EXHIBIT 99.8
2,700,000 SHARES
CHICAGO BRIDGE & IRON COMPANY N.V.
COMMON STOCK (EURO 0.01 PAR VALUE)
UNDERWRITING AGREEMENT
July 1 , 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. INTRODUCTORY. The stockholders listed in Schedule A hereto (the
"SELLING STOCKHOLDERS") propose severally to sell an aggregate of 2,100,000
outstanding shares of the Common Stock ("SECURITIES") of Chicago Bridge & Iron
Company N.V., a Netherlands company with its statutory seat in Amsterdam
("COMPANY"), to the several underwriters named in Schedule B hereto
("UNDERWRITERS"), for whom Credit Suisse First Boston Corporation ("CSFBC"),
Bear, Xxxxxxx & Co. Inc. and Xxxxxx Brothers Inc. are acting as Representatives,
and the Company proposes to sell an aggregate of 600,000 outstanding shares of
the Company's Securities to the Underwriters. The aggregate of 2,100,000
outstanding shares of Securities to be sold by the Selling Stockholders and
600,000 outstanding shares to be sold by the Company is herein called the "FIRM
SECURITIES". The Company also proposes to sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 405,000 additional
outstanding shares ("OPTIONAL SECURITIES") of the Company's Securities as set
forth below. The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES".
The Company and the Selling Stockholders hereby agree with the
several Underwriters as follows, it being understood and agreed that the
respective obligations of the Company and the Selling Stockholders are several
and not joint:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
(a) The Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) A registration statement (No. 333-86960) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (A) has been
declared effective under the Securities Act of 1933 ("ACT") and is not
proposed to be amended or (B) is proposed to be amended by amendment or
post-
effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule
462(b) and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it, and
if any post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time
as of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and become effective
pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial
registration statement or the additional registration statement (if any)
means the date of the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all material
incorporated by reference therein, including all information contained in
the additional registration statement (if any) and deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions of
the Form on which it is filed and including all information (if any)
deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The
additional registration statement, as amended at its Effective Time,
including the contents of the initial registration statement incorporated
by reference therein and including all information (if any) deemed to be a
part of the additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL
REGISTRATION STATEMENT". The Initial Registration Statement and the
Additional Registration Statement are hereinafter referred to collectively
as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION
Statement". The form of prospectus relating to the Offered Securities, as
first filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(b)") under the Act or (if no such filing is required),
as included in a Registration Statement, including all material
incorporated by reference in such prospectus, is hereinafter referred to
as the "PROSPECTUS". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will
conform, in all respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue statement
of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement each conforms,
and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects to
the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to
the Company by (x) any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(c) or (y) any
Selling Stockholder specifically for use therein.
(iii) The Company has been duly incorporated and is validly existing
as a public company with limited liability (naamloze vennootschap) under
the laws of The Netherlands, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company that met the definition of
"Significant Subsidiary" under Rules and Regulations at December 31, 2001,
replacing the 10% threshold therein with 5% (a "MATERIAL SUBSIDIARY") (a
list of which is attached as Exhibit A hereto), has been duly organized
and is an existing corporation or other entity in good standing under the
laws of the jurisdiction of its organization, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; each of the Company's material subsidiaries
is a wholly-owned subsidiary of the Company, except CBI Venezolana, S.A.
and Xxxxxx CBI, Limited, which are approximately 85% and 99% owned by the
Company, respectively; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation or other entity in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
incorporated material subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable and all of the
issued and outstanding equity interests of each material subsidiary that
is not a corporation has been duly authorized, validly issued and is fully
paid; and such capital stock or other equity interests of each material
subsidiary owned by the Company, directly or through subsidiaries, is free
and clear of any mortgage, lien, pledge, security interest, restriction
upon voting or transfer, claim or incumbency of any kind; and there are no
rights granted to or in favor of any third party (whether acting in an
individual, fiduciary or other capacity) to acquire any such capital stock
or
other equity interests, any additional capital stock or other equity
interests or any other securities of any material subsidiary.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized, validly issued,
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and except as described in the Prospectus,
the stockholders of the Company have no preemptive rights with respect to
the Offered Securities which have not been waived.
(vi) There are no contracts, agreements or understandings between
the Company and any person (other than the Underwriters) that would give
rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with the transactions contemplated by this Agreement.
(vii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act; and there are
no legal or governmental proceedings, statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or Prospectus or required to be filed as exhibits to the
Registration Statement that are not described or filed as required. Except
as disclosed in the Prospectus and except with respect to the registration
rights exercised by the Selling Stockholders hereunder, all persons (i) to
whom the Company has granted such demand or piggyback registration rights
and (ii) whose rights may be exercised in connection with the registration
and offering of the Offered Securities have waived such registration
rights.
(viii) The Offered Securities are listed on The New York Stock
Exchange.
(ix) No consent, approval, authorization or order and no
registration or qualification of, or filing with, any third party (whether
acting in an individual or fiduciary or other capacity) or any
governmental or regulatory agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and
such as may be required under state or foreign securities laws in
connection with the offer and sale of the Offered Securities.
(x) Except as disclosed in the Prospectus, under current laws and
regulations of The Netherlands and any political subdivision or taxing
authority thereof or therein, all dividends and other distributions
declared and payable on the Offered Securities may be paid by the Company
to the holder thereof in United States dollars (including, without
limitation, payment on any Offered Securities in the form of New York
Shares (as defined in the Prospectus)), and except as disclosed in the
Prospectus, all such payments made to holders thereof who are
non-residents of The Netherlands will not be subject to withholding tax
and taxes on income and capital gains under the laws and regulations of
The Netherlands or any political subdivision or taxing authority thereof
or therein and will otherwise be free and clear of any other taxes and
duties of whatever nature imposed, levied, withheld or assessed by The
Netherlands or any political subdivision or taxing authority thereof or
therein and without the necessity of obtaining any governmental
authorization in The Netherlands or any political subdivision or taxing
authority thereof or therein.
(xi) No registration tax, transfer tax, stamp duty or any offer
similar documentary tax or duty and, except as described in the
Prospectus, no withholding tax or taxes on income or capital gains are
payable by or on behalf of any of the Underwriters to The Netherlands or
any political subdivision or taxing authority thereof or therein in
connection with (A) the sale and delivery of the
Offered Securities to or for the respective accounts of the Underwriters
or (B) the sale and delivery outside The Netherlands by the Underwriters
of the Offered Securities to the initial purchasers thereof provided that:
(x) such Underwriter is neither resident nor deemed to be resident in The
Netherlands; (y) such Underwriter does not have an enterprise or an
interest in an enterprise which enterprise is either managed in The
Netherlands, or in whole or in part, carried on through a permanent
establishment or a permanent representative in The Netherlands, or, if
such Underwriter does have such an enterprise or an interest in such an
enterprise, provided that such income or capital gains are not
attributable to such permanent establishment or permanent representative;
and (z) such Underwriter does not have a substantial interest in the
Company, or, if such Underwriter does have such an interest, it forms part
of the assets of an enterprise.
(xii) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms and provisions
of, or constitute a default under (A) any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties or operations, (B) any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or (C) the
articles of association or the charter or by-laws of the Company or any
such subsidiary, except, in the case of (A) and (B), for such as would not
have a Material Adverse Effect; and the Company has full power to sell the
Optional Securities, as contemplated by this Agreement.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all material real
properties and all other material properties and assets owned by them, in
each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to
be made thereof by them; and except as disclosed in the Prospectus, the
Company and its subsidiaries hold any material leased real or personal
property under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them and
neither the Company nor any subsidiary has been notified of any material
claim that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any such leases.
(xv) The Company and its subsidiaries possess adequate certificates,
authorizations, licenses or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them
and have not received any notice of threatened or actual proceedings (and
are not aware of any facts that would be expected to result in such
proceeding) relating to the revocation or modification of any such
certificate, authorization, license or permit that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect. The Company and its
subsidiaries are in compliance with their respective obligations under
such certificates, authorizations, licenses or permits and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination of such certificates, authorizations, license or
permits, except for such non-compliance and events as would not,
individually or in the aggregate, have a Material Adverse Effect.
