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EXHIBIT 3
SHAREHOLDER AGREEMENT
This Shareholder Agreement (this "Agreement") dated as of
February 7, 2001 is by and among Pitt-Des Moines, Inc., a Pennsylvania
corporation ("PDM"), Chicago Bridge & Iron Company N.V., a company organized
under the laws of the Netherlands ("CB&I"), and certain shareholders of CB&I.
WHEREAS, PDM, CB&I and CB&I Constructors, Inc., a Texas
corporation ("CB&I Sub"), are simultaneously entering into that certain Asset
Purchase Agreement of even date herewith (the "Purchase Agreement") pursuant to
which CB&I and CB&I Sub are purchasing certain assets of PDM, and PDM is
receiving in partial consideration for such assets 2,848,172 CB&I Shares (as
defined in the Purchase Agreement);
WHEREAS, it is a condition to the consummation of such
transactions that PDM and CB&I enter into this Agreement and the Standby Funding
Agreement (as hereinafter defined); and
WHEREAS, the parties hereto desire to enter into this
Agreement to provide for certain rights and restrictions with respect to the
CB&I Shares for the benefit of PDM, and 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
PDM due solely to a minority stock or board position.
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"Articles of Association" means the articles of association of
CB&I, as amended from time to time.
"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 Call" has the meaning provided in Section 4.01.
"CB&I Shares" has the meaning provided in the Purchase
Agreement.
"CB&I Stock" means the common stock of CB&I, par value NLG .01
per share.
"Call Notice" has the meaning provided in Section 4.01.
"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.
"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.
"deed" means the Deed for Share Transfer in the form of
Exhibit A attached hereto appropriately completed by PDM.
"Demand Registration" has the meaning provided in Section
6.01(c).
"Excess Shares" means the 807,356 CB&I Shares issued to PDM
pursuant to the Purchase Agreement that are designated as "Excess Shares" in the
legend affixed to the stock certificate evidencing such Shares.
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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.
"Indemnified Party" has the meaning provided in Section
6.04(c).
"Indemnifying Party" has the meaning provided in Section
6.04(c).
"LC Shares" means the 1,166,181 CB&I Shares issued to PDM
pursuant to the Purchase Agreement that are designated as "LC Shares" in the
legend affixed to the stock certificate evidencing such Shares.
"Letter of Credit" means the original irrevocable standby
letter of credit issued by Bank One, NA for the benefit of PDM which may be
drawn upon by PDM in the circumstances set forth in Section 5.02(c).
"Material Breach" means (i) a breach of CB&I's obligations
under Section 6.01(a) or (b) of this Agreement or (ii) a breach of CB&I's
obligations under Section 3.3 or 8.2(b) of the Purchase Agreement or Section
1(a) or (b) of the Post-Closing Risk Allocation Agreement that would reasonably
be expected, individually or in the aggregate with any other such breaches, to
cause monetary damages to PDM in excess of $250,000 and that, in the case of
either (i) or (ii), is not cured or remedied within ten (10) business days after
CB&I and WEDGE (at its address set forth in the Standby Funding Agreement)
receive written notice of such breach from PDM (unless PDM shall thereafter
waive in writing such breach, in which case it will not be considered a
"Material Breach" for purposes of this Agreement).
"Net Proceeds" means the gross proceeds received by PDM in
connection with any sale or Transfer of CB&I Shares after deducting all
reasonable and customary fees and expenses (including reasonable attorneys' fees
and disbursements) paid by PDM in connection with such sale or Transfer.
"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.
"PDM Put Notice-Put Shares" has the meaning provided in
Section 5.01(a).
"PDM Put Notice-LC Shares" has the meaning provided in Section
5.02(a).
"Person" means any individual, group, corporation, firm,
partnership, joint venture, trust, business association, organization,
governmental entity or other entity.
"Purchase Agreement" has the meaning provided in the recitals
to this Agreement.
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"Put Shares" means the 874,635 CB&I Shares issued to PDM
pursuant to the Purchase Agreement that are designated as "Put Shares" in the
legend affixed to the stock certificate evidencing such Shares.
"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
6.02.
"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.
