the Triggering Issuance plus the number of shares which the aggregate amount of consideration, if any, received by CB&I upon the Triggering Issuance of all such shares of Common Stock would purchase at the Fair Market Value as of such time. (b) Adjustment to the Purchase Price. The Purchase Price shall be adjusted to equal the Purchase Price immediately prior to the Triggering Issuance multiplied by the quotient obtained by dividing the number of shares of Common Stock for which this Warrant was exercisable immediately prior to the adjustment under (a) above by the number of shares of Common Stock for which this warrant is exercisable immediately after the adjustment under (a) above. 5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in the Purchase Price, or number or type of shares issuable upon exercise of this Warrant, the Chief Financial Officer or Controller of the Company shall compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, including a statement of the adjusted Purchase Price. The Company shall promptly send (by facsimile and by either first class mail, postage prepaid or overnight delivery) a copy of each such certificate to the Holder. 6. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory to the Company of the ownership of and the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to it, and (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company will execute and deliver in lieu thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated Warrant. 7 8 7. RESERVATION OF COMMON STOCK. The Company hereby covenants that at all times there shall be reserved for issuance and delivery upon exercise of this Warrant such number of shares of Common Stock or other shares of capital stock of the Company as are from time to time issuable upon exercise of this Warrant and, from time to time, will take all steps necessary to amend its Articles of Association to increase its authorized capital in order to allow the issue of Common Stock upon exercise of this Warrant. All such shares shall be duly authorized, and when issued upon such exercise, shall be validly issued, fully paid and non-assessable, free and clear of all liens, security interests, charges and other encumbrances or restrictions on sale and free and clear of all preemptive rights, except encumbrances or restrictions arising under federal or state securities laws. Issuance of this Warrant shall constitute full authority to the Company's officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock upon the exercise of this Warrant. 8. TRANSFER AND EXCHANGE. Subject to the terms and conditions of this Warrant and compliance with all applicable securities laws, this Warrant and all rights hereunder may be transferred to any Registered Holder's affiliate, in whole or in part, on the books of the Company maintained for such purpose at the principal office of the Company referred to above, by the Registered Holder hereof in person, or by duly authorized attorney, upon execution of a form of assignment in the form of Exhibit 2, notification of the Company thereof, and surrender of this Warrant properly endorsed and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any permitted partial transfer, the Company will issue and deliver to the Registered Holder a new Warrant or Warrants with respect to the shares of Common Stock not so transferred. Each taker and holder of this Warrant, by taking or holding the same, consents and agrees that when this Warrant shall have been so endorsed, the person in possession of this Warrant may be treated by the Company, and all other persons dealing with this Warrant, as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding; provided, however that until a transfer of this Warrant is duly registered on the books of the Company, the Company may treat the Registered Holder hereof as the owner for all purposes. 9. RESTRICTIONS ON TRANSFER. The Holder, by acceptance hereof, agrees that, absent an effective registration statement filed with the Securities and Exchange Commission (the "SEC") under the Securities Act covering the disposition or sale of this Warrant or the Common Stock issued or issuable upon exercise hereof, as the case may be, and registration or qualification under applicable state securities laws, such Holder will not sell, transfer, pledge, or hypothecate any or all such Warrants or such Common Stock, as the case may be, unless such transfer is made in accordance with the provisions of the Shareholder Agreement and either (i) the Company has received an opinion of counsel, in form and substance reasonably satisfactory to the Company, to the effect that such registration is not required in connection with such disposition or (ii) the sale of such securities is made pursuant to SEC Rule 144. 8 9 10. COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant, the Holder hereby represents, warrants and covenants that any shares of stock purchased upon exercise of this Warrant shall be acquired for investment only and not with a view to, or for sale in connection with, any distribution thereof; that the Holder has had such opportunity as such Holder has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Holder to evaluate the merits and risks of its investment in the Company; that the Holder is able to bear the economic risk of holding such shares as may be acquired pursuant to the exercise of this Warrant for an indefinite period; that the Holder understands that the shares of stock acquired pursuant to the exercise of this Warrant will not be registered under the 1933 Act (unless otherwise required pursuant to exercise by the Holder of the registration rights, if any, granted to the Registered Holder) and will be "restricted securities" within the meaning of Rule 144 under the 1933 Act and that the exemption from registration under Rule 144 will not be available for at least one (1) year from the date of exercise of this Warrant, subject to any special treatment by the SEC for exercise of this Warrant pursuant to Section 2.2, and even then will not be available unless a public market then exists for the stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and that all stock certificates representing shares of stock issued to the Holder upon exercise of this Warrant or upon conversion of such shares may have affixed thereto a legend substantially in the following form: "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., AS AMENDED (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 9 10 SHARES UPON WRITTEN REQUEST. THE SHARES 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. 11. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS. This Warrant shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company. In the absence of affirmative action by such Holder to purchase Common Stock by exercise of this Warrant, no provisions of this Warrant, and no enumeration herein of the rights or privileges of the Holder hereof shall cause such Holder hereof to be a stockholder of the Company for any purpose. 12. REGISTRATION RIGHTS. All shares of Common Stock issuable upon exercise of this Warrant shall be "Holders' Securities" or such other definition of securities entitled to registration rights pursuant to the Shareholder Agreement and are otherwise subject to the restrictions of the Shareholder Agreement. 13. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to Holder that: 13.1. Due Authorization; Consents. All corporate action on the part of the Company, its officers, directors and shareholders necessary for (a) the authorization, execution and delivery of, and the performance of all obligations of the Company under, this Warrant, and (b) the authorization, issuance, reservation for issuance and delivery of all of the Common Stock issuable upon exercise of this Warrant, has been duly taken. This Warrant constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, moratorium, reorganization and similar laws affecting creditors' rights generally and to general equitable principles. All consents, approvals and authorizations of, and registrations, qualifications and filings with, any federal or state governmental agency, authority or body, or any third party, required in connection with the execution, delivery and performance of this Warrant and the consummation of the transactions contemplated hereby and thereby have been obtained. 13.2. Organization. The Company is a corporation duly organized and validly existing under the laws of the Netherlands and has all requisite corporate power to own, lease and operate its property and to carry on its business as now being conducted and as currently proposed to be conducted. 13.3. SEC Reports; Financial Statements. (a) The Company has duly filed with the SEC the Company's annual report on Form 10-K for the year ended December 31, 1999 and its quarterly reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000 (collectively, the "CB&I SEC Reports"). As of their 10 11 respective filing dates, the CB&I SEC Reports complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent corrected by a subsequently filed document with the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes) contained in the CB&I SEC Reports complied as to form in all material respects with the applicable published rules and regulations of the SEC with respect thereto, was prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted for by Form 10-Q) and presented fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as at the respective dates and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements are subject to normal and recurring year-end adjustments which are not expected to be material in amount. 13.4. Capitalization. The authorized capital stock of the Company consists of 35,000,000 shares of Common Stock. As of December 28, 2000: (i) 17,720,350 shares of Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable; (ii) 4,181,755 shares of Common Stock were reserved for issuance under the Company's stock option plans, 1,557,813 of which shares were subject to options outstanding on such date; (iii) 250,000 shares of Common Stock were reserved for issuance under the Company's employee stock purchase plan; (iv) 82,118 shares of Common Stock were reserved for issuance upon exercise of outstanding warrants; and (v) no shares of Preferred Stock were issued and outstanding. No material change in such capitalization has occurred between December 28, 2000 and the issuance date of this Warrant. 13.5. Valid Issuance of Stock. The outstanding shares of the capital stock of the Company are duly and validly issued, fully paid and non-assessable, and such shares, and all outstanding options and other securities of the Company, have been issued in full compliance with the registration and prospectus delivery requirements of the Securities Act and the registration and qualification requirements of all applicable state securities laws, or in compliance with applicable exemptions therefrom, and all other provisions of applicable federal and state securities laws, including without limitation, anti-fraud provisions. 13.6. Governmental Consents. All consents, approvals, orders, authorizations or registrations, qualifications, declarations or filings with any federal or state governmental authority on the part of the Company required in connection with 11 12 the consummation of the transactions contemplated herein shall have been obtained prior to and be effective as of the Effective Date. 14. NOTICES. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and shall be conclusively deemed to have been duly given (a) when hand delivered to the other party; (b) when received when sent by facsimile at the address and number set forth below; (c) three business days after deposit in the U.S. mail with first class or certified mail receipt requested postage prepaid and addressed to the other party as set forth below; or (d) the next business day after deposit with a national overnight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed. To Holder: To the Company: First Reserve Fund VIII, L.P Chicago Bridge & Iron Company N.V. c/o First Reserve Corporation c/o Chicago Bridge & Iron Company 1801 California Street, Suite 4100 1501 North Division Street Denver Colorado 80202 Plainfield, Illinois 60544 Attn: Tom Denison Attn: Secretary Fax Number: (303) 382-1275 Fax: (815) 439-6297 With copies to: Gibson, Dunn & Crutcher LLP Winston and Strawn 1801 California Street, Suite 4100 35 West Wacker Drive Denver, CO 80202 Chicago, Illinois 60601 Attn: Steven K. Talley Attn: James Reum Fax Number: (303) 296-5310 Fax: (312) 558-5700 Each person making a communication hereunder by facsimile shall promptly confirm by telephone to the person to whom such communication was addressed each communication made by it by facsimile pursuant hereto but the absence of such confirmation shall not affect the validity of any such communication. A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Section 14 by giving the other party written notice of the new address in the manner set forth above. 15. HEADINGS. The headings in this Warrant are for purposes of convenience in reference only, and shall not be deemed to constitute a part hereof. 16. LAW GOVERNING. This Warrant shall be, to the extent possible under applicable (mandatory) Dutch law, construed and enforced in accordance with, and governed by, the laws of the State of New York. 17. NO IMPAIRMENT. The Company will not, by amendment of its Articles of Association or bylaws, or through reorganization, consolidation, merger, dissolution, 12 13 issue or sale of securities, sale of assets or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Registered Holder of this Warrant against impairment. Without limiting the generality of the foregoing, the Company (a) will not increase the par value of any shares of stock issuable upon the exercise of this Warrant above the amount payable therefor upon such exercise without giving Holder 30 days advance notice of such increase, and (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon exercise of this Warrant. 18. NOTICES OF RECORD DATE. If at any time Holder should not have representatives elected to and serving on the Supervisory Board of Directors of the Company, then in case: 18.1. the Company shall take a record of the holders of its Common Stock (or other stock or securities at the time receivable upon the exercise of this Warrant), for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any shares of stock of any class or any other securities or to receive any other right; or 18.2. of any consolidation or merger of the Company with or into another corporation, any capital reorganization of the Company, any reclassification of the Capital Stock of the Company, or any conveyance of all or substantially all of the assets of the Company to another corporation in which holders of the Company's stock are to receive stock, securities or property of another corporation; or 18.3. of any voluntary dissolution, liquidation or winding-up of the Company; or 18.4. of any redemption or conversion of all outstanding Common Stock; then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or right, or (ii) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding-up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock or (such stock or securities as at the time are receivable upon the exercise of this Warrant), shall be entitled to exchange their shares of Common Stock (or such other stock or securities), for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding-up. Such notice shall be delivered at least ten (10) days prior to the date therein specified. 19. SEVERABILITY. If any term, provision, covenant or restriction of this Warrant is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of 13 14 the terms, provisions, covenants and restrictions of this Warrant shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 20. COUNTERPARTS. For the convenience of the parties, any number of counterparts of this Warrant may be executed by the parties hereto and each such executed counterpart shall be, and shall be deemed to be, an original instrument. 21. NO INCONSISTENT AGREEMENTS. The Company will not on or after the date of this Warrant enter into any agreement with respect to its securities which is inconsistent with the rights granted to the Holders of this Warrant or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to holders of the Company's securities under any other agreements, except rights that have been waived. 22. SATURDAYS, SUNDAYS AND HOLIDAYS. If the Expiration Date falls on a Saturday, Sunday or legal holiday, the Expiration Date shall automatically be extended until 5:00 p.m. the next business day. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 14 15 IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the Effective Date. FIRST RESERVE FUND VIII, L.P., a Delaware limited partnership By: First Reserve GP VIII, L.P. a Delaware limited partnership, its general partner By: First Reserve Corporation, a Delaware corporation, its general partner By: /s/ Thomas R. Denison Name: 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 ---------------------------------- Name: Gerald M. Glenn Title: Managing Director SIGNATURE PAGE TO WARRANT TO PURCHASE COMMON STOCK 15 16 EXHIBIT 1 NOTICE OF EXERCISE (To be executed upon exercise of Warrant) CHICAGO BRIDGE & IRON COMPANY N.V. The undersigned hereby irrevocably elects to exercise the right of purchase represented by the within Warrant Certificate for, and to purchase thereunder, the securities Chicago Bridge & Iron Company N.V., as provided for therein, and (check the applicable box): [ ] tenders herewith payment of the exercise price in full in the form of cash or a certified or official bank check in same-day funds in the amount of $____________ for _________ such securities. [ ] Elects the Net Issue Exercise option pursuant to Section 2.2 of the Warrant, and accordingly requests delivery of a net of ______________ of such securities. Please issue a certificate or certificates for such securities in the name of, and pay any cash for any fractional share to (please print name, address and social security number): Name: -------------------------------------------------------------------------- Address: ----------------------------------------------------------------------- Signature: --------------------------------------------------------------------- Note: The above signature should correspond exactly with the name on the first page of this Warrant Certificate or with the name of the assignee appearing in the assignment form below. If said number of shares shall not be all the shares purchasable under the within Warrant Certificate, a new Warrant Certificate is to be issued in the name of said undersigned for the balance remaining of the shares purchasable thereunder rounded up to the next higher whole number of shares. 16 17 EXHIBIT 2 ASSIGNMENT (To be executed only upon assignment of Warrant Certificate) For value received, hereby sells, assigns and transfers unto ________________ ____________________________ the within Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ____________________________ attorney, to transfer said Warrant Certificate on the books of the within-named Company with respect to the number of Warrants set forth below, with full power of substitution in the premises:
NAME(S) OF ASSIGNEE(S) ADDRESS # OF WARRANTS - ---------------------- ------- ------------- - ---------------------- ---------------------- ----------------------- - ---------------------- ---------------------- ----------------------- - ---------------------- ---------------------- ----------------------- - ---------------------- ---------------------- ----------------------- - ---------------------- ---------------------- -----------------------
