EXHIBIT 10.5(c)
AGREEMENT
This Agreement dated as of February 21, 2002 is made between Chicago Bridge
& Iron Company, N.V. a Netherlands company (the "Company"), and Xxxxxx X. Xxxxx,
a Texas resident ("Executive").
RECITALS
A. The Company has established for the benefit of certain key employees
of the Company and its majority-owned subsidiaries the Chicago Bridge & Iron
Management Defined Contribution Plan, as amended (the "Plan"). Executive is a
participant in the Plan.
B. The Company and the Executive have entered into a certain agreement
dated as of September 1, 1999 (the "Plan Agreement"), pursuant to which among
other things the Executive consented to an amendment of the Plan.
C. The Company now desires to further amend the Plan and the Executive
desires to consent thereto and the Company and Executive mutually desire to
amend the Plan Agreement.
AGREEMENT
The Company and Executive agree as follows:
1. Executive for himself and his beneficiaries consents to the First
Amendment to the Plan (the "Plan Amendment") in the form thereof attached to
this Agreement as Exhibit A, and to the application to Executive of Section 6.2
of the Plan as so amended.
2. Section 3 of the Plan Agreement is amended by amending clause (ii) of
subsection (a) to read "April 1, 2004" and by adding after subsection (d) a new
subsection (e) to read as follows:
(e) Notwithstanding subsections (a) and (c), the restrictions
of subsection (a) shall lapse as to, and there shall be distributed
to Executive pursuant to subsection (c), on each December 31 prior
to the Vesting Date and Settlement Date determined under subsections
(a) and (c), a number of shares of Common Stock having fair market
value equal to amount, if any, that when added to all Other
Compensation paid or accrued by the Company as taxable compensation
to such Part B Participant for the same tax year of the Company,
does not exceed the maximum amount thereof that is deductible by the
Company after applying any applicable limitation under Section
162(m) of the Code.
(i) "Other Compensation" means all other compensation
(including without limitation dividends payable in respect of
restricted stock units or shares of restricted stock)
previously paid or accrued, or which the Company reasonably
expects to be paid or accrued thereafter under the customary
pay practices of the Company assuming no change in Executive's
status or base compensation as in effect on such December 31,
which Other Compensation would be deductible by the Company for
such taxable year but for the potential application of Section
162(m).
(ii) If after release from restrictions and distribution
of Restricted Stock Units pursuant to this subsection (e) but
within the same taxable year of the Company Executive becomes
entitled for any reason to receive Other Compensation which,
when added to such distribution and all Other Compensation
previously paid or accrued by the Company to Executive for the
same taxable year of the Company, is in whole or in part
nondeductible by reason of the application of Section 162(m),
Executive shall be deemed to have irrevocably elected to defer
the receipt of the nondeductible portion of such Other
Compensation as though such nondeductible portion were
Restricted Stock Units under this Agreement.
(iii) This subsection (e) shall be applied only after
distribution has been made under corresponding provisions of
Section 6.2 of the Plan, as amended.
3. Nothing in this Agreement or in the Plan Amendment shall be deemed to
affect the application of that certain Amendment and Consent Agreement between
the Company and Executive dated as of November ___, 2000, in determining whether
a Change in Control has occurred for purposes of the Plan or the Plan Agreement.
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
as of the date first above written.
CHICAGO BRIDGE & IRON COMPANY N.V.
Dated: By: Chicago Bridge & Iron Company B.V.,
----------------- its sole Managing Director
By: /s/XXXXXX X. XXXXXX
------------------------------------
Its authorized officer
EXECUTIVE
Dated: /s/ XXXXXX X. XXXXX
---------------- ----------------------------------------
Xxxxxx X. Xxxxx
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Exhibit A
FIRST AMENDMENT
OF
CHICAGO BRIDGE & IRON COMPANY
MANAGEMENT DEFINED CONTRIBUTION PLAN
(AS AMENDED AND RESTATED EFFECTIVE SEPTEMBER 1, 1999)
Chicago Bridge & Iron Company N.V., a Netherlands company, acting by and
through its sole Managing Director, Chicago Bridge & Iron Company B.V., a
Netherlands company, acting by and through its duly authorized and acting
Managing Director, pursuant to Article X of the Chicago Bridge & Iron Company
Management Defined Contribution Plan, as amended and restated effective
September 1, 1999 (the "Plan") hereby amends the Plan, effective as provided
below, as follows:
I.
Section 6.2 of the Plan is amended to read as follows:
Section 6.2 Part B Participants-Xxxxx. If Xxxxxx X. Xxxxx
consents to the application to him of this Section 6.2 and his Stock
Account is held in Trust B, the Trustee of Trust B shall distribute
and release to the Committee and the Committee shall distribute to
Xx. Xxxxx (or if applicable, his Beneficiary) all vested amounts and
all vested shares of Stock credited to his Stock Account on the
earliest to occur of (i) the first business day after his
Termination of Employment, (ii) the first business day after April
1, 2004, or (iii) a Change of Control; and prior thereto shall
distribute to Xx. Xxxxx (or if applicable, his Beneficiary) vested
amounts and vested shares of Stock credited to his Stock Account,
but only during the month of December of each year and only to the
extent that the distributable amount, when added to all Other
Compensation paid or accrued by the Company as taxable compensation
to such Part B Participant for the same tax year of the Company,
does not exceed the maximum amount thereof that is deductible by the
Company after applying any applicable limitation under Section
162(m) of the Code.
(a) "Other Compensation" means all other compensation
(including without limitation dividends payable in respect of
restricted stock units or shares of restricted stock)
previously paid or accrued, or which the Company reasonably
expects to be paid or accrued thereafter under the customary
pay practices of the Company assuming no change such Part B
Participant's status or base compensation as in effect on the
date of the distribution pursuant to this Plan, which Other
Compensation would be deductible by the Company for such
taxable year but for the potential application of Section
162(m).
(b) If after receiving a distribution of the Stock Account
but within the same taxable year of the Company such Part B
Participant becomes entitled for any reason to receive Other
Compensation which, when added to such distribution and all
Other Compensation previously paid or accrued by the Company to
such Part B Participant for the same
taxable year of the Company, is in whole or in part
nondeductible by reason of the application of Section 162(m),
such Part B Participant shall be deemed to have irrevocably
elected to defer the receipt of the nondeductible portion of
such Other Compensation as though such nondeductible portion
were an amount distributable from his Stock Account.
II.
The foregoing Amendment shall be effective as of the date of Xxxxxx X.
Xxxxx'x consent thereto.
III.
Except as provided in this Amendment the Plan shall remain in full force
and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by
its duly authorized officer.
CHICAGO BRIDGE & IRON COMPANY N.V.
By: Chicago Bridge & Iron Company B.V.,
its sole Managing Director
Date: By:
----------------- ------------------------------------
its Managing Director
ATTEST:
---------------------------------
Secretary
Consented to by EXECUTIVE
Date:
----------------- ----------------------------------------
Xxxxxx X. Xxxxx
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