"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 which
would result in a majority of the members of the Supervisory Board not being
Continuing Directors.
"Standby Funding Agreement" means that certain Standby Funding
Agreement by and among PDM, CB&I, Farinvest, Ltd. and WEDGE (as guarantor) of
even date herewith relating to the Put Shares.
"Stock Amount Value" has the meaning provided in Section 5.03.
"Supervisory Board" means the Board of Supervisory Directors
of CB&I.
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"Third Party" means a Person other than CB&I, PDM, a CB&I
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 managing directors or
supervisory directors 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.
"WEDGE" means WEDGE Group Incorporated, a Delaware
corporation.
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 PDM. Unless specifically requested or
permitted in writing in advance by the Supervisory Board, PDM agrees that, so
long as this Agreement remains in effect, and except as contemplated elsewhere
herein, neither it nor any of its Affiliates 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) in connection with the transactions specifically
contemplated by the Purchase Agreement, (ii) as a result of a stock split, stock
dividend or Recapitalization approved by the Supervisory Board, (iii) in
connection with a Business Combination approved by the Supervisory Board, or
(iv) shares of CB&I Stock acquired for investment purposes by Affiliates of PDM
so long as the total number of Voting Securities beneficially owned by all such
Affiliates does not exceed .5% of the total number of shares of Voting
Securities then 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) 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) 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 is intended to disadvantage PDM from
receiving securities, rights to acquire securities, or assets available to other
shareholders on a pro rata basis in a Recapitalization or Business Combination,
provided that PDM is in compliance with the relevant provisions and restrictions
of this Agreement.
Section 2.02 Business Combinations. PDM 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,
all Securities owned by PDM will only be voted, or tendered or exchanged (or
withheld or withdrawn from tender or exchange), and PDM 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).
Section 2.03 Voting of Securities. PDM 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), all Securities
owned by PDM shall be present and voted (i) "for" the nominees recommended by
the Supervisory Board, 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 PDM may, in its sole discretion, vote
the Securities held by it 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 PDM 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) an
amendment of the Articles of Association which would have a disproportionate
material and adverse effect on PDM 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. PDM agrees 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
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Voting Securities beneficially owned by PDM voted in accordance with the
provisions of this Section 2.03 and this Agreement.
Section 2.04 Representations of PDM. Neither First Reserve Fund VIII,
L.P. ("First Reserve"), WEDGE, nor any Affiliate of First Reserve or WEDGE known
to PDM, is an Affiliate or Associate of PDM, and neither PDM, nor any of PDM's
Affiliates or Associates, has any arrangement, contract, understanding or
relationship with First Reserve, WEDGE, or any of their respective Affiliates
known to PDM, with respect to voting power or investment power (which includes
the meaning ascribed to such terms under Rule 13d-3(a) under the Exchange Act)
with respect to any Voting Securities.
ARTICLE III
TRANSFERS OF SECURITIES HELD BY PDM
Section 3.01 Restrictions on Transfer. During the term of this
Agreement, PDM agrees that it will not (i) Transfer any Securities held by it
except as permitted by or in accordance with this Agreement, or (ii) convert
registered shares of Securities held by it into bearer shares of Securities or
acquire beneficial ownership of bearer shares of Securities, and the parties
hereby agree that notwithstanding the provisions of the Articles of Association,
PDM will not request and CB&I will not be bound to honor a request for such
conversion. All Securities held by PDM will be held in registered form evidenced
by certificates.
Section 3.02 Permitted Transfers. (a) Prior to June 30, 2001, in the
case of LC Shares and Put Shares, and prior to April 30, 2001, in the case of
Excess Shares, any or all of the CB&I Shares held by PDM may be (and shall be)
Transferred by PDM pursuant to any public or private securities transaction
which has been (i) arranged or approved by CB&I and (ii) notified in writing by
CB&I to PDM not less than five (5) business days prior to the proposed date of
such transaction; provided, however, that PDM shall not be obligated to
consummate any such Transfer of CB&I Shares unless (x) the Net Proceeds
available to PDM from such Transfer (whether provided by the purchaser of such
Shares, by CB&I or otherwise) shall be not less than $17.15 per Share and (y)
the other terms and conditions of such proposed Transfer are reasonably
acceptable to PDM; and provided further, that notwithstanding the foregoing,
upon the occurrence of a Material Breach, PDM may Transfer any or all of the
CB&I Shares then held by it pursuant to any lawful method of disposition.