(xvi) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would, individually or in the aggregate, have a Material Adverse Effect.
(xvii) The Company and its subsidiaries own or have obtained valid
and enforceable licenses for all material trademarks, trademark
registrations, trade names, service marks, service xxxx registrations,
computer software, other rights to inventions, know-how, patents,
copyrights,
copyright registrations, trade secrets and proprietary or other
intellectual property owned, sold or used by or licensed to or by the
Company or any of its subsidiaries or that are necessary for the conduct
of their business (collectively, "INTELLECTUAL PROPERTY"), and the Company
and its subsidiaries are not aware of any material claim or challenge by
any third party to the rights of the Company or its subsidiaries with
respect to any Intellectual Property or the validity or scope of the
Intellectual Property. Neither the Company nor any subsidiary has received
any notice of infringement of or conflict with asserted rights of others
with respect to any Intellectual Property that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which could
reasonably be expected to lead to such a claim.
(xix) Each "EMPLOYEE BENEFIT PLAN" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), in
which employees of the Company or any subsidiary participate or as to
which the Company or any subsidiary has any liability (the "ERISA Plans")
is in compliance with the applicable provisions of ERISA and the Internal
Revenue Code of 1986, as amended (the "Code"), except where failure to be
incompliance would not have a Material Adverse Effect. Neither the Company
nor any subsidiary has any liability with respect to the ERISA Plans, nor
does the Company expect that any such liability will be incurred, that
could, individually or in the aggregate, have a Material Adverse Effect.
Except as described in the Prospectus, the value of the aggregate vested
and nonvested benefit liabilities under each of the ERISA Plans that is
subject to Section 412 of the Code, determined as of the end of such ERISA
Plan's most recent ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent
actuarial valuation report, did not exceed the aggregate current value of
the assets of such ERISA Plan allocable to such benefit liabilities.
Neither the Company nor any subsidiary has any liability, whether or not
contingent, with respect to any ERISA Plan that provides post-retirement
welfare benefits that could, individually or in the aggregate, have a
Material Adverse Effect. The descriptions of the Company's stock option,
incentive compensation and other employee benefits plans or arrangements,
and the options or other rights granted and exercised thereunder, set
forth or incorporated by reference in the Prospectus are accurate in all
material respects.
(xx) (A) Neither the Company nor any of its subsidiaries is in
violation of its articles of incorporation, articles of association or of
its charter or by-laws, as the case may be, (B) neither the Company nor
any of its subsidiaries is in violation of any applicable law, ordinance,
administrative or governmental rule or regulation, or any order, decree or
judgment of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries and (C) no event of default or
event that, but for the giving of notice or the lapse of time or both,
would constitute an event of default exists, and upon the sale of the
Offered Securities will exist, under any indenture, mortgage, loan
agreement, note, lease, permit, license or other agreement or instrument
to which the Company or any of its subsidiaries is a party or to which any
of the properties, assets or operations of the Company or any such
subsidiary is subject, except, in the case of clauses (B) and (C), for
such violations and defaults that would not, individually or in the
aggregate, have a Material Adverse Effect.
(xxi) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts (with customary deductibles and/or
self-insured retentions) as are customary in the businesses in which they
are engaged; all material policies of insurance and material performance
bonds insuring the Company or any subsidiary or their businesses, assets,
employees, officers and directors are in full force and effect; the
Company and its subsidiaries are in compliance with such policies and
instruments in all material respects; and except as described in the
Prospectus or as would not, individually or in the aggregate, have a
Material Adverse Effect, there are no claims by the Company or a
subsidiary under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights
clause.
(xxii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that would individually
or in the aggregate have a Material Adverse Effect, or would materially
and adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are, to the Company's knowledge, threatened or contemplated.
(xxiii) The financial statements, together with the related
schedules and notes, included in each Registration Statement and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis;
and the schedules included in each Registration Statement present fairly
the information required to be stated therein; and the assumptions used in
preparing the pro forma financial statements included in each Registration
Statement and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts. The other financial and statistical
information set forth in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the financial statements included in the Registration Statement.
(xxiv) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock and no change in the capital stock of the Company.
(xxv) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities and Exchange Act of 1934.
(xxvi) The Company is not and, after giving effect to the offering
and sale of the Offered Securities, will not be an "investment company" or
any entity "controlled" by an "investment company" as defined in the
Investment Company Act of 1940.
(xxvii) The Company has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in stabilization or manipulation of the price of the
Offered Securities and the Company has not distributed and will not
distribute any offering material in connection with the offering and sale
of the Offered Securities other than any preliminary prospectus filed with
the Commission or the Prospectus or other materials, if any, permitted by
the Act or the Rules and Regulations.
(xxviii) Each of the Company and the subsidiaries has timely filed
(or joined in the filing of) all federal and foreign and state and local
tax reports and returns that it was required to file (or join in the
filing of), except where the failure to file a report or return would not
have a Material Adverse Effect, and such reports and returns are complete
and correct in all material respects. All material taxes shown to be due
on such reports and returns or otherwise relating to periods ending on or
before the Closing Date, owed by the Company or any of its subsidiaries
(whether or not shown on any report or return) or to which the Company or
any of the subsidiaries may be liable under the Treasury regulations
section 1.1502-6 (or analogous state or foreign law provisions) on account
of having been a member of an "affiliated group" as defined in section
1504 of the Code (or other group filing on a combined basis) at any time
on or prior to the Closing Date, if required to have been paid, have been
paid, except such tax assessments, if any, as are being contested in good
faith and as to which reserves have been provided which the Company
reasonably believes are adequate. To the Company's knowledge after due
inquiry, the charges, accruals and reserves on the books of the Company
and the subsidiaries in respect of any tax liability for any year not
finally determined are adequate to meet any assessments or reassessments.
No tax deficiency has been asserted or threatened against the Company or
any of the subsidiaries that would, individually or in the aggregate, have
a Material Adverse Effect.
(xxix) The Company is neither a foreign personal holding company
("FPHC") within the meaning of section 552 of the Code nor a passive
foreign investment company ("PFIC") within the meaning of section 1297 of
the Code, and the Company is not contemplating any action and is not aware
of any contemplated action by any stockholder or stockholders of the
Company that would be likely to cause the Company to become an FPHC, PFIC
or controlled foreign corporation ("CFC") (within the meaning of section
957 of the Code),
(xxx) As of December 31, 2001, the Company did not have any
material subsidiaries organized in a jurisdiction outside of the U.S.,
other than CBI Constructors Pty. Ltd. (organized in Australia), CBI
Venezolana, S.A. (organized in Venezuela), CB&I (Europe) B.V.
(organized in The Netherlands), Xxxxxx CBI, Limited (organized in
Canada), Caribbean Metal Supply Company (organized in the Cayman
Islands) and Southern Tropic Material Supply (organized in the Cayman
Islands)) (each, a "FOREIGN MATERIAL SUBSIDIARY").
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on the First Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on the
First Closing Date and full right, power and authority to enter into this
Agreement and the Power of Attorney and the Custody Agreement referred to
below and to sell, assign, transfer and deliver the Offered Securities to
be delivered by such Selling Stockholder on the First Closing Date
hereunder; and upon the delivery of and payment for the Offered Securities
on the First Closing Date hereunder the several Underwriters will acquire
valid and unencumbered title to the Offered Securities to be delivered by
such Selling Stockholder on the First Closing Date.
(ii) Subject to the last sentence of this Section 2(b)(ii), if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement: (A) on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
did not include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statement therein
not misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement, and at the time of
filing of the Prospectus pursuant to Rule 424(b)
or (if no such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, neither each
Registration Statement nor the Prospectus includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. Subject to the last sentence of this
Section 2(b)(ii), if the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement:
on the Effective Date of the Initial Registration Statement, neither the
Initial Registration Statement nor the Prospectus will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The two preceding sentences apply only to the extent that
any statements in or omissions from a Registration Statement or the
Prospectus are based on information furnished to the Company by such
Selling Stockholder specifically for use therein, it being understood and
agreed that, for purposes of this Agreement, including Section 7 hereof,
the only such information furnished by such Selling Stockholder consists
of the following information in the Prospectus under the caption
"Principal and Selling Shareholders": (1) the name and address of such
Selling Stockholder in the column captioned "Name and Address of
Beneficial Owner", (2) the number of shares beneficially owned by such
Selling Stockholder in the column captioned "Shares Beneficially Owned
Prior to the Offering", and (3) the information in any footnote under the
table with respect to such Selling Stockholder and (x) with respect to
Xxxxxxx X. Xxxxx, Xx. Xxxxx'x director biographical information.