And if said number of Warrants shall not be all the Warrants represented by the Warrant Certificate, a new Warrant Certificate is to be issued in the name of said undersigned for the balance remaining of the Warrants registered by said Warrant Certificate. To the extent Dutch law applies, ______________ hereby assigns within the meaning of Section 3:94 paragraph 1 of the Dutch Civil Code, the Warrant Certificate and the Warrant to the Assignee, notice of which shall be given to the Company. -------------------------------------------------------------------- Dated: -------------------------------------------------------------------- Signature: -------------------------------------------------------------------- Notice: The signature to the foregoing Assignment must correspond to the name as written upon the face of this security in every particular, without alteration or any change whatsoever; signature(s) must be guaranteed by an eligible guarantor institution (banks, stock brokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program) pursuant to Securities and Exchange Commission Rule 17Ad-15. 17 EX-99.(H) 3 d83954aex99-h.txt AMENDMENT TO SHAREHOLDER AGREEMENT 1 EXHIBIT 99(H) [Execution] AMENDMENT TO SHAREHOLDER AGREEMENT This AMENDMENT TO SHAREHOLDER AGREEMENT ("Amendment") is dated as of February 7, 2001 by and among FIRST RESERVE FUND VIII, L.P., a Delaware limited partnership ("FRF"), CHICAGO BRIDGE & IRON COMPANY N.V., a company organized under the laws of the Netherlands ("CB&I"), and certain shareholders of CB&I. WITNESSETH: WHEREAS, FRF and CB&I are parties to that certain Shareholder Agreement dated as of December 28, 2000 relating to the shares of common stock, par value NLG .01 per share, of CB&I ("CB&I Stock") owned by FRF (the "Shareholder Agreement"); WHEREAS, FRF and its Affiliates currently beneficially own 4,935,451 shares of CB&I Stock, which represents approximately 27.72% of the outstanding CB&I Stock; WHEREAS, in order to facilitate the acquisition by CB&I of certain assets of the engineering and construction and water divisions of Pitt-Des Moines, Inc. ("PDM"), a transaction which the Supervisory Board has determined to be in the best interests of, and of significant potential benefit, to CB&I, its shareholders and other constituencies, FRF is willing to assist in the financing for such acquisition by purchasing additional shares of CB&I Stock pursuant to that certain Stock Purchase Agreement of even date herewith (the "FRF Purchase Agreement"); and WHEREAS, in order to induce and allow FRF to enter into the FRF Purchase Agreement and to provide such funding to CB&I for the purpose of consummating the PDM acquisition, the parties are entering into this Amendment; NOW THEREFORE, in consideration of the premises herein contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows: I. Defined Terms Each capitalized term used herein but not otherwise defined herein shall have the meaning ascribed to such term in the Shareholder Agreement. The following defined terms are added to Section 1.01 of the Shareholder Agreement: "'General Shareholders' means the shareholders of CB&I other than FRF and WGI and their respective Affiliates and Associates. 2 'Opposed Transaction' means any (i) Business Combination, (ii) Recapitalization or (iii) other transaction that involves the issuance of CB&I Stock that, in the case of a transaction referred to in (i), (ii) or (iii), both of the FRF Designees then serving on the Supervisory Board have voted against at the Supervisory Board level. 'PDM Shares' means (i) the 1,623,846 registered shares of CB&I Stock to be issued to FRF on February 7, 2001 and (ii) the up to 501,598 shares of CB&I Stock issuable to FRF pursuant to the Purchase Warrant and the Additional Warrant (as those terms are defined in the Stock Purchase Agreement dated February 7, 2001 between CB&I and FRF)." II. Amendment of Shareholder Agreement 2.1 Section 2.01(a) of the Shareholder Agreement is hereby amended in its entirety to read as follows: "(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 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 the transactions contemplated thereby, 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 FRF and its Affiliates and Associates does not, after giving effect to such transactions, exceed 7,060,895 shares, which is less than 30% of the total number of shares of Voting Securities outstanding (including the shares issued or to be issued in such transactions), or (iv) 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;" 2.2 The first sentence of Section 2.02(a) of the Shareholder Agreement is hereby amended to add the following proviso at the end of such sentence (following the second parenthetical and before the period): 2 3 "; provided, however, that in the case of an Opposed Transaction, FRF and its Affiliates shall be permitted to vote their PDM Shares in the same proportion as the votes of the General Shareholders who vote upon the Opposed Transaction." 2.3 The first sentence of Section 2.03 is hereby amended to add a proviso at the end of such sentence (following the phrase "not contemplated by this Agreement" and before the period): "; and provided further, that in the case of an Opposed Transaction, FRF and its Affiliates shall be permitted to vote their PDM Shares in the same proportion as the votes of the General Shareholders who vote upon the Opposed Transaction." 2.4 A new Section 2.04 entitled "Representations of FRF" is hereby inserted after Section 2.03 at the end of Article II of the Shareholder Agreement to read as follows: "Section 2.04 Representations of FRF. FRF has previously provided to CB&I a true and complete copy of its Schedule 13D dated January 8, 2001 filed with the Commission relating to FRF's beneficial ownership of CB&I Stock. Neither WGI, PDM, nor any Affiliate of any of such Persons known to FRF (all such Persons and their Affiliates are collectively hereinafter referred to as "Significant CB&I Shareholders"), is an Affiliate or Associate of FRF; neither FRF nor any of FRF's Affiliates or Associates has any arrangement, contract, understanding or relationship with any of such Significant CB&I Shareholders with respect to voting power or investment power (which terms shall have the meanings ascribed to such terms under Rule 13d-3(a) under the Exchange Act) with respect to any Voting Securities, and FRF further specifically confirms that it will observe all restrictions set forth in Section 2.01, including subsections (g) and (i) thereof, to the extent such restrictions prohibit any such arrangement, contract, understanding or relationship by FRF or its Affiliates or Associates with WGI, PDM or any other Significant CB&I Shareholder. Neither FRF nor any of its Affiliates or Associates has in the past had any arrangement, contract, understanding or relationship with WGI or PDM (or any of their respective Affiliates known to FRF) with respect to voting power or investment power (which terms shall have the meanings ascribed to such terms under Rule 13d-3(a) under the Exchange Act) relating to the securities of CB&I." 3 4 III. Consent to Transaction. CB&I's Supervisory Board has, and CB&I hereby does, consent to the FRF Purchase Agreement and this Amendment and waives any restrictions in the Shareholder Agreement that might restrict either (i) FRF's ability to enter into or consummate the transactions contemplated by the FRF Purchase Agreement, including the purchase and exercise of the Purchase Warrant and the Additional Warrant, or this Amendment, or (ii) FRF's ability to propose or enter into the FRF Purchase Agreement or this Amendment. IV. Effectiveness Except as specifically provided herein, the Shareholder Agreement shall otherwise remain unaltered and in full force and effect. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. [signature page follows] 4 5 IN WITNESS WHEREOF, the undersigned parties have executed this Amendment as of the date first written above. FIRST RESERVE FUND VIII, L.P. A DELAWARE LIMITED PARTNERSHIP BY: FIRST RESERVE GP VIII, L.P., A DELAWARE LIMITED PARTNERSHIP, ITS GENERAL PARTNER BY: FIRST RESERVE CORPORATION, A DELAWARE CORPORATION, ITS GENERAL PARTNER By: /s/ Thomas R. Denison ---------------------------------------- Name: 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 EX-99.(I) 4 d83954aex99-i.txt STOCK PURCHASE AGREEMENT DATED FEBRUARY 7, 2001 1 EXHIBIT 99(I) ================================================================================ STOCK PURCHASE AGREEMENT DATED AS OF FEBRUARY 7, 2001 BY AND BETWEEN CHICAGO BRIDGE & IRON COMPANY N.V. AND FIRST RESERVE FUND VIII, L.P. IN CONNECTION WITH THE FUNDING OF THE PURCHASE OF CERTAIN ASSETS OF PITT-DES MOINES, INC. BY CHICAGO BRIDGE & IRON COMPANY N.V. ================================================================================ 2 PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into as of February 7, 2001 by and between Chicago Bridge & Iron Company N.V., a Netherlands company ("CB&I") and First Reserve Fund VIII, L.P. ("Fund VIII") and relating to the funding of the purchase by CB&I of certain divisions of Pitt-Des Moines, Inc. ("PDM"), a Pennsylvania corporation. INTRODUCTION WHEREAS, PDM, CB&I and CB&I Constructors, Inc., a Texas corporation ("CB&I Sub"), are simultaneously entering into that certain Asset Purchase Agreement of even date herewith (the "Asset Purchase Agreement") pursuant to which CB&I and CB&I Sub are purchasing certain assets of PDM (the "PDM Acquisition"); WHEREAS, CB&I wishes to sell to Fund VIII, and Fund VIII wishes to purchase from CB&I, 1,623,846 shares of common stock, par value NLG .01 per share, of CB&I (the "PDM Financing Shares"); and WHEREAS, CB&I intends to use the funds from the sale to Fund VIII of the PDM Financing Shares to finance a portion of the PDM Acquisition. NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements stated herein, and upon the terms and subject to the conditions hereinafter set forth, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01 Definitions. As used herein, the following terms shall have the meanings set forth below: "Additional Warrant" means the warrant issued by CB&I on the Closing Date in connection with this Agreement, representing the right to purchase up to 250,000 shares of CB&I Stock, in the form attached hereto as Exhibit E. "Affiliate" means, as to any specified Person, any other Person that, directly or indirectly through one or more intermediaries or otherwise, controls, is controlled by or is under common control with the specified Person. As used in this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person (whether through ownership of Capital Stock of that Person, by contract or otherwise). 3 "Agreement" means this Agreement, including all attached Schedules, Annexes, Addenda and Exhibits, as the same may be amended, modified or supplemented from time to time. "Alternative Proposal" means any unsolicited proposal with respect to any alternative financing transaction. "Amendment to the Shareholder Agreement" means the amendment to the Shareholder Agreement dated as of even date herewith in the form attached hereto as Exhibit A. "Asset Purchase Agreement" has the meaning specified in the Introduction. "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. "Capital Stock" means, with respect to: (a) any corporation, any share, or any depositary receipt or other certificate representing any share, of an equity ownership interest in that corporation; and (b) any other Entity, any share, membership or other percentage interest, unit of participation or other equivalent (however designated) of an equity interest in that Entity. "CB&I" has the meaning specified in the first paragraph of this Agreement. "CB&I Sub" has the meaning specified in the first paragraph of this Agreement. "CB&I Stock" means the common stock of CB&I, par value NLG .01 per share. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, (42 U.S.C. Sections 9601 et seq.). "Charter Documents" means, with respect to any Entity at any time, in each case as amended, modified and supplemented at that time, (a) the articles or certificate of formation, incorporation, association or organization (or the equivalent organizational documents) of that Entity, (b) the bylaws, limited liability company agreement or regulations, or partnership agreements (or the equivalent governing documents) of that Entity, and (c) each document setting forth the designation, amount and relative rights, limitations and preferences of any class or series of that Entity's Capital Stock or of any rights in respect of that Entity's Capital Stock. "Closing" has the meaning specified in Section 3.03. "Closing Date" has the meaning specified in Section 3.03. 2 4 "Code" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. "Commission" means the Securities and Exchange Commission of the United States. "Confidential Information" means, with respect to any Person, all trade secrets and other confidential, nonpublic and/or proprietary information of that Person, including information derived from reports, investigations, research, work in progress, codes, marketing and sales programs, capital expenditure projects, cost summaries, pricing formulae, contract analyses, financial information, projections, confidential filings with any Governmental Authority and all other confidential, nonpublic concepts, methods of doing business, ideas, materials or information prepared or performed for, by or on behalf of that Person. "Damage" to any specified Person means any cost, damage (including any consequential, exemplary, punitive or treble damage) or expense (including reasonable fees of, and actual disbursements by, attorneys, consultants, experts or other Representatives and Litigation costs) to, any fine of or penalty on, or any liability (including loss of earnings or profits) of any other nature of that Person. "Effective Time" has the meaning specified in Section 3.02. "Entity" means any sole proprietorship, corporation, partnership of any kind having a separate legal status, limited liability company, business trust, unincorporated organization or association, mutual company, joint stock company or joint venture. "Environmental Laws" means any and all Governmental Requirements, common law rule (including but not limited to the common law respecting nuisance and tortious liability), or other requirement having the force and effect of law, relating to the environment, including ambient air, surface water, land surface or subsurface strata, or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes (including Solid Wastes, Hazardous Wastes or Hazardous Substances) or noxious noise or odor into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, recycling, removal, transport or handling of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes (including petroleum, petroleum distillates, asbestos or asbestos-containing material, polychlorinated biphenyls, chlorofluorocarbons (including chlorofluorocarbon-12) or hydrochloro-fluorocarbons). "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Exchange Act" means the Securities Exchange Act of 1934, as amended. 3 5 "GAAP" means generally accepted accounting principles and practices in the United States as in effect from time to time, which have been or are applied on a basis consistent with past practice. "Governmental Approval" means at any time any authorization, consent, approval, permit, franchise, certificate, license, implementing order or exemption of, or registration or filing with, any Governmental Authority, including any certification or licensing of a natural person to engage in a profession or trade or a specific regulated activity, at that time. "Governmental Authority" means (a) any national, state, county, municipal or other government, domestic or foreign, or any agency, board, bureau, commission, court, department or other instrumentality of any such government, or (b) any Person having the authority under any applicable Governmental Requirement to assess and collect Taxes for its own account. "Governmental Requirement" means at any time (a) any law, statute, code, ordinance, order, rule, regulation, judgment, decree, injunction, writ, edict, award, or authorization of any Governmental Authority in effect at that time or (b) any obligation included in any certificate, certification, franchise, permit or license issued by any Governmental Authority or resulting from binding arbitration, including any requirement under common law, at that time. "Guaranty" means, for any specified Person, without duplication, any liability, contingent or otherwise, of that Person guaranteeing or otherwise becoming liable for any obligation of any other Person (the "primary obligor") in any manner, whether directly or indirectly, and including any liability of the specified Person, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) that obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment of that obligation, (b) to purchase property, securities or services for the purpose of assuring the owner of that obligation of its payment or (c) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay that obligation; provided, that the term "Guaranty" does not include endorsements for collection or deposit in the ordinary course of the endorser's business. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended from time to time. "Indebtedness" of any Person means, without duplication, (a) any liability of that Person (i) for borrowed money or arising out of any extension of credit to or for the account of that Person (including reimbursement or payment obligations with respect to surety bonds, letters of credit, banker's acceptances and similar instruments), for the deferred purchase price of property or services or arising under conditional sale or other title retention agreements, other than trade payables arising in the ordinary course of business, (ii) evidenced by notes, bonds, debentures or similar instruments, (iii) in respect of capital leases or (iv) in respect of interest 4 6 rate protection agreements, (b) any liability secured by any Lien upon any property or assets of that Person (or upon any revenues, income or profits of that Person therefrom), whether or not that Person has assumed that liability or otherwise become liable for the payment thereof or (c) any liability of others of the type described in the preceding clause (a) or (b) in respect of which that Person has incurred, assumed or acquired a liability by means of a Guaranty. "Information" means written information, including (a) data, certificates, reports and statements and (b) summaries of unwritten agreements, arrangements, contracts, plans, policies, programs or practices or of unwritten amendments or modifications of, supplements to or waivers under any of the foregoing documents. "Intellectual Property" means (a) patents, applications for patents and patent rights, (b) in each case, whether registered, unregistered or under pending registration, trademark rights, trade names, trade name rights, service marks, logos, brand names, corporate names, business names, trade styles or dress, and copyrights and (c) trade secrets and know-how and rights in any jurisdiction to limit the use or disclosure thereof by any Person. "IRS" means the Internal Revenue Service. "Lien" means, with respect to any property or asset of any Person (or any revenues, income or profits of that Person therefrom) (in each case whether the same is consensual or nonconsensual or arises by contract, operation of law, legal process or otherwise), any mortgage, lien, security interest, pledge, attachment, levy or other charge or encumbrance of any kind thereupon or in respect thereof. "Litigation" means any action, case, proceeding, claim, grievance, suit or investigation or other proceeding conducted by or pending before any Governmental Authority or any arbitration proceeding. "Material" means, as applied to any Entity, material to the business, operations, property or assets, liabilities, condition (financial or otherwise) or results of operations of that Entity, as the case may be. "Material Adverse Effect" means, with respect to any Entity, the result of one or more events, changes or effects which, individually or in the aggregate, would have a material adverse effect on the business, operations, property or assets, liabilities or condition (financial or otherwise) of that Entity and its Subsidiaries taken as a whole, except for (i) any event, change or effect resulting from general economic, financial or market conditions or (ii) any event, change or effect resulting from conditions or circumstances generally affecting the engineering and construction industry. "Material Contract" has the meanings specified in Section 5.11. 5 7 "Organization State" means, as applied to (a) any corporation, its state or other jurisdiction of incorporation or (b) any limited liability company or limited partnership, the state or other jurisdiction under whose laws it is organized and existing in that legal form. "Other Financing Transaction" means a transaction in which CB&I sells shares of CB&I Stock to a third party and uses the proceeds to fund a portion of the PDM Acquisition. "PDM" has the meaning specified in the first paragraph. "PDM Acquisition" has the meaning specified in the Introduction. "PDM Financing Shares" has the meaning specified in the Introduction. "Permitted Liens" means, as applied to the property or assets of any Person (or any revenues, income or profits of that Person therefrom): (a) Liens for Taxes if the same are not at the time due and delinquent; (b) Liens of carriers, warehousemen, mechanics, laborers and materialmen for sums not yet due; (c) Liens incurred in the ordinary course of that Person's business in connection with workmen's compensation, unemployment insurance and other social security legislation (other than pursuant to ERISA or Section 412(n) of the Code); (d) Liens incurred in the ordinary course of that Person's business in connection with deposit accounts or to secure the performance of bids, tenders, trade contracts, statutory obligations, surety and appeal bonds, performance and return-of-money bonds and other obligations of like nature; (e) easements, rights-of-way, reservations, restrictions and other similar encumbrances incurred in the ordinary course of that Person's business or existing on property and not Materially interfering with the ordinary conduct of that Person's business or the use of that property; (f) defects or irregularities in that Person's title to its real properties that do not Materially (i) diminish the value of the surface estate or (ii) interfere with the ordinary conduct of that Person's business or the use of any of such properties; and (g) any interest or title of a lessor of assets being leased by any Person pursuant to any capital lease or any lease that, pursuant to GAAP, would be accounted for as an operating lease. "Person" means any natural person, Entity, estate, trust, union or employee organization or Governmental Authority. "Plan" means any stock purchase, stock option, pension, profit-sharing, bonus, deferred compensation, incentive compensation, commission, severance or termination pay, hospitalization, medical, dental, life or other insurance, or supplemental unemployment benefits plan or agreement or policy or contract or other arrangement providing employment-related compensation or benefits to any officer, consultant, director, annuitant, employee, former employee, retiree or independent contractor or members of their respective families (other than directors' and officers' liability policies), whether or not insured, sponsored or maintained by, or under which any liability, contingent or otherwise, exists with respect to CB&I or its Subsidiaries, including but not limited to "employee benefit plans" as defined in ERISA and the rules and regulations thereunder. 