(b) Subsequent to April 30, 2001, PDM may Transfer any or all of the Excess
Shares then held by it pursuant to (i) a Demand Registration effected pursuant
to Section 6.01(a) of this Agreement or (ii) any other lawful method of
disposition. In regard to any such Transfer of Excess Shares that (x) occurs
prior to the earlier of June 30, 2001 or a Material Breach and (y) is proposed
to be consummated by PDM with a third party at a price more than 10% below the
then current market price for shares of CB&I Stock, PDM shall provide written
notice to CB&I at least one business day in advance of such proposed Transfer in
order to allow CB&I to elect in its discretion to exercise its call right as to
such Shares pursuant to Section 4.01.
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(c) On or after June 30, 2001, PDM may Transfer any or all of the CB&I
Shares then held by it pursuant to (i) a Demand Registration effected pursuant
to Section 6.01(b) of this Agreement or (ii) any other lawful method of
disposition.
(d) CB&I agrees that it will not arrange for the sale of any LC Shares
pursuant to Section 3.02(a), or exercise the CB&I Call as to any LC Shares
pursuant to Section 4.01, so long as PDM is (i) still holding Put Shares or
Excess Shares and (ii) not in material breach of this Agreement.
Section 3.03 Improper Transfer. Any attempt by PDM to Transfer any CB&I
Shares held by it 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 3.04 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 evidencing CB&I Shares or
other Securities hereafter issued to or acquired by PDM 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 (A) ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER AS SET FORTH IN THAT CERTAIN SHAREHOLDER
AGREEMENT DATED AS OF FEBRUARY 7, 2001 AMONG THE COMPANY, PITT-DES
MOINES, INC. AND CERTAIN SHAREHOLDERS (THE "SHAREHOLDER AGREEMENT") AND
(B) ARE DESIGNATED AS ["LC SHARES"] ["PUT SHARES"] ["EXCESS SHARES"]
UNDER THE TERMS OF 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
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MAY REQUEST THE COMPANY TO RECORD THE TRANSFER OF ANY SHARES IF SUCH
TRANSFER IS IN VIOLATION OF SUCH SHAREHOLDER AGREEMENT. A COPY OF THE
SHAREHOLDER AGREEMENT IS ON FILE AT THE ADMINISTRATIVE OFFICES OF THE
COMPANY IN PLAINFIELD, ILLINOIS AND WILL BE FURNISHED WITHOUT CHARGE TO
THE HOLDER OF SUCH SHARES UPON WRITTEN REQUEST. THE SHARES EVIDENCED BY
THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON VOTING PROVIDED FOR IN
THE SHAREHOLDER AGREEMENT AND NO VOTE OF SUCH SHARES THAT CONTRAVENES
THE SHAREHOLDER AGREEMENT SHALL BE EFFECTIVE."
(b) Until such time as the Securities held by PDM have been registered
pursuant to a registration statement under the Securities Act or sold pursuant
to Rule 145 or Rule 144 under the Securities Act, the certificates representing
such 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 CB&I Shares in order
to implement the restrictions set forth in this Article III. (d) In the event
that PDM or its Affiliates acquires any other or additional Securities, PDM will
submit all certificates representing such Securities to CB&I so that the
appropriate legend or legends required by this Section 3.04 may be placed
thereon.
Section 3.05 Rule 145/144 Reporting. If PDM shall propose, consistent
with the provisions of this Article III, to sell CB&I Shares in compliance with
Rule 145 (or Rule 144) of the Commission, CB&I will (a) forthwith furnish to PDM
a written statement of compliance with the current filing requirements of the
Commission set forth in Rule 145 (or Rule 144) and (b) make available to the
public and PDM such information as will enable PDM to make sales pursuant to
Rule 145 (or Rule 144).