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment
in connection with the transactions contemplated by this Agreement.
(iv) This Agreement and the Power of Attorney, if applicable, and
the Custody Agreement have been duly authorized, executed and delivered by
such Selling Stockholder. Each of the Power of Attorney and the Custody
Agreement constitutes a legal, valid and binding Agreement of such Selling
Stockholder and is enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws relating
to or affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(v) The execution, delivery and performance of this Agreement by
such Selling Stockholder and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under (A) any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over such Selling
Stockholder or any of its properties or operations, or any agreement or
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the properties or
operations of such Selling Stockholder is subject, or (B) the charter or
by-laws of such Selling Stockholder, except, in the case of clause (A),
for such conflicts, breaches, violations or defaults which could not,
individually or in the aggregate, have a material adverse effect on the
consummation of the transactions contemplated by this Agreement.
(vi) No consent, approval or authorization, and no order,
registration or qualification of, or filing with, or with any third party
(whether acting in an individual, fiduciary or other capacity) or any
court or governmental or regulatory agency or body, is required for the
performance by such Selling Stockholder of its obligations under this
Agreement, except such as have been obtained under the Act and such as may
be required under state or foreign securities laws in connection with the
offer and sale of the Offered Securities.
(vii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or that could reasonably be
expected to cause or result in stabilization or
manipulation of the price of the Offered Securities and such Selling
Stockholder has not distributed and will not distribute any offering
material in connection with the offering and sale of the Offered
Securities other than any preliminary prospectus filed with the Commission
or the Prospectus or other materials, if any, permitted by the Act or the
Rules and Regulations.
(viii) The sale of the Offered Securities by such Selling
Stockholder pursuant hereto is not prompted by any material nonpublic
information concerning the Company or any of its subsidiaries which is not
set forth in the Prospectus or any supplement thereto.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each of the Selling Stockholders and the
Company, severally and not jointly, agrees to sell to the Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from each Selling
Stockholder and the Company, at a purchase price of $ 25.65 per share, that
number of Firm Securities (rounded up or down, as determined by CSFBC in its
discretion, in order to avoid fractions) obtained by multiplying the number of
Firm Securities set forth opposite the name of such Selling Stockholder and the
Company in Schedule A hereto under the caption "Number of Firm Securities to be
Sold" by a fraction the numerator of which is the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule B hereto and the
denominator of which is the total number of Firm Securities. Unless all Firm
Securities are to be purchased and sold, none shall be purchased and sold.
Certificates in negotiable form (i.e. accompanied by a deed of
transfer/stock power, duly executed by each such Selling Stockholder and
acknowledged by the Company in accordance with its Articles of Association) for
the Offered Securities have been placed in custody by each of the Selling
Stockholders, for delivery under this Agreement, under Custody Agreements made
with The Bank of New York, as custodian ("CUSTODIAN"). Each Selling Stockholder
agrees that the shares represented by the certificates held in custody for such
Selling Stockholder under its Custody Agreement are subject to the interests of
the Underwriters hereunder, that the arrangements made by such Selling
Stockholder for such custody are to that extent irrevocable, and that the
obligations of such Selling Stockholder hereunder shall not be terminated by
operation of law, whether by the death of any individual Selling Stockholder or
the occurrence of any other event, or in the case of a trust, by the death of
any trustee or trustees or the termination of such trust. If any individual
Selling Stockholder or any such trustee or trustees should die, or if any other
such event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for the Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Custodian on behalf of the Selling Stockholders, in respect to
Firm Securities to be sold by the Selling Stockholders, and the Company, in
respect of Firm Securities to be sold by the Company, will deliver the Firm
Securities to the Representatives for the accounts of the Underwriters through
the facilities of The Depository Trust Company ("DTC"), against payment of the
purchase price in Federal (same day) funds by wire transfer to accounts
designated in writing by the Custodian for Firm Securities to be sold by the
Selling Stockholders, or the Company, for Firm Securities to be sold by the
Company, in each case at a bank acceptable to CSFBC. The time and date of such
delivery and payment with respect to the Firm Securities shall be 9:00 A.M., New
York time, on July 8, 2002, or at such other time not later than seven full
business days thereafter as CSFBC, the Company and the Custodian determine, such
time being herein referred to as the "FIRST CLOSING DATE". The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests at least 48 hours
prior to the First Closing Date and will be made available for checking and
packaging at the office of DTC or the Bank of New York, as its designated
custodian, in New York City at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company
from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less
than all of the Optional Securities at the purchase price per Security to be
paid for the Firm Securities. The Company agrees to sell to the Underwriters the
Optional Securities. Such Optional Securities shall be purchased from the
Company for the account of each Underwriter in the same proportion as the number
of Firm Securities set forth opposite such Underwriter's name bears to the total
number of Firm Securities and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC on behalf of the
Underwriters to the Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "OPTIONAL CLOSING DATE", which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
CSFBC but shall be not later than five (5) full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters through the
facilities of DTC, against payment of the purchase price in Federal (same day)
funds by wire transfer to an account at a bank reasonably acceptable to CSFBC.
The certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the above
office of DTC or the Bank of New York, as its designated custodian, in New York
City at a reasonable time in advance of such Optional Closing Date.
The documents to be delivered at each Closing Date by or on behalf
of the parties hereto pursuant to Section 6 hereof will be delivered at the
offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus. It is understood that the Underwriters will offer
the Offered Securities to persons who are established, domiciled or have their
residence in the Netherlands in compliance with the dispensation granted to the
Company on June 4, 2002.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
(a) The Company agrees with the several Underwriters and the several Selling
Stockholders that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise CSFBC promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and delivery,
the Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission pursuant
to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CSFBC.
(ii) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent, which
shall not be unreasonably withheld; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(iv) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(v) The Company will furnish to the Representatives copies of each
Registration Statement (four of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC reasonably requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Company will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(vi) The Company will arrange for the qualification of the Offered
Securities for offering and sale under the laws of such jurisdictions
(other than The Netherlands) as CSFBC reasonably designates and will
continue such qualifications in effect so long as required for the
distribution (provided that the Company shall not be required to submit
generally to the jurisdiction of courts in any such jurisdiction where it
is not currently so subject).
(vii) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange
Act of 1934 or mailed to stockholders, and (ii) from time to time, such
other public information concerning the Company as CSFBC may reasonably
request.
(viii) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC, except (x) grants or issuances of options, restricted shares or
restricted stock units, performance shares or performance units, or any
other Securities issued pursuant to the Company's existing compensation or
employee benefit plans, as such plans are in effect as of the date hereof
or (y) the payment in Securities to supervisory directors of the Company
of a portion of their directors fees.
(ix) The Company agrees with the several Underwriters and, subject
to Section 5(b) below, the several Selling Stockholders that the Company
will pay all expenses incident to the performance of the obligations of
the Selling Stockholders and the obligations of the Company under this
Agreement (other than expenses and disbursements of counsel to the Selling
Stockholders, underwriting fees, discounts and commissions and document,
stamp, transfer or similar taxes in respect of the Firm Securities to be
sold by the several Selling Stockholders or in respect of the execution
and delivery of this Agreement as to such Firm Securities to be sold by
the several Selling Stockholders), including (A) any registration or
filing fees and other fees and expenses in connection with qualification
of the Offered Securities for sale under the laws of such jurisdictions as
CSFBC reasonably designates and the printing of memoranda relating
thereto, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with such qualification, (B) the filing fee
incident to the review by the National Association of Securities Dealers,
Inc. of the Offered Securities (and associated reasonable legal fees), (C)
fees, expenses and disbursements of counsel for the Company and all
independent certified public accountants and other persons or entities
retained by the Company, (D) any fees and expenses for listing the Offered
Securities on The New York Stock Exchange, (E) any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities and (F) expenses incurred in distributing
preliminary prospectus and the Prospectus (including any amendments and
supplements thereto) to the Underwriters. Except as provided in this
Section, Section 7 and Section 9, the Underwriters shall pay their own
costs and expenses, including the fees and expenses of their counsel and
the expenses of advertising any offering of the Offered Securities made by
the Underwriters.