6 8 "Purchase Price" has the meaning specified in Section 2.02. "Purchase Warrant" means the warrant issued by CB&I to Fund VIII in connection with this Agreement, representing the right to purchase 251,598 shares of CB&I Stock at a price of NLG .01 per share, in the form attached hereto as Exhibit D. "RCRA" means the Resource Conservation and Recovery Act of 1976, as amended. (42 U.S.C. 6901 et seq.). "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. "Representatives" means, with respect to any Person, the directors, officers, employees, Affiliates, accountants (including independent certified public accountants), advisors, attorneys, consultants or other agents of that Person, or any other representatives of that Person or of any of those directors, officers, employees, Affiliates, accountants (including independent certified public accountants), advisors, attorneys, consultants or other agents. "Rights Agreements" has the meaning specified in Section 5.06. "SEC" means the United States Securities and Exchange Commission. "SEC Documents" has the meaning specified in Section 5.04. "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 Securities Act of 1933, as amended. "Shareholder Agreement" means the Shareholder Agreement dated December 28, 2000, as amended, between Fund VIII and CB&I. "Solid Wastes, Hazardous Wastes or Hazardous Substances" have the meanings ascribed to those terms in CERCLA, RCRA or any other Environmental Law applicable to the business or operations of CB&I and its Subsidiaries that imparts a broader meaning to any of those terms than does CERCLA or RCRA, including but not limited to (i) petroleum and petroleum products, including crude oil and any fractions thereof, (ii) asbestos, (iii) PCBs, and (iv) natural gas, synthetic gas and any mixtures thereof. 7 9 "Subsidiary" of any specified Person at any time means any Entity a majority of the Capital Stock of which is at that time owned or controlled, directly or indirectly, by the specified Person. "Tax" or "Taxes" means all net or gross income, gross receipts, net proceeds, sales, use, ad valorem, value added, franchise, bank shares, withholding, payroll, employment, excise, property, deed, stamp, alternative or add-on minimum, environmental or other taxes, assessments, duties, fees, levies or other governmental charges or assessments of any nature whatsoever imposed by any Governmental Requirement, whether disputed or not, together with any interest, penalties, additions to tax or additional amounts with respect thereto. "Tax Return" means any report, return, information statement, payee statement or other information required to be provided to any federal, state, local or foreign Taxing Authority, or otherwise retained, with respect to Taxes. "Taxing Authority" means any Governmental Authority having or purporting to exercise jurisdiction with respect to any Tax. "Transaction Document" means this Agreement, the Amendment to the Shareholder Agreement, the Warrants and the other written agreements, documents, instruments and certificates executed pursuant to or in connection with this Agreement, including those specified or referred to in Article III or Article VII to be delivered at or before the Closing, all as amended, modified or supplemented from time to time. "Warrants" means the Additional Warrant and the Purchase Warrant. "Worker Safety Laws" shall mean all applicable Governmental Requirements relating to public and worker health and safety. Section 1.02 Other Defined Terms. Words and terms used in this Agreement that are defined elsewhere in this Agreement are used as so defined. Section 1.03 Cross References, Interpretation. References to "Articles" refer to Articles of this Agreement. References to "Sections" refer to Sections and subsections of this Agreement. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa. Whenever the word "including" is used in this Agreement, it shall be read to mean "including but not limited to." The headings in this Agreement are inserted for convenience only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. Section 1.04 Knowledge. Where any statement is qualified by the expression "to CB&I's knowledge" or by a similar expression, that statement shall be deemed to be the actual personal knowledge, after due inquiry of the relevant senior operating employees of CB&I and 8 10 the applicable CB&I Subsidiary, of Gerald M. Glenn, Richard E. Goodrich, Robert B. Jordan, Timothy J. Wiggins or Robert H. Wolfe. ARTICLE II PURCHASE AND SALE Section 2.01 Purchase and Sale of PDM Financing Shares. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, at the Closing CB&I shall sell, convey, assign, transfer and deliver to Fund VIII, and Fund VIII shall purchase and acquire from CB&I, by delivery of the Purchase Price (as hereinafter defined), the PDM Financing Shares, the Additional Warrant and the Purchase Warrant. Section 2.02 Payment of Purchase Price. In consideration of the sale of the PDM Financing Shares, the Additional Warrant and the Purchase Warrant by CB&I to Fund VIII, Fund VIII shall pay to CB&I in immediately available funds, by wire transfer, Twenty Six Million, Three Hundred Eighty Seven Thousand, Five Hundred U.S. Dollars (U.S. $26,387,500) at the Closing (the "Purchase Price"). ARTICLE III CLOSING Section 3.01 Other Transactions. In connection with the Closing, the PDM Acquisition and the Other Financing Transaction shall be consummated. Simultaneously with the Closing, the Amendment to the Shareholder Agreement shall be executed. Section 3.02 The Effective Time. The effective time of the of the purchase of the PDM Financing Shares, the Purchase Warrant, and the Additional Warrant (the "Effective Time") will be 5:00 p.m., Central Daylight Time, on the Closing Date. Section 3.03 The Closing. The closing of the transactions contemplated herein shall take place at the offices of Winston & Strawn, 35 West Wacker Drive, Chicago, Illinois, at 10:00 a.m., local time, on a date within ten business days following satisfaction of each of the conditions set forth in Sections 7.01 and 7.03(c) (assuming satisfaction of the remaining conditions set forth in Article VII on or prior to the Closing Date), or such other place or time as the parties may mutually agree (the "Closing Date"). On or before the Closing Date, the parties hereto will take all actions necessary to (i) effect the PDM Acquisition, (ii) effect the Purchase and Sale of the PDM Financing Shares; (iii) effect the Other Financing Transaction, and (iv) satisfy the document delivery requirements on which the obligations of the parties to effect the PDM Acquisition, the transactions contemplated by this Agreement and the Other Financing 9 11 Transaction, and the other transactions contemplated hereby are conditioned by the provisions of Article VII (all those actions collectively being the "Closing"). Section 3.04 Delivery of Documents. (a) At the Closing, CB&I will execute and deliver to Fund VIII the following documents: (i) certificates representing the PDM Financing Shares; (ii) the Additional Warrant; (iii) the Purchase Warrant; (iv) a copy, certified as of the Closing Date, by the Secretary or Assistant Secretary of CB&I of resolutions duly adopted by the Supervisory Board of Directors of CB&I authorizing the transactions contemplated by this Agreement and the PDM Acquisition; (v) an extract from the trade register regarding CB&I as of a recent date provided by the Chamber of Commerce and Industry in Amsterdam (the "Chamber of Commerce"); (vi) an official copy of the amended Articles of Association of CB&I filed with the Chamber of Commerce as reflected in the extract referred to above; (vii) certificate of the Secretary or Assistant Secretary of CB&I certifying as of the Closing Date the incumbency and signatures of the Managing Director of CB&I authorized to sign this Agreement and the other documents to be delivered hereunder and in connection with the PDM Acquisition, together with evidence of the incumbency of such Secretary or Assistant Secretary or similar authorized person; (viii) the Amendment to the Shareholder Agreement executed by CB&I; (ix) the opinion or opinions of CB&I's legal counsel substantially in the form of Exhibit B and Exhibit C; and (x) any non-governmental, third party consents required for the consummation of the transactions contemplated hereby. (b) At the Closing, Fund VIII will execute and deliver to CB&I the following documents: (i) the Purchase Price; (ii) a certificate of good standing for Fund VIII in Delaware, as certified as of a recent date by the Secretary of State of Delaware; 10 12 (iii) a copy of the certificate of formation of Fund VIII, as certified as of a recent date by the Secretary of State of Delaware; (iv) a certificate of the Managing Director of Fund VIII certifying as of the Closing Date as to the incumbency and signatures of the officers of Fund VIII authorized to sign this Agreement, the Amendment to the Shareholder Agreement and the other documents to be delivered hereunder; (v) the Amendment to the Shareholder Agreement executed by Fund VIII; and (vi) any non-governmental, third-party consents required for the consummation of the transactions contemplated hereby. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FUND VIII As an inducement to CB&I to enter into this Agreement and to consummate the transactions contemplated hereby, Fund VIII represents and warrants to the CB&I as follows: Section 4.01 Corporate Power and Authority. Fund VIII 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 Fund VIII have been duly authorized by all required corporate and other actions. Fund VIII has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligations of Fund VIII enforceable against Fund VIII in accordance with its 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. Section 4.02 Investment Representations. (a) Fund VIII understands that the offer, sale and transfer of the shares of CB&I Stock to be issued to Fund VIII hereunder (i) have not been registered with the SEC or pursuant to any state securities laws in reliance on the exemption afforded by Section 4(2) of the Securities Act and comparable exemptions from applicable state laws, and (ii) that such shares will be restricted securities under the Securities Act and various states' securities laws, and that these laws impose limitations on the Persons to whom sales of shares may be made. The certificates representing shares of the CB&I Stock to be delivered to Fund VIII as part of the PDM Financing Shares will bear a legend substantially as follows: "THE ISSUANCE OF THE SHARES REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS 11 13 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, FIRST RESERVE FUND VIII, L.P. AND CERTAIN SHAREHOLDERS (AS FROM TIME TO TIME AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED, 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 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) Fund VIII represents that it (i) is an "accredited investor" (as defined in Rule 501(a)(8) under the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the CB&I Stock, and (iii) is able to bear the economic risk of its investment in the CB&I Stock. Fund VIII is acquiring the CB&I Stock for its own account for investment and (subject to the disposition of its property being at all times within its control) not with a present view to, or for sale or other disposition in connection with, any distribution of all or any part of such CB&I Stock. Fund VIII acknowledges that (x) neither CB&I nor any Person representing CB&I has made any representation to Fund VIII with respect to CB&I or the CB&I Stock other than as contained in this Agreement and (y) Fund VIII has had access to such financial and other information concerning CB&I and the CB&I Stock as Fund VIII has deemed necessary in 12 14 connection with its investment decision to purchase the CB&I Stock, including an opportunity to ask questions of and request information from CB&I. (c) Notwithstanding anything to the contrary in this Section 4.02, Fund VIII is not waiving any of its rights or remedies under this Agreement or the Shareholder Agreement or any representations, warranties or obligations of the CB&I under this Agreement (including the terms of Article V and Article IX) or the Shareholder Agreement. Section 4.03 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, or any of the transactions contemplated hereby or thereby, based upon arrangements made by or on behalf of Fund VIII or any of its Subsidiaries or Affiliates. Section 4.04 Limitations on Representations and Warranties. Except as and to the extent expressly set forth in this Article IV, included on any Schedule hereto or included in any writing delivered by Fund VIII concurrently herewith or subsequent hereto expressly pursuant to this Agreement, Fund VIII makes no other representations or warranties, and disclaims all liability and responsibility for any representation, warranty, statement or information made or communicated (orally or in writing) to CB&I or any of its Affiliates, employees, agents, consultants or representatives (including, without limitation, any opinion, information, projection or advice that may have been provided to CB&I by any officer, director, employee, agent, consultant or representative of Fund VIII or any Affiliate thereof, or by any other agent, consultant or representative of Fund VIII). ARTICLE V REPRESENTATIONS AND WARRANTIES OF CB&I As an inducement to Fund VIII to enter into this Agreement and to consummate the transactions contemplated hereby, CB&I represents and warrants to Fund VIII as follows: Section 5.01 Organization; Power. (a) CB&I is an N.V. company duly organized and validly existing under the laws of the Netherlands. CB&I has all requisite corporate power and authority under the laws of its Organization State and its Charter Documents to own or lease and to operate its properties presently and following the Effective Time and to carry on its business as now conducted and as proposed to be conducted following the Effective Time. (b) A true and complete list of each Material CB&I subsidiary, together with its Organization State and the percentage of its outstanding Capital Stock owned by CB&I and any other CB&I Subsidiary, is set forth in Schedule 5.01. Except as disclosed in Schedule 5.01, CB&I does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for, any equity or similar interest in, any Entity which is Material to CB&I. Except as set forth in the SEC Documents or Schedule 5.01, 13 15 neither CB&I nor any of its Subsidiaries is subject to any obligation to make any Material investment in any other Person. Section 5.02 Authorization; Enforceability; Absence of Conflicts; Required Consents. (a) CB&I has full corporate authority to enter into this Agreement, the Amendment to the Shareholder Agreement and the other Transaction Documents and to perform its obligations hereunder and thereunder. The execution and delivery of this Agreement, the Amendment to the Shareholder Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of CB&I, and this Agreement has been duly executed and delivered by CB&I. This Agreement constitutes, and the Amended Shareholder Agreement when executed and delivered will constitute, the legal, valid and binding obligation of CB&I, enforceable against it in accordance with its terms, except that enforceability may be (i) limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and (ii) subject to general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law). (b) The execution, delivery and performance in accordance with their respective terms by CB&I of this Agreement, the Amendment to the Shareholder Agreement and the other Transaction Documents to which it is a party have not and will not (i) violate, breach or constitute a default under (A) its Charter Documents, (B) any Governmental Requirement, order, writ, injunction or decree applicable to it, or (C) any note, bond, mortgage, indenture or material agreement or obligation to which it is a party or by which it is bound, except for such violations, breaches, terminations, and defaults that are set forth in Schedule 5.02, (ii) result in the acceleration or mandatory prepayment of any Indebtedness, or any Guaranty not constituting Indebtedness, of CB&I, or afford any holder of any of that Indebtedness, or any beneficiary of any of those Guaranties, the right to require CB&I to redeem, purchase or otherwise acquire, reacquire or repay any of that Indebtedness, or to perform any of those Guaranties, (iii) cause or result in the imposition of, or afford any Person the right to obtain, any Lien upon any property or assets of CB&I (or upon any revenues, income or profits of CB&I therefrom), except for certain covenants of CB&I contained in its bank credit facilities, or (iv) result in the revocation, cancellation, suspension or material modification, in any single case or in the aggregate, of any Governmental Approval possessed by CB&I at the date hereof and necessary for the ownership or lease and the operation of its properties or the carrying on of its business as now conducted, including any necessary Governmental Approval under any applicable Environmental Law. (c) Except (i) as may be required by the HSR Act or applicable state securities or blue sky laws or (ii) as set forth in Schedule 5.02, no Governmental Approvals or consents of any third party are required to be obtained, and no reports or notices to or filings with any Governmental Authority are required to be made, by CB&I for the execution, delivery or performance by CB&I of this Agreement, the Amendment to the Shareholder Agreement or the other Transaction Documents to which it is a party, the enforcement against CB&I of its 14 16 obligations hereunder or thereunder or the effectuation of the PDM Acquisition and the transactions contemplated hereby and thereby. Section 5.03 Charter Documents. No breach or violation of any Charter Document of CB&I has occurred and is continuing that could reasonably be expected to have a Material Adverse Effect. Section 5.04 SEC Documents. CB&I has made available to Fund VIII a true and complete copy of each report, schedule, registration statement and definitive proxy statement filed by CB&I with the SEC since January 1, 1998 and prior to the date of this Agreement (the "SEC Documents") which are all the documents (other than preliminary material) that CB&I has been required to file with the SEC since such date. