1
EXHIBIT D
[Execution]
SHAREHOLDER AGREEMENT
This Shareholder Agreement (this "Agreement") dated as of
December 28, 2000 is by and between First Reserve Fund VIII, L.P., a limited
partnership organized under the laws of the State of Delaware ("FRF"), and
Chicago Bridge & Iron Company N.V., a company organized under the laws of the
Netherlands ("CB&I"), and certain shareholders of CB&I.
WHEREAS, FRF is party to a Stock Purchase Agreement dated as
of July 30, 2000 (as amended by an amendment thereto dated October 31, 2000)
with WEDGE Group Incorporated, a Delaware corporation ("WGI"), and WGI Tyler,
Inc., a Delaware corporation, pursuant to which FRF has agreed to purchase
4,323,333 shares of CB&I Stock (as defined below), representing approximately
24.5% of the outstanding CB&I Stock (the "First Reserve Deal");
WHEREAS, it is a condition to the consummation of such
transaction that FRF and CB&I enter into this Agreement; and
WHEREAS, the parties hereto desire to enter into this
Agreement to provide for certain rights and restrictions with respect to the
Holders' Securities (as defined below) for the benefit of CB&I, its shareholders
and other constituencies so as to serve the long-term interests of CB&I, its
shareholders and other constituencies.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Definitions.
"Affiliate" means any corporation, partnership or other person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with any Holder or any Shareholder, as the
case may be, and shall include any person acting on behalf of any Holder or any
Shareholder or Affiliate of any of them, as the case may be. For purposes of the
preceding sentence, "control" (including the terms "controlling," "controlled
by" and "under common control with") means possession, directly or indirectly,
of the power to direct or cause direction of management and policies of a person
through ownership of securities, by contract, pursuant to a voting trust or
otherwise. Notwithstanding the foregoing, a company will not be an Affiliate of
FRF due solely to a minority stock or board position.
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"Applicable Acceptance Period" has the meaning provided in
Section 5.01(c).
"Articles of Association" means the articles of association of
CB&I, as amended from time to time.
"Assignee" means an assignee or transferee of FRF pursuant to
Section 7.01.
"Associate" has the meaning assigned to such term in Rule
12b-2 under the Exchange Act.
A Person shall be deemed to "beneficially own," to have
"beneficial ownership" of, or to be "beneficially owning" any Securities (which
Securities shall also be deemed "beneficially owned" by such Person) that such
Person is deemed to "beneficially own" within the meaning of Rule 13d-3 under
the Exchange Act.
"Business Combination" means a merger, combination or
consolidation (whether or not CB&I or a Subsidiary of CB&I is the surviving
entity in such transaction), tender offer or share exchange (whether for all or
part of the outstanding Securities of CB&I or any Subsidiary), business
combination, sale of significant assets, dissolution, liquidation or similar
transaction involving CB&I or any Subsidiary or division of CB&I.
"CB&I Stock" means the common stock, NLG .01 par value per
share, of CB&I.
"Commission" means the Securities and Exchange Commission of
the United States or any other U.S. federal agency at the time administering the
Securities Act.
"Competitor" means any Person or any of such Person's
Affiliates or Associates who has as a significant business activity (i) the
design and engineering, fabrication, field erection or repair of bulk liquid
terminals, storage tanks, process vessels, low temperature or cryogenic storage
facilities, or other steel plate structures and their associated systems, or
(ii) the provision of engineering services (including plant engineering,
procurement and construction services) or specialized equipment similar to that
provided by HBI or the HBI Subsidiaries.
"Continuing Directors" means, as of any date of determination,
any member of the Supervisory Board who (i) was a member of the Supervisory
Board on the date of this Agreement or (ii) was nominated for election to the
Supervisory Board with the affirmative vote of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election, or who was elected or appointed in the ordinary course by Continuing
Directors or other directors so elected or appointed.
"Demand Registration" has the meaning provided in Section
3.01(a).
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"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time.
"FRF Designee" has the meaning provided in Section 6.01(a).
"First Offer" has the meaning provided in Section 5.01(a).
"First Reserve Deal" has the meaning provided in the recitals
to this Agreement.
"Holder" means FRF, its Affiliates and its Assignees as
permitted by Section 7.01 hereof, holding Holders' Securities or securities
convertible into, exchangeable or exercisable for Holders' Securities.
"Holders' Securities" means (i) any shares of CB&I Stock held
by a Holder on the date hereof, (ii) any other Securities held by a Holder on
the date hereof or acquired hereafter and (iii) any shares of stock issued or
issuable in respect of such CB&I Stock or other Securities upon any
Recapitalization, in each case, held by Holders or any Affiliate of any Holder;
provided however, that Holders' Securities shall not include shares sold in a
transaction in which the rights conferred by this Agreement are not assigned or
transferred as provided in Section 7.01 hereof.
"Indemnified Party" has the meaning provided in Section
3.06(c).
"Indemnifying Party" has the meaning provided in Section
3.06(c).
"Independent Director" means any individual who (i) qualifies
as a "non-employee director" as defined in Rule 16b-3(b)(3)(i) promulgated by
the Commission under the Exchange Act and (ii) is not a "person associated with
the issuer" as defined in Appendix X of the Listing and Issuing Rules of
Euronext Amsterdam N.V., where, for purposes of both such definitions, "issuer"
is deemed to refer both to FRF and its Affiliates and to CB&I and its
Affiliates.
"Institutional Investor" means a bank, investment company,
insurance company, as those terms are used in Rule 13(d)-1(b) of the Exchange
Act, or similar financial institution or any other Person that does not acquire
Voting Securities for the purpose of or having the effect of changing or
influencing the control of an issuer or in connection with or as a participant
in any transaction having such purpose or effect, and that would be eligible to
file, on the date of Transfer and after giving effect to such Transfer, a
Schedule 13G statement under the Exchange Act with respect to all Voting
Securities.
"Noninvestor Director" has the meaning provided in Section
6.01(a).
"Notice of Exercise" has the meaning provided in Section
5.01(c).
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"Notice of Intention" has the meaning provided in Section
5.01(b).
"Offered Shares" has the meaning provided in Section 5.01(b).
"Offer Price" has the meaning provided in Section 5.01(b).
"outstanding", when used in reference to equity or Voting
Securities, means all such equity or Voting Securities issued and held by
Persons other than CB&I.
"Person" means any individual, group, corporation, firm,
partnership, joint venture, trust, business association, organization,
governmental entity or other entity.
"Piggyback Registration" has the meaning provided in Section
3.02(a).
"Purchase Agreement" means that certain Purchase Agreement
dated as of July 30, 2000 among CB&I, WGI and certain other parties, as amended
by an amendment thereto dated November 17, 2000.
"Recapitalization" means any stock split, stock dividend,
stock combination, a significant recapitalization, reorganization, or
restructuring, or similar event involving CB&I or any Significant Subsidiary (as
defined in Regulation S-X of the Commission) of CB&I.
The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and all applicable blue sky or other
national, state or provincial securities laws), and the declaration or ordering
of the effectiveness of such registration statement (and qualification or
compliance with such laws).
"Registration Expenses" has the meaning provided in Section
3.04(b).
"Securities" means (i) any and all securities issued and
outstanding by CB&I at any time, (ii) any shares of stock issued or issuable in
respect of such securities and (iii) any right to acquire by contract or
otherwise from CB&I or any Person, and whether or not then exercisable, any
security described in (i) or (ii).
"Securities Act" means the United States Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time.
"Selling Holder" means each Holder who holds Holders'
Securities to be included in a registration statement under the Securities Act
pursuant to this Agreement.
"Shareholder" means a holder of Securities other than a
Holder.
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"Significant Transaction" means any transaction or activity
that results in, or is intended to result in, or may reasonably be expected to
result in, (i) the acquisition by any Person, alone or together with such
Person's Affiliates and Associates, of 33-1/3% or more of the Voting Securities
outstanding after such acquisition; (ii) any sale of all or substantially all of
CB&I's assets; (iii) any Business Combination in which CB&I is not the surviving
entity; (iv) any Business Combination or Recapitalization in which the
shareholders of CB&I (other than the Holders) immediately prior to such Business
Combination or Recapitalization own less than 33-1/3% of the Voting Securities
outstanding after such event; and (v) any change in the Supervisory Board not
consistent with Article VI of this Agreement or which would result in a majority
of the members of the Supervisory Board not being Continuing Directors.