(x) The Company will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the sale of the Offered Securities sold by it
and, with respect to the Offered Securities to be sold by it, on the
execution and delivery of this Agreement. All payments to be made by the
Company hereunder shall be made without withholding or deduction for or on
account of any present or future taxes, duties or governmental charges
whatsoever unless the Company is compelled by law to deduct or withhold
such taxes, duties or charges. In that event, the Company shall pay such
additional amounts as may be necessary in order that the net amounts
received after such withholding or deduction shall equal the amounts that
would have been received if no withholding or deduction had been made.
(b) Each Selling Stockholder severally and not jointly agrees with the
several Underwriters and the Company that:
(i) Such Selling Stockholder will pay all expenses incident to the
performance of such Selling Stockholder under this Agreement, including
any expenses for document, stamp, transfer and similar taxes on the sale
of the Offered Securities to the Underwriters or on the execution and
delivery of this Agreement as to such Securities, any expenses of counsel
to such Selling Stockholder and all underwriting fees, discounts and
commissions in respect of Securities sold by it.
Wedge Engineering B.V. shall also reimburse the Company on demand for any
expenses paid by the Company under Section 5(a)(ix) as provided in the
WEDGE Shareholder Agreement and the letter agreement, dated June 1, 2002,
between the Company and Wedge Engineering B.V.
(ii) Each such Selling Stockholder will indemnify and hold harmless
the Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the sale of the Offered
Securities sold by it and on the execution and delivery of this Agreement.
All payments to be made by the Selling Stockholders hereunder shall be
made without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless such
Selling Stockholder is compelled by law to deduct or withhold such taxes,
duties or charges. In that event, such Selling Stockholder shall pay such
additional amounts as may be necessary in order that the net amounts
received after such withholding or deduction shall equal the amounts that
would have been received if no withholding or deduction had been made.
(iii) The Custodian will agree to deliver to CSFBC, attention:
Transactions Advisory Group on the Closing Date a letter stating that they
will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by
the United States Treasury Department regulations in lieu thereof) on or
before January 31 of the year following the date of this Agreement.
(iv) Each Selling Stockholder agrees, from the date of this
Agreement to 90 days after the date of the public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or exchangeable
or exercisable for any shares of Securities, enter into a transaction that
would have the same effect, or enter into any swap, hedge or other
arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of Securities or
other securities, in cash or otherwise, or publicly disclose the intention
to make any such offer, sale, pledge or disposition, or to enter into any
transaction, swap, hedge or other arrangement, without the prior written
consent of CSFBC. During such period, such Selling Stockholder will not
make any demand for or exercise any rights with respect to the
registration of any securities or any security convertible into or
exercisable or exchangeable for the Securities. The foregoing shall not
prohibit transfers to Affiliates (as defined under the Act) of such
Selling Stockholder who agree in writing to be bound by this restriction.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives and the Board of Directors of the Company shall
have received a letter, dated the date of delivery thereof (which, if the
Effective Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be prior to
the filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Xxxxxx Xxxxxxxx
LLP confirming that they are independent certified public accountants of the
Company within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules examined
by them and included in the Registration Statements comply as to form in
all material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial statements
of the Company as of and for the three-month period ended March 31, 2001
included in the Registration Statements and on the unaudited financial
statements of Xxxx-Xxxxx Inc. as of and for the nine-month period ending
September 30, 2000 included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above,
inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that the unaudited
financial statements included in the Registration Statements do not comply
as to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted accounting
principles; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery of
this Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "PROSPECTUS" shall mean the prospectus included in the Registration
Statements. All financial statements included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) The Representatives and the Board of Directors of the Company shall
have received a letter, dated the date of delivery thereof (which, if the
Effective Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be prior to
the filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Deloitte &
Touche LLP confirming that they are independent certified public accountants of
the Company within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial statements
of the Company as of and for the three-month period ending March 31, 2002
included in the Registration Statements;
(ii) on the basis of the review referred to in clause (i) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements as of and for the
three-month period ending March 31, 2002 included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of such letter, there was any
change in the capital stock or any increase in long-term debt of the
Company and its consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants, there was
any decrease in consolidated net current assets or stockholders'
equity, as compared with amounts shown on the latest balance sheet
included in the Prospectus; or
(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of the
previous year included in the Prospectus, in consolidated net sales
or in total or per-share amounts of net income.
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery of
this Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "PROSPECTUS" shall mean the prospectus included in the Registration
Statements. All financial statements included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(c) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFBC. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later that 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of a majority in interest of the
Underwriters including the Representatives, be likely to prejudice materially
the success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealing in the
secondary market; (iv) any material suspension or material limitation of trading
in securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market; (v)
any banking moratorium declared by U.S. Federal or New York authorities; (vi)
any major disruption of settlements of securities or clearance services in the
United States; or (vii) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States or The Netherlands, any declaration
of war by Congress or any other substantial national or international calamity
or emergency if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(e) The Representatives shall have received an opinion, dated such Closing
Date, of Winston & Xxxxxx, special United States counsel for the Company, to the
effect that:
(i) The Company is not and, after giving effect to the offering and
sale of the Offered Securities will not be, an "investment company" or an
entity "controlled" by an "investment company" as defined in the
Investment Company Act of 1940;
(ii) No consent, approval or authorization and no order,
registration or qualification of, or filing with any governmental or
regulatory agency or body or any court is required to be obtained or made
by the Company for the consummation of the transactions contemplated by
this Agreement in connection with the Offered Securities, except such as
have been obtained and made under the Act and such as may be required
under state or foreign securities laws;
(iii) The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated by the Company
will not (a) violate or conflict with any Illinois or Federal statute,
rule, regulation applicable to the Company (other than Federal, state or
foreign
securities or "blue sky" laws and the rules and regulations of the NASD,
as to which such counsel need express no opinion) or (b) to the such
counsel's knowledge, result in a breach or violation of any of the terms
and provisions of, or constitute a default under any agreement or
instrument filed with the Commission (or incorporated by reference) as an
exhibit to the Company's 10-K for the year ended December 31, 2001
pursuant to Item 10 of Rule 601 of Regulation S-K;
(iv) The Initial Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the Additional
Registration Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in such opinion,
the Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein or was included in the Initial Registration Statement or
the Additional Registration Statement (as the case may be), and, to the
best of the knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act;
(v) Each Registration Statement and the Prospectus and each
amendment and supplement thereto, as of their respective effective or
issue date, (other than the financial statements and related schedules
therein and other financial data derived therefrom) complied as to form in
all material respects with the requirements of the Act and the Rules and
the Regulations;
(vi) The descriptions in the Registration Statements and Prospectus
of the U.S. Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder under the heading "Taxation - Certain
United States Federal Tax Considerations" and "Risk Factors--We Have a
Risk of Being Classified as a Controlled Foreign Corporation and Certain
Shareholders Who Do Not Beneficially Own Shares May Lose the Benefit of
Withholding Tax Reduction or Exemption Under Proposed Dutch Legislation,"
the U.S. governmental proceeding under the caption "Risk Factors - We are
Uncertain as to the Outcome of a Pending Federal Trade Commission
Proceeding," and the shareholders agreements under the caption "Principal
and Selling Shareholders - Shareholder Agreements" are accurate in all
material respects and fairly present the information described or
summarized therein; and
(vii) Assuming, without investigation, that this Agreement has been
duly authorized by all necessary corporate actions of the Company and that
the person executing has the authority to sign for and bind the Company,
in each case as necessary under Dutch law and the Company's Articles of
Association, this Agreement has been duly executed and delivered by the
Company.