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such SEC Documents, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of CB&I contained in the SEC Documents complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC) and fairly present in accordance with applicable requirements of GAAP (subject, in the case of the unaudited statements, to normal, recurring adjustments, none of which will be Material) the consolidated financial position of CB&I and its consolidated Subsidiaries as of their respective dates and the consolidated results of operations and the consolidated cash flows of CB&I and its consolidated Subsidiaries for the periods presented therein, respectively. Section 5.05 Capitalization. The capitalization of CB&I is set forth on Schedule 5.05. As of the Closing Date, all of the PDM Financing Shares will be duly authorized for issuance and will be validly issued, fully paid and nonassessable. Except as set forth in Schedule 5.05, there are no outstanding subscriptions, options, warrants, calls or rights of any kind to acquire any shares of any class of securities or any securities convertible into any shares of any class of securities of CB&I, nor are there any obligations to issue any such options, warrants, calls, rights or securities. There are no restrictions of any kind on the transfer by CB&I to Fund VIII of the PDM Financing Shares, except as may be imposed by applicable securities laws. Schedule 5.05 sets forth certain capitalization figures for CB&I as of various relevant dates and events. Section 5.06 Absence of Applicable Rights Agreements. Except as set forth on Schedule 5.06, there are no rights agreements or other agreements by or between CB&I and any of its shareholders that could ultimately result in the grant of additional shares of CB&I Stock, additional rights to purchase any such CB&I Stock, any new class or type of security of CB&I or other rights or benefits to CB&I's shareholders as of the date hereof ("Rights Agreements") that 15 17 would be triggered by the execution and delivery of this Agreement, the issuance to Fund VIII of the PDM Financing Shares, the execution and delivery of the Amendment to the Shareholder Agreement or any other transaction contemplated hereby or thereby. Further, no such grant of additional shares of CB&I Stock, additional rights to purchase any such CB&I Stock, any new class or type of security of CB&I or other rights or benefits to CB&I's shareholders as of the date hereof will result by operation of (i) the law of CB&I's Organization State, (ii) any provision of its Charter Documents or (iii) or any combination thereof. Section 5.07 Litigation. Except as set forth in the SEC Documents or on Schedule 5.07, no Litigation is pending or, to the knowledge of CB&I, threatened to which CB&I or any of its Subsidiaries is or may become a party that (a) questions or involves the validity or enforceability of any obligation of CB&I under any Transaction Document, (b) seeks (or reasonably may be expected to seek) (i) to prevent or delay consummation by CB&I of the transactions contemplated by this Agreement to be consummated by CB&I or (ii) Damages from CB&I in connection with any such consummation, or (c) which would have, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Governmental Authority has provided notification to CB&I or any of its Subsidiaries of an intention to conduct any audit, investigation or other review with respect to CB&I or any of its Subsidiaries, which audit, investigation or review would, if adversely determined, individually or in the aggregate, have a Material Adverse Effect on CB&I. Section 5.08 Compliance with Worker Safety and Environmental Laws. Except as disclosed in the SEC Documents or on Schedule 5.08: (a) CB&I and its Subsidiaries have complied and remain in compliance in all material respects with all applicable Environmental Laws and all applicable Worker Safety Laws, except for any such noncompliance which would have no Material Adverse Effect; (b) no release of Solid Wastes, Hazardous Wastes or Hazardous Substances at, from, in or on any site owned or operated by CB&I or its Subsidiaries as of the Closing Date has occurred that, if all relevant facts were known to the relevant Governmental Authorities, reasonably could be expected to require remediation to avoid deed record notices, restrictions, liabilities or other consequences that would not be applicable if that release had not occurred; (c) neither CB&I, its Subsidiaries nor any agent or contractor of CB&I or its Subsidiaries has transported or arranged for the transportation of any Solid Wastes, Hazardous Wastes or Hazardous Substances to, or disposed or arranged for the disposition of any Solid Wastes, Hazardous Wastes or Hazardous Substances at, any off-site location that could lead to any claim against CB&I or its Subsidiaries, as a potentially responsible party, for any cleanup costs, remedial work, damage to natural resources, personal injury or property damage, including any claim under CERCLA; (d) no storage tanks exist on or under any of the properties owned or operated by CB&I or its Subsidiaries as of the Closing Date from which any Solid Wastes, Hazardous Wastes or Hazardous Substances have, to the knowledge of CB&I, been released into the surrounding environment; and (e) no Solid Wastes, Hazardous Wastes or Hazardous Substances have been used, stored, manufactured or processed on the property owned, used, leased or operated by CB&I or any of its current or former Subsidiaries at any time, except as necessary to the conduct of its business in compliance with Environmental Laws and 16 18 Worker Safety Laws and except where any noncompliance would not have a Material Adverse Effect. Section 5.09 Liabilities and Obligations. There are no Material liabilities of any kind, character and description and whether accrued, absolute, or fixed, of CB&I that (a) reasonably could be expected to have a Material Adverse Effect on CB&I other than as set forth on Schedule 5.07 or as disclosed in the SEC Documents, and (b) (i) had been incurred prior to the most recent SEC Document but are not reflected on that SEC Document or (ii) were incurred after the most recent SEC Document otherwise than in the ordinary course of business and consistent with past practice. Section 5.10 Intellectual Property. To the knowledge of CB&I, except as set forth in Schedule 5.10, CB&I or its Subsidiaries owns, free and clear of all Liens other than Permitted Liens, or has the legal right to use, all Intellectual Property that is necessary to the conduct of its business as now conducted, in each case free of any claims or infringements. Schedule 5.10 (a) lists the Material Intellectual Property of CB&I and its Subsidiaries and (b) indicates that owned by CB&I or its Subsidiaries and, for those not listed as so owned, the agreement or other arrangement pursuant to which they are possessed. Except as set forth in Schedule 5.10, to the knowledge of CB&I, (a) no consent of any Person will be required for the use of any of this Material Intellectual Property by CB&I or any Subsidiary of CB&I following the Effective Time and (b) no governmental registration of any of this Material Intellectual Property has lapsed or expired or been canceled, abandoned, opposed or has been the subject of any reexamination request. Section 5.11 Material Contracts. Schedule 5.11 sets forth a complete list of all Material Contracts (as defined below) not listed on the Exhibit Index to CB&I's Form 10-K Annual Report for the fiscal year ended December 31, 1999, previously made available to Fund VIII. Each such Material Contract is in full force and effect and is enforceable against the parties thereto other than CB&I and its Subsidiaries in accordance with its terms, and no condition or state of facts exists that, with notice or the passage of time or both, would constitute a material default by CB&I or its applicable Subsidiary or, to the knowledge of CB&I, any third party under any such Material Contract. CB&I or its applicable Subsidiary has duly complied in all material respects with the provisions of each such Material Contract to which it is a party. For the purpose of this Agreement, a Material Contract with respect to CB&I or its Subsidiaries shall mean: (i) those material agreements required to be filed by CB&I pursuant to applicable SEC rules and regulations; (ii) any instrument, agreement or other obligation evidencing or relating to Indebtedness of CB&I or any of its Subsidiaries or to money lent or to be lent to another Person involving more than $500,000; and 17 19 (iii) any agreement for the acquisition or provision of services, supplies, equipment, inventory, fixtures or other property involving more than $500,000 individually the costs for which are not passed through to the customers of CB&I or its Subsidiaries in the ordinary course of business, and all earnout agreements. Section 5.12 Insurance. Schedule 5.12 sets forth a list of all insurance policies currently in force carried by CB&I or its Subsidiaries which relate to their business. CB&I has previously made available to Fund VIII (a) a complete list of all insurance loss runs and worker's compensation claims relating to CB&I's business and received for the most recently ended two (2) policy years, and (b) true, complete and correct copies of all insurance policies, binders or similar documentation carried by CB&I that relate to CB&I's business and are in effect, all of which (i) have been issued by insurers of recognized responsibility and (ii) currently are, and will remain without interruption to the Effective Time, in full force and effect. Section 5.13 Employee Matters. (a) Employment Agreements. Schedule 5.13(a) contains a list of all of the following, whether written or unwritten: (i) Employment Agreements and (ii) plans, programs, agreements and other arrangements with or relating to employees containing change of control or similar provisions not otherwise listed in the SEC Documents remaining executory in whole or in part on the date hereof, and CB&I has provided Fund VIII with true, complete and correct copies of all those Employment Agreements and such plans, programs, agreements and other arrangements. CB&I is not party to any oral Employment Agreement. (b) Employee Benefit Plans. For purposes of this Section 5.13 and Section 5.14, all references to "CB&I" shall be deemed to refer to CB&I and its Subsidiaries and any trade or business, whether or not incorporated, that together with CB&I and its Subsidiaries would be deemed or treated as a "single employer" within the meaning of ERISA Section 4001 or Code Section 414. (i) Each Plan is listed on Schedule 5.13(b). Except as discussed on Schedule 5.13(b), no Plan is or has been (w) covered by Title IV of ERISA, (x) subject to the minimum funding requirements of Section 412 of the Code, (y) a "multi-employer plan" as defined in Section 3(37) of ERISA or (z) a voluntary employees' beneficiary association within the meaning of Code Section 501(c)(9). (ii) Except as described on Schedule 5.13(b), (x) CB&I has no obligation to make any payments that would be "excess parachute payments" under Section 280G of the Code; and (y) no Plan provides for the continuation of medical or health benefits or death benefits after an employee's termination of employment (including retirement) other than (A) coverage mandated by applicable law, (B) deferred compensation benefits reflected as liabilities on the books of CB&I or (C) benefits the full cost of which is borne by the current or former employee or his beneficiary. 18 20 Section 5.14 Compliance With ERISA, Labor Laws. (a) Each Plan complies in form and operation in all material respects with its governing documents and ERISA, the Code and all other applicable Governmental Requirements except where such noncompliance would not have a Material Adverse Effect. CB&I has no commitment or obligation to establish or adopt any new or additional Plans or to Materially increase the benefits under any existing Plan. (b) To the knowledge of CB&I, with respect to the Plans, no event has occurred and there exists no condition or set of circumstances in connection with which CB&I could be subject to any liability (except for contributions and Plan expenses) under the terms of such Plans, ERISA, the Code or any other applicable law except where such failure would not have a Material Adverse Effect. All Plans that are intended to be qualified under Section 401(a) of the Code have been determined by the IRS to be so qualified, and nothing has occurred to the knowledge of CB&I since the date of determination which could cause any such Plan to be disqualified. (c) Except as set forth on Schedule 5.14, neither CB&I nor any of its Subsidiaries is a party to any Material collective bargaining agreement or labor contract. Except as set forth on Schedule 5.14, to the knowledge of CB&I, neither CB&I nor any of its Subsidiaries has engaged in any unfair labor practice with respect to any Persons employed by or otherwise performing services primarily for CB&I or any of its Subsidiaries. Except as set forth on Schedule 5.14, there is no grievance or unfair labor practice charge against CB&I or any of its Subsidiaries before the National Labor Relations Board or any comparable state agency pending or threatened in writing with respect to any such Persons. There is no labor strike, dispute (to the knowledge of CB&I), slowdown, work stoppage, and, to the knowledge of CB&I, there is not threatened nor has there been threatened, any organizing effort or activity by any employees or labor unions at or relating to CB&I or any of its Subsidiaries, any petition for certification of a collective bargaining representative regarding employees of CB&I or any of its Subsidiaries, pending or, to the knowledge of CB&I, threatened against or affecting CB&I or any of its Subsidiaries which would have a Material Adverse Effect. Section 5.15 Absence of Changes. Since the most recent SEC Document, except as set forth in Schedule 5.15, none of the following has occurred with respect to CB&I's business: (a) any increase in, or any commitment or promise to increase, other than ordinary and customary bonuses and salary increases for employees at the times and in the amounts consistent with its past practice, (i) the rates of cash compensation or (ii) except as would not have a Material Adverse Effect on CB&I or as required by applicable laws, any increase in the amounts or other benefits paid or payable under any Plans; (b) any work interruptions, labor grievances or claims filed, or any similar event or condition of any character, that will have a Material Adverse Effect on CB&I following the Effective Time; 19 21 (c) any distribution, sale or transfer of, or any commitment to distribute, sell or transfer, assets of CB&I or any of its Subsidiaries of any kind that singly is, or in the aggregate are, Material to CB&I's business, other than distributions, sales or transfers in the ordinary course of its business and consistent with its past practices; (d) any cancellation, or agreement to cancel, any Material Indebtedness, obligation or other liability owing to CB&I or its Subsidiaries, including any Material Indebtedness, obligation or other liability of any Affiliate, provided that CB&I and its Subsidiaries may negotiate and adjust bills and invoices in the course of good-faith disputes with customers in a manner consistent with past practice; (e) any plan, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of the Material assets of CB&I or its Subsidiaries or requiring the consent of any Person to the transfer and assignment of any of such asset; (f) any purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of operating CB&I's business consistent with its past practices; (g) any waiver of any of the rights or claims of CB&I or its Subsidiaries that singly is, or in the aggregate are, Material to CB&I's business; (h) any transaction by CB&I or its Subsidiaries outside the ordinary course of operating CB&I's business or not consistent with the past practices of its business; (i) any incurrence by CB&I or its Subsidiaries of any of the following: any Material Indebtedness or any Material Guaranty not constituting Indebtedness, or any commitment to incur any such Indebtedness or any such Guaranty (except for CB&I Guaranties of the performance of its Subsidiaries and Affiliates in the ordinary course of business); or (j) any cancellation or termination of a material agreement relating to CB&I's business. Section 5.16 Broker's Fees. CB&I has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement. Section 5.17 Inside Information. CB&I has complied with Section 46a of the Dutch 1995 Securities Act (Wet toezicht effectenverkeer 1995) continuously. At the time of its entry into this Agreement and at its issuance of the PDM Financing Shares, CB&I did not possess, and has not provided to Fund VIII, any insider knowledge (voorwetenschap) in respect of it or the trade in its securities within the meaning of Section 46 of the Dutch 1995 Securities Act (Wet toezicht effectenverkeer 1995). 20 22 Section 5.18 Change of Control. The consummation of the transactions contemplated by this Agreement, the PDM Acquisition and the Other Financing Transaction will not trigger any change-of-control provisions in any Plan or Material Contract. Section 5.19 Limitations on Representations and Warranties. Except as and to the extent expressly set forth in this Article V, included on any Schedule hereto or included in any writing delivered by CB&I concurrently herewith or subsequent hereto expressly pursuant to this Agreement, CB&I makes no other representations or warranties, and disclaims all liability and responsibility for any representation, warranty, statement or information made or communicated (orally or in writing) to Fund VIII or any of its Affiliates, employees, agents, consultants or representatives (including any opinion, information, projection or advice that may have been provided to Fund VIII by any officer, director, employee, agent, consultant or representative of CB&I or any Affiliate thereof, or by any other agent, consultant or representative of CB&I or the CB&I Subsidiaries). ARTICLE VI COVENANTS AND AGREEMENTS OF THE PARTIES Section 6.01 Mutual Cooperation. Fund VIII and CB&I will cooperate with each other and their Representatives in the preparation of any documents or other material that may be required in connection with any Transaction Document. CB&I and Fund VIII will treat all Confidential Information obtained by them in connection with the negotiation and performance of this Agreement as confidential in accordance with the provisions of Section 11.01. (a) The parties hereby acknowledge that any in-house counsel of Fund VIII, on the one hand, and of CB&I and any CB&I Subsidiary, on the other hand, who are employees and who participated in the preparation, negotiation or consummation of this Agreement or the transactions contemplated hereby were providing legal representation for the Fund VIII or the CB&I, as the case may be, and that, notwithstanding any other provision of this Agreement, neither Fund VIII or its affiliates, CB&I, any CB&I Subsidiary, nor such counsel shall be required to disclose under any circumstance any information or documents covered by the attorney-client privilege or the work-product doctrine as such information or documents were developed in the course of such representation. All such information and documents shall remain the sole and exclusive property of Fund VIII or CB&I, as the case may be. Any claims made against such in-house counsel arising out of the opinions given pursuant to this Agreement shall be treated as a claim against the party who employed such in-house counsel. (b) CB&I and Fund VIII will use their best efforts to secure, as soon as practicable after the date hereof, all approvals and consents of third Persons as may be necessary to consummate the transactions contemplated hereby. 21 23 (c) If this Agreement is terminated pursuant to Article XII, CB&I and Fund VIII will promptly return all Confidential Information of the other party it then possesses to such other party. Section 6.02 Conduct of Business Pending the Closing. From the date hereof and until the Closing, CB&I will: (a) carry on its business in substantially the same manner as it has heretofore and not introduce any Material new method of management, operation or accounting; (b) perform all its obligations under agreements relating to or affecting its business consistent with past practices; (c) keep in full force and effect without interruption all its present insurance policies relating to its business and the assets of CB&I or other comparable insurance coverage; (d) use reasonable commercial efforts to (i) maintain and preserve its business organizations operating its respective business intact, (ii) retain present key employees who are involved in the operation of its business and (iii) maintain relationships with suppliers, customers and others having business relations with its business; and (e) comply with all applicable Governmental Requirements relating to its business. Section 6.03 Prohibited Activities. From the date hereof and until the Closing, without the prior written consent of the other parties to this Agreement or unless as required or expressly permitted by this Agreement, CB&I will not: (a) create, assume or permit to be created or imposed any Liens (other than Permitted Liens) upon any of the assets of CB&I, whether now owned or hereafter acquired; (b) agree to sell, assign, lease or otherwise transfer or dispose of substantially all of the assets of CB&I or agree to merge, consolidate or effect a share exchange with, any other Entity; (c) commit a Material breach of any Material Contract of CB&I or its Subsidiaries or of any Governmental Approvals Material to its business; (d) enter into any other transactions which would have a Material Adverse Effect on its business that is not in the ordinary course of its business and consistent with its past practice or is prohibited hereby; or (e) (i) solicit, initiate or encourage, or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, an 22 24 Alternative Proposal, or (ii) participate in any discussions or negotiations regarding an Alternative Proposal. Section 6.04 Notification of Certain Matters. Fund VIII shall give prompt notice to CB&I of (a) the existence or occurrence of each condition or state of facts that will or reasonably could be expected to cause any representation or warranty of Fund VIII contained herein to be untrue or incorrect in any Material respect at or prior to the Closing Date and (b) any material failure of Fund VIII to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder. CB&I shall give prompt notice to Fund VIII of (a) the existence or occurrence of each condition or state of facts that will or reasonably could be expected to cause any representation or warranty of CB&I contained herein to be untrue or inaccurate at or prior to the Closing Date, and (b) any material failure of CB&I to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder. The delivery of any notice pursuant to this Section 6.04 shall not be deemed to (a) modify the representations or warranties herein of the party delivering that notice, or any other party; (b) modify the conditions set forth or referred to in Article VII; or (c) limit or otherwise affect the remedies available hereunder to the party receiving that notice. Section 6.05 Fees and Expenses. Except as otherwise specifically provided elsewhere in this Agreement, Fund VIII and CB&I shall bear their own fees and expenses incurred in connection with this Agreement and in connection with all obligations required to be performed by each of them under this Agreement. Section 6.06 Publicity. The parties hereto agree to consult with one another prior to the issuance of any press release or public statement relating to or concerning