"Supervisory Board" means the Board of Supervisory Directors
of CB&I.
"Third Party" means a Person other than CB&I, a Holder, a
Shareholder or their respective Affiliates.
"Transfer" means, with respect to all or any part of the
Securities, to directly or indirectly (whether or not through an underwriter)
offer, sell, convey, distribute, transfer (by merger or otherwise), assign,
devise, exchange, encumber, gift, pledge, grant any option with respect to,
hypothecate or otherwise dispose of such Securities, or enter into any
agreement, arrangement or understanding with respect to the foregoing.
"Voting Securities" means Securities then outstanding which
ordinarily have voting power for the election of directors (or Persons
performing similar functions) of CB&I, whether at all times or only so long as
no senior class of Securities has such voting power by reason of any
contingency.
"WGI" has the meaning provided in the recitals to this
Agreement.
"WGI Designee" has the meaning provided in Section 6.01(a).
"WEDGE Shareholder Agreement" means that certain Shareholder
Agreement of even date hereof between CB&I and WGI.
Section 1.02 Other Defined Terms. All capitalized terms used herein and
not otherwise defined shall have the respective meanings specified in the
Purchase Agreement.
ARTICLE II
STANDSTILL AND VOTING PROVISIONS
Section 2.01 Agreement of FRF. Unless specifically requested or
permitted in writing in advance by the Supervisory Board, FRF agrees that, so
long as this Agreement remains in
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effect, and except as contemplated elsewhere herein, neither it nor any of its
Affiliates or Associates shall, directly or indirectly:
(a) acquire, offer to acquire, announce an intention to acquire,
solicit an offer to sell or agree to acquire by purchase or otherwise, any
Securities, except (i) as a result of a stock split, stock dividend or
Recapitalization approved by the Supervisory Board, (ii) in connection with a
Business Combination approved by the Supervisory Board, (iii) as funding for and
contemporaneous with the acquisition by CB&I of certain assets of Pitt-Des
Moines, Inc. ("PDM") relating to PDM's engineering and construction and water
divisions, if, as a result of such transaction, (A) the total number of shares
of Voting Securities beneficially owned (including as a member of a group,
regardless of whether such beneficial ownership is disclaimed) by (x) FRF and
its Affiliates and Associates, (y) WGI and its Affiliates and Associates and (z)
any other Person acquiring Voting Securities in the PDM transaction, provided
that such Person's Voting Securities will be deemed not to be so aggregated if
such Person is neither an Affiliate or Associate of WGI or FRF and provides to
CB&I, at the time of purchase of such Voting Securities, written assurances that
it has no arrangement, contract, understanding or relationship with FRF, WGI or
any of their respective Affiliates with respect to voting power or investment
power (which shall include the meaning ascribed to such terms under Rule
13d-3(a) under the Exchange Act) with respect to any Voting Securities (in this
regard, CB&I agrees to provide, in advance of the consummation of any sale of
Voting Securities, notice to WGI and FRF of the failure of any such Person to
provide such assurance, so that neither WGI or FRF are inadvertently prejudiced
hereunder by such a sale), in the aggregate does not, after giving effect to
such transaction, exceed 48.15% of the total number of shares of Voting
Securities then outstanding and (B) the total number of shares of Voting
Securities owned by FRF and its Affiliates and Associates does not, after giving
effect to such transaction, exceed 30% of the total number of shares of Voting
Securities then outstanding, (iv) if the PDM transaction referred to in clause
(iii) immediately above shall not be consummated, up to an additional 253,000
shares of CB&I Stock (including any shares acquired between the execution of the
First Reserve Deal and the execution of this Agreement) so long as the total
number of Voting Securities beneficially owned (including as a member of a
group, regardless of whether such beneficial ownership is disclaimed) by FRF and
its Affiliates and Associates and WGI and its Affiliates and Associates in the
aggregate does not exceed 49.9% of the total number of shares of Voting
Securities then outstanding, or (v) if, as a result of such acquisition of
Voting Securities, FRF and its Affiliates and Associates would beneficially own
(including as a member of a group, regardless of whether such beneficial
ownership is disclaimed) in the aggregate no more than 10.1% of the total number
of Voting Securities outstanding;
(b) acquire, offer to acquire, announce an intention to acquire,
solicit an offer to sell or agree to acquire by purchase or otherwise, directly
or indirectly, a material portion of assets of CB&I or any of its Subsidiaries;
(c) initiate, solicit, propose, seek to effect or negotiate, or
announce an intent to effect, directly or indirectly, alone or with any other
Person, (i) any form of Business
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Combination or joint venture transaction involving CB&I or any Affiliate
thereof, or (ii) any Recapitalization or similar transaction with respect to
CB&I or any Affiliate thereof;
(d) initiate, solicit, propose, seek to effect or negotiate, or
announce an intent to make, directly or indirectly, any merger, tender or
exchange offer, consolidation, share exchange for any Securities, or disclose an
intent, purpose, plan or proposal with respect to CB&I, any of its Affiliates or
any Securities inconsistent with the provisions of this Agreement;
(e) initiate, cause, encourage, "solicit," or become a "participant" in
the "solicitation" of, "proxies" (as such terms are defined or used in Rule
14a-1 under the Exchange Act) in opposition to the recommendation of the
majority of the Supervisory Board or become a "participant" in an election
contest with respect to the election of directors of CB&I or with respect to any
Significant Transaction;
(f) initiate, solicit (or participate in a solicitation) or propose the
approval of one or more shareholder proposals with respect to CB&I or any of its
Affiliates or induce or encourage or attempt to induce or encourage any other
Person to initiate any such shareholder proposal;
(g) form, join, or in any way participate in, or encourage the
formation, of a partnership, limited partnership, syndicate or other "group" (as
defined in Section 13(d)(3) of the Exchange Act) or "person" (as defined in
Section 13(d)(3) of the Exchange Act and Section 2(2) of the Securities Act) or
enter into any contract, arrangement, understanding or relationship or otherwise
act in concert with any other Person for the purpose of acquiring or voting
Securities;
(h) except as expressly provided in Article VI herein, seek election to
or seek to place a representative on the Supervisory Board of CB&I or any of its
Affiliates or seek the removal of any member of the Supervisory Board of CB&I or
any of its Affiliates;
(i) except for participation by any FRF Designee on the Supervisory
Board, act in concert with any other Person not an executive of CB&I to seek to
affect the management or Supervisory Board of CB&I or any of its Affiliates or
the business, operations or affairs of CB&I or any of its Affiliates;
(j) request CB&I to, or seek to cause CB&I (or its directors) to, call
any meeting of the shareholders of CB&I or any of its Affiliates;
(k) grant or agree to grant any proxy or other voting power to any
Person other than CB&I or the Persons designated by CB&I to vote at any meeting
of the shareholders of CB&I, or deposit any Voting Securities in a voting trust
or, except as specifically contemplated by this Agreement, subject them to a
voting agreement or other agreement or arrangement with respect to the voting of
such Voting Securities;
(l) disclose to any third party or in any filing with any governmental
authority any intention, plan or arrangement inconsistent with any of the
foregoing or with the restrictions on transfer set forth in this Agreement;
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(m) make any public statements (or statements that must be publicly
disclosed) inconsistent with the provisions of this Agreement;
(n) (i) disclose any intention, enter into any discussions,
negotiations, arrangements or understandings with any third party with respect
to any of the foregoing, or (ii) initiate, advise, assist, induce or attempt to
induce, encourage or influence another Person to take any action with respect to
any of the foregoing or take any other action inconsistent with the foregoing;
or
(o) request a waiver, modification or amendment by the Supervisory
Board or CB&I of any of the foregoing restrictions.
Nothing in this Section 2.01 shall be construed to limit the right of
any director to communicate with any member of the Supervisory Board, any
executive officer of CB&I, counsel to CB&I or auditors for CB&I, as may be
necessary in such director's reasonable judgment, for the normal conduct and
discharge of such director's duties as a CB&I director in such manner as will
preserve the confidentiality thereof and will not result in an obligation of
CB&I or FRF or any of their respective Affiliates to make a public disclosure
with respect thereto. Nothing in this Article II or in Article IV is intended to
disadvantage FRF from receiving securities, rights to acquire securities, or
other assets available to other shareholders on a pro rata basis in a
Recapitalization or Business Combination, provided that FRF is in material
compliance with the relevant provisions and restrictions of this Agreement.