Such counsel shall also state that such counsel has participated in
conferences with officers and representatives of the Company and the
Selling Stockholders, Xxxxxx Xxxxxxxx LLP, Deloitte & Touche LLP,
representatives of the Underwriters and Xxxxxx & Xxxxxxx in connection
with the preparation of the Registration Statements and the Prospectus,
and based upon the foregoing and without assuming responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statements (except to the extent described in (vi) below) or
making any independent check or verification thereof (relying as to
factual matters upon opinions of officers and other representatives of the
Company and the Selling Stockholders), no facts have come to the attention
of such counsel which lead them to believe that (x) any part of a
Registration Statement or any amendment thereto, as of its effective date
or as of such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or (y) that the
Prospectus or any amendment or supplement thereto, as of its issue date or
as of such Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that such counsel need not express an
opinion or belief as to any financial statements and schedules and other
financial information derived therefrom or any matter of Dutch law
included in or excluded from any Registration Statement or the Prospectus.
In giving such opinions, such counsel may limit its opinion to the
Federal laws of the United States of America and the laws of the State of
Illinois, and matters specifically governed thereby.
(f) The Representatives shall have received an opinion, dated such Closing
Date, of Xxxxxx X. Xxxxx, General Counsel of Chicago Bridge & Iron Company, to
the effect that:
(i) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings known to such counsel between the Company and
any person granting such person the right to require the Company to file a
registration statement under the Act with respect to any Securities of the
Company owned or to be owned by such person or to require the Company to
include such Securities in the Securities registered pursuant to the
Registration Statement;
(ii) Each of the Company's U.S. subsidiaries listed on Exhibit A has
been duly incorporated or organized and is a validly existing corporation
or other entity in good standing under the laws of the jurisdiction of its
incorporation or organization, with corporate or other power and authority
to own, lease and operate its properties and conduct its business as
described in the Prospectus; and each of the Company and its U.S.
subsidiaries listed on Exhibit A is duly qualified to transact business as
a foreign corporation or other entity in good standing in all other U.S.
jurisdictions in which it owns, leases or operates properties or in which
the conduct of its business or its ownership, leasing or operation of
property requires such qualification; and all of the outstanding shares of
capital stock or other equity interests of the Company's U.S. subsidiaries
listed on Exhibit A have been duly authorized and validly issued and are
fully paid and non-assessable and all shares or other equity interests
owned by the Company, directly or through subsidiaries, are free and clear
of any mortgage, pledge, lien, security interest, restriction upon voting
or transfer, claim or encumbrance of any kind; and there are no rights
granted to or in favor of any third party (whether acting in an
individual, fiduciary or other capacity) to acquire any such capital stock
or other equity interests, any additional capital stock or other equity
interests or any other securities of any U.S. subsidiary of the Company
listed on Exhibit A;
(iii) No consent, approval or authorization and no order,
registration or qualification of, or filing with, any non-governmental
third party (whether acting in an individual fiduciary or other capacity)
or any United States federal or Illinois state governmental or regulatory
agency or body or, any federal or state court is required to be obtained
or made by the Company for the consummation of the transactions to be
effected by the Company contemplated by this Agreement, except such as
have been obtained and made under the Act and such as may be required
under state or foreign securities laws in connection with the offer and
sale of the Offered Securities;
(iv) The execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions herein
contemplated will not conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under (A) the
DGCL or any Federal or Illinois statute, rule or regulation applicable to
the Company (other than Federal, state or foreign securities or "blue sky"
laws and the rules and regulations of the NASD, as to which such counsel
need express no opinion) or any order, judgment or decree of any Federal
or state governmental agency or body or any U.S. court having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties or operations, or any material agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or (B) the charter or by-laws
of any material U.S. subsidiary;
(v) The Company and its U.S. subsidiaries possess adequate
certificates, authorizations, licenses or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any written notice of threatened or
actual proceedings relating to the revocation or modification of any such
certificate, authorization, license or permit that, if determined
adversely to the Company or any of its subsidiaries, could reasonably be
expected to, individually or in the aggregate, have a Material
Adverse Effect. The Company and its U.S. subsidiaries are in compliance
with their respective obligations under such certificates, authorizations,
licenses or permits and to such counsel's knowledge no event has occurred
that allows, or after notice or lapse of time would allow, revocation or
termination of such certificates, authorizations, licenses or permits or
violation of such laws or regulations, except for such non-compliance and
events as could not reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect;
(vi) Except as described in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties, assets or operations
that could reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect, or could reasonably be expected to
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement and, to the knowledge of such counsel,
except as described in the Prospectus, no such actions, suits or
proceedings are threatened or contemplated;
(vii) Except as described in the Prospectus and except as could not
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect, the properties, assets and operations of the
Company and its subsidiaries are in compliance with all applicable U.S.
Environmental Laws. Except as described in the Prospectus and except as
could not reasonably be expected to, individually or in the aggregate, to
have a Material Adverse Effect, none of the Company or any of its
subsidiaries is the subject of any U.S. federal, state, or local
investigation pursuant to Environmental Laws and none of the Company or
any of its subsidiaries has received any written notice or claim pursuant
to Environmental Laws. For the purpose of this opinion, "ENVIRONMENTAL
LAWS" means all U.S. federal, state, and local laws, statutes, codes,
ordinances, rules, regulations, directives, permits, licenses, or orders
relating to the natural environment, or employee health or safety,
including, but not limited to, any law, statute, code, ordinance, rule,
regulation, directive, permit, license or order relating to (1) the
release, discharge or emission of any pollutant into the natural
environment, (2) damage to any natural resource, (3) the use, handling or
disposal of any chemical substance or (4) workplace or worker safety and
health, as such requirements are promulgated by the specifically
authorized governmental authority responsible for administering such
requirements, or imposed by judicial order or fiat;
(viii) Such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statements or the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statements or the Prospectus or to be filed as exhibits to the
Registration Statements which are not described or filed as required; and
Such counsel shall also state that he or attorneys acting under his
direction and supervision have participated in conferences with officers
and other representatives of the Company and the Selling Stockholders,
special counsel for the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriters at
which the contents of the Registration Statement and the Prospectus and
related matters were discussed and such counsel has been advised of such
conferences and has had the opportunity to review the contents of the
Registration Statement, and, although such counsel is not passing upon and
does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus, such counsel shall advise that, on the basis of the foregoing,
no facts have come to the attention of such counsel (or the attorneys
acting under his direction and supervision) that lead him to believe that
the Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as its date and as of such Closing
Date, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need not
express any comment with respect to the financial
statements and schedules and other financial information derived therefrom
or any matter of Dutch law included in or excluded from any Registration
Statement or the Prospectus).
In giving such opinions, such counsel may limit its opinion to laws of the State
of Illinois, the DGCL and the Federal laws of the United States of America, and
matters specifically governed thereby.