this Agreement or the matters contained herein. Such consultation shall include prior notification of a party's intent to issue a press release accompanied by a copy of the proposed language of such press release or public statement. If CB&I or Fund VIII is required to issue a press release by law or a securities exchange, it shall use its best efforts to inform the other party hereto prior to such issuance. Section 6.07 Commercially Reasonable Efforts. Each of Fund VIII and CB&I will use commercially reasonable efforts to take all actions and do all things necessary in order to consummate and make effective the transactions contemplated by this Agreement, including the satisfaction, but not the waiver, of the closing conditions set forth in Article VII If the Federal Trade Commission or the Antitrust Division of the Department of Justice raises an objection to the PDM Acquisition and the transactions contemplated hereby, and/or proposes or seeks to impose any divestiture, operating restriction or other condition, CB&I agrees, expeditiously and in good faith, to discuss such objection, conditions and possible resolutions with such Governmental Authority. Notwithstanding the foregoing, CB&I's Board of Supervisory Directors shall not be required to take any action that it has determined in good faith, based on the advice of outside counsel, would constitute a breach of its fiduciary duties to CB&I shareholders under applicable law. 23 25 ARTICLE VII CONDITIONS TO CLOSING AND CONSUMMATION Section 7.01 Conditions to the Obligations of Each Party. The obligation of each party hereto to take the actions contemplated to be taken by that party at the Closing is subject to receipt of all Governmental Approvals required to be obtained by Fund VIII or CB&I in connection with the consummation of the PDM Acquisition and the purchase and sale of the PDM Financing Shares on or before the Closing Date. Section 7.02 Conditions to the Obligations of Fund VIII. The obligations of Fund VIII with respect to actions to be taken by it at or before the Closing Date and the actions to be taken on the Closing Date are subject to the satisfaction, or the waiver by Fund VIII pursuant to Section 11.03, on or before the Closing Date of the following: (a) all of the representations and warranties of CB&I set forth in Article V shall be true and correct as of the Closing Date as though made at that date other than such changes and exceptions that (i) are contemplated by this Agreement or (ii) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; (b) CB&I shall have delivered the documents described in Sections 3.04(b); (c) CB&I shall have made application for and received approval for listing of the shares of CB&I Stock constituting the PDM Financing Shares and the shares of CB&I Stock to be issued pursuant to the Additional Warrant and the Purchase Warrant on a "when-issued" basis on the New York Stock Exchange, Inc; (d) The PDM Acquisition shall have been consummated or there shall be no conditions precedent to the consummation of the PDM Acquisition; and (e) all third-party, non-governmental consents or approvals necessary for the consummation of the transactions contemplated by this Agreement shall have been received. Section 7.03 Conditions to the Obligations of CB&I. The obligations of CB&I with respect to actions to be taken by it at or before the Closing Date are subject to the satisfaction, or the waiver by CB&I pursuant to Section 11.03, on or before the Closing Date of the following: (a) all of the representations and warranties of Fund VIII set forth in Article IV shall be true and correct 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 (ii) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; (b) Fund VIII shall have delivered the documents described in Section 3.04(a); 24 26 (c) The PDM Acquisition shall have been consummated or there shall be no conditions precedent to the consummation of the PDM Acquisition; and (d) all third-party, non-governmental consents or approvals necessary for the consummation of the transactions contemplated by this Agreement shall have been received. ARTICLE VIII COVENANTS FOLLOWING THE CLOSING Section 8.01 Post-Closing Assistance. From and after the Closing Date, upon the reasonable request of the CB&I or the Fund VIII, as the case may be, the parties hereto shall do, execute, acknowledge and deliver all such further acts, assurances, deeds, assignments, transfers, conveyances and other instruments and papers as may be reasonably required or appropriate to carry out the transactions contemplated by this Agreement. Section 8.02 No Transactions. For a period of six months following the Closing Date, CB&I will use its best efforts, consistent with the fiduciary duties of the Supervisory Board, not to enter into any Business Combination, Recapitalization or other corporate transaction that could subject Fund VIII to any liability pursuant to the Securities Exchange Act of 1934, as amended, or the rules promulgated thereunder by the Commission, including pursuant to Section 16, including the forfeiture of any "profit" pursuant to Section 16(b) thereof. As of the date hereof, CB&I does not contemplate, plan, expect or anticipate entering into any such transaction. ARTICLE IX SURVIVAL OF REPRESENTATIONS AND WARRANTIES Section 9.01 Survival of Representations and Warranties. (a) Except as set forth below in Sections 9.01(b) and (c), the representations and warranties contained in Articles IV and V will terminate and expire 12 months after the Closing Date. (b) The representations and warranties set forth in or deemed to be set forth in Section 5.08 and Section 5.14 will terminate and expire five years after discovery of the condition, circumstance or fact constituting a breach of any such representation or warranty. (c) The representations and warranties set forth in or deemed to be set forth in Section 4.01, Section 4.02, Section 4.03, Section 4.04, Section 5.01, Section 5.02, Section 5.05, Section 5.06, Section 5.07, Section 5.17 and Section 5.19 will survive the Closing and Effective Time indefinitely. 25 27 ARTICLE X [INTENTIONALLY OMITTED] ARTICLE XI GENERAL PROVISIONS Section 11.01 Treatment of Confidential Information. (a) Each of the parties to this Agreement acknowledge that they have or may have had in the past, currently have and in the future may have access to Confidential Information of the other parties. Each of the parties agrees that it will keep confidential all such Confidential Information furnished to it and, except with the specific prior written consent of the other parties, will not disclose such Confidential Information to any Person, except (i) Representatives of the parties and (ii) its own Representatives, provided that these Representatives (other than counsel) agree to the confidentiality provisions of this Section 11.01; provided, however, that Confidential Information shall not include such information as (i) becomes known to the public generally through no fault of any party, (ii) is required to be disclosed by law or the order of any Governmental Authority under color of law, or (iii) the disclosing party reasonably believes is required to be disclosed in connection with the defense of a lawsuit against the disclosing party. (b) The obligations of the parties under this Section 11.01 shall survive the termination of this Agreement. Section 11.02 Assignment; No Third-Party Beneficiaries. This Agreement and the rights of the parties hereunder may not be assigned (except by operation of law) and shall be binding on and inure to the benefit of the parties hereto, the successors of CB&I, and the successors of Fund VIII. Neither this Agreement nor any other Transaction Document is intended, or shall be construed, deemed or interpreted, to confer on any Person not a party hereto or thereto any rights or remedies hereunder or thereunder, except as otherwise provided expressly herein or therein. Section 11.03 Entire Agreement; Amendment; Waivers. This Agreement, the Amendment to the Shareholder Agreement and the documents delivered pursuant hereto constitute the entire agreement and understanding among Fund VIII and CB&I with regard to the purchase and sale of the PDM Financing Shares and supersede 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 signed by Fund VIII and CB&I. 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 11.04 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 26 28 telex, telegram, facsimile 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: Secretary Fax: (815) 439-6297 with a copy to: Winston & Strawn 35 Wacker Drive Chicago, Illinois 60601 Attn: James Reum Fax: (312) 558-5700 and (2) if to Fund VIII , addressed to it at: First Reserve Fund VIII, L.P. 1801 California Street, Suite 4110 Denver, CO 80202 Attn: Thomas R. Denison Fax: (303) 382-1275 with a copy to: Gibson, Dunn & Crutcher, LLP 1801 California Street, Suite 4100 Denver, CO 80202 Attn: Steven K. Talley Fax: (303) 296-5310 Section 11.05 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 27 29 WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK. FUND VIII AND CB&I EACH HEREBY IRREVOCABLY AGREE THAT VENUE OF ANY LEGAL PROCEEDINGS OR ARBITRATION ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE IN NEW YORK CITY. Section 11.06 WAIVER OF CERTAIN CLAIMS. (A) NEITHER FUND VIII 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 SUFFERED BY SUCH PARTY, AND (B) FUND VIII 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. Section 11.07 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 11.08 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. Section 11.09 Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof. Information disclosed on a certain Schedule shall be deemed as disclosed on any other Schedule to which such information may also relate. Section 11.10 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. 28 30 ARTICLE XII TERMINATION Section 12.01 Termination of this Agreement. This Agreement may be terminated: (a) by the mutual written consent duly authorized by the Supervisory Board of Directors of CB&I and Fund VIII and by the management board of CB&I; (b) by CB&I or Fund VIII at any time after February 15, 2001, if at the time notice of such termination is given, the transactions contemplated by this Agreement have not been consummated; (c) by CB&I or Fund VIII if, on the Closing Date, a preliminary or permanent injunction has been entered restraining, prohibiting or declaring illegal the sale of the PDM Financing Shares by CB&I or the purchase of the PDM Financing Shares by Fund VIII; and (d) by Fund VIII, if the CB&I Supervisory Board of Directors shall have failed to recommend, or shall have withdrawn, its approval or recommendation of the transactions contemplated by this Agreement, or shall have recommended acceptance of any Alternative Proposal. Section 12.02 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 12.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party or its directors, officers or stockholders, except that (i) the provisions of this Section 12.02, Section 11.01 and Section 6.05 shall survive any such termination and (ii) all costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such expenses. Nothing contained in this Section 12.02 shall relieve any party from its liability for any breach of this Agreement. [signature page follows] 29 31 IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as of the date first written above. FIRST RESERVE FUND VIII, L.P., A DELAWARE LIMITED PARTNERSHIP BY: FIRST RESERVE GP VIII, L.P. A DELAWARE LIMITED PARTNERSHIP, ITS GENERAL PARTNER BY: FIRST RESERVE CORPORATION, A DELAWARE CORPORATION, ITS GENERAL PARTNER By: /s/ Thomas R. Denison Name: 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 Name: Gerald M. Glenn Title: Managing Director [SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT] 30 EX-99.(J) 5 d83954aex99-j.txt PURCHASE WARRANT 1 EXHIBIT 99(J) WARRANT THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH WARRANT OR 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 WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, 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., AS AMENDED (THE "SHAREHOLDER AGREEMENT"). NO TRANSFER OF THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, 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 EVIDENCE 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 WARRANT TO PURCHASE COMMON STOCK OF CHICAGO BRIDGE & IRON COMPANY N.V. FEBRUARY 7, 2001 THIS CERTIFIES THAT, for value received, First Reserve Fund VIII, L.P., or its permitted registered assigns ("Holder"), is entitled, subject to the terms and conditions of this Warrant, at any time or from time to time after the issuance date of this Warrant (the "Effective Date"), and before 5:00 p.m. Eastern Time on the third anniversary of the Effective Date (the "Expiration Date"), to purchase from Chicago Bridge & Iron Company N.V., a company organized under the laws of the Netherlands (the "Company"), Two Hundred Fifty One Thousand, Five Hundred Ninety Eight (251,598) shares of Common Stock, par value NLG .01, of the Company (the "Common Stock") at a price per share of NLG .01 (the "Purchase Price"). Both the number of 1 2 shares of Common Stock purchasable upon exercise of this Warrant and the Purchase Price are subject to adjustment and change as provided herein. 1. CERTAIN DEFINITIONS. As used in this Warrant the following terms shall have the following respective meanings: 1.1. "Fair Market Value" of a share of Common Stock as of a particular date shall mean: (a) If traded on a securities exchange or the Nasdaq National Market, the Fair Market Value shall be deemed to be the average of the closing prices of the Common Stock of the Company on such exchange or market over the five (5) trading days ending immediately prior to the applicable date of valuation; If actively traded over-the-counter, the Fair Market Value shall be deemed to be the average of the closing bid prices over the thirty (30)-day period ending immediately prior to the applicable date of valuation; and If there is no active public market, the Fair Market Value shall be the value thereof, as agreed upon by the Company and the Holder; provided, however, that if the Company and the Holder cannot agree on such value, such value shall be determined by an independent valuation firm experienced in valuing businesses such as the Company and jointly selected in good faith by the Company and the Holder. Fees and expenses of the valuation firm shall be paid for by the Company. 1.2. "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. 1.3. "Registered Holder" shall mean any Holder in whose name this Warrant is registered upon the books and records maintained by the Company. 1.4. "Shareholder Agreement" shall mean the Shareholder agreement between First Reserve Fund VIII, L.P. and the Company dated December 28, 2000. 1.5. "Warrant" as used herein, shall include this Warrant and any warrant delivered in substitution or exchange therefor as provided herein. 1.6. "Common Stock" shall mean the registered ordinary shares not convertible in bearer shares of the Company and any other securities at any time receivable or issuable upon exercise of this Warrant. 2. EXERCISE OF WARRANT 2.1. Payment. Subject to compliance with the terms and conditions of this Warrant and applicable securities laws, this Warrant may be exercised, in whole or in part 2 3 at any time or from time to time, on or before the Expiration Date by the delivery (including, without limitation, delivery by facsimile) of the form of Notice of Exercise attached hereto as Exhibit 1 (the "Notice of Exercise"), duly executed by the Holder, at the principal office of the Company, and as soon as practicable after such date, surrendering (a) this Warrant at the principal office of the Company, and (b) payment (i) in cash (by check) or by wire transfer; (ii) by cancellation by the Holder of indebtedness of the Company to the Holder; or (iii) by a combination of (i) and (ii), of an amount equal to the product obtained by multiplying the number of shares of Common Stock being purchased upon such exercise by the then effective Purchase Price (the "Exercise Amount"), except that if Holder is subject to HSR Act Restrictions (as defined in Section 2.5 below), the Exercise Amount shall be paid to the Company within five (5) business days of the termination of all HSR Act Restrictions. 2.2. Net Issue Exercise. In lieu of the payment methods set forth in Section 2.1(b) above, the Holder may elect to exchange all or some of this Warrant for shares of Common Stock equal to the value of the amount of the Warrant being exchanged on the date of exchange. If Holder elects to exchange this Warrant as provided in this Section 2.2, Holder shall tender to the Company the Warrant for the amount being exchanged, along with written notice of Holder's election to exchange some or all of the Warrant, and the Company shall issue to Holder the number of shares of the Common Stock computed using the following formula: X = Y (A-B) ------- A Where X = the number of shares of Common Stock to be issued to Holder. Y = the number of shares of Common Stock purchasable under the amount of the Warrant being exchanged (as adjusted to the date of such calculation). A = the Fair Market Value of one share of the Common Stock. B = the Purchase Price (as adjusted to the date of such calculation). 2.3. Stock Certificates; Fractional Shares. As soon as practicable on or after the date of any exercise of this Warrant, the Company shall issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of whole shares of Common Stock issuable upon such exercise, together with cash in lieu of any fraction of a share equal to such fraction of the current Fair Market 3 4 Value of one whole share of Common Stock as of such date of exercise. No fractional shares or scrip representing fractional shares shall be issued upon an exercise of this Warrant. 2.4. HSR Act. The Company hereby acknowledges that exercise of this Warrant by Holder may subject the Company and/or the Holder to the filing requirements of the HSR Act and that Holder may be prevented from exercising this Warrant until the expiration or early termination of all waiting periods imposed by the HSR Act ("HSR Act Restrictions"). If on or before the Expiration Date Holder has sent the Notice of Exercise to Company and Holder has not been able to complete the exercise of this Warrant prior to the Expiration Date because of HSR Act Restrictions, the Holder shall be entitled to complete the process of exercising this Warrant in accordance with the procedures contained herein notwithstanding the fact that completion of the exercise of this Warrant would take place after the Expiration Date. 2.5. Partial Exercise; Effective Date of Exercise. In case of any partial exercise of this Warrant, the Company shall cancel this Warrant upon surrender hereof and shall execute and deliver a new Warrant of like tenor and date for the balance of the shares of Common Stock purchasable hereunder. This Warrant shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above. However, if Holder is subject to HSR Act filing requirements this Warrant shall be deemed to have been exercised on the date immediately following the date of the expiration of all HSR Act Restrictions. The person entitled to receive the shares of Common Stock issuable upon exercise of this Warrant shall be treated for all purposes as the holder of record of such shares as of the close of business on the date the Holder is deemed to have exercised this Warrant. 3. VALID ISSUANCE: TAXES. All shares of Common Stock issued upon the exercise of this Warrant shall be validly issued, fully paid and non-assessable, and the Company shall pay all taxes and other governmental charges that may be imposed in respect of the issue or delivery thereof. The Company shall not be required to pay any tax or other charge imposed in connection with any transfer involved in the issuance of any certificate for shares of Common Stock in any name other than that of the Registered Holder of this Warrant, and in such case the Company shall not be required to issue or deliver any stock certificate or security until such tax or other charge has been paid, or it has been established to the Company's reasonable satisfaction that no tax or other charge is due. 4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities or property receivable or issuable upon exercise of this Warrant) and the Purchase Price are subject to adjustment upon occurrence of the following events: 4 5 4.1. Adjustment for Stock Splits, Stock Subdivisions or Combinations of Shares. The Purchase Price of this Warrant shall be proportionally decreased and the number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities at the time issuable upon exercise of this Warrant) shall be proportionally increased to reflect any stock split or subdivision of the Company's Common Stock. The Purchase Price of this Warrant shall be proportionally increased and the number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities at the time issuable upon exercise of this Warrant) shall be proportionally decreased to reflect any combination of the Company's Common Stock. 