Section 2.02 Business Combinations. (a) FRF agrees that, so long as
this Agreement remains in effect, with respect to any proposed Business
Combination or Recapitalization involving CB&I or any Affiliate of CB&I and any
third party, each class of Holders' Securities owned by FRF and its Affiliates
and Associates will only be voted, or tendered or exchanged (or withheld or
withdrawn from tender or exchange), and FRF and its Affiliates and Associates
will otherwise act, only in accordance with the recommendation of the
Supervisory Board (and any special committee of the Supervisory Board
constituted for the purpose of evaluating one or more such proposals). Subject
to such restriction, FRF shall not be prohibited by the provisions of Section
2.01 from submitting a competing Business Combination or Recapitalization
proposal to the Supervisory Board in the event that the Supervisory Board
publicly announces its determination to recommend a Significant Transaction to
CB&I shareholders subsequent to the Effective Time.
(b) The parties hereto agree that the Articles of Association shall be
amended (i) to provide that any affiliate transaction involving FRF or its
Affiliates or any Business Combination with a Third Party or Recapitalization
otherwise requiring a shareholder vote shall require approval by at least 80% of
the Voting Securities then outstanding at a time when any Person (and its
Affiliates and Associates) or "group" owns 15% or more of the Voting Securities
then outstanding, and (ii) in such other respects listed on Annex A hereto as is
necessary or desirable to carry out the provisions and purposes of this
Agreement.
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Section 2.03 Voting of Holders' Securities. FRF agrees that during the
term of this Agreement, with respect to any matter presented to shareholders of
CB&I for vote or approval (whether at a meeting or by written consent), each
class of Holders' Securities owned by FRF and its Affiliates and Associates
shall be present and voted (i) "for" the nominees recommended by the Supervisory
Board, provided CB&I is in compliance with the terms of Section 6.01 of this
Agreement, and (ii) "for" any proposal which is recommended by the Supervisory
Board and "against" any proposal that is not recommended by the Supervisory
Board; provided, however, that FRF and its Affiliates may, in their sole
discretion, vote the Securities held by them on any matter involving (i) the
appointment of auditors; (ii) the adoption of any Rights Agreement or any other
"poison pill" or similar shareholder rights plan which would preclude FRF from
effecting any transaction otherwise permitted herein; (iii) the migration of
CB&I from its current Organization State to any other Organization State (other
than in connection with a Business Combination with a Third Party); (iv) the
conversion of CB&I from its current corporate form to any other corporate form
(other than in connection with a Business Combination with a Third Party); or
(v) the amendment of the Articles of Association as to matters not contemplated
by this Agreement which would have a disproportionate material and adverse
effect on FRF versus other CB&I shareholders not contemplated by this Agreement.
The provisions of this Section 2.03 shall apply to both the casting of votes at
general meetings of shareholders and any execution of shareholder action by
written consent. FRF agrees, and shall cause its Affiliates, to execute and
deliver to the Secretary of CB&I not later than 20 days prior to the date of any
general meeting of shareholders of CB&I a proxy (in such form as provided by and
on behalf of the Supervisory Board) representing all Voting Securities
beneficially owned by FRF and its Affiliates and Associates voted in accordance
with the provisions of this Section 2.03 and this Agreement.
ARTICLE III
REGISTRATION RIGHTS
Section 3.01 Demand Registration.
(a) Subject to the terms of this Agreement, at any time after the date
hereof, the Holders of at least 75% of the then outstanding Holders' Securities
may request registration under the Securities Act of all or part of their
Holders' Securities on Form S-1 or S-3 or any similar registration (other than a
shelf registration); provided, that any such request shall cover either (i) at
least 20% of such Holders' Securities calculated as of the date of this
Agreement or (ii) such smaller number to the extent it represents all of the
remaining Holders' Securities. Within ten (10) days after receipt of any request
pursuant to this Section 3.01, CB&I will give written notice of such request to
all other Holders of Holders' Securities and will include in such registration
all Holders' Securities with respect to which CB&I has received written requests
for inclusion within thirty (30) days after delivery of CB&I's notice. All
registrations requested pursuant to this Section 3.01 are referred to herein as
"Demand Registrations."
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(b) CB&I will not include in any Demand Registration any Securities
which are not Holders' Securities without the written consent of the Holders of
a majority of the Holders' Securities to be included in such Demand
Registration. If a Demand Registration is an underwritten public offering and
the managing underwriters advise CB&I in writing that in their opinion the
inclusion of the number of Holders' Securities and other Securities requested to
be included creates a substantial risk that the price per share of Securities
will be reduced, CB&I will include in such registration, prior to the inclusion
of any Securities which are not Holders' Securities, the number of Holders'
Securities requested to be included which in the opinion of such underwriters
can be sold without creating such a risk, pro rata among the respective Holders
of Holders' Securities on the basis of the number of Holders' Securities owned
by such Holders, with further successive pro rata allocations among the Holders
of Holders' Securities if any such Holder of Holders' Securities has requested
the registration of less than all such Holders' Securities such Holder is
entitled to register.
(c) Notwithstanding any of the foregoing, CB&I shall not be obligated
to effect any Demand Registration as follows:
(i) CB&I will not be obligated to effect more than one Demand
Registration within any twelve month period;
(ii) CB&I will not be obligated to effect any Demand
Registration during the period starting on the date 60 days prior to CB&I's
estimated date of filing of, and ending on the date 90 days immediately
following the effective date of, any registration statement pertaining to
Securities of CB&I sold by CB&I, provided that CB&I is actively employing in
good faith all reasonable efforts to cause such registration statement to become
effective; and provided further that CB&I may not, pursuant to this Section
3.01(c)(ii), delay implementation of a Demand Registration more than once in any
twelve (12) month period;
(iii) With respect to any Demand Registration, if (A) the
Supervisory Board reasonably and in good faith determines that such filing would
be materially detrimental to CB&I or require a disclosure of a material fact
that might reasonably be expected to have a Material Adverse Effect on CB&I or
on any plan or proposal by CB&I or any of its subsidiaries to engage in any
acquisition or disposition of assets or equity securities (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
material financing or other significant transaction and (B) CB&I shall furnish
the Holders of Holders' Securities who have requested a Demand Registration a
certificate signed by an executive officer of CB&I to such effect, CB&I may
postpone for up to ninety (90) days the filing or the effectiveness of a
registration statement for a Demand Registration; provided, however, that CB&I
may not postpone the filing or effectiveness of a registration statement for a
Demand Registration for more than ninety (90) days during any twelve (12) month
period; and
(iv) CB&I will not be obligated to effect any Demand
Registration after CB&I has effected two (2) Demand Registrations pursuant to
this Section 3.01, and such registrations have been declared or ordered
effective.
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Section 3.02 Piggyback Registration.
(a) Whenever CB&I proposes to register any of its Securities under the
Securities Act (other than pursuant to a Demand Registration hereunder) and the
registration form to be used may be used for the registration of any Holders'
Securities (a "Piggyback Registration") (except Forms S-8 or S-4), CB&I will
give written notice, at least thirty (30) days prior to the proposed filing of a
registration statement, to all Holders of the Holders' Securities of its
intention to effect such a registration and will use reasonable best efforts to
include in such registration all Holders' Securities (in accordance with the
priorities set forth in Sections 3.02(b) and 3.02(c) below) with respect to
which CB&I has received written requests for inclusion within fifteen (15) days
after the delivery of CB&I's notice, specifying the number of Securities
intended to be registered.
(b) If a Piggyback Registration is an underwritten primary registration
on behalf of CB&I and the managing underwriters advise CB&I in writing that in
their opinion the number of Securities requested to be included in the
registration creates a substantial risk that the price per share of Securities
will be reduced, CB&I will include in such registration first, the securities
that CB&I proposes to sell, second, the Holders' Securities requested to be
included in such registration under this Agreement together with any Holders'
Securities requested to be included in such registration under the WEDGE
Shareholder Agreement, pro rata among all the Holders of such Holders'
Securities on the basis of the number of shares which are owned by such Holders,
and third, other Securities requested to be included in such registration to be
allocated pro rata among the holders thereof.
