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EXHIBIT 99(G)
WARRANT
THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK
ISSUABLE HEREUNDER, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH WARRANT OR SHARES MAY
NOT BE OFFERED, SOLD, TRANSFERRED (BY MERGER OR OTHERWISE), ASSIGNED, DEVISED,
EXCHANGED, GIFTED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS AND
UNTIL REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
UNLESS SUCH TRANSFER IS EXEMPT FROM REGISTRATION, AND CHICAGO BRIDGE & IRON
COMPANY N.V. (THE "COMPANY") SHALL HAVE BEEN FURNISHED WITH AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY, TO SUCH EFFECT.
THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK
ISSUABLE HEREUNDER, ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER AS SET FORTH IN
THAT CERTAIN SHAREHOLDER AGREEMENT DATED AS OF DECEMBER 28, 2000 BETWEEN THE
COMPANY AND FIRST RESERVE FUND VIII, L.P., AS AMENDED (THE "SHAREHOLDER
AGREEMENT"). NO TRANSFER OF THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL
SHARES OF COMMON STOCK ISSUABLE HEREUNDER, WILL BE EFFECTIVE UNLESS AND UNTIL
THE TERMS AND CONDITIONS OF SUCH SHAREHOLDER AGREEMENT HAVE BEEN COMPLIED WITH
IN FULL AND NO PERSON MAY REQUEST THE COMPANY TO RECORD THE TRANSFER OF ANY
SHARES IF SUCH TRANSFER IS IN VIOLATION OF SUCH SHAREHOLDER AGREEMENT. A COPY OF
THE SHAREHOLDER AGREEMENT IS ON FILE AT THE ADMINISTRATIVE OFFICES OF THE
COMPANY IN PLAINFIELD, ILLINOIS AND WILL BE FURNISHED WITHOUT CHARGE TO THE
HOLDER OF SUCH SHARES UPON WRITTEN REQUEST. THE SHARES EVIDENCE BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON VOTING PROVIDED FOR IN THE
SHAREHOLDER AGREEMENT AND NO VOTE OF SUCH SHARES THAT CONTRAVENES THE
SHAREHOLDER AGREEMENT SHALL BE EFFECTIVE
WARRANT TO PURCHASE COMMON STOCK OF
CHICAGO BRIDGE & IRON COMPANY N.V.
FEBRUARY 6, 2001
THIS CERTIFIES THAT, for value received, First Reserve Fund VIII, L.P., or its
permitted registered assigns ("Holder"), is entitled, subject to the terms and
conditions of this Warrant, at any time or from time to time after the issuance
date of this Warrant (the "Effective Date"), and before 5:00 p.m. Eastern Time
on the third anniversary of the Effective Date (the "Expiration Date"), to
purchase from Chicago Bridge & Iron Company N.V., a company organized under the
laws of the Netherlands (the "Company"), Eighty Two Thousand, One Hundred
Eighteen (82,118) shares of Common Stock, par value NLG .01, of the Company (the
"Common Stock") at a price per share of NLG .01 (the "Purchase Price"). Both the
number of shares of Common
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Stock purchasable upon exercise of this Warrant and the Purchase Price are
subject to adjustment and change as provided herein.
1. CERTAIN DEFINITIONS. As used in this Warrant the following terms shall
have the following respective meanings:
1.1. "Fair Market Value" of a share of Common Stock as of a
particular date shall mean:
(a) If traded on a securities exchange or the Nasdaq
National Market, the Fair Market Value shall be
deemed to be the average of the closing prices of the
Common Stock of the Company on such exchange or
market over the five (5) trading days ending
immediately prior to the applicable date of
valuation;
If actively traded over-the-counter, the Fair Market Value
shall be deemed to be the average of the closing bid prices
over the thirty (30)-day period ending immediately prior to
the applicable date of valuation; and
If there is no active public market, the Fair Market Value
shall be the value thereof, as agreed upon by the Company and
the Holder; provided, however, that if the Company and the
Holder cannot agree on such value, such value shall be
determined by an independent valuation firm experienced in
valuing businesses such as the Company and jointly selected in
good faith by the Company and the Holder. Fees and expenses of
the valuation firm shall be paid for by the Company.
1.2. "HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
1.3. "Registered Holder" shall mean any Holder in whose name this
Warrant is registered upon the books and records maintained by
the Company.
1.4. "Shareholder Agreement" shall mean the Shareholder agreement
between First Reserve Fund VIII, L.P. and the Company dated
December 28, 2000.
1.5. "Warrant" as used herein, shall include this Warrant and any
warrant delivered in substitution or exchange therefor as
provided herein.
1.6. "Common Stock" shall mean the registered ordinary shares not
convertible in bearer shares of the Company and any other
securities at any time receivable or issuable upon exercise of
this Warrant.
