EXHIBIT 10.16
CONFORMING AGREEMENT
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THIS IS AN AGREEMENT dated February 28, 1997 by and among Chicago
Bridge & Iron Company N.V., a corporation organized under the law of The
Netherlands (the "Issuer"); Chicago Bridge & Iron Company, a corporation
organized under the law of Delaware ("Delaware"); Chi Bridge Holdings, Inc., a
corporation organized under the law of Delaware ("Chi Bridge"); and Praxair,
Inc., a corporation organized under the law of Delaware ("Praxair").
WHEREAS, in 1996 Praxair acquired CBI Industries, Inc.;
WHEREAS, Chi Bridge is an indirect wholly-owned subsidiary of Praxair and
the owner of all the outstanding shares of Delaware;
WHEREAS, Praxair has announced its intention to dispose of some or all of
its interests in Delaware and of entities in which Delaware holds ownership
interests;
WHEREAS, in furtherance of such disposition strategy, parties hereto and
certain of their affiliates have entered into agreements to separate the
business and obligations of Delaware and entities in which Delaware has or has
had ownership interests from the business and obligations of Praxair and its
other affiliates; and
WHEREAS, the form of Praxair's disposition of interests in Delaware and
Delaware's affiliates has changed, resulting in a need to modify certain of the
above-mentioned agreements and arrangements in the manner hereinafter described.
NOW THEREFORE, intending to be legally bound, the parties agree as follows:
1. Definitions
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As used herein, the following terms shall have the meanings set forth
below:
"Reorganization" means the reorganization described in Section 2 below.
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"Sale Date" means the date on which Praxair ceases to own directly or
indirectly less than a majority of the Issuer's outstanding shares.
"Separation Agreement" means the Separation Agreement dated as of January
1, 1997 by and between Delaware and Praxair, as from time to time heretofore or
hereafter amended.
"Service Agreements" means the Service Agreements as defined in the
Separation Agreement.
2. Reorganization
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Prior to the Sale Date, the following actions (hereinafter
collectively referred to as the "Reorganization") shall be completed:
(a) Delaware shall declare and pay to Chi Bridge a dividend consisting
of all the shares and other equity interests owned by Delaware in other entities
(the "Dividended Shares").
(b) In exchange for shares of Chicago Bridge & Iron Company B.V., a
wholly-owned subsidiary of the Issuer ("CBICBV"), Chi Bridge shall contribute to
CBICBV, Dividended Shares which represent interests in entities incorporated or
existing under the laws of any non-US jurisdiction.
(c) Chi Bridge shall incorporate a Delaware corporation ("NewCo") and
become its sole shareholder.
(d) Chi Bridge shall transfer to NewCo all of the Dividended Shares not
previously transferred by it in accordance with Section 2(ii) above in exchange
for shares of NewCo.
(e) Delaware, NewCo, the Issuer, Praxair and Chi Bridge shall enter into
an Assignment and Assumption Agreement pursuant to which (a) all the assets of
Delaware (except for a cash amount equal to its stated capital) will be
transferred to NewCo, (b) NewCo will assume all the liabilities of Delaware
(including, but not limited to, liability for all intragroup amounts due to
Praxair) and (c) the Issuer will guarantee and cause its
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subsidiaries to guarantee the payment and performance of all such assumed
liabilities.
(f) Chi Bridge shall contribute to the Issuer, in exchange for shares of
the Issuer, all the shares of NewCo and CBICBV owned by Chi Bridge.
3. Revision of Separation Agreement
and Certain Service Agreements
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Not later than the Sale Date, Praxair, the Issuer and their respective
affiliates shall execute and deliver such amendments, restatements or novations
of the Separation Agreement and the Service Agreements as are necessary or
appropriate to cause the Issuer and its affiliates (including but not limited to
NewCo) to have the same rights and obligations as though (i) Delaware had become
a wholly-owned subsidiary of the Issuer prior to the Sale Date and (ii) the
Issuer and its subsidiaries had irrevocably and unconditionally guaranteed the
payment and performance by Delaware and the other CB&I Companies (as defined in
the Separation Agreement) of all their duties and obligations under the
Separation Agreement and the Service Agreements.
4. Notices
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Any notices or communications permitted or required hereunder shall be
deemed sufficiently given if hand-delivered, or sent (i) postage prepaid by
registered or certified mail -return receipt requested, or (ii) by telecopy, to
the respective parties as set forth below, or to such other address as any party
may notify the other of in writing:
if to the Issuer, to: Chicago Bridge & Iron Company N.V.
c/o Chicago Bridge & Iron Company
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
if to Praxair, Praxair, Inc.
Chi Bridge or 00 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx to: Danbury, Connecticut 06817-0001
Attn: General Counsel
Notices sent by registered or certified mail shall be deemed delivered
on the fourth day after deposit in the U.S. mail and notices sent by telecopy
shall be deemed given on the
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day of transmission provided that a duplicate copy is sent on the same day by
first class U.S. mail.
5. Miscellaneous
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(a) No person who is not a party to this Agreement shall be or be
deemed to be a third party beneficiary of this Agreement.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without reference to its conflicts of
laws rules or principles. Any action to enforce, or which arises out of or is
in any way related to, any of the provisions of this Agreement shall be brought
and prosecuted in such court or courts located within the State of New York as
may be provided by law. The parties consent to the jurisdiction of such court
or courts and to service of process by registered mail, return receipt
requested, or such other manner as may be provided by law.
(c) This Agreement constitutes the entire understanding of the parties
and cancels and supersedes all previous agreements and understandings, oral or
written, between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed and delivered by its duly authorized representatives as of the day
and year first written above.
PRAXAIR, INC.
By /s/ Xxxxxx F.X. Xxxxxx
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Title Attorney-in-Fact
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CHICAGO BRIDGE & IRON COMPANY
By /s/ Xxxxxx X. Xxxxx
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Title Vice President
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CHICAGO BRIDGE & IRON COMPANY N.V.
By Xxxxxx F.X. Xxxxxx
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Title Managing Director
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CHI BRIDGE HOLDINGS, INC.
By Xxxxxx F.X. Xxxxxx
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Title Attorney-in-Fact
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