(c) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of CB&I's securities and the managing
underwriters advise CB&I in writing that in their opinion the number of
Securities requested to be included in the registration creates a substantial
risk that the price per share of Securities will be reduced, CB&I will include
in such registration first, the Securities requested to be included therein by
the holders requesting such registration if and only if pursuant to a demand
registration exercised by PDM, second, the Securities requested to be included
therein by the holders requesting such registration, and the Holders' Securities
requested to be included in such registration under this Agreement together with
any Holders' Securities requested to be included in such registration under the
WEDGE Shareholder Agreement, pro rata among all the holders of such securities
on the basis of the number of shares of Securities or Holders' Securities which
are owned by such holders, and third, other Securities requested to be included
in such registration.
(d) If CB&I has previously filed a registration statement with respect
to Holders' Securities pursuant to Section 3.01 or pursuant to this Section
3.02, and if such previous registration has not been withdrawn or abandoned,
CB&I will not file or cause to be effected any other registration of any of its
Securities or Securities convertible or exchangeable into or exercisable for its
Securities under the Securities Act (except on Form S-8 or Form S-4 or any
successor form thereto), whether on its own behalf or at the request of any
holder or holders of such Securities, until a period of at least one hundred
eighty (180) days has elapsed from the effective date of such previous
registration.
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Section 3.03 Right to Terminate Registration. CB&I shall have the right
to terminate or withdraw any registration initiated by it under Section 3.02
prior to the effectiveness of such registration provided that no Holder has
elected to include Holders' Securities in such registration.
Section 3.04 Expenses of Registration.
(a) CB&I will pay all Registration Expenses for Demand Registrations
pursuant to Section 3.01 and for an unlimited number of Piggyback Registrations
pursuant to Section 3.02, provided, however, that CB&I shall not be obligated to
pay more than $400,000 in the aggregate for Registration Expenses with respect
to Demand Registrations. A registration will not count as one of the CB&I paid
Demand Registrations until it has become effective; provided, however, that in
any event CB&I will pay all Registration Expenses in connection with any
registration initiated as a Demand Registration for which CB&I was obligated to
pay. In excess of $400,000, the Registration Expenses for Demand Registrations
shall be borne by the Holders of Holders' Securities to be registered thereunder
pro rata based on the number of Holders' Securities and other Securities
requested or permitted to be included in such registration pursuant to the terms
of this Agreement. If FRF effects a Piggyback Registration right hereunder
relating to a Demand Registration by WGI under the WEDGE Shareholder Agreement,
FRF agrees to share pro rata with WEDGE Group Incorporated any Registration
Expenses which exceed the amount CB&I is obligated to pay, and CB&I will cause
any other Person which has a right to effect a Piggyback Registration relating
to a Demand Registration by FRF hereunder to agree to similarly share such
Registration Expenses.
(b) Except as provided in Section 3.04(a) hereof, all expenses incident
to CB&I's performance of or compliance with this Agreement, including, but not
limited to, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for CB&I and all independent
certified public accountants, underwriters (excluding discounts and commissions)
and other Persons retained by CB&I (all such expenses being herein called
"Registration Expenses"), will be borne by CB&I, provided that CB&I shall not be
required to pay sales commissions, discounts or transfer taxes or the cost of
legal counsel for the Holders. In addition, CB&I will pay its internal expenses
(including, but not limited to, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance obtained by
CB&I, and the expenses and fees for listing the Securities to be registered on
each securities exchange. If the registration request is subsequently withdrawn
at the request of a majority of the Holders of Holders' Securities to be
registered, the Holders of Holders' Securities shall forfeit their right to
reimbursement of expenses with respect to one Demand Registration unless the
Holders of Holders' Securities to be registered pay for all of the Registration
Expenses for such withdrawn registration or unless such registration is
withdrawn due to a material adverse change in the operations or results of CB&I.
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Section 3.05 Registration Procedures. Whenever the Holders of Holders'
Securities have requested that any Holders' Securities be registered pursuant to
this Agreement, CB&I will use its reasonable best efforts to effect the
registration and sale of such Holders' Securities in accordance with the
intended method of disposition thereof and, pursuant thereto, CB&I will as
expeditiously as possible:
(a) prepare and file with the Commission a registration statement with
respect to such Holders' Securities and use its reasonable best efforts to cause
such registration statement to become effective (provided that before filing a
registration statement or prospectus, or any amendments or supplements thereto,
CB&I will furnish copies of all such documents proposed to be filed to the
counsel or counsels for the Selling Holders of the Holders' Securities covered
by such registration statement);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus(es) used in
connection therewith as may be necessary to keep such registration statement
effective until the earlier of such time as all of such Holders' Securities have
been disposed of in accordance with the intended methods of disposition set
forth in such registration statement or the expiration of 135 days after such
registration statement becomes effective (provided that such 135-day period
shall be extended (i) in the case of a Demand Registration for such number of
days that equals the number of days elapsing from (A) the date written notice
contemplated by Section 3.05(e) hereof is given by CB&I to (B) the date on which
CB&I delivers to the Selling Holders the supplement or amendment contemplated by
Section 3.05(e) hereof and (ii) for a period of time equal to the period the
Holder refrains from selling any Holders' Securities included in such
registration at the request of CB&I or an underwriter), and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the Selling Holders
thereof set forth in such registration statement;
(c) furnish to each Selling Holder of Holders' Securities such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus(es) included in such registration statement (including each
preliminary prospectus) and such other documents as such Selling Holder may
reasonably request in order to facilitate the disposition of the Holders'
Securities owned by such Selling Holder;
(d) use its reasonable best efforts to register or qualify such
Holders' Securities under such other securities or blue sky laws of such
jurisdictions as any Selling Holder reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
Selling Holder to consummate the disposition in such jurisdictions of the
Holders' Securities owned by such Selling Holder (provided that CB&I will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph, (ii)
consent to general service of process in any such jurisdiction, or (iii) subject
itself to taxation in any such jurisdiction);
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(e) notify each Selling Holder of such Holders' Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, CB&I will prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Holders' Securities, such prospectus will not contain any
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
(f) cause all such Holders' Securities to be listed on each securities
exchange on which similar securities issued by CB&I are then listed or if no
such securities are then listed, such securities exchange as the Selling Holders
of a majority of the Holders' Securities included in such registration may
request;
(g) provide a transfer agent and registrar for all such Holders'
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other customary actions as the
Selling Holders of a majority of the Holders' Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Holders' Securities (including, but not limited to,
effecting a stock split or a combination of shares);
(i) make available for inspection by any Selling Holder of Holders'
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such Selling Holder or underwriter, all financial and other records,
pertinent corporate documents and properties of CB&I, and cause CB&I's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such Selling Holder, underwriter, attorney,
accountant or agent in connection with such registration statement; provided,
however, that any records, information or documents that are furnished by CB&I
and that are non-public shall be used only in connection with such registration
and shall be kept strictly confidential by any Selling Holder of Holders'
Securities except to the extent disclosure of such records, information or
documents is required by written order of a court or other governmental
authority having jurisdiction;
(j) advise each Selling Holder of such Holders' Securities, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued; and
(k) furnish on the date or dates provided for in the underwriting
agreement: (i) an opinion of counsel, addressed to the underwriters, covering
such matters as such counsel and underwriters may reasonably agree upon,
including such matters as are customarily furnished in
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connection with an underwritten offering, and (ii) a letter or letters from the
independent certified public accountants of CB&I addressed to the underwriters,
covering such matters as such accountants and underwriters may reasonably agree
upon, in which letter(s) such accountants shall state, without limiting the
generality of the foregoing, that they are independent certified public
accountants within the meaning of the Securities Act and that in their opinion
the financial statements and other financial data of CB&I included in the
registration statement, the prospectus(es), or any amendment or supplement
thereto, comply in all material respects with the applicable accounting
requirements of the Securities Act.
Section 3.06 Indemnification; Contribution.