4.2. Adjustment for Dividends or Distributions of Stock or Other Securities or Property. In case the Company shall make or issue, or shall fix a record date for the determination of eligible holders entitled to receive, a dividend or other distribution with respect to the Common Stock (or any shares of stock or other securities at the time issuable upon exercise of the Warrant) payable in (a) securities of the Company or (b) assets (including cash dividends paid or payable solely out of retained earnings), then, in each such case, the Holder of this Warrant on exercise hereof at any time after the consummation, effective date or record date of such dividend or other distribution, shall receive, in addition to the shares of Common Stock (or such other stock or securities) issuable on such exercise prior to such date, and without the payment of additional consideration therefor, the securities or such other assets of the Company to which such Holder would have been entitled upon such date if such Holder had exercised this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and all such additional securities or other assets distributed with respect to such shares as aforesaid during such period giving effect to all adjustments called for by this Section 4. 4.3. Reclassification. If the Company, by reclassification of securities or otherwise, shall change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Warrant immediately prior to such reclassification or other change, and the Purchase Price therefor shall be appropriately adjusted, all subject to further adjustment as provided in this Section 4. No adjustment shall be made pursuant to this Section 4.3 upon any conversion or redemption of the Common Stock which is the subject of Section 4.5. 4.4. Adjustment for Capital Reorganization, Merger or Consolidation. In case of any capital reorganization of the capital stock of the Company (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), or any merger or consolidation of the Company with or into 5 6 another corporation, or the sale of all or substantially all the assets of the Company then, and in each such case, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that the Holder of this Warrant shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Purchase Price then in effect, the number of shares of stock or other securities or property of the successor corporation resulting from such reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Warrant had been exercised immediately before such reorganization, merger, consolidation, sale or transfer, all subject to further adjustment as provided in this Section 4. The foregoing provisions of this Section 4.4 shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock or securities of any other corporation that are at the time receivable upon the exercise of this Warrant. If the per-share consideration payable to the Holder hereof for shares in connection with any such transaction is in a form other than cash or marketable securities, then the value of such consideration shall be determined in good faith by the Company's Supervisory Board of Directors. In all events, appropriate adjustment (as determined in good faith by the Company's Board of Directors) shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Holder after the transaction, to the end that the provisions of this Warrant shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant. 4.5. Conversion of Common Stock. In case all or any portion of the authorized and outstanding shares of Common Stock of the Company are redeemed or converted or reclassified into other securities or property pursuant to the Company's Certificate of Incorporation or otherwise, or the Common Stock otherwise ceases to exist, then, in such case, the Holder of this Warrant, upon exercise hereof at any time after the date on which the Common Stock is so redeemed or converted, reclassified or ceases to exist (the "Termination Date"), shall receive, in lieu of the number of shares of Common Stock that would have been issuable upon such exercise immediately prior to the Termination Date, the securities or property that would have been received if this Warrant had been exercised in full and the Common Stock received thereupon had been simultaneously converted immediately prior to the Termination Date, all subject to further adjustment as provided in this Warrant. 4.6. Adjustment for Issuance of Additional Shares of Common Stock. This Section 4.6 shall not apply to the issuance of shares of Common Stock upon an issuance by the Company of options exercisable for the purchase of that number of shares of Common Stock under the Company's existing option plans to existing and future officers, employees, outside directors, consultant, vendors and advisors of the Company, and the subsequent exercise of any such options (collectively, the 6 7 "Exempted Issuances"). Upon issuance by the Company of Common Stock, or any right or option to Common Stock or other stock convertible into Common Stock, or any obligation or any share of stock convertible into or exchangeable for Common Stock for a price per share that is less than the Fair Market Value on the date of such issuance or sale, other than Exempted Issuances (a "Triggering Issuance"), then forthwith upon such issuance or sale the Warrant Price in effect immediately prior to such issuance and the number of shares of Common Stock for which the Warrant is exercisable will be adjusted as follows: (a) Adjustment to Number of Shares of Common Stock for Which Warrant is Exercisable. The number of shares of Common Stock for which this Warrant is exercisable shall be adjusted to equal the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such issue or sale, multiplied by a fraction, (i) the numerator of which is the number of shares of Common Stock outstanding immediately prior to the Triggering Issuance plus the number of shares of Common Stock issued in the Triggering Issuance, and (ii) the denominator of which is the number of shares of Common Stock outstanding immediately prior to the Triggering Issuance plus the number of shares which the aggregate amount of consideration, if any, received by CB&I upon the Triggering Issuance of all such shares of Common Stock would purchase at the Fair Market Value as of such time. (b) Adjustment to the Purchase Price. The Purchase Price shall be adjusted to equal the Purchase Price immediately prior to the Triggering Issuance multiplied by the quotient obtained by dividing the number of shares of Common Stock for which this Warrant was exercisable immediately prior to the adjustment under (a) above by the number of shares of Common Stock for which this warrant is exercisable immediately after the adjustment under (a) above. 5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in the Purchase Price, or number or type of shares issuable upon exercise of this Warrant, the Chief Financial Officer or Controller of the Company shall compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, including a statement of the adjusted Purchase Price. The Company shall promptly send (by facsimile and by either first class mail, postage prepaid or overnight delivery) a copy of each such certificate to the Holder. 6. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory to the Company of the ownership of and the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to it, and (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company will execute and deliver in lieu thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated Warrant. 7 8 7. RESERVATION OF COMMON STOCK. The Company hereby covenants that at all times there shall be reserved for issuance and delivery upon exercise of this Warrant such number of shares of Common Stock or other shares of capital stock of the Company as are from time to time issuable upon exercise of this Warrant and, from time to time, will take all steps necessary to amend its Articles of Association to increase its authorized capital in order to allow the issue of Common Stock upon exercise of this Warrant. All such shares shall be duly authorized, and when issued upon such exercise, shall be validly issued, fully paid and non-assessable, free and clear of all liens, security interests, charges and other encumbrances or restrictions on sale and free and clear of all preemptive rights, except encumbrances or restrictions arising under federal or state securities laws. Issuance of this Warrant shall constitute full authority to the Company's officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock upon the exercise of this Warrant. 8. TRANSFER AND EXCHANGE. Subject to the terms and conditions of this Warrant and compliance with all applicable securities laws, this Warrant and all rights hereunder may be transferred to any Registered Holder's affiliate, in whole or in part, on the books of the Company maintained for such purpose at the principal office of the Company referred to above, by the Registered Holder hereof in person, or by duly authorized attorney, upon execution of a form of assignment in the form of Exhibit 2, notification of the Company thereof, and surrender of this Warrant properly endorsed and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any permitted partial transfer, the Company will issue and deliver to the Registered Holder a new Warrant or Warrants with respect to the shares of Common Stock not so transferred. Each taker and holder of this Warrant, by taking or holding the same, consents and agrees that when this Warrant shall have been so endorsed, the person in possession of this Warrant may be treated by the Company, and all other persons dealing with this Warrant, as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding; provided, however that until a transfer of this Warrant is duly registered on the books of the Company, the Company may treat the Registered Holder hereof as the owner for all purposes. 9. RESTRICTIONS ON TRANSFER. The Holder, by acceptance hereof, agrees that, absent an effective registration statement filed with the Securities and Exchange Commission (the "SEC") under the Securities Act covering the disposition or sale of this Warrant or the Common Stock issued or issuable upon exercise hereof, as the case may be, and registration or qualification under applicable state securities laws, such Holder will not sell, transfer, pledge, or hypothecate any or all such Warrants or such Common Stock, as the case may be, unless such transfer is made in accordance with the provisions of the Shareholder Agreement and either (i) the Company has received an opinion of counsel, in form and substance reasonably satisfactory to the Company, to the effect that such registration is not required in connection with such disposition or (ii) the sale of such securities is made pursuant to SEC Rule 144. 8 9 10. COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant, the Holder hereby represents, warrants and covenants that any shares of stock purchased upon exercise of this Warrant shall be acquired for investment only and not with a view to, or for sale in connection with, any distribution thereof; that the Holder has had such opportunity as such Holder has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Holder to evaluate the merits and risks of its investment in the Company; that the Holder is able to bear the economic risk of holding such shares as may be acquired pursuant to the exercise of this Warrant for an indefinite period; that the Holder understands that the shares of stock acquired pursuant to the exercise of this Warrant will not be registered under the 1933 Act (unless otherwise required pursuant to exercise by the Holder of the registration rights, if any, granted to the Registered Holder) and will be "restricted securities" within the meaning of Rule 144 under the 1933 Act and that the exemption from registration under Rule 144 will not be available for at least one (1) year from the date of exercise of this Warrant, subject to any special treatment by the SEC for exercise of this Warrant pursuant to Section 2.2, and even then will not be available unless a public market then exists for the stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and that all stock certificates representing shares of stock issued to the Holder upon exercise of this Warrant or upon conversion of such shares may have affixed thereto a legend substantially in the following form: "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., AS AMENDED (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 9 10 SHARES UPON WRITTEN REQUEST. THE SHARES 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. 11. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS. This Warrant shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company. In the absence of affirmative action by such Holder to purchase Common Stock by exercise of this Warrant, no provisions of this Warrant, and no enumeration herein of the rights or privileges of the Holder hereof shall cause such Holder hereof to be a stockholder of the Company for any purpose. 12. REGISTRATION RIGHTS. All shares of Common Stock issuable upon exercise of this Warrant shall be "Holders' Securities" or such other definition of securities entitled to registration rights pursuant to the Shareholder Agreement and are otherwise subject to the restrictions of the Shareholder Agreement. 13. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to Holder that: 13.1. Due Authorization; Consents. All corporate action on the part of the Company, its officers, directors and shareholders necessary for (a) the authorization, execution and delivery of, and the performance of all obligations of the Company under, this Warrant, and (b) the authorization, issuance, reservation for issuance and delivery of all of the Common Stock issuable upon exercise of this Warrant, has been duly taken. This Warrant constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, moratorium, reorganization and similar laws affecting creditors' rights generally and to general equitable principles. All consents, approvals and authorizations of, and registrations, qualifications and filings with, any federal or state governmental agency, authority or body, or any third party, required in connection with the execution, delivery and performance of this Warrant and the consummation of the transactions contemplated hereby and thereby have been obtained. 13.2. Organization. The Company is a corporation duly organized and validly existing under the laws of the Netherlands and has all requisite corporate power to own, lease and operate its property and to carry on its business as now being conducted and as currently proposed to be conducted. 13.3. SEC Reports; Financial Statements. (a) The Company has duly filed with the SEC the Company's annual report on Form 10-K for the year ended December 31, 1999 and its quarterly reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000 (collectively, the "CB&I SEC Reports"). As of their 10 11 respective filing dates, the CB&I SEC Reports complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent corrected by a subsequently filed document with the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes) contained in the CB&I SEC Reports complied as to form in all material respects with the applicable published rules and regulations of the SEC with respect thereto, was prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted for by Form 10-Q) and presented fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as at the respective dates and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements are subject to normal and recurring year-end adjustments which are not expected to be material in amount. 13.4. Capitalization. The authorized capital stock of the Company consists of 35,000,000 shares of Common Stock. As of December 28, 2000: (i) 17,720,350 shares of Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable; (ii) 4,181,755 shares of Common Stock were reserved for issuance under the Company's stock option plans, 1,557,813 of which shares were subject to options outstanding on such date; (iii) 250,000 shares of Common Stock were reserved for issuance under the Company's employee stock purchase plan; (iv) 82,118 shares of Common Stock were reserved for issuance upon exercise of outstanding warrants; and (v) no shares of Preferred Stock were issued and outstanding. No material change in such capitalization has occurred between December 28, 2000 and the issuance date of this Warrant. 13.5. Valid Issuance of Stock. The outstanding shares of the capital stock of the Company are duly and validly issued, fully paid and non-assessable, and such shares, and all outstanding options and other securities of the Company, have been issued in full compliance with the registration and prospectus delivery requirements of the Securities Act and the registration and qualification requirements of all applicable state securities laws, or in compliance with applicable exemptions therefrom, and all other provisions of applicable federal and state securities laws, including without limitation, anti-fraud provisions. 13.6. Governmental Consents. All consents, approvals, orders, authorizations or registrations, qualifications, declarations or filings with any federal or state governmental authority on the part of the Company required in connection with 11 12 the consummation of the transactions contemplated herein shall have been obtained prior to and be effective as of the Effective Date. 14. NOTICES. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and shall be conclusively deemed to have been duly given (a) when hand delivered to the other party; (b) when received when sent by facsimile at the address and number set forth below; (c) three business days after deposit in the U.S. mail with first class or certified mail receipt requested postage prepaid and addressed to the other party as set forth below; or (d) the next business day after deposit with a national overnight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed. To Holder: To the Company: First Reserve Fund VIII, L.P Chicago Bridge & Iron Company N.V. c/o First Reserve Corporation c/o Chicago Bridge & Iron Company 1801 California Street, Suite 4100 1501 North Division Street Denver Colorado 80202 Plainfield, Illinois 60544 Attn: Tom Denison Attn: Secretary Fax Number: (303)-382-1275 Fax: (815) 439-6297 With copies to: Gibson, Dunn & Crutcher LLP Winston and Strawn 1801 California Street, Suite 4100 35 West Wacker Drive Denver, CO 80202 Chicago, Illinois 60601 Attn: Steven K. Talley Attn: James Reum Fax Number: (303) 296-5310 Fax: (312) 558-5700 Each person making a communication hereunder by facsimile shall promptly confirm by telephone to the person to whom such communication was addressed each communication made by it by facsimile pursuant hereto but the absence of such confirmation shall not affect the validity of any such communication. A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Section 14 by giving the other party written notice of the new address in the manner set forth above. 15. HEADINGS. The headings in this Warrant are for purposes of convenience in reference only, and shall not be deemed to constitute a part hereof. 16. LAW GOVERNING. This Warrant shall be, to the extent possible under applicable (mandatory) Dutch law, construed and enforced in accordance with, and governed by, the laws of the State of New York. 17. NO IMPAIRMENT. The Company will not, by amendment of its Articles of Association or bylaws, or through reorganization, consolidation, merger, dissolution, 12 13 issue or sale of securities, sale of assets or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Registered Holder of this Warrant against impairment. Without limiting the generality of the foregoing, the Company (a) will not increase the par value of any shares of stock issuable upon the exercise of this Warrant above the amount payable therefor upon such exercise without giving Holder 30 days advance notice of such increase, and (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon exercise of this Warrant. 18. NOTICES OF RECORD DATE. If at any time Holder should not have representatives elected to and serving on the Supervisory Board of Directors of the Company, then in case: 18.1. the Company shall take a record of the holders of its Common Stock (or other stock or securities at the time receivable upon the exercise of this Warrant), for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any shares of stock of any class or any other securities or to receive any other right; or 18.2. of any consolidation or merger of the Company with or into another corporation, any capital reorganization of the Company, any reclassification of the Capital Stock of the Company, or any conveyance of all or substantially all of the assets of the Company to another corporation in which holders of the Company's stock are to receive stock, securities or property of another corporation; or 18.3. of any voluntary dissolution, liquidation or winding-up of the Company; or 18.4. of any redemption or conversion of all outstanding Common Stock; then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or right, or (ii) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding-up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock or (such stock or securities as at the time are receivable upon the exercise of this Warrant), shall be entitled to exchange their shares of Common Stock (or such other stock or securities), for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding-up. Such notice shall be delivered at least ten (10) days prior to the date therein specified. 