ARTICLE IV
CB&I CALL RIGHTS
Section 4.01 CB&I Call. At any time and from time to time subsequent to
the date of this Agreement on any date(s) on or prior to June 28, 2001, CB&I
shall have the right to acquire any or all of the CB&I Shares (whether Excess
Shares, Put Shares or LC Shares) then held by PDM which have not previously been
Transferred by PDM in compliance with the terms of this Agreement, at a purchase
price equal to $17.15 per Share (such right to acquire any or all of the CB&I
Shares then held by PDM on one or more occasions is referred to herein as the
"CB&I Call"). CB&I will notify PDM in writing of its election to exercise such
CB&I Call (a "Call
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Notice"), which Call Notice will contain CB&I's notice of election to purchase
any or all such CB&I Shares as designated by CB&I, the aggregate purchase price
for such Shares payable by CB&I at $17.15 per Share, and the date estimated for
consummation of such purchase and sale (not less than two (2) nor more than
thirty (30) days after the date of the Call Notice, but in any event not later
than June 28, 2001), subject to the provisions of Section 4.02. CB&I may assign
its right to purchase the CB&I Shares subject to the CB&I Call to any Person,
provided that, notwithstanding such assignment, CB&I shall remain primarily
liable for the performance of its obligations under this Section 4.01.
Section 4.02 Consummation of Purchase. Upon the consummation of a
purchase and sale pursuant to Section 4.01, (a) CB&I or its assignee will
deliver to PDM the aggregate purchase price of the Shares subject to the Call
Notice in immediately available funds and (b) PDM will by deed Transfer to CB&I
or its assignee such Shares free and clear of all Liens against payment, and
will surrender to CB&I the legended certificates evidencing such Shares (and
such Transfer will be entered in the U.S. part of the CB&I shareholders
register).
ARTICLE V
PDM PUT RIGHTS; EXCESS PROCEEDS
Section 5.01 Put Shares. (a) During the twenty (20) business day period
commencing on the date of the earlier to occur of (i) June 30, 2001 or (ii) a
Material Breach, PDM shall have the right to require CB&I to acquire any or all
of the Put Shares then held by PDM at a purchase price equal to $17.15 per Put
Share. At any time during such twenty (20) business day period, PDM will notify
CB&I of its election to exercise such right (the "PDM Put Notice-Put Shares"),
which Notice will contain PDM's notice of election to sell the specified Put
Shares subject to such put right, the aggregate purchase price payable by CB&I
at $17.15 per Put Share, and the date for consummation of such purchase and sale
(not less than three (3) business days nor more than thirty (30) days after the
date of such PDM Put Notice-Put Shares).
(b) Upon the date set forth in the PDM Put Notice-Put Shares for the
consummation of the purchase and sale of Put Shares pursuant to Section 5.01(a),
(i) CB&I will either (x) deliver to PDM the aggregate purchase price in
immediately available funds for the Put Shares subject to such Notice or (y)
notify PDM prior to such date that it does not intend to make such payment (in
which case CB&I shall deliver a Funding Notice to Farinvest, Ltd. in accordance
with the Standby Funding Agreement), and (ii) if CB&I has made payment in
accordance with clause (i)(x) immediately above, PDM will by deed Transfer to
CB&I such Put Shares free and clear of all Liens against such payment, and will
surrender to CB&I the legended certificates evidencing such Put Shares (and the
Transfer will be entered by CB&I in the U.S. part of the CB&I shareholders
register).
(c) If CB&I shall not deliver when due some or all of the aggregate
purchase price pursuant to Section 5.01(b) for such Put Shares (or shall have
given prior written notice to PDM that it does not intend to make such payment
when due), then PDM shall (i) be entitled to
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recover such unpaid amount in accordance with the terms and conditions of the
Standby Funding Agreement and (ii) be obligated to Transfer such Put Shares to
CB&I when and in accordance with the terms and conditions of the Standby Funding
Agreement.