(a) By CB&I. To the extent permitted by law, (i) CB&I will indemnify
each Selling Holder, each of its officers and directors, and each person
controlling such Selling Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions or proceedings in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading (except insofar as the
same are caused by or contained in any information furnished in writing to CB&I
by such Holder expressly for use therein or by such Holder's failure to deliver
a copy of the prospectus or any amendments or supplements thereto after CB&I has
furnished such Holder with a sufficient number of copies of the same), or any
violation by CB&I of the Securities Act or any rule or regulation promulgated
under the Securities Act applicable to CB&I in connection with any such
registration, qualification or compliance, and (ii) CB&I will reimburse each
such Selling Holder, each of its officers, directors, and each person
controlling such Selling Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing, settling or defending any
such claim, loss, damage, liability or action, provided, in the case of (i) and
(ii), any indemnification by CB&I shall be proportionate to reflect the relative
fault of CB&I on the one hand, and the Selling Holder on the other, with respect
to the statements or omissions which resulted in such expenses, claims, losses,
damages, liabilities or action in respect thereof, as well as any other
equitable considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
CB&I or the Selling Holder, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission, but not by reference to stock ownership in CB&I.
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(b) By Selling Holders. To the extent permitted by law, each Selling
Holder (i) will indemnify CB&I, each of its officers and directors, and each
underwriter, if any, of Securities covered by such a registration statement,
each person who controls CB&I or such underwriter within the meaning of Section
15 of the Securities Act, and each other Selling Holder, each of its officers
and directors, and each person controlling such Selling Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions or proceedings in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii) will reimburse CB&I, such Selling Holders, such
officers, directors, partners, legal counsel, persons, underwriters or control
persons for any legal or any other expenses reasonably incurred in connection
with investigating, settling or defending any such claim, loss, damage,
liability or action, but, in the case of (i) and (ii), only to the extent that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to CB&I for the acknowledged purpose of inclusion in such registration
statement, prospectus or preliminary prospectus. Notwithstanding the foregoing,
the liability of each Selling Holder under this subsection (b) shall be limited
in an amount equal to the net proceeds of the shares sold by such Selling
Holder, unless such liability arises out of or is based on willful misconduct by
such Selling Holder.
(c) Procedure for Indemnification. Each party indemnified under
subsection (a) or (b) of this Section 3.06 (the "Indemnified Party") shall,
promptly after receipt of actual notice of any claim or the commencement of any
action against such Indemnified Party in respect of which indemnity may be
sought, notify the party required to provide indemnification (the "Indemnifying
Party") in writing of the claim or the commencement thereof, provided that the
failure of the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which it may have to an
Indemnified Party on account of the indemnity agreement contained in subsection
(a) or (b) of this Section 3.06, unless the Indemnifying Party was materially
prejudiced by such failure, and in no event shall relieve the Indemnifying Party
from any other liability which it may have to such Indemnified Party. If any
such claim or action shall be brought against an Indemnified Party, it shall
notify the Indemnifying Party thereof and the Indemnifying Party shall be
entitled to participate therein, and, to the extent that it wishes, jointly with
any other similarly notified Indemnifying Party, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnified Party. After notice from
the Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable
(except to the extent the proviso to this sentence is applicable, in which event
it will be so liable) to the Indemnified Party under this Section 3.06 for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided that each Indemnified Party shall have the right to
employ separate counsel to represent it and assume its defense (in which case,
the Indemnifying Party shall not represent it) if (i) upon the advice of
counsel, the representation of both parties by the same counsel would be
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inappropriate due to actual or potential differing interests between them, or
(ii) in the event the Indemnifying Party has not assumed the defense thereof
within 10 days of receipt of notice of such claim or commencement of action, and
in which case the fees and expenses of one such separate counsel shall be paid
by the Indemnifying Party. The Indemnifying Party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one firm for all such Indemnified Parties,
unless conflicting interests of the Indemnified Parties make the retention of
one firm on behalf of all of them unreasonable. If any Indemnified Party employs
such separate counsel it will not enter into any settlement agreement which is
not approved by the Indemnifying Party, such approval not to be unreasonably
withheld. If the Indemnifying Party so assumes the defense thereof, it may not
agree to any settlement of any such claim or action as the result of which any
remedy or relief, other than monetary damages for which the Indemnifying Party
shall be responsible hereunder, shall be applied to or against the Indemnified
Party, without the prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld. In any action hereunder as to which the
Indemnifying Party has assumed the defense thereof with counsel reasonably
satisfactory to the Indemnified Party, the Indemnified Party shall continue to
be entitled to participate in the defense thereof with counsel of its own
choice, but, except as set forth above, the Indemnifying Party shall not be
obligated hereunder to reimburse the Indemnified Party for the costs thereof.
Each Indemnified Party shall furnish such information regarding itself or the
claim in question as an Indemnifying Party may reasonably request in writing and
as shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) Contribution. If the indemnification provided for in this Section
3.06 shall for any reason be unavailable to an Indemnified Party in respect of
any loss, claim, damage or liability, or any action in respect thereof, referred
to therein, then each Indemnifying Party shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
fault of the Indemnifying Party on the one hand, and the Indemnified Party on
the other, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party on the one hand, or the
Indemnified Party on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission, but not by reference to any Indemnified Party's stock
ownership in CB&I. In no event, however, shall a Selling Holder be required to
contribute in excess of the amount of the net proceeds received by such Selling
Holder in connection with the sale of Holders' Securities in the offering which
is the subject of such loss, claim, damage or liability. The amount paid or
payable by an Indemnified Party as a result of the loss, claim, damage or
liability, or action in respect thereof referred to above in this subsection (d)
shall be deemed to include, for purposes of this paragraph, any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating, settling or defending any such action or claim. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall
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be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Conflicts and Controlling Language. Notwithstanding the foregoing,
to the extent that the provisions on indemnification and contribution contained
in the underwriting agreement entered into in connection with an underwritten
public offering are in conflict with the foregoing provisions, the provisions in
the underwriting agreement shall control.
Section 3.07 Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell its Securities on the basis provided in any
underwriting arrangements approved by such Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements. The foregoing notwithstanding, with respect to any of the
documents and/or agreements referred to in this Section 3.07, (i) no Selling
Holder of Holders' Securities shall be required to make any representations and
warranties with respect to or on behalf of CB&I or any other shareholder of CB&I
and (ii) the liability of any holder of Holders' Securities shall be limited as
provided in Section 3.06(b).
Section 3.08 Information by Selling Holder. Selling Holders shall
promptly furnish to CB&I such information regarding such Selling Holders as
shall be necessary to enable CB&I to comply with the provisions hereof in
connection with any registration referred to in this Agreement.
Section 3.09 Rule 144 Reporting. At the request of any Selling Holder
of Holders' Securities who proposes to sell securities in compliance with Rule
144 of the Commission, CB&I will (i) forthwith furnish to such Selling Holder a
written statement of compliance with the filing requirements of the Commission
as set forth in Rule 144, as such rule may be amended from time to time and (ii)
make available to the public and such holders such information as will enable
the Selling Holders of Holders' Securities to make sales pursuant to Rule 144.
Section 3.10 Consistent Restrictions on Transfer. CB&I shall be
permitted, and it shall not constitute a breach of the terms of this Article
III, to impose restrictions on transfer of Holders' Securities under a
registration statement consistent with the terms of Article IV hereof.
ARTICLE IV
TRANSFERS OF HOLDERS' SECURITIES
Section 4.01 Restrictions on Transfer.
(a) During the term of this Agreement, FRF agrees that it will not, and
it will cause each of its Affiliates who acquire Holders' Securities pursuant to
Section 4.02(d) of this Agreement not to, (i) Transfer any Holders' Securities,
except as permitted by or in accordance
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with this Agreement, or (ii) convert registered shares of Holders' Securities
into bearer shares of Holders' Securities or acquire beneficial ownership of
bearer shares of Holders' Securities, and the parties hereby agree that
notwithstanding the provisions of the Articles of Association, FRF will not
request and CB&I will not be bound to honor a request for such conversion. All
Holders' Securities will be held in certificated form.
