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EXHIBIT 6
AMENDMENT TO SHAREHOLDER AGREEMENT
This AMENDMENT TO SHAREHOLDER AGREEMENT ("Amendment") is dated
as of February 7, 2001 by and among FIRST RESERVE FUND VIII, L.P., a Delaware
limited partnership ("FRF"), CHICAGO BRIDGE & IRON COMPANY N.V., a company
organized under the laws of the Netherlands ("CB&I"), and certain shareholders
of CB&I.
WITNESSETH:
WHEREAS, FRF and CB&I are parties to that certain Shareholder
Agreement dated as of December 28, 2000 relating to the shares of common stock,
par value NLG .01 per share, of CB&I ("CB&I Stock") owned by FRF (the
"Shareholder Agreement");
WHEREAS, FRF and its Affiliates currently beneficially own
4,935,451 shares of CB&I Stock, which represents approximately 27.72% of the
outstanding CB&I Stock;
WHEREAS, in order to facilitate the acquisition by CB&I of
certain assets of the engineering and construction and water divisions of
Pitt-Des Moines, Inc. ("PDM"), a transaction which the Supervisory Board has
determined to be in the best interests of, and of significant potential benefit,
to CB&I, its shareholders and other constituencies, FRF is willing to assist in
the financing for such acquisition by purchasing additional shares of CB&I Stock
pursuant to that certain Stock Purchase Agreement of even date herewith (the
"FRF Purchase Agreement"); and
WHEREAS, in order to induce and allow FRF to enter into the
FRF Purchase Agreement and to provide such funding to CB&I for the purpose of
consummating the PDM acquisition, the parties are entering into this Amendment;
NOW THEREFORE, in consideration of the premises herein
contained, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereby agree as follows:
I. Defined Terms
Each capitalized term used herein but not otherwise defined
herein shall have the meaning ascribed to such term in the Shareholder
Agreement.
The following defined terms are added to Section 1.01 of the
Shareholder Agreement:
"'General Shareholders' means the shareholders of
CB&I other than FRF and WGI and their respective Affiliates
and Associates.
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'Opposed Transaction' means any (i) Business
Combination, (ii) Recapitalization or (iii) other transaction
that involves the issuance of CB&I Stock that, in the case of
a transaction referred to in (i), (ii) or (iii), both of the
FRF Designees then serving on the Supervisory Board have voted
against at the Supervisory Board level.
'PDM Shares' means (i) the 1,623,846 registered shares
of CB&I Stock to be issued to FRE on February 7, 2001 and (ii)
the up to 501,598 shares of CB&I Stock issuable to FRF
pursuant to the Purchase Warrant and the Additional Warrant
(as those terms are defined in the Stock Purchase Agreement
dated February 7, 2001 between CB&I and FRF)."
II. Amendment of Shareholder Agreement
2.1 Section 2.01(a) of the Shareholder Agreement is hereby
amended in its entirety to read as follows:
"(a) acquire, offer to acquire, announce an intention to
acquire, solicit an offer to sell or agree to acquire by
purchase or otherwise, any Securities, except (i) as a result
of a stock split, stock dividend or Recapitalization approved
by the Supervisory Board, (ii) in connection with a Business
Combination approved by the Supervisory Board, (iii) as
funding for the acquisition by CB&I of certain assets of
Pitt-Des Moines, Inc. ("PDM") relating to PDM's engineering
and construction and water divisions, if, as a result of the
transactions contemplated thereby, the total number of shares
of Voting Securities beneficially owned (including as a member
of a group, regardless of whether such beneficial ownership is
disclaimed) by FRF and its Affiliates and Associates does not,
after giving effect to such transactions, exceed 7,060,895
shares, which is less than 30% of the total number of shares
of Voting Securities outstanding (including the shares issued
or to be issued in such transactions), or (iv) if, as a result
of such acquisition of Voting Securities, FRF and its
Affiliates and Associates would beneficially own (including as
a member of a group, regardless of whether such beneficial
ownership is disclaimed) in the aggregate no more than 10.1%
of the total number of Voting Securities outstanding;"
2.2 The first sentence of Section 2.02(a) of the Shareholder
Agreement is hereby amended to add the following proviso at the end of such
sentence (following the second parenthetical and before the period):
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"; provided, however, that in the case of an Opposed
Transaction, FRF and its Affiliates shall be permitted to vote
their PDM Shares in the same proportion as the votes of the
General Shareholders who vote upon the Opposed Transaction."
2.3 The first sentence of Section 2.03 is hereby amended to
add a proviso at the end of such sentence (following the phrase "not
contemplated by this Agreement" and before the period):
; and provided further, that in the case of an Opposed
Transaction, FRF and its Affiliates shall be permitted to
vote their PDM Shares in the same proportion as the votes of
the General Shareholders who vote upon the Opposed
Transaction."
2.4 A new Section 2.04 entitled "Representations of FRF" is
hereby inserted after Section 2.03 at the end of Article II of the Shareholder
Agreement to read as follows:
"Section 2.04 Representations of FRF. FRF has
previously provided to CB&I a true and complete copy of its
Schedule 13D dated January 8, 2001 filed with the Commission
relating to FRF's beneficial ownership of CB&I Stock. Neither
WGI, PDM, nor any Affiliate of any of such Persons known to
FRF (all such Persons and their Affiliates are collectively
hereinafter referred to as "Significant CB&I Shareholders"),
is an Affiliate or Associate of FRF; neither FRF nor any of
FRF's Affiliates or Associates has any arrangement, contract,
understanding or relationship with any of such Significant
CB&I Shareholders with respect to voting power or investment
power (which terms shall have the meanings ascribed to such
terms under Rule 13d-3(a) under the Exchange Act) with respect
to any Voting Securities, and FRF further specifically
confirms that it will observe all restrictions set forth in
Section 2.01, including subsections (g) and (i) thereof, to
the extent such restrictions prohibit any such arrangement,
contract, understanding or relationship by FRF or its
Affiliates or Associates with WGI, PDM or any other
Significant CB&I Shareholder. Neither FRF nor any of its
Affiliates or Associates has in the past had any arrangement,
contract, understanding or relationship with WGI or PDM (or
any of their respective Affiliates known to FRF) with respect
to voting power or investment power (which terms shall have
the meanings ascribed to such terms under Rule 13d-3(a) under
the Exchange Act) relating to the securities of CB&I."
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III. Consent to Transaction
CB&I's Supervisory Board has, and CB&I hereby does, consent to
the FRF Purchase Agreement and this Amendment and waives any restrictions in the
Shareholder Agreement that might restrict either (i) FRF's ability to enter into
or consummate the transactions contemplated by the FRF Purchase Agreement,
including the purchase and exercise of the Purchase Warrant and the Additional
Warrant, or this Amendment, or (ii) FRF's ability to propose or enter into the
FRF Purchase Agreement or this Amendment.
IV. Effectiveness
Except as specifically provided herein, the Shareholder
Agreement shall otherwise remain unaltered and in full force and effect. This
Amendment may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment as of the date first written above.
FIRST RESERVE FUND VIII, L.P.
A DELAWARE LIMITED PARTNERSHIP
BY: FIRST RESERVE GP VIII, L.P.,
A DELAWARE LIMITED PARTNERSHIP,
ITS GENERAL PARTNER
BY: FIRST RESERVE CORPORATION,
A DELAWARE CORPORATION,
ITS GENERAL PARTNER
By /s/ Xxxxxx X. Xxxxxxx
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Name: 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
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Title: Managing Director
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XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
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CB&I Shareholder
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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CB&I Shareholder