Section 5.02 LC Shares. (a) During the twenty (20) business day period
commencing on the date of the earlier to occur of (i) June 30, 2001 or (ii) a
Material Breach, PDM shall have the right to require CB&I to acquire any or all
of the LC Shares then held by PDM at a purchase price equal to $17.15 per LC
Share. At any time during such twenty (20) business day period, PDM will notify
CB&I of its election to exercise such right (the "PDM Put Notice-LC Shares"),
which Notice will contain PDM's notice of election to sell the specified LC
Shares subject to such put right, the aggregate purchase price payable by CB&I
at $17.15 per LC Share, and the date for consummation of such purchase and sale
(not less than two (2) nor more than thirty (30) days after the date of such PDM
Put Notice-LC Shares).
(b) Upon the date set forth in the PDM Put Notice-LC Shares for the
consummation of the purchase and sale of LC Shares pursuant to Section 5.02(a),
(i) CB&I will either (x) deliver to PDM the aggregate purchase price in
immediately available funds for the LC Shares subject to such Notice or (y)
notify PDM prior to such date that it does not intend to make such payment, and
(ii) if CB&I has made payment in accordance with clause (i)(x) immediately
above, PDM will by deed Transfer to CB&I such LC Shares free and clear of all
Liens against such payment, and will surrender to CB&I the legended certificates
evidencing such LC Shares (and the Transfer will be entered by CB&I in the U.S.
part of the CB&I shareholders register).
(c) If CB&I shall not deliver when due some or all of the aggregate
purchase price pursuant to Section 5.02(b) for such LC Shares (or shall have
given prior written notice to PDM that it does not intend to make such payment
when due), then PDM shall (i) be entitled to recover such unpaid amount by
drawing upon the Letter of Credit in an amount (not exceeding $20,000,000) equal
to such unpaid amount and (ii) be obligated to Transfer such LC Shares to CB&I
simultaneously upon the honor of such draw upon the Letter of Credit.
Section 5.03 Excess Proceeds. If and to the extent at any time PDM
shall have realized Net Proceeds from the disposition of the CB&I Shares of at
least the Stock Amount Value (as defined below), PDM shall promptly thereafter
(but in any event no later than three (3) business days thereafter) (i) remit in
immediately available funds to CB&I any Net Proceeds received by PDM in excess
of the Stock Amount Value and (ii) by deed Transfer to CB&I for no consideration
("om niet") any CB&I Shares then held, free and clear of all Liens, and
surrender to CB&I the legended certificates evidencing such Shares (and the
Transfer will be entered by CB&I in the U.S. part of the CB&I shareholders
register). As used in this Section 5.03, the term "Stock Amount Value" means the
sum of $44,000,000 less the amount of any adjustment determined pursuant to
Section 3.2(a)(2) of the Purchase Agreement.
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ARTICLE VI
REGISTRATION RIGHTS
Section 6.01 Demand Registrations. (a) Subject to the terms of this
Agreement, at any time after April 30, 2001, PDM may request registration under
the Securities Act of any or all of the Excess Shares then held by it on Form
S-1 or S-3 or any similar registration, and CB&I shall file such registration
statement with the Commission on or before the later of (i) May 15, 2001 and
(ii) the completion of PDM's review of such registration statement pursuant to
Section 6.03(a).
(b) Subject to the terms of this Agreement, at any time on or after
June 30, 2001, PDM may request registration under the Securities Act of any or
all of the CB&I Shares then held by it on Form S-1 or S-3 or any similar
registration, and CB&I shall file such registration statement with the
Commission on or before the later of (i) July 15, 2001 and (ii) the completion
of PDM's review of such registration statement pursuant to Section 6.03(a).
(c) The registrations requested by PDM pursuant to this Section 6.01
are referred to herein as "Demand Registrations". If either Demand Registration
requested by PDM contemplates an underwritten public offering of CB&I Shares,
CB&I in its sole discretion shall select a nationally recognized investment
banking firm to be lead manager of such offering.