(b) Except for Transfers pursuant to Section 4.02, FRF and its
Affiliates may not, without the prior written consent of CB&I, transfer any
Holders' Securities to any Person who FRF or its Affiliates has reason to
believe after reasonable investigation (which shall include receipt of
appropriate written representations from the proposed transferee and a review of
statements filed with the Commission pursuant to Section 13(d) of the Exchange
Act) (i) either has filed a Schedule 13D under the Exchange Act with respect to
CB&I or would be required to file a Schedule 13D under the Exchange Act with
respect to CB&I due to a change in intent or percentage ownership, (ii) as a
result of such Transfer, would beneficially own more than 10% of Voting
Securities then outstanding, or (iii) is a Competitor.
Section 4.02 Exceptions to Restrictions. Subject to all applicable
laws, the restrictions on Transfer set forth in Section 4.01 hereof shall not
apply to any of the following:
(a) a Transfer of some or all of the Holders' Securities pursuant to a
bona fide underwritten public offering;
(b) a Transfer of some or all of the Holders' Securities as permitted
under Rule 144 of the Securities Act in an unsolicited "broker's transaction"
(as defined in Rule 144) on a securities exchange in compliance with the volume
limitations of Rule 144 where FRF has no knowledge that the purchaser of such
Securities is any of the Persons described in subsections 4.01(b)(i), (ii) or
(iii) above;
(c) a Transfer of some or all of the Holders' Securities in any
Business Combination or Recapitalization which is recommended to shareholders of
CB&I by the Supervisory Board;
(d) a Transfer of some or all of the Holders' Securities to an
Affiliate of FRF, provided that such Affiliate shall agree to the provisions of
this Agreement and FRF will remain liable for the performance by such Affiliate
of its obligations under this Agreement;
(e) a Transfer of some or all of the Holders' Securities in connection
with a pledge or hypothecation to a financial institution to secure a bona fide
loan; provided, however, that any foreclosure or enforcement of such pledge or
hypothecation by the pledgee shall be subject to the procedures set forth in
Article V; and
(f) a Transfer or Transfers, once per calendar quarter, to any
Institutional Investor which, together with its Affiliates as a result of such
Transfer, would beneficially own Securities not representing more than 5% of
Voting Securities.
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Section 4.03 Other Transfers. In the event that FRF desires to Transfer
the Holders' Securities in a manner not specifically permitted under Section
4.02 of this Agreement, FRF may submit a written Notice of Intention to CB&I in
accordance with the procedures set forth in Article V.
Section 4.04 Improper Transfer. Any attempt to Transfer any shares of
Holders' Securities during the term of this Agreement not in accordance with
this Agreement will be null and void and CB&I will not give, nor permit the
transfer agent of CB&I to give, any effect to such attempted Transfer in its
stock records.
Section 4.05 Restrictive Legend.
(a) A copy of this Agreement will be filed with the Secretary of CB&I
and kept with the records of CB&I. All certificates representing shares of
Holders' Securities hereafter issued to or acquired by FRF or its Affiliates
will bear the following legend noted conspicuously on such certificates:
"THE ISSUANCE OF THE SHARES REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE
SECURITIES LAWS. SUCH SHARES MAY NOT BE OFFERED, SOLD, TRANSFERRED (BY
MERGER OR OTHERWISE), ASSIGNED, DEVISED, EXCHANGED, GIFTED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH
TRANSFER IS EXEMPT FROM REGISTRATION, AND CHICAGO BRIDGE & IRON COMPANY
N.V. (THE "COMPANY") SHALL HAVE BEEN FURNISHED WITH AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY, TO SUCH EFFECT.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER AS SET FORTH IN THAT CERTAIN SHAREHOLDER
AGREEMENT DATED AS OF DECEMBER 28, 2000 BETWEEN THE COMPANY AND FIRST
RESERVE FUND VIII, L.P. (THE "SHAREHOLDER AGREEMENT"). NO TRANSFER OF
THESE SHARES WILL BE EFFECTIVE UNLESS AND UNTIL THE TERMS AND
CONDITIONS OF SUCH SHAREHOLDER AGREEMENT HAVE BEEN COMPLIED WITH IN
FULL AND NO PERSON MAY REQUEST THE COMPANY TO RECORD THE TRANSFER OF
ANY SHARES IF SUCH TRANSFER IS IN VIOLATION OF SUCH SHAREHOLDER
AGREEMENT. A COPY OF THE SHAREHOLDER AGREEMENT IS ON FILE AT THE
ADMINISTRATIVE OFFICES OF THE COMPANY IN PLAINFIELD, ILLINOIS AND WILL
BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES UPON WRITTEN
REQUEST. THE SHARES
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EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON VOTING
PROVIDED FOR IN THE SHAREHOLDER AGREEMENT AND NO VOTE OF SUCH SHARES
THAT CONTRAVENES THE SHAREHOLDER AGREEMENT SHALL BE EFFECTIVE."
(b) Until such time as the Holders' Securities have been registered
pursuant to a registration statement under the Securities Act or sold pursuant
to Rule 144 under the Securities Act, the certificates representing the Holders'
Securities (including, without limitation, all certificates issued upon Transfer
or in exchange thereof or substitution therefor) will also bear any legend
required under any other applicable laws, including state securities or blue sky
laws.
(c) CB&I may make a notation on its records or give stop-transfer
instructions to any transfer agents or registrars for the Holders' Securities in
order to implement the restrictions set forth in this Article IV.
(d) In the event FRF acquires any other or additional Holders'
Securities, FRF will submit all certificates representing such Holders'
Securities to CB&I so that the legend or legends required by this Section 4.05
may be placed thereon.
ARTICLE V
RIGHTS OF FIRST OFFER
Section 5.01 Sale by FRF.
(a) Except for Transfers permitted by Section 4.02, during the term of
this Agreement, FRF shall not, and shall cause each of its Affiliates not to,
sell any shares of Holders' Securities to any Person until it has first made an
offer (the "First Offer") to sell such shares to CB&I in accordance with this
Article V and such First Offer shall have been rejected or not accepted within
the Applicable Acceptance Period (as hereinafter defined).
(b) The First Offer to CB&I shall be set forth in the form of a notice
made in writing (the "Notice of Intention") to the Chief Financial Officer (fax
(000) 000-0000) or General Counsel (fax (000) 000-0000) of CB&I setting forth
(i) FRF's desire to make a sale; (ii) the number of shares of Holders'
Securities proposed to be sold (the "Offered Shares"); and (iii) the price (the
"Offer Price") and other terms on which the Holders' intend to offer to sell the
Offered Shares.
(c) Upon receipt of the Notice of Intention, CB&I will have the right
to purchase the Offered Shares at the Offer Price, exercisable by the delivery
of an acceptance in the form of a notice in writing to FRF by CB&I (the "Notice
of Exercise") at any time within one business day from the date of CB&I's
receipt of the Notice of Intention (the "Applicable Acceptance Period"). In any
case, CB&I will use its best efforts to respond as promptly as possible to any
Notice of Intention and, at the request of FRF, may, in its sole discretion,
provide advance approval of certain Transfers or a waiver of its rights under
this Article V. The right of CB&I to purchase
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the Offered Shares will terminate if such Notice of Exercise is not delivered
within the Applicable Acceptable Period or if CB&I sooner notifies FRF that it
declines to exercise such right. CB&I may assign its right to purchase the
Offered Shares pursuant to a specific Notice of Intention, once received by
CB&I, to any Person, but may not otherwise assign its rights under this
Article V.
(d) In the event that CB&I exercises its right to purchase the Offered
Shares in accordance with Section 5.01(c) hereof, then FRF must sell, and CB&I
must purchase, the Offered Shares to CB&I at the Offer Price within thirty (30)
days from the date of receipt of the Notice of Exercise delivered by CB&I,
subject to receipt of any required material third-party or governmental
approvals, compliance with applicable laws and the absence of any injunction or
similar legal order preventing such transaction.
Section 5.02 Purchase of the Offered Shares. In the event CB&I rejects
the First Offer or fails to deliver a Notice of Exercise within the Applicable
Acceptance Period, then FRF and its Affiliates may sell such Offered Shares at
the Offer Price or higher within sixty (60) days after the delivery of such
rejection or, in the case of a failure to deliver a Notice of Exercise, within
sixty (60) days after the expiration of the Applicable Acceptance Period,
subject to the other terms and conditions of this Agreement. If FRF and its
Affiliates do not sell all of the Offered Shares during such sixty (60) day
period, any unsold Offered Shares shall again become subject to the Right of
First Offer contained in this Article V.