19. SEVERABILITY. If any term, provision, covenant or restriction of this Warrant is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of 13 14 the terms, provisions, covenants and restrictions of this Warrant shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 20. COUNTERPARTS. For the convenience of the parties, any number of counterparts of this Warrant may be executed by the parties hereto and each such executed counterpart shall be, and shall be deemed to be, an original instrument. 21. NO INCONSISTENT AGREEMENTS. The Company will not on or after the date of this Warrant enter into any agreement with respect to its securities which is inconsistent with the rights granted to the Holders of this Warrant or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to holders of the Company's securities under any other agreements, except rights that have been waived. 22. SATURDAYS, SUNDAYS AND HOLIDAYS. If the Expiration Date falls on a Saturday, Sunday or legal holiday, the Expiration Date shall automatically be extended until 5:00 p.m. the next business day. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 14 15 IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the Effective Date. FIRST RESERVE FUND VIII, L.P., a Delaware limited partnership By: First Reserve GP VIII, L.P. a Delaware limited partnership, its general partner By: First Reserve Corporation, a Delaware corporation, its general partner By: /s/ Thomas R. Denison Name: 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 Name: Gerald M. Glenn Title: Managing Director SIGNATURE PAGE TO PURCHASE WARRANT 15 16 EXHIBIT 1 NOTICE OF EXERCISE (To be executed upon exercise of Warrant) CHICAGO BRIDGE & IRON COMPANY N.V. The undersigned hereby irrevocably elects to exercise the right of purchase represented by the within Warrant Certificate for, and to purchase thereunder, the securities Chicago Bridge & Iron Company N.V., as provided for therein, and (check the applicable box): [ ] tenders herewith payment of the exercise price in full in the form of cash or a certified or official bank check in same-day funds in the amount of $____________ for _________ such securities. [ ] Elects the Net Issue Exercise option pursuant to Section 2.2 of the Warrant, and accordingly requests delivery of a net of ______________ of such securities. Please issue a certificate or certificates for such securities in the name of, and pay any cash for any fractional share to (please print name, address and social security number): Name: -------------------------------------------------------------------------- Address: ----------------------------------------------------------------------- Signature: --------------------------------------------------------------------- Note: The above signature should correspond exactly with the name on the first page of this Warrant Certificate or with the name of the assignee appearing in the assignment form below. If said number of shares shall not be all the shares purchasable under the within Warrant Certificate, a new Warrant Certificate is to be issued in the name of said undersigned for the balance remaining of the shares purchasable thereunder rounded up to the next higher whole number of shares. 16 17 EXHIBIT 2 ASSIGNMENT (To be executed only upon assignment of Warrant Certificate) For value received, hereby sells, assigns and transfers unto ____________________________ the within Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ____________________________ attorney, to transfer said Warrant Certificate on the books of the within-named Company with respect to the number of Warrants set forth below, with full power of substitution in the premises:
NAME(s) OF ASSIGNEE(s) ADDRESS # OF WARRANTS ---------------------- ------- ------------- - ------------------------ ---------------------- --------------------- - ------------------------ ---------------------- --------------------- - ------------------------ ---------------------- --------------------- - ------------------------ ---------------------- --------------------- - ------------------------ ---------------------- ---------------------
And if said number of Warrants shall not be all the Warrants represented by the Warrant Certificate, a new Warrant Certificate is to be issued in the name of said undersigned for the balance remaining of the Warrants registered by said Warrant Certificate. To the extent Dutch law applies, ______________ hereby assigns within the meaning of Section 3:94 paragraph 1 of the Dutch Civil Code, the Warrant Certificate and the Warrant to the Assignee, notice of which shall be given to the Company. --------------------------------------------------------------------- Dated: --------------------------------------------------------------------- Signature: --------------------------------------------------------------------- Notice: The signature to the foregoing Assignment must correspond to the name as written upon the face of this security in every particular, without alteration or any change whatsoever; signature(s) must be guaranteed by an eligible guarantor institution (banks, stock brokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program) pursuant to Securities and Exchange Commission Rule 17Ad-15. 17 EX-99.(K) 6 d83954aex99-k.txt ADDITIONAL WARRANT TO PURCHASE COMMON STOCK 1 EXHIBIT 99(K) WARRANT THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH WARRANT OR 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 WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, 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., AS AMENDED (THE "SHAREHOLDER AGREEMENT"). NO TRANSFER OF THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, 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 EVIDENCE 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 WARRANT TO PURCHASE COMMON STOCK OF CHICAGO BRIDGE & IRON COMPANY N.V. FEBRUARY 7, 2001 THIS CERTIFIES THAT, for value received, First Reserve Fund VIII, L.P., or its permitted registered assigns ("Holder"), is entitled, subject to the terms and conditions of this Warrant, at any time or from time to time after the issuance date of this Warrant (the "Effective Date"), and before 5:00 p.m. Eastern Time on the third anniversary of the Effective Date (the "Expiration Date"), to purchase from Chicago Bridge & Iron Company N.V., a company organized under the laws of the Netherlands (the "Company"), that number of shares of Common Stock, par value NLG .01, of the Company (the "Common Stock") equal to the Additional Warrant Shares (as hereinafter defined) at a price per share equal to the Purchase Price (as hereinafter defined). Both 1 2 the number of shares of Common Stock purchasable upon exercise of this Warrant and the Purchase Price are subject to adjustment and change as provided herein. 1. CERTAIN DEFINITIONS. As used in this Warrant the following terms shall have the following respective meanings: 1.1. "Additional Warrant Shares" shall mean the greater of (i) 0 or (ii) 250,000 less the product of 250,000 times the quotient of (a) the number of shares of the 2,848,172 shares of Common Stock that were issued by the Company to Pitt-Des Moines, Inc., a Pennsylvania corporation (PDM) in connection with the Transaction (as hereinafter defined) and that were repurchased by the Company between the closing of the Transaction and June 30, 2001 (excluding any shares that are reissued or shares repurchased with the proceeds of an issuance of other shares), divided by (b) 1,457,726. The number of shares repurchased shall be adjusted for any stock splits, stock dividends or similar transactions between the date of the issuance of this Warrant and July 1, 2001. 1.2. "Fair Market Value" of a share of Common Stock as of a particular date shall mean: If traded on a securities exchange or the Nasdaq National Market, the Fair Market Value shall be deemed to be the average of the closing prices of the Common Stock of the Company on such exchange or market over the five (5) trading days ending immediately prior to the applicable date of valuation; If actively traded over-the-counter, the Fair Market Value shall be deemed to be the average of the closing bid prices over the thirty (30)-day period ending immediately prior to the applicable date of valuation; and If there is no active public market, the Fair Market Value shall be the value thereof, as agreed upon by the Company and the Holder; provided, however, that if the Company and the Holder cannot agree on such value, such value shall be determined by an independent valuation firm experienced in valuing businesses such as the Company and jointly selected in good faith by the Company and the Holder. Fees and expenses of the valuation firm shall be paid for by the Company. 1.3. "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. 1.4. "Purchase Price" shall mean average of the closing prices of the Common Stock of the Company on the New York Stock Exchange over the five (5) trading days ending on May 31, 2001. 1.5. "Registered Holder" shall mean any Holder in whose name this Warrant is registered upon the books and records maintained by the Company. 2 3 1.6. "Shareholder Agreement" shall mean the Shareholder agreement between First Reserve Fund VIII, L.P. and the Company dated December 28, 2000. 1.7. "Transaction" shall mean the transaction in which the Company is acquiring the assets of certain divisions of PDM pursuant to the Purchase Agreement between PDM and the Company dated as of February 7, 2001. 1.8. "Warrant" as used herein, shall include this Warrant and any warrant delivered in substitution or exchange therefor as provided herein. 1.9. "Common Stock" shall mean the registered ordinary shares not convertible in bearer shares of the Company and any other securities at any time receivable or issuable upon exercise of this Warrant. 2. EXERCISE OF WARRANT 2.1. Payment. Subject to compliance with the terms and conditions of this Warrant and applicable securities laws, this Warrant may be exercised, in whole or in part at any time or from time to time, on or before the Expiration Date by the delivery (including, without limitation, delivery by facsimile) of the form of Notice of Exercise attached hereto as Exhibit 1 (the "Notice of Exercise"), duly executed by the Holder, at the principal office of the Company, and as soon as practicable after such date, surrendering (a) this Warrant at the principal office of the Company, and (b) payment (i) in cash (by check) or by wire transfer; (ii) by cancellation by the Holder of indebtedness of the Company to the Holder; or (iii) by a combination of (i) and (ii), of an amount equal to the product obtained by multiplying the number of shares of Common Stock being purchased upon such exercise by the then effective Purchase Price (the "Exercise Amount"), except that if Holder is subject to HSR Act Restrictions (as defined in Section 2.5 below), the Exercise Amount shall be paid to the Company within five (5) business days of the termination of all HSR Act Restrictions. 2.2. Net Issue Exercise. In lieu of the payment methods set forth in Section 2.1(b) above, the Holder may elect to exchange all or some of this Warrant for shares of Common Stock equal to the value of the amount of the Warrant being exchanged on the date of exchange. If Holder elects to exchange this Warrant as provided in this Section 2.2, Holder shall tender to the Company the Warrant for the amount being exchanged, along with written notice of Holder's election to exchange some or all of the Warrant, and the Company shall issue to Holder the number of shares of the Common Stock computed using the following formula: X = Y (A-B) ------- A 3 4 Where X = the number of shares of Common Stock to be issued to Holder. Y = the number of shares of Common Stock purchasable under the amount of the Warrant being exchanged (as adjusted to the date of such calculation). A = the Fair Market Value of one share of the Common Stock. B = the Purchase Price (as adjusted to the date of such calculation). 2.3. Stock Certificates; Fractional Shares. As soon as practicable on or after the date of any exercise of this Warrant, the Company shall issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of whole shares of Common Stock issuable upon such exercise, together with cash in lieu of any fraction of a share equal to such fraction of the current Fair Market Value of one whole share of Common Stock as of such date of exercise. No fractional shares or scrip representing fractional shares shall be issued upon an exercise of this Warrant. 2.4. HSR Act. The Company hereby acknowledges that exercise of this Warrant by Holder may subject the Company and/or the Holder to the filing requirements of the HSR Act and that Holder may be prevented from exercising this Warrant until the expiration or early termination of all waiting periods imposed by the HSR Act ("HSR Act Restrictions"). If on or before the Expiration Date Holder has sent the Notice of Exercise to Company and Holder has not been able to complete the exercise of this Warrant prior to the Expiration Date because of HSR Act Restrictions, the Holder shall be entitled to complete the process of exercising this Warrant in accordance with the procedures contained herein notwithstanding the fact that completion of the exercise of this Warrant would take place after the Expiration Date. 2.5. Partial Exercise; Effective Date of Exercise. In case of any partial exercise of this Warrant, the Company shall cancel this Warrant upon surrender hereof and shall execute and deliver a new Warrant of like tenor and date for the balance of the shares of Common Stock purchasable hereunder. This Warrant shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above. However, if Holder is subject to HSR Act filing requirements this Warrant shall be deemed to have been exercised on the date immediately following the date of the expiration of all HSR Act Restrictions. The person entitled to receive the shares of Common Stock issuable upon exercise of this Warrant shall be treated for all purposes as the holder of record of such shares as of the close of business on the date the Holder is deemed to have exercised this Warrant. 4 5 3. VALID ISSUANCE: TAXES. All shares of Common Stock issued upon the exercise of this Warrant shall be validly issued, fully paid and non-assessable, and the Company shall pay all taxes and other governmental charges that may be imposed in respect of the issue or delivery thereof. The Company shall not be required to pay any tax or other charge imposed in connection with any transfer involved in the issuance of any certificate for shares of Common Stock in any name other than that of the Registered Holder of this Warrant, and in such case the Company shall not be required to issue or deliver any stock certificate or security until such tax or other charge has been paid, or it has been established to the Company's reasonable satisfaction that no tax or other charge is due. 4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities or property receivable or issuable upon exercise of this Warrant) and the Purchase Price are subject to adjustment upon occurrence of the following events: 4.1. Adjustment for Stock Splits, Stock Subdivisions or Combinations of Shares. The Purchase Price of this Warrant shall be proportionally decreased and the number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities at the time issuable upon exercise of this Warrant) shall be proportionally increased to reflect any stock split or subdivision of the Company's Common Stock. The Purchase Price of this Warrant shall be proportionally increased and the number of shares of Common Stock issuable upon exercise of this Warrant (or any shares of stock or other securities at the time issuable upon exercise of this Warrant) shall be proportionally decreased to reflect any combination of the Company's Common Stock. 4.2. Adjustment for Dividends or Distributions of Stock or Other Securities or Property. In case the Company shall make or issue, or shall fix a record date for the determination of eligible holders entitled to receive, a dividend or other distribution with respect to the Common Stock (or any shares of stock or other securities at the time issuable upon exercise of the Warrant) payable in (a) securities of the Company or (b) assets (including cash dividends paid or payable solely out of retained earnings), then, in each such case, the Holder of this Warrant on exercise hereof at any time after the consummation, effective date or record date of such dividend or other distribution, shall receive, in addition to the shares of Common Stock (or such other stock or securities) issuable on such exercise prior to such date, and without the payment of additional consideration therefor, the securities or such other assets of the Company to which such Holder would have been entitled upon such date if such Holder had exercised this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and all such additional securities or other assets distributed with respect to such shares as aforesaid during such period giving effect to all adjustments called for by this Section 4. 5 6 4.3. Reclassification. If the Company, by reclassification of securities or otherwise, shall change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Warrant immediately prior to such reclassification or other change, and the Purchase Price therefor shall be appropriately adjusted, all subject to further adjustment as provided in this Section 4. No adjustment shall be made pursuant to this Section 4.3 upon any conversion or redemption of the Common Stock which is the subject of Section 4.5. 4.4. Adjustment for Capital Reorganization, Merger or Consolidation. In case of any capital reorganization of the capital stock of the Company (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), or any merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all the assets of the Company then, and in each such case, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that the Holder of this Warrant shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Purchase Price then in effect, the number of shares of stock or other securities or property of the successor corporation resulting from such reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Warrant had been exercised immediately before such reorganization, merger, consolidation, sale or transfer, all subject to further adjustment as provided in this Section 4. The foregoing provisions of this Section 4.4 shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock or securities of any other corporation that are at the time receivable upon the exercise of this Warrant. If the per-share consideration payable to the Holder hereof for shares in connection with any such transaction is in a form other than cash or marketable securities, then the value of such consideration shall be determined in good faith by the Company's Supervisory Board of Directors. In all events, appropriate adjustment (as determined in good faith by the Company's Board of Directors) shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Holder after the transaction, to the end that the provisions of this Warrant shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant. 4.5. Conversion of Common Stock. In case all or any portion of the authorized and outstanding shares of Common Stock of the Company are redeemed or converted or reclassified into other securities or property pursuant to the Company's Certificate of Incorporation or otherwise, or the Common Stock otherwise ceases 6 7 to exist, then, in such case, the Holder of this Warrant, upon exercise hereof at any time after the date on which the Common Stock is so redeemed or converted, reclassified or ceases to exist (the "Termination Date"), shall receive, in lieu of the number of shares of Common Stock that would have been issuable upon such exercise immediately prior to the Termination Date, the securities or property that would have been received if this Warrant had been exercised in full and the Common Stock received thereupon had been simultaneously converted immediately prior to the Termination Date, all subject to further adjustment as provided in this Warrant. 4.6. Adjustment for Issuance of Additional Shares of Common Stock. This Section 4.6 shall not apply to the issuance of shares of Common Stock upon an issuance by the Company of options exercisable for the purchase of that number of shares of Common Stock under the Company's existing option plans to existing and future officers, employees, outside directors, consultant, vendors and advisors of the Company, and the subsequent exercise of any such options (collectively, the "Exempted Issuances"). Upon issuance by the Company of Common Stock, or any right or option to Common Stock or other stock convertible into Common Stock, or any obligation or any share of stock convertible into or exchangeable for Common Stock for a price per share that is less than the Fair Market Value on the date of such issuance or sale, other than Exempted Issuances (a "Triggering Issuance"), then forthwith upon such issuance or sale the Warrant Price in effect immediately prior to such issuance and the number of shares of Common Stock for which the Warrant is exercisable will be adjusted as follows: (a) Adjustment to Number of Shares of Common Stock for Which Warrant is Exercisable. The number of shares of Common Stock for which this Warrant is exercisable shall be adjusted to equal the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such issue or sale, multiplied by a fraction, (i) the numerator of which is the number of shares of Common Stock outstanding immediately prior to the Triggering Issuance plus the number of shares of Common Stock issued in the Triggering Issuance, and (ii) the denominator of which is the number of shares of Common Stock outstanding immediately prior to the Triggering Issuance plus the number of shares which the aggregate amount of consideration, if any, received by CB&I upon the Triggering Issuance of all such shares of Common Stock would purchase at the Fair Market Value as of such time. (b) Adjustment to the Purchase Price. The Purchase Price shall be adjusted to equal the Purchase Price immediately prior to the Triggering Issuance multiplied by the quotient obtained by dividing the number of shares of Common Stock for which this Warrant was exercisable immediately prior to the adjustment under (a) above by the number of shares of Common Stock for which this warrant is exercisable immediately after the adjustment under (a) above. 