Section 6.02 Expenses of Registration. All expenses relating to the
Demand Registrations effected by CB&I pursuant to Section 6.01, 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, fees and disbursements of counsel for CB&I, reasonable fees
and disbursements of counsel for PDM, and all independent certified public
accountants, underwriters (excluding discounts and commissions that do not
reduce the Net Proceeds available to PDM to less than $17.15 per CB&I Share) and
other Persons retained by CB&I (all such expenses being herein called
"Registration Expenses"), will be borne by CB&I. 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 CB&I Shares. Section
6.03 Registration Procedures. Whenever PDM has requested a Demand
Registration pursuant to this Agreement, CB&I will use its reasonable best
efforts to effect the registration and sale of the applicable CB&I Shares 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 the applicable CB&I Shares 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
PDM and its counsel for an opportunity to review and comment upon the same);
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(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 the applicable CB&I Shares
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, 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 PDM set forth in such registration statement;
(c) furnish to PDM 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 PDM may reasonably request in order to facilitate the
disposition of the applicable CB&I Shares;
(d) use its reasonable best efforts to register or qualify the
applicable CB&I Shares under such other securities or blue sky laws of such
jurisdictions as PDM reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable PDM to
consummate the disposition in such jurisdictions of the applicable CB&I Shares
(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);
(e) notify PDM, 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 PDM, CB&I
will prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of the applicable CB&I Shares, 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 the applicable CB&I Shares to be listed on a national
securities exchange in the United States;
(g) provide a transfer agent and registrar for the applicable CB&I
Shares 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 PDM
or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of the applicable CB&I Shares;
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(i) make available for inspection by PDM, by any underwriter
participating in any disposition pursuant to such registration statement, and by
any attorney, accountant or other agent retained by PDM or any 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 PDM, any
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 PDM 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 PDM, 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 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 6.04 Indemnification; Contribution.
(a) By CB&I. To the extent permitted by law, (i) CB&I will indemnify
PDM, each of its officers and directors, and each person controlling PDM 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
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by or contained in any information furnished in writing to CB&I by PDM expressly
for use therein or by PDM's failure to deliver a copy of the prospectus or any
amendments or supplements thereto after CB&I has furnished PDM 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 PDM, each of its officers, directors, and each person
controlling PDM, 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 PDM 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 PDM, 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.
(b) By PDM. To the extent permitted by law, PDM (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 of Securities, 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 PDM
under this subsection (b) shall be limited in an amount equal to the net
proceeds of the applicable CB&I Shares sold by PDM, unless such liability arises
out of or is based on willful misconduct by PDM.
(c) Procedure for Indemnification. Each party indemnified under
subsection (a) or (b) of this Section 6.04 (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
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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 6.04, 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 6.04 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 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
6.04 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,
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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 PDM be required to
contribute in excess of the amount of the net proceeds received by PDM in
connection with the sale of the applicable CB&I Shares 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 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 6.05 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 6.05, (i) PDM shall not
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 PDM
shall be limited as provided in Section 6.04(b).
Section 6.06 Information by PDM. PDM shall promptly furnish to CB&I
such information regarding PDM and its Affiliates as shall be necessary to
enable CB&I to comply with the provisions hereof in connection with any
registration referred to in this Agreement.
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ARTICLE VII
MISCELLANEOUS
Section 7.01 No Assignment; Third Party Beneficiaries. (a) This
Agreement and the rights of the parties hereunder may not be assigned without
the consent of the other parties hereto (but shall not require the consent of
any third party beneficiaries other than Messrs. Xxxxx and Xxxxxxx referred to
in Section 7.01(b)), and shall be binding on and inure to the benefit of the
parties hereto and their successors; provided, however, that the rights and
obligations of PDM under this Agreement may be assigned or transferred by PDM to
an assignee at any time after August 31, 2001, provided that all of the
following conditions are satisfied: (i) PDM and its Affiliates at such time are
the beneficial owners of less than 5% of the Voting Securities then outstanding
(provided that in calculating such 5% there shall be excluded any Put Shares or
LC Shares to the extent that PDM has put such Shares pursuant to Sections 5.01
or 5.02 and CB&I, the issuing bank under the Letter of Credit or Farinvest, Ltd.
or WEDGE pursuant to Section 1.01 of the Standby Funding Agreement have failed
to pay the purchase price for such Shares); (ii) such assignment is effected in
accordance with applicable securities laws and the provisions of this Agreement;
(iii) such assignee agrees in writing to become subject to the terms of this
Agreement; and (iv) CB&I is given written notice by PDM of such assignment,
stating the name and address of the assignee and identifying the CB&I Shares
with respect to which such rights are being assigned.