ARTICLE VI
BOARD REPRESENTATION
Section 6.01 Supervisory Board Composition. (a) As part of the
transactions contemplated by the Purchase Agreement and the First Reserve Deal,
pursuant to resolutions adopted by the Supervisory Board and by CB&I
shareholders at the December 15, 2000 Shareholders' Meeting, (i) the number of
directors comprising the Supervisory Board increased from eight (8) to twelve
(12) members and (ii) two (2) FRF director nominees, Xxxxxxx X. Xxxxxxxx and Xxx
X. Xxxxx (whom FRF had designated, together with a back-up nominee for each
position, prior to the mailing of the CB&I Proxy Statement), were appointed to
serve, effective three days after the date hereof, in the classes of Supervisory
Board directors expiring in 2001 and 2003, respectively. Directors nominated by
FRF pursuant to this Article VI are referred to herein as "FRF Designees,"
directors nominated by WGI pursuant to the WEDGE Shareholder Agreement are
referred to herein as "WGI Designees," and all other directors are referred to
herein as "Noninvestor Directors".
(b) Beginning with CB&I's 2001 annual general meeting of shareholders
and at each shareholders meeting for the appointment of directors thereafter at
a time when FRF and its Affiliates and Associates beneficially own at least
3,083,871 shares of Voting Securities (which for this purpose shall exclude
derivative Securities), CB&I will cause the Supervisory Board to include as
nominees for directors (pursuant to a binding nomination, if permitted by the
Articles
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of Association) and to solicit proxies for that number of FRF Designees such
that the total number of FRF Designees on the Supervisory Board immediately
after such election will be two (2). FRF shall provide the Secretary of CB&I in
writing within 10 days after CB&I notifies FRF that CB&I is preparing its proxy
statement with (i) the names, (ii) required background information under
Regulation 14A of the Exchange Act, Dutch law and the rules of any securities
exchange and (iii) such other information regarding such individuals and their
affiliations as CB&I may reasonably request, regarding the FRF Designees (and
back-up nominees, who shall be designated by FRF and who shall be the second
nominee for each position for which the FRF Designees are nominated) for the
next election of directors. The nominees for the remaining directors comprising
the Supervisory Board, other than any WGI Designees, shall be selected by the
Noninvestor Directors (upon recommendation of the CB&I Nominating Committee or
otherwise), and FRF and the FRF Designees shall use their best efforts
(including voting as shareholders) to cause the election of the slate of
directors recommended by the Supervisory Board; provided, however, that FRF and
the FRF Designees shall not be so obligated if the FRF Designees are not
included in such slate of directors.
(c) Each FRF Designee shall have such business or technical experience,
stature and character as is commensurate with service on the board of directors
of a publicly-held enterprise (any managing director of First Reserve
Corporation and current Supervisory Board members shall be deemed to have such
qualifications). No FRF Designee who is an officer, director, partner or
principal shareholder of a Competitor shall serve as a director of CB&I.
(d) In the event that the aggregate beneficial ownership of FRF and its
Affiliates and Associates shall be less than 3,083,871 shares of Voting
Securities, the number of FRF Designees shall be reduced as follows:
FRF Ownership Number of
of Voting Securities FRF Designees
-------------------- -------------
Less than 3,083,871 shares, but at least 10% one (1)
of Voting Securities outstanding
Less than 10% of Voting Securities outstanding 0
If for any period of 30 consecutive days FRF and its Affiliates and Associates
beneficially own such number of Voting Securities then outstanding that would
entitle them to fewer than the number of FRF Designees that were in office
immediately after the last shareholders meeting to appoint directors, at the
request of the Supervisory Board, FRF shall use its best efforts to cause the
resignation of such number of FRF Designees in excess of the number to which it
would be entitled pursuant to this Section 6.01(d). If for any period of 30
consecutive days FRF and its Affiliates and Associates beneficially own in the
aggregate less than 10% of the Voting Securities then outstanding, FRF shall not
then or thereafter be entitled to designate any nominee to the Supervisory
Board.
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(e) So long as FRF and its Affiliates and Associates are entitled to
designate at least two (2) FRF Designees, each committee of the Supervisory
Board (other than the Nominating Committee or any special committee of
Independent Directors constituted for the purposes set forth in the last
sentence of this Section 6.01(e)) shall at all times include at least one FRF
Designee and no action by any such committee shall be valid unless taken at a
meeting for which adequate notice has been duly given to or waived by the
members of such committee. The FRF Designee designated by FRF to serve on any
committee of the Supervisory Board may designate as his alternate another FRF
Designee designated by FRF. The parties hereto agree that the regulations of the
Supervisory Board shall provide that a special committee of the Supervisory
Board composed entirely of disinterested Independent Directors shall be
constituted for the purpose of evaluating (i) any Significant Transaction or
(ii) any transaction, issue or matter involving FRF or its Affiliates or
Associates, which special committee shall report its conclusions and
recommendations to the Supervisory Board as a whole.
(f) So long as FRF and its Affiliates and Associates are entitled to
designate at least one FRF Designee, FRF shall have a right (i) to receive all
notices, reports and other communications sent to CB&I directors at such time as
they are transmitted to CB&I directors and to receive reasonable notice, and to
have one representative attend, any meeting of the Supervisory Board and the
Management Board, (ii) to consult with and advise members of senior management
of CB&I, and (iii) upon reasonable notice, to have equivalent access to the
books and records of CB&I as that generally afforded to CB&I directors.
(g) Notwithstanding anything contained herein, if the FRF Designee(s)
are not included as nominees for directors by the Supervisory Board or if the
Supervisory Board does not solicit proxies for such FRF Designees at any
shareholders meeting as required by the provisions of Section 6.01(b) (whether
or not such obligation is enforceable), and the Company shall not have complied
with said Section 6.01(b) within 20 days after written notice of such breach is
provided by FRF to the Company (or the Company shall have given written notice
to FRF during such period that it does not intend to comply), the provisions of
Articles II, IV and V of this Agreement shall terminate and be of no further
force and effect.
Section 6.02 Director Compensation. FRF Designees will be compensated
in the same manner as other nominees or directors (including reimbursement of
expenses).
Section 6.03 Indemnification. Upon the election of any FRF Designee to
the Supervisory Board, CB&I shall (a) indemnify and hold harmless (and
exculpate) against any and all liabilities and claims against him as a result of
his affiliation with CB&I and (b) provide to any FRF Designee liability
insurance, in each case of clause (a) and (b) above to the same extent provided
or made available to other members of the Supervisory Board.
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ARTICLE VII
MISCELLANEOUS
Section 7.01 Assignment of Holders' Rights; Third Party Beneficiaries.
(a) The rights and obligations of FRF under this Agreement may be assigned or
transferred by any Holder to an Assignee, provided that all of the following
conditions are satisfied: (i) such assignment is effected in accordance with
applicable securities laws and the provisions of this Agreement; (ii) such
Assignee agrees in writing to become subject to the terms of this Agreement
(provided, however, that such Assignee other than an Affiliate of FRF shall not
have the rights of FRF under Article VI hereof unless specifically agreed to by
CB&I in writing); and (iii) CB&I is given written notice by such Holder of such
assignment, stating the name and address of the Assignee and identifying the
Holders' Securities with respect to which such rights are being assigned.
(b) Except as provided in Section 7.01(a), this Agreement and the
rights of the parties hereunder may not be assigned and shall be binding on and
inure to the benefit of the parties hereto and their successors.
(c) This Agreement is expressly intended to confer upon the present and
future shareholders of CB&I (including Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx as
signatories hereto), as third party beneficiaries, the benefits of all covenants
and agreements made by FRF herein with privity to enforce such provisions with
all rights and remedies under applicable law, including the right of specific
performance and injunctive relief set forth in Section 7.08. Each CB&I
shareholder not signatory to this Agreement shall be deemed to have been
notified of such intended third party benefit by disclosure thereof in any
public filing by CB&I concerning this Agreement and, to the extent
acknowledgment of such benefits is required by the law of any jurisdiction, to
have acknowledged and accepted such benefits as a third party beneficiary by
casting his vote concerning the transactions contemplated by this Agreement and
the Purchase Agreement at the Shareholders' Meeting.