7 8 5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in the Purchase Price, or number or type of shares issuable upon exercise of this Warrant, the Chief Financial Officer or Controller of the Company shall compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based, including a statement of the adjusted Purchase Price. The Company shall promptly send (by facsimile and by either first class mail, postage prepaid or overnight delivery) a copy of each such certificate to the Holder. 6. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory to the Company of the ownership of and the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to it, and (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company will execute and deliver in lieu thereof a new Warrant of like tenor as the lost, stolen, destroyed or mutilated Warrant. 7. RESERVATION OF COMMON STOCK. The Company hereby covenants that at all times there shall be reserved for issuance and delivery upon exercise of this Warrant such number of shares of Common Stock or other shares of capital stock of the Company as are from time to time issuable upon exercise of this Warrant and, from time to time, will take all steps necessary to amend its Articles of Association to increase its authorized capital in order to allow the issue of Common Stock upon exercise of this Warrant. All such shares shall be duly authorized, and when issued upon such exercise, shall be validly issued, fully paid and non-assessable, free and clear of all liens, security interests, charges and other encumbrances or restrictions on sale and free and clear of all preemptive rights, except encumbrances or restrictions arising under federal or state securities laws. Issuance of this Warrant shall constitute full authority to the Company's officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock upon the exercise of this Warrant. 8. TRANSFER AND EXCHANGE. Subject to the terms and conditions of this Warrant and compliance with all applicable securities laws, this Warrant and all rights hereunder may be transferred to any Registered Holder's affiliate, in whole or in part, on the books of the Company maintained for such purpose at the principal office of the Company referred to above, by the Registered Holder hereof in person, or by duly authorized attorney, upon execution of a form of assignment in the form of Exhibit 2, notification of the Company thereof, and surrender of this Warrant properly endorsed and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any permitted partial transfer, the Company will issue and deliver to the Registered Holder a new Warrant or Warrants with respect to the shares of Common Stock not so transferred. Each taker and holder of this Warrant, by taking or holding the same, consents and agrees that when this Warrant shall have been so endorsed, the person in possession of this Warrant may be treated by the Company, and all other persons dealing with this Warrant, as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding; provided, however that until a transfer of this Warrant is duly registered on the books of 8 9 the Company, the Company may treat the Registered Holder hereof as the owner for all purposes. 9. RESTRICTIONS ON TRANSFER. The Holder, by acceptance hereof, agrees that, absent an effective registration statement filed with the Securities and Exchange Commission (the "SEC") under the Securities Act covering the disposition or sale of this Warrant or the Common Stock issued or issuable upon exercise hereof, as the case may be, and registration or qualification under applicable state securities laws, such Holder will not sell, transfer, pledge, or hypothecate any or all such Warrants or such Common Stock, as the case may be, unless such transfer is made in accordance with the provisions of the Shareholder Agreement and either (i) the Company has received an opinion of counsel, in form and substance reasonably satisfactory to the Company, to the effect that such registration is not required in connection with such disposition or (ii) the sale of such securities is made pursuant to SEC Rule 144. 10. COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant, the Holder hereby represents, warrants and covenants that any shares of stock purchased upon exercise of this Warrant shall be acquired for investment only and not with a view to, or for sale in connection with, any distribution thereof; that the Holder has had such opportunity as such Holder has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Holder to evaluate the merits and risks of its investment in the Company; that the Holder is able to bear the economic risk of holding such shares as may be acquired pursuant to the exercise of this Warrant for an indefinite period; that the Holder understands that the shares of stock acquired pursuant to the exercise of this Warrant will not be registered under the 1933 Act (unless otherwise required pursuant to exercise by the Holder of the registration rights, if any, granted to the Registered Holder) and will be "restricted securities" within the meaning of Rule 144 under the 1933 Act and that the exemption from registration under Rule 144 will not be available for at least one (1) year from the date of exercise of this Warrant, subject to any special treatment by the SEC for exercise of this Warrant pursuant to Section 2.2, and even then will not be available unless a public market then exists for the stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and that all stock certificates representing shares of stock issued to the Holder upon exercise of this Warrant or upon conversion of such shares may have affixed thereto a legend substantially in the following form: "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 9 10 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., AS AMENDED (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 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. 11. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS. This Warrant shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company. In the absence of affirmative action by such Holder to purchase Common Stock by exercise of this Warrant, no provisions of this Warrant, and no enumeration herein of the rights or privileges of the Holder hereof shall cause such Holder hereof to be a stockholder of the Company for any purpose. 12. REGISTRATION RIGHTS. All shares of Common Stock issuable upon exercise of this Warrant shall be "Holders' Securities" or such other definition of securities entitled to registration rights pursuant to the Shareholder Agreement and are otherwise subject to the restrictions of the Shareholder Agreement. 13. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to Holder that: 13.1. Due Authorization; Consents. All corporate action on the part of the Company, its officers, directors and shareholders necessary for (a) the authorization, execution and delivery of, and the performance of all obligations of the Company under, this Warrant, and (b) the authorization, issuance, reservation for issuance and delivery of all of the Common Stock issuable upon exercise of this Warrant, has been duly taken. This Warrant constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, moratorium, reorganization and similar laws affecting creditors' rights generally and to general equitable principles. All consents, approvals and authorizations of, and registrations, qualifications and filings with, any federal or state governmental agency, authority 10 11 or body, or any third party, required in connection with the execution, delivery and performance of this Warrant and the consummation of the transactions contemplated hereby and thereby have been obtained. 13.2. Organization. The Company is a corporation duly organized and validly existing under the laws of the Netherlands and has all requisite corporate power to own, lease and operate its property and to carry on its business as now being conducted and as currently proposed to be conducted. 13.3. SEC Reports; Financial Statements. (a) The Company has duly filed with the SEC the Company's annual report on Form 10-K for the year ended December 31, 1999 and its quarterly reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000 (collectively, the "CB&I SEC Reports"). As of their respective filing dates, the CB&I SEC Reports complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent corrected by a subsequently filed document with the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes) contained in the CB&I SEC Reports complied as to form in all material respects with the applicable published rules and regulations of the SEC with respect thereto, was prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted for by Form 10-Q) and presented fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as at the respective dates and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements are subject to normal and recurring year-end adjustments which are not expected to be material in amount. 13.4. Capitalization. The authorized capital stock of the Company consists of 35,000,000 shares of Common Stock. As of December 28, 2000: (i) 17,720,350 shares of Common Stock were issued and outstanding, all of which are validly issued, fully paid and nonassessable; (ii) 4,181,755 shares of Common Stock were reserved for issuance under the Company's stock option plans, 1,557,813 of which shares were subject to options outstanding on such date; (iii) 250,000 shares of Common Stock were reserved for issuance under the Company's employee stock purchase plan; (iv) 82,118 shares of Common Stock were reserved for issuance upon exercise of outstanding warrants; and (v) no shares of Preferred Stock were 11 12 issued and outstanding. No material change in such capitalization has occurred between December 28, 2000 and the issuance date of this Warrant. 13.5. Valid Issuance of Stock. The outstanding shares of the capital stock of the Company are duly and validly issued, fully paid and non-assessable, and such shares, and all outstanding options and other securities of the Company, have been issued in full compliance with the registration and prospectus delivery requirements of the Securities Act and the registration and qualification requirements of all applicable state securities laws, or in compliance with applicable exemptions therefrom, and all other provisions of applicable federal and state securities laws, including without limitation, anti-fraud provisions. 13.6. Governmental Consents. All consents, approvals, orders, authorizations or registrations, qualifications, declarations or filings with any federal or state governmental authority on the part of the Company required in connection with the consummation of the transactions contemplated herein shall have been obtained prior to and be effective as of the Effective Date. 14. NOTICES. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and shall be conclusively deemed to have been duly given (a) when hand delivered to the other party; (b) when received when sent by facsimile at the address and number set forth below; (c) three business days after deposit in the U.S. mail with first class or certified mail receipt requested postage prepaid and addressed to the other party as set forth below; or (d) the next business day after deposit with a national overnight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed. To Holder: To the Company: First Reserve Fund VIII, L.P Chicago Bridge & Iron Company N.V. c/o First Reserve Corporation c/o Chicago Bridge & Iron Company 1801 California Street, Suite 4100 1501 North Division Street Denver Colorado 80202 Plainfield, Illinois 60544 Attn: Tom Denison Attn: Secretary Fax Number: (303)-382-1275 Fax: (815) 439-6297 With copies to: Gibson, Dunn & Crutcher LLP Winston and Strawn 1801 California Street, Suite 4100 35 West Wacker Drive Denver, CO 80202 Chicago, Illinois 60601 Attn: Steven K. Talley Attn: James Reum Fax Number: (303) 296-5310 Fax: (312) 558-5700 Each person making a communication hereunder by facsimile shall promptly confirm by telephone to the person to whom such communication was addressed each 12 13 communication made by it by facsimile pursuant hereto but the absence of such confirmation shall not affect the validity of any such communication. A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this Section 14 by giving the other party written notice of the new address in the manner set forth above. 15. HEADINGS. The headings in this Warrant are for purposes of convenience in reference only, and shall not be deemed to constitute a part hereof. 16. LAW GOVERNING. This Warrant shall be, to the extent possible under applicable (mandatory) Dutch law, construed and enforced in accordance with, and governed by, the laws of the State of New York. 17. NO IMPAIRMENT. The Company will not, by amendment of its Articles of Association or bylaws, or through reorganization, consolidation, merger, dissolution, issue or sale of securities, sale of assets or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Registered Holder of this Warrant against impairment. Without limiting the generality of the foregoing, the Company (a) will not increase the par value of any shares of stock issuable upon the exercise of this Warrant above the amount payable therefor upon such exercise without giving Holder 30 days advance notice of such increase, and (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon exercise of this Warrant. 18. NOTICES OF RECORD DATE. If at any time Holder should not have representatives elected to and serving on the Supervisory Board of Directors of the Company, then in case: 18.1. the Company shall take a record of the holders of its Common Stock (or other stock or securities at the time receivable upon the exercise of this Warrant), for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any shares of stock of any class or any other securities or to receive any other right; or 18.2. of any consolidation or merger of the Company with or into another corporation, any capital reorganization of the Company, any reclassification of the Capital Stock of the Company, or any conveyance of all or substantially all of the assets of the Company to another corporation in which holders of the Company's stock are to receive stock, securities or property of another corporation; or 18.3. of any voluntary dissolution, liquidation or winding-up of the Company; or 18.4. of any redemption or conversion of all outstanding Common Stock; 13 14 then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or right, or (ii) the date on which such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation, winding-up, redemption or conversion is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock or (such stock or securities as at the time are receivable upon the exercise of this Warrant), shall be entitled to exchange their shares of Common Stock (or such other stock or securities), for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, dissolution, liquidation or winding-up. Such notice shall be delivered at least ten (10) days prior to the date therein specified. 19. NOTICES OF DETERMINATION. When the Company has determined the number of shares that shall be the "Additional Warrant Shares" and the amount which shall be the "Purchase Price" for the purposes of this Warrant, then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the number of shares that shall equal the Additional Warrant Shares, or (ii) the Purchase Price. Such notice shall be delivered within ten (10) days following the date such number is capable of being determined by the Company. 20. SEVERABILITY. If any term, provision, covenant or restriction of this Warrant is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Warrant shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 21. COUNTERPARTS. For the convenience of the parties, any number of counterparts of this Warrant may be executed by the parties hereto and each such executed counterpart shall be, and shall be deemed to be, an original instrument. 22. NO INCONSISTENT AGREEMENTS. The Company will not on or after the date of this Warrant enter into any agreement with respect to its securities which is inconsistent with the rights granted to the Holders of this Warrant or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to holders of the Company's securities under any other agreements, except rights that have been waived. 23. SATURDAYS, SUNDAYS AND HOLIDAYS. If the Expiration Date falls on a Saturday, Sunday or legal holiday, the Expiration Date shall automatically be extended until 5:00 p.m. the next business day. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 14 15 IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the Effective Date. FIRST RESERVE FUND VIII, L.P., a Delaware limited partnership By: First Reserve GP VIII, L.P. a Delaware limited partnership, its general partner By: First Reserve Corporation, a Delaware corporation, its general partner By: /s/ Thomas R. Denison Name: 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 Name: Gerald M. Glenn Title: Managing Director SIGNATURE PAGE TO ADDITIONAL WARRANT 15 16 EXHIBIT 1 NOTICE OF EXERCISE (To be executed upon exercise of Warrant) CHICAGO BRIDGE & IRON COMPANY N.V. The undersigned hereby irrevocably elects to exercise the right of purchase represented by the within Warrant Certificate for, and to purchase thereunder, the securities Chicago Bridge & Iron Company N.V., as provided for therein, and (check the applicable box): [ ] tenders herewith payment of the exercise price in full in the form of cash or a certified or official bank check in same-day funds in the amount of $____________ for _________ such securities. [ ] Elects the Net Issue Exercise option pursuant to Section 2.2 of the Warrant, and accordingly requests delivery of a net of ______________ of such securities. Please issue a certificate or certificates for such securities in the name of, and pay any cash for any fractional share to (please print name, address and social security number): Name: -------------------------------------------------------------------------- Address: ----------------------------------------------------------------------- Signature: --------------------------------------------------------------------- Note: The above signature should correspond exactly with the name on the first page of this Warrant Certificate or with the name of the assignee appearing in the assignment form below. If said number of shares shall not be all the shares purchasable under the within Warrant Certificate, a new Warrant Certificate is to be issued in the name of said undersigned for the balance remaining of the shares purchasable thereunder rounded up to the next higher whole number of shares. 16 17 EXHIBIT 2 ASSIGNMENT (To be executed only upon assignment of Warrant Certificate) For value received, hereby sells, assigns and transfers unto ____________________________ the within Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ____________________________ attorney, to transfer said Warrant Certificate on the books of the within-named Company with respect to the number of Warrants set forth below, with full power of substitution in the premises:
NAME(S) OF ASSIGNEE(S) ADDRESS # OF WARRANTS ---------------------- ------- ------------- ---------------------- ------- ------------- ---------------------- ------- ------------- ---------------------- ------- ------------- ---------------------- ------- ------------- ---------------------- ------- -------------
And if said number of Warrants shall not be all the Warrants represented by the Warrant Certificate, a new Warrant Certificate is to be issued in the name of said undersigned for the balance remaining of the Warrants registered by said Warrant Certificate. To the extent Dutch law applies, ______________ hereby assigns within the meaning of Section 3:94 paragraph 1 of the Dutch Civil Code, the Warrant Certificate and the Warrant to the Assignee, notice of which shall be given to the Company. ---------------------------------------------------------------- Dated: ---------------------------------------------------------------- Signature: ---------------------------------------------------------------- Notice: The signature to the foregoing Assignment must correspond to the name as written upon the face of this security in every particular, without alteration or any change whatsoever; signature(s) must be guaranteed by an eligible guarantor institution (banks, stock brokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program) pursuant to Securities and Exchange Commission Rule 17Ad-15. 17 -----END PRIVACY-ENHANCED MESSAGE-----