(g) The Representatives shall have received an opinion or opinions, dated
such Closing Date, of De Brauw Blackstone Westbroek N.V. and P.C., Netherlands
counsel for the Company, to the effect that:
(i) The Company has been incorporated and is existing as a limited
liability company ("NAAMLOZE VENNOOTSCHAP") under Dutch law; the Company
has the corporate power to conduct any business which (i) falls within the
objects clause of its Articles of Association and (ii) is in its corporate
interest;
(ii) Chicago Bridge & Iron Company B.V. ("CBICBV") has been
incorporated and is existing as a private company with limited liability
("BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") under Dutch law,
and has the corporate power to conduct any business which (i) falls within
the objects clause of its Articles of Association and (ii) is in its
corporate interest. All of the issued shares in the share capital of
CBICBV have been duly authorized and validly issued in accordance with
Dutch law and are fully paid and non-assessable (and accordingly, no
obligation other than to pay up the nominal amount of a share may be
imposed upon a shareholder against his will even by an amendment of the
articles of association of CBICBV); according to CBICBV's shareholder
register, the Company is the sole shareholder of CBICBV and no rights of
pledge or rights of usufruct exist in respect of CBICBV's shares;
(iii) The Offered Securities to be delivered on such Closing Date
have been duly authorized and validly issued in accordance with Dutch law
and are fully paid and non-assessable (and accordingly, no obligation
other than to pay up the nominal amount of a share may be imposed upon a
shareholder against his will even by an amendment of the articles of
association of the Company); no preemptive rights exist with respect to
the Offered Securities;
(iv) According to the Company's shareholders register, the Offered
Securities are free of rights of pledge ("PANDRECHT") and rights of
usufruct ("VRUCHTGEBRUIK");
[(v) Upon (i) the due execution by a Selling Stockholder of the
relevant deed of transfer relating to the Firm Securities to be sold by
such Selling Stockholder to the Underwriters pursuant to this Agreement,
(ii) the delivery by such Selling Stockholder to the Bank of New York (the
"TRANSFER AGENT") of the share certificates issued for such Firm
Securities and acknowledgement by the Company by its endorsement on the
share certificates for such Firm Securities and (iii) the acceptance of
the transfer of such Firm Securities by Cede & Co. and payment therefor to
such Selling Stockholder as provided in this Agreement, title to such Firm
Securities will validly have been transferred to Cede & Co. in accordance
with Dutch law, free from and clear of all liens, claims or other
encumbrances; upon (A) the due execution by the Company of a deed of
transfer relating to the Firm Securities to be sold by the Company to the
Underwriters pursuant to this Agreement, and (B) the acceptance of the
transfer of such Firm Securities by Cede & Co. and payment therefor to the
Company as provided in this Agreement, title to such Firm Securities will
validly have been transferred to Cede & Co. in accordance with Dutch law,
free from and clear of all liens, claims or other encumbrances;] [Opinion
to be given at the First Closing]
[(v) Upon (i) the due execution by the Company of a deed of transfer
relating to the Optional Securities to be sold by the Company to the
Underwriters pursuant to this Agreement, and (ii) the acceptance of the
transfer of such Optional Securities by Cede & Co. and payment therefor to
the Company as provided in this Agreement, title to such Optional
Securities will validly have been
transferred to Cede & Co. in accordance with Dutch law, free from and
clear of all liens, claims or other encumbrances;] [Opinion to be given at
the Optional Closing]
(vi) The Company has the corporate power to enter into the
Registration Statement, has taken all necessary corporate action to
authorize its filing of the Registration Statement and the Registration
Statement has been validly executed by the Company; the Company has the
corporate power to enter into and perform its obligations under this
Agreement, has taken all necessary corporate action to authorize its entry
into and performance of this Agreement, and this Agreement has been
validly executed by the Company;
(vii) Under Dutch law, there are no governmental or regulatory
orders, registrations, filings, consents, approvals or authorizations
required by the Company for its entry into and performance of this
Agreement;
(viii) Under Dutch law, there are no registrations, filings or other
similar formalities required to ensure the validity, binding effect and
enforceability against the Company of this Agreement;
(ix) The entry into and performance of this Agreement by the Company
do not conflict with or violate Dutch law or the Company's or CBICBV's
articles of association;
(x) Under Dutch law, the Company has taken all necessary corporate
action to submit to the jurisdiction of any United States federal or state
courts in the State of New York, County of New York, and to appoint CT
Corporation System as the authorized agent of the Company for the purpose
described in Section 15 hereof; under Dutch law, in proceedings in the
State of New York, County of New York, the law of the State of New York
determines the validity, binding effect and enforceability against the
Company of the jurisdiction clause contained in Section 15 of this
Agreement. A judgment rendered by a court in the State of New York will
not be recognized and enforced by the Dutch courts. However, if a person
has obtained a final and conclusive judgment rendered by a Federal or
state court in the State of New York (the "foreign court") which is
enforceable in the State of New York (the "foreign judgment") and files
his claim with the competent Dutch court, the Dutch court will generally
give binding effect to the foreign judgment insofar as it finds that the
jurisdiction of the foreign court has been based on grounds which are
internationally acceptable and that proper legal procedures have been
observed and unless the foreign judgment contravenes Dutch public policy;
(xi) Under Dutch law, the Company is not entitled to immunity from
legal proceedings nor are its assets immune from execution;
(xii) Under Dutch law, the Dutch courts have jurisdiction over any
civil claims against the Company, subject to any applicable treaties and
unless the Company has properly invoked the exclusive jurisdiction of a
foreign court or arbitral tribunal. Under Dutch law, the choice of New
York Law as the governing law of this Agreement is recognized, and
accordingly, a competent Dutch court applying Dutch law would give effect
to New York Law as governing the validity, binding effect and
enforceability against the Company of this Agreement;
(xiii) The descriptions in the Prospectus under the last two
paragraphs of the heading "Price Range of Common Stock and Dividend
Policy" on page 14, and under the heading "Description of Capital Stock,"
in each case to the extent they are descriptions of Dutch law, the terms
of the Offered Securities according to the Company's Articles of
Association or the Company's Articles of Association, are correct in all
material respects;
(xiv) Except as described in the Prospectus, under current laws and
regulation of The Netherlands and any political subdivision or taxing
authority thereof, all dividends and other
distributions declared and payable on the Offered Securities (including,
without limitation, dividend payments on any Offered Securities in the
form of New York Shares (as defined in the Prospectus)) may be paid by the
Company to the holder thereof in United States dollars;
(xv) Dividends distributed by the Company generally are subject to a
withholding tax imposed by The Netherlands at a rate of twenty-five
percent. The expression "dividends distributed by the Company" as used
herein includes, but is not limited to: (i) distributions in cash or in
kind, deemed and constructive distributions and repayments of paid-in
capital not recognized for Netherlands dividend withholding tax purposes;
(ii) liquidation proceeds, proceeds from the redemption of shares by the
Company in excess of the average paid-in capital recognized for
Netherlands dividend withholding tax purposes; (iii) the par value of
shares issued to a holder of shares or an increase of the par value of
shares, as the case may be, to the extent that it does not appear that a
contribution, recognized for Netherlands dividend withholding tax
purposes, has been made or will be made; and (iv) partial repayment of
paid-in capital, recognized for Netherlands dividend withholding tax
purposes, if and to the extent that there are net profits (the "zuivere
winst"), unless the general meeting of shareholders of the Company has
resolved in advance to make such repayment and provided that the par value
of the shares concerned has been reduced by an equal amount by way of an
amendment of the Articles of Association. If a holder of shares is
resident in a country other than The Netherlands and if a taxation
convention is in effect between the Netherlands and such country, such
holder may, depending on the terms of such double taxation convention, be
eligible for a full or partial exemption from, or refund of, Netherlands
dividend withholding tax. Under the double taxation convention in effect
between The Netherlands and the United States (the "Treaty"), dividends
paid by the Company to a resident of the United States (other than an
exempt organization or exempt pension organization) are generally eligible
for a reduction of the 25% Netherlands withholding tax to 15%, or in the
case of certain U.S. corporate shareholders owning at least 10% of the
voting power of the Company, 5%, unless the common shares held by such
resident are attributable to a business or part of a business that is, in
whole or in part, carried on through a permanent establishment or a
permanent representative in The Netherlands. The Treaty provides for a
complete exemption for dividends received by exempt pension organizations
and exempt organizations, as defined therein. Except in the case of exempt
organizations, the reduced dividend withholding rate can be applied at
source upon payment of the dividends, provided that the proper forms have
been filed in advance of the payment Qualifying U.S. exempt organizations
must seek a full refund of the tax withheld by filing the proper forms. A
holder of common shares other than an individual will not be eligible for
the benefits of the Treaty if such holder of common shares does not
satisfy one or more of the tests set forth in the limitation on benefits
provisions of Article 26 of the Treaty. According to a legislative
proposal regarding anti-dividend stripping that has not yet been approved
by Dutch parliament but that when enacted will have retroactive effect as
of April 27, 2001, no exemption from, or refund of, Netherlands dividend
withholding tax will be granted if the recipient of dividends paid by the
Company is not considered to be the beneficial owner of such dividend;
(xvi) An Underwriter will not be subject to any Netherlands taxes on
income or capital gains in respect of dividends distributed by the Company
or in respect of any gain realized on the disposal of the Offered
Securities (other than the withholding tax as described in paragraph (xv)
above), provided that: (i) such Underwriter is neither resident nor deemed
to be resident in The Netherlands; (ii) such Underwriter does not have an
enterprise or an interest in an enterprise which enterprise is either
managed in The Netherlands, or in whole or in part, carried on through a
permanent establishment or a permanent representative in The Netherlands,
or, if such Underwriter does have such an enterprise or an interest in
such an enterprise, provided that such income or capital gains are not
attributable to such permanent establishment or permanent representative;
and (iii) such Underwriter does not have a substantial interest in the
Company, or, if such Underwriter does have such an interest, it forms part
of the assets of an enterprise;
(xvii) Save for capital tax which will be payable by the Company, no
Netherlands registration tax, transfer tax, stamp duty or any other
similar documentary tax or duty will be payable
by or on behalf of the Underwriters to The Netherlands or to any political
subdivision or taxing authority thereof or therein in respect of or in
connection with (A) the sale and delivery by the Company of the Offered
Securities to or for the respective accounts of the Underwriters or (B)
the sale and delivery outside The Netherlands by the Underwriters of the
Offered Securities to the initial purchasers thereof in the manner
contemplated herein; and
(xviii) The descriptions contained in the Prospectus on page 12 and
further under the caption "Risk-Factors--We Have a Risk of Being
Classified as a Controlled Foreign Corporation and Certain Shareholders
Who Do Not Beneficially Own Shares May Lose the Benefit of Withholding Tax
Reduction or Exemption Under Proposed Dutch Legislation," and on page 48
and further under the captions "Dutch Taxation for Non-Resident
Shareholders" and "Dutch Taxation for Resident Shareholders," to the
extent they are descriptions of Dutch law, are correct.