Section 7.02 Term; Effectiveness. The term of this Agreement will begin
(and this Agreement will become effective) upon the date hereof and will
continue until the date on which FRF and its Affiliates and Associates no longer
beneficially own Securities representing in the aggregate at least ten percent
(10%) of the total number of shares of Voting Securities then outstanding;
provided, however, that the Holders shall continue to have the rights provided
for in Article III of this Agreement as long as they beneficially own in the
aggregate at least five percent (5%) of the total number of shares of Voting
Securities then outstanding. The provisions of Sections 3.04, 3.06 and 6.03
hereof shall survive the termination of this Agreement.
Section 7.03 Entire Agreement; Amendment; Waivers. This Agreement
constitutes the entire agreement and understanding between FRF and CB&I and
supersedes all prior agreements and understandings, both written and oral,
relating to the subject matter of this Agreement. This Agreement may be amended,
modified or supplemented, and any right hereunder may be waived, if, but only
if, that amendment, modification, supplement or waiver is in writing and
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signed by FRF and CB&I and approved by a majority of the members of a special
committee of the Supervisory Board of the type referred to in Section 6.01(e)
(but shall not require the consent of any third party beneficiaries referred to
in Section 7.01(c)). The waiver of any of the terms and conditions hereof shall
not be construed or interpreted as, or deemed to be, a waiver of any other term
or condition hereof.
Section 7.04 Notices. All notices required or permitted hereunder shall
be in writing, and shall be deemed to be delivered and received (a) if
personally delivered or if delivered by facsimile, telex or courier service,
when actually received by the party to whom notice is sent or (b) if delivered
by mail (whether actually received or not), at the close of business on the
third business day next following the day when placed in the mail, postage
prepaid, certified or registered, addressed to the appropriate party or parties,
at the address of such party set forth below (or at such other address as such
party may designate by written notice to all other parties in accordance
herewith):
(1) if to CB&I, addressed to it at:
Chicago Bridge & Iron Company N.V.
c/o Chicago Bridge & Iron Company
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Chairman of the Supervisory Board
Fax: (000) 000-0000
with a copy to:
Chicago Bridge & Iron Company N.V.
c/o Chicago Bridge & Iron Company
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Fax: (000) 000-0000
; and
(2) if to Seller, addressed to it at:
First Reserve Corporation
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
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with a copy to:
First Reserve Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxx
Fax: (000) 000-0000
Section 7.05 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF
NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
(A) NEW YORK COURT, OR FEDERAL COURT OF THE UNITED STATES OF AMERICA, SITTING IN
THE STATE OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, OR (B) DUTCH
COURT SITTING IN THE NETHERLANDS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RELATING THERETO, AND EACH OF THE
PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY (i) AGREES THAT ANY CLAIM IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT (OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT) OR
IN SUCH DUTCH COURT, (ii) WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH NEW YORK STATE OR
FEDERAL COURT OR IN SUCH DUTCH COURT, AND (iii) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH NEW YORK STATE OR FEDERAL COURT OR IN SUCH
DUTCH COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 7.04.
Section 7.06 WAIVER OF CERTAIN CLAIMS. NEITHER FRF NOR CB&I SHALL BE
ENTITLED TO RECOVER FROM THE OTHER ANY LOSSES, COSTS, EXPENSES OR DAMAGES
ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH OR WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT IN ANY AMOUNT IN EXCESS OF THE
ACTUAL COMPENSATORY DAMAGES, COURT OR ARBITRATION COSTS AND REASONABLE ATTORNEY
FEES AND EXPENSES,
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SUFFERED BY SUCH PARTY. FRF AND CB&I HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS
TO ASSERT ANY CLAIM FOR INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE
DAMAGES ARISING IN CONNECTION WITH OR WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED IN THIS AGREEMENT. THE WAIVER PROVISIONS PROVIDED FOR IN THIS
AGREEMENT SHALL BE APPLICABLE WHETHER OR NOT THE LOSSES, COSTS, EXPENSES AND
DAMAGES IN QUESTION AROSE SOLELY OR IN PART FROM THE GROSS, ACTIVE, PASSIVE OR
CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF ANY PERSON WHICH SEEKS
THE BENEFIT OF SUCH PROVISION. FRF AND CB&I ACKNOWLEDGE THAT THIS STATEMENT
COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND IS CONSPICUOUS.
Section 7.07 Exercise of Rights and Remedies. Except as otherwise
provided herein, no delay or omission in the exercise of any right, power or
remedy accruing to any party hereto as a result of any breach or default
hereunder by any other party hereto shall impair any such right, power or
remedy, nor shall it be construed, deemed or interpreted as a waiver of or
acquiescence in any such breach or default, or of any similar breach or default
occurring later; nor shall any waiver of any single breach or default be
construed, deemed or interpreted as a waiver of any other breach or default
hereunder occurring before or after that waiver.
Section 7.08 Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by a party of any covenants or
agreements contained in this Agreement will cause the other party to sustain
injury for which it would not have an adequate remedy at law for money damages.
Therefore each of the parties hereto agrees that in the event of any such
breach, the aggrieved party (including any present or future shareholder of
CB&I) shall be entitled to the remedy of specific performance of such covenants
and agreements and preliminary and permanent injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity, and the parties hereto further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
Section 7.09 Conflict with Articles. It is expressly agreed that
whether or not the Articles of Association fully incorporate the provisions
hereof, or any of them, the parties' rights and obligations shall be governed by
this Agreement which shall prevail, to the extent lawful, in the event of any
ambiguity or inconsistency between this Agreement and the Articles of
Association.
Section 7.10 Reformation and Severability. If any provision of this
Agreement is invalid, illegal or unenforceable, that provision shall, to the
extent possible, be modified in such manner as to be valid, legal and
enforceable but so as to most nearly retain the intent of the parties hereto as
expressed herein, and if such a modification is not possible, that provision
shall be severed from this Agreement, and in either case the validity, legality
and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby.
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Section 7.11 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 7.12 Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 7.13 Approval/Recommendation by Supervisory Board. Any
references herein to "approval by the Supervisory Board", "recommended by the
Supervisory Board" or any similar phrase shall mean any approval or
recommendation of the Supervisory Board or any approval or recommendation of any
committee or other corporate body, including the shareholders, to which the
Supervisory Board expressly delegates or assigns the power to approve or
recommend.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first written above.
FIRST RESERVE FUND VIII, L.P.
BY ITS GENERAL PARTNER, FIRST RESERVE GP
VIII, L.P.
BY ITS GENERAL PARTNER, FIRST RESERVE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Title: Managing Director
CHICAGO BRIDGE & IRON COMPANY N.V.
BY: CHICAGO BRIDGE & IRON COMPANY
B.V., ITS MANAGING DIRECTOR
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Title: Managing Director
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
-------------------------------------------
CB&I Shareholder
XXXXXXX X. XXXXXXX
/s/ X. Xxxxxxx
-------------------------------------------
CB&I Shareholder
31
Annex A
1. Amend the Articles of Association to provide that any transaction
involving WGI or First Reserve (or their respective Affiliates) or any
Business Combination or Recapitalization otherwise requiring a
shareholder vote shall require approval by at least 80% of the Voting
Securities then outstanding at a time when any Person (and its
Affiliates and Associates) or "group" owns 15% or more of the Voting
Securities then outstanding.
2. Amend the Articles of Association to provide that registered shares
shall be converted into bearer shares at the written request of a
shareholder, unless such conversion has been limited or excluded upon
issuance of those shares.
3. Amend the Articles of Association to add the requirement in a transfer
of registered shares that the endorsement by the company or its
transfer agent be made upon the share certificate and that the share
certificate must be delivered to the company or its agent upon
transfer; transfers not consistent with this requirement will not be
enforceable against the company.
4. Amend the Articles of Association to provide that the Supervisory Board
may draw up rules and regulations pertaining to voting, including the
nomination of directors, and provisions relating to Board composition
and governance, and to give effect to the matters agreed upon in the
Shareholder Agreements.