(b) 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 PDM 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 unless
written notice to the contrary shall have been transmitted to the Secretary of
CB&I.
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 PDM shall no longer beneficially own any CB&I
Shares; provided, however, that the provisions of Article II shall terminate
upon the earlier to occur of (i) a Material Breach, (ii) a default by Farinvest,
Ltd. and WEDGE under Section 1.01 of the Standby Funding Agreement, (iii) a
default by the issuing bank under the Letter of Credit, or (iv) at any time
after August 31, 2001 when PDM and its Affiliates own less than 5% of the Voting
Securities then outstanding. The provisions of Sections 6.02 and 6.04 hereof
shall survive the termination of this Agreement.
Section 7.03 Entire Agreement; Amendment; Waivers. This Agreement, the
Purchase Agreement, the Standby Funding Agreement and the Letter of Credit
constitute the entire agreement and understanding between PDM and CB&I, and
supersede all prior agreements and
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understandings, both written and oral, relating to the subject matter of this
Agreement. This Agreement may be amended, modified or supplemented, and any
right hereunder may be waived, if, but only if, that amendment, modification,
supplement or waiver is in writing and signed by the parties hereto (but shall
not require the consent of any CB&I shareholders or third party beneficiaries
other than Messrs. Xxxxx and Xxxxxxx referred to in Section 7.01(b)). 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, Xx. Xxxxx or Xx. Xxxxxxx, addressed to
such Person at:
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
with a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
; and
(2) if to PDM, addressed to it at:
Pitt-Des Moines, Inc.
Town Center One
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Vice President-Finance
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With copy to:
Xxxxxxxx Xxxxxxxxx Professional Corporation
One Oxford Centre, 20th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx Xxxxx, Esq.
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
ILLINOIS. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
ILLINOIS STATE OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN
CHICAGO, ILLINOIS, AND ANY APPELLATE COURT FROM ANY THEREOF, 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
ILLINOIS STATE COURT (OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL
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 ILLINOIS STATE OR FEDERAL 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 ILLINOIS STATE
OR FEDERAL 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 PDM NOR CB&I SHALL BE
ENTITLED TO RECOVER FROM EACH OTHER ANY LOSSES, COSTS, EXPENSES OR DAMAGES
ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH OR WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT IN ANY AMOUNT IN EXCESS OF THE
ACTUAL COMPENSATORY DAMAGES, COURT OR ARBITRATION COSTS AND REASONABLE ATTORNEY
FEES AND EXPENSES, SUFFERED BY SUCH PARTY. PDM AND CB&I HEREBY IRREVOCABLY WAIVE
ANY AND ALL RIGHTS TO ASSERT ANY CLAIM FOR
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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. PDM 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 other parties 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.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date first written above.
PITT-DES MOINES, INC.
By: /s/ X. X. Xxxxx
--------------------------------
Title: Vice President - Finance
CHICAGO BRIDGE & IRON COMPANY N.V.
BY: CHICAGO BRIDGE & IRON COMPANY
B.V., ITS MANAGING DIRECTOR
By: /s/ X. X. Xxxxxxx
--------------------------------
Title: Managing Director
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
-----------------------------------
CB&I Shareholder
XXXXXXX X. XXXXXXX
/s/ X. X. Xxxxxxx
-----------------------------------
CB&I Shareholder
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EXHIBIT A
Deed for Share Transfer
(1) ______________________, with offices at ___________________
("Transferor");
(2) ______________________, with offices at ___________________
("Transferee");
TRANSFER
In order to fulfill its obligation under Section [__] of a
certain Shareholder Agreement entered into by and among Pitt-Des Moines, Inc.,
Chicago Bridge and Iron Company N.V. and certain shareholders of CB&I dated
February 6, 2001, Transferor hereby transfers [ ] registered shares with a
nominal value of NLG .01 per share in the capital of Chicago Bridge & Iron
Company N.V. to Transferee.
Signed in _____ on _______________, 2001.
Transferor
By:
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