In giving such opinion, such counsel may rely on the opinions of Winston &
Xxxxxx and Xxxxxx X. Xxxxx, Esq. referred to above as to matters of laws
other than the laws of The Netherlands.
(h) The Representatives shall have received the opinion, as contemplated
in the Custody Agreement executed and delivered by such Selling Stockholder, and
an opinion, dated such Closing Date, of Van Doorne, Netherlands counsel for the
Selling Stockholders, to the effect that:
(i) Such Selling Stockholder has the corporate power and authority
to execute this Agreement and the Custody Agreement, to perform its
obligations thereunder and to consummate the transactions contemplated in
this Agreement and the Custody Agreement;
(ii) Such Selling Stockholder has taken all necessary corporate
action to authorize the execution of this Agreement, the Power of Attorney
and the Custody Agreement, the performance of its obligations thereunder
and the consummation of the transactions contemplated therein;
(iii) No authorizations, consents, approvals, licenses,
registrations, or exemptions from or filings with, governmental, judicial
or public bodies or authorities in The Netherlands, which have not been
obtained, are required under Netherlands law for the execution of the
Custody Agreement or this Agreement by such Selling Stockholder, the
performance of the obligations of such Selling Stockholder under the
Custody Agreement or this Agreement and the consummation of the
transactions contemplated in the Custody Agreement or this Agreement;
(iv) If applicable, the execution, delivery and performance of the
Custody Agreement and this Agreement by such Selling Stockholder and the
consummation of the transactions contemplated in the Custody Agreement and
this Agreement do not conflict with or result in a violation of (i) any
provision of the Articles of Association (statuten) of such Selling
Stockholder or (ii) any existing provision of, or rule or regulation
under, the law of The Netherlands, applicable to companies generally;
(v) Each of this Agreement, the Power of Attorney and the Custody
Agreement, when duly executed under applicable law (other than Dutch Law)
on behalf of such Selling Stockholder, constitutes valid and legally
binding obligations of such Selling Stockholder enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(vi) Upon (i) the due execution by such Selling Stockholder of the
relevant deed of transfer relating to the Firm Securities to be sold by such
Selling Stockholder to the Underwriters pursuant to this Agreement, (ii) the
delivery by such Selling Stockholder to the Transfer Agent of the share
certificates issued for such Firm Securities and acknowledgement by the Company
by its endorsement on the share
certificates for such Offered Securities and (iii) the acceptance thereof by
Cede & Co. and payment therefor to such Selling Stockholder as provided in this
Agreement, such Firm Securities will validly have been transferred to Cede & Co.
in accordance with Dutch law, free from and clear of all liens, claims or other
encumbrances;
(i) The Representatives shall have received the opinion, as contemplated
in the Custody Agreement executed and delivered by such Selling Stockholder, and
an opinion, dated such Closing Date, of Xxxxx Xxxxx L.L.P., U.S. counsel for the
Selling Stockholders, to the effect that:
(i) No consent, approval, authorization and no order, registration
or qualification of, or filing with, any third party (whether acting in an
individual, fiduciary or other capacity) or any governmental agency or
body or any court is required to be obtained or made by such Selling
Stockholder for the consummation of the transactions contemplated by the
Custody Agreement and this Agreement, except such as have been obtained
and made under the Act and such as may be required under state securities
laws in connection with the offer and sale of the Offered Securities,
except for consents, approvals, authorizations, orders, registrations,
qualifications or filings the failure to obtain or make would not,
individually or in the aggregate, have a material adverse effect on the
consummation of the transactions contemplated by this Agreement;
(ii) The execution, delivery and performance of the Custody
Agreement and this Agreement and the consummation of the transactions
therein and herein contemplated will not conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any Texas or Federal statute, any rule, regulation or order
of any Texas or Federal governmental agency or body or any Texas or
Federal court having jurisdiction over each such Selling Stockholder or
any of its properties or any agreement or instrument to which each such
Selling Stockholder is a party or by which each such Selling Stockholder
is bound or to which any of the properties of each such Selling
Stockholder is subject, except for such conflicts, breaches, violations,
or defaults which would not, individually or in the aggregate, have a
material adverse effect on the consummation of the transactions
contemplated by this Agreement;
(iii) This Agreement, the Power of Attorney, and the Custody
Agreement with respect to such Selling Stockholder have been duly executed
and delivered by such Selling Stockholder and the Power of Attorney, and
the Custody Agreement constitute valid and legally binding obligations of
each such Selling Stockholder enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(iv) Upon (i) payment for the Firm Securities to be sold by the
Selling Shareholders pursuant to this Agreement, (ii) physical delivery of
the certificates representing such Firm Securities to the Transfer Agent,
and registration of such Firm Securities in the name of DTC upon
registration of transfer by the issuer thereof, (iii) registration by
book-entry of the credit to CSFBC's securities accounts with DTC of the
purchase of such Firm Securities in the records of DTC, and (iv)
registration by book-entry of the credit to the other Underwriters'
securities accounts of their purchase of such Firm Securities in the
records of any other "securities intermediary" (as defined in Section
8-102(a)(14) of the New York UCC) which acts as a "clearing corporation"
(as defined in Section 8-102(a)(5) of the New York UCC) or maintains
"securities accounts" (as defined in Section 8-501(a) of the New York UCC)
with respect to the transfer of the such Firm Securities to the
Underwriters, then the Underwriters will become the "entitlement holders"
(as defined in Section 8-102(a)(7) of the New York UCC) of the Firm
Securities, free of any "adverse claims" (as defined in Section
8-102(a)(1) of the New York UCC).
(j) The Representatives shall have received from Xxxxxx & Xxxxxxx, U.S.
counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to the Registration Statements, the Prospectus and other related
matters as the Representatives reasonably may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such documents
as they reasonably request for the purpose of enabling them to pass upon such
matters.
(k) The Representatives shall have received from Loyens & Loeff, Dutch
counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to the incorporation of the Company and other related matters as
the Representatives may reasonably require, and the Selling Stockholders and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(l) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company and Chicago Bridge & Iron Company in which
such officers, to the best of their knowledge after reasonable investigation,
shall state that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) or Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any underwriter;
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(m) The Representatives and the Board of Directors of the Company shall
have received letters, dated such Closing Date, of Xxxxxx Xxxxxxxx LLP and
Deloitte & Touche LLP, which meet the requirements of subsections (a) and (b) of
this Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to such Closing Date for the purposes
of this subsection.
(n) The Custodian will deliver to CSFBC a letter stating that they will
deliver to each Selling Stockholder a United States Treasury Department Form
1099 (or other applicable form or statement specified by the United States
Treasury Department regulations in lieu thereof) on or before January 31 of the
year following the date of this Agreement.
(o) [Intentionally Deleted]
(p) The Representatives shall have received legal opinions, good standing
certificates or other evidence reasonably satisfactory to them of the
incorporation, existence and good standing of the foreign material subsidiaries.
(q) The Representatives shall have received a Certificate of Xxxxxx X.