2. EXERCISE OF WARRANT
2.1. Payment. Subject to compliance with the terms and conditions
of this Warrant and applicable securities laws, this Warrant
may be exercised, in whole or in part
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at any time or from time to time, on or before the Expiration
Date by the delivery (including, without limitation, delivery
by facsimile) of the form of Notice of Exercise attached
hereto as Exhibit 1 (the "Notice of Exercise"), duly executed
by the Holder, at the principal office of the Company, and as
soon as practicable after such date, surrendering
(a) this Warrant at the principal office of the Company,
and
(b) payment (i) in cash (by check) or by wire transfer;
(ii) by cancellation by the Holder of indebtedness of
the Company to the Holder; or (iii) by a combination
of (i) and (ii), of an amount equal to the product
obtained by multiplying the number of shares of
Common Stock being purchased upon such exercise by
the then effective Purchase Price (the "Exercise
Amount"), except that if Holder is subject to HSR Act
Restrictions (as defined in Section 2.5 below), the
Exercise Amount shall be paid to the Company within
five (5) business days of the termination of all HSR
Act Restrictions.
2.2. Net Issue Exercise. In lieu of the payment methods set forth
in Section 2.1(b) above, the Holder may elect to exchange all
or some of this Warrant for shares of Common Stock equal to
the value of the amount of the Warrant being exchanged on the
date of exchange. If Holder elects to exchange this Warrant as
provided in this Section 2.2, Holder shall tender to the
Company the Warrant for the amount being exchanged, along with
written notice of Xxxxxx's election to exchange some or all of
the Warrant, and the Company shall issue to Holder the number
of shares of the Common Stock computed using the following
formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to
be issued to Holder.
Y = the number of shares of Common Stock
purchasable under the amount of the Warrant
being exchanged (as adjusted to the date of
such calculation).
A = the Fair Market Value of one share of the
Common Stock.
B = the Purchase Price (as adjusted to the
date of such calculation).
2.3. Stock Certificates; Fractional Shares. As soon as practicable
on or after the date of any exercise of this Warrant, the
Company shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for
the number of whole shares of Common Stock issuable upon such
exercise, together with cash in lieu of any fraction of a
share equal to such fraction of the current Fair Market
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Value of one whole share of Common Stock as of such date of
exercise. No fractional shares or scrip representing
fractional shares shall be issued upon an exercise of this
Warrant.
2.4. HSR Act. The Company hereby acknowledges that exercise of this
Warrant by Holder may subject the Company and/or the Holder to
the filing requirements of the HSR Act and that Holder may be
prevented from exercising this Warrant until the expiration or
early termination of all waiting periods imposed by the HSR
Act ("HSR Act Restrictions"). If on or before the Expiration
Date Holder has sent the Notice of Exercise to Company and
Holder has not been able to complete the exercise of this
Warrant prior to the Expiration Date because of HSR Act
Restrictions, the Holder shall be entitled to complete the
process of exercising this Warrant in accordance with the
procedures contained herein notwithstanding the fact that
completion of the exercise of this Warrant would take place
after the Expiration Date.
2.5. Partial Exercise; Effective Date of Exercise. In case of any
partial exercise of this Warrant, the Company shall cancel
this Warrant upon surrender hereof and shall execute and
deliver a new Warrant of like tenor and date for the balance
of the shares of Common Stock purchasable hereunder. This
Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender
for exercise as provided above. However, if Holder is subject
to HSR Act filing requirements this Warrant shall be deemed to
have been exercised on the date immediately following the date
of the expiration of all HSR Act Restrictions. The person
entitled to receive the shares of Common Stock issuable upon
exercise of this Warrant shall be treated for all purposes as
the holder of record of such shares as of the close of
business on the date the Holder is deemed to have exercised
this Warrant.
3. VALID ISSUANCE: TAXES. All shares of Common Stock issued upon the
exercise of this Warrant shall be validly issued, fully paid and
non-assessable, and the Company shall pay all taxes and other
governmental charges that may be imposed in respect of the issue or
delivery thereof. The Company shall not be required to pay any tax or
other charge imposed in connection with any transfer involved in the
issuance of any certificate for shares of Common Stock in any name
other than that of the Registered Holder of this Warrant, and in such
case the Company shall not be required to issue or deliver any stock
certificate or security until such tax or other charge has been paid,
or it has been established to the Company's reasonable satisfaction
that no tax or other charge is due.
4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of shares
of Common Stock issuable upon exercise of this Warrant (or any shares
of stock or other securities or property receivable or issuable upon
exercise of this Warrant) and the Purchase Price are subject to
adjustment upon occurrence of the following events:
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4.1. Adjustment for Stock Splits, Stock Subdivisions or
Combinations of Shares. The Purchase Price of this Warrant
shall be proportionally decreased and the number of shares of
Common Stock issuable upon exercise of this Warrant (or any
shares of stock or other securities at the time issuable upon
exercise of this Warrant) shall be proportionally increased to
reflect any stock split or subdivision of the Company's Common
Stock. The Purchase Price of this Warrant shall be
proportionally increased and the number of shares of Common
Stock issuable upon exercise of this Warrant (or any shares of
stock or other securities at the time issuable upon exercise
of this Warrant) shall be proportionally decreased to reflect
any combination of the Company's Common Stock.
4.2. Adjustment for Dividends or Distributions of Stock or Other
Securities or Property. In case the Company shall make or
issue, or shall fix a record date for the determination of
eligible holders entitled to receive, a dividend or other
distribution with respect to the Common Stock (or any shares
of stock or other securities at the time issuable upon
exercise of the Warrant) payable in (a) securities of the