Xxxx, Chairman of the Supervisory Board of the Company and Chairman, President
and Chief Executive Officer of Chicago Bridge & Iron Company, a Delaware
corporation ("CBIC"), and Xxxxxxx X. Xxxxxxxx, Executive Vice President and
Chief Financial Officer of CBIC, certifying to their knowledge, the truth and
completeness of the information included or incorporated in the Registration
Statement and of Xxxxxxx X. Xxxxxxxx with respect to the financial statements
and other financial information.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the 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 will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by (x) any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below and (y) any Selling
Stockholder specifically for use therein, it being understood that the only such
information furnished by such Selling Stockholder consists of the information
described in Section 2(b)(ii) hereof; and provided, further, that with respect
to any untrue statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Offered Securities concerned, to the extent that a prospectus relating to
such Offered Securities was required to be delivered by such Underwriter under
the Act in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Offered Securities to such person, a copy of the Prospectus (exclusive of
material incorporated by reference), if the Company had previously furnished
copies thereof to such Underwriter.
(b) Each Selling Stockholder, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the 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 will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that such Selling Stockholder will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided, further, that
such Selling Stockholder shall only be subject to such liability to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission is based upon information provided by such Selling Stockholder, it
being understood that the only such information furnished by such Selling
Stockholder consists of the information described in Section 2(b)(ii) hereof, or
contained in a representation or warranty given by such Selling Stockholder in
this Agreement or the Custody Agreement; and provided, further, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (b) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus
relating to such Offered Securities was required to be delivered by such
Underwriter under the Act in connection with such purchase and any such loss,
claim, damage or liability of such Underwriter results from the fact that there
was not sent or given to such person, at or prior to the written confirmation of
the sale of such Offered Securities to such person, a copy of the Prospectus
(exclusive of material incorporated by reference), if the Company had previously
furnished copies thereof to such Underwriter; and provided, further, that the
liability under this subsection of each Selling Stockholder shall be limited to
an amount equal to the aggregate gross proceeds after underwriting commissions
and discounts, but before expenses, to such Selling Stockholder from the sale of
Securities sold by such Selling Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder, its directors and officers and each person, if any, who
controls such Selling Stockholder against any losses, claims, damages or
liabilities to which the Company or such Selling Stockholder may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph, the material regarding
stabilizing, over-allotment and syndicate covering transactions and penalty bids
appearing in the twelfth paragraph and the matters described in the thirteenth
paragraph, in each case under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to conflicts of interests between
them. Notwithstanding any such conflict, it is understood that the indemnifying
party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors its officers who sign the Registration Statement and each person,
if any, who controls the
Company within the meaning of either such Section and (iii) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of any Underwriters,
such firm shall be designated in writing by CSFBC. In the case of any such
separate firm for the Company, and such directors officers and control persons
of the Company, such firm shall be designated in writing by the Company. In the
case of any such separate firm for the Selling Stockholders and such control
persons of the Selling Stockholders, such firm shall be designated in writing by
the Selling Stockholders. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
No indemnifying party shall be liable for any settlement of any action effected
without its written consent (which consent shall not be unreasonably withheld),
but if settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability (to
the extent set forth in this Section 7 as applicable) by reason of such
settlement or judgment. Notwithstanding the preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees it shall be liable for any settlement effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. Notwithstanding the
provisions of this subsection, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint. The Selling Stockholders' obligations in
this subsection (e) to contribute are several in proportion to the respective
amount of net proceeds from the offering received by each such Selling
Stockholder and are not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section shall be in addition to any liability which the Company and the Selling
Stockholders may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company or any Selling Stockholder, to each officer of the
Company who has signed a Registration Statement and to each person, if any, who
controls the Company or a Selling Stockholder within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Selling Stockholders or the Company, as
the case may be, for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC and the Selling Stockholders or the
Company, as the case may be, for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Stockholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (v), (vi) or (vii) of Section 6(d), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telecopied and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Transactions Advisory Group, or, if
sent to the Company, will be mailed, delivered or telecopied and confirmed to it
at Chicago Bridge & Iron Company N.V. c/o Chicago Bridge and Iron Company, 0000
Xxxxx Xxxxxxxx Xx., Xxxxxxxxxx, Xxx 00000-0000, Attention Secretary or, if sent
to the Selling Stockholders or any of them, will be mailed, delivered or
telecopied and confirmed to Xxxxxxx X. Xxxxx, Xx., c/o WEDGE Group Incorporated,
at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000; provided, however, that any notice
to an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. Wedge Engineering B.V. will act
for the Selling Stockholders in connection with such transactions, and any
action under or in respect of this Agreement taken by Wedge Engineering B.V.
will be binding upon all the Selling Stockholders.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
15. SUBMISSION TO JURISDICTION.
(a) The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company appoints CT Corporation System as
its authorized agent in the Borough of Manhattan in The City of New York upon
which process may be served in any such suit or proceeding, and agrees that
service of process upon such agent, and written notice of said service to the
Company by the person serving the same to the address provided in Section 10,
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company may from time to time appoint one or
more successor agents and further agrees to take any and all action as may be
necessary to maintain such designation and appointment of such an agent in full
force and effect for a period of seven years from the date of this Agreement.
(b) Wedge Engineering B.V. hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York solely in any suit or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby. Wedge Engineering B.V.
irrevocably appoints CT Corporation System as its authorized agent in the
Borough of Manhattan in The City of New York upon which process may be served in
any such suit or proceeding, and agrees that service of process upon such agent,
and written notice of said service to such Selling Stockholder by the person
serving the same to the address provided in Section 10, shall be deemed in every
respect effective service of process upon such Selling Stockholder in any such
suit or proceeding. Wedge Engineering B.V. agrees to take any and all action as
may be necessary to maintain such designation and appointment of such an agent
in full force and effect for a period of seven years from the date of this
Agreement.
16. FOREIGN CURRENCY JUDGMENTS. The obligation of the Company or any
Selling Stockholder in respect of any sum due to any Underwriter shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by such
Underwriter of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Underwriter may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
such Underwriter hereunder, the Company or such Selling Stockholder, as the case
may be, agree, as a separate obligation and notwithstanding any such judgment,
to indemnify such Underwriter against such loss. If the United States dollars so
purchased are greater than the sum originally due to such Underwriter hereunder,
such Underwriter agrees to pay to the Company or such Selling Stockholder, as
the case may be, an amount equal to the excess of the dollars so purchased over
the sum originally due to such Underwriter hereunder.
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
SELLING STOCKHOLDERS
WEDGE ENGINEERING B.V.
/s/ Xxxxx X. Xxxxxxx, attorney in fact
---------------------------------------
Duly authorized signatory
XXXXXXX X. XXXXX
/s/ Xxxxx X. Xxxxxxx, attorney in fact
---------------------------------------
COMPANY
CHICAGO BRIDGE & IRON COMPANY N.V.
By: Chicago Bridge & Iron Company B.V.,
as its Managing Director
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Managing Director
[Signature Page - Underwriting Agreement]
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/
---------------------------------------
Name:
Title:
[Signature Page - Underwriting Agreement]
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES
SELLER TO BE SOLD TO BE SOLD
------ ---------- ----------
WEDGE Engineering B.V. 2,000,000 0
Xxxxxxx X. Xxxxx 100,000 0
Company 600,000 405,000
Total................................. 2,700,000 405,000
========= =======
EXHIBIT A
MATERIAL SUBSIDIARIES
Jurisdiction in which
Subsidiary or Affiliate Incorporated or Organized
----------------------- -------------------------
CBI Constructors Pty. Ltd. Australia
CBI Venezolana, S.A. Venezuela
CB&I (Europe) B.V. The Netherlands
Xxxxxx CBI, Limited Canada
CB&I Constructors, Inc. Texas
Xxxx-Xxxxx International, L.L.C. Delaware
CBI Services, Inc. Delaware
Asia Pacific Supply Company Delaware
Chicago Bridge & Iron Company (Delaware) Delaware
Chicago Bridge & Iron Company Delaware
Caribbean Metal Supply Company Cayman Islands
Southern Tropic Material Supply Cayman Islands
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston Corporation ............. 1,620,000
Bear, Xxxxxxx & Co. Inc. ........................... 540,000
Xxxxxx Brothers Inc. ............................... 540,000
Total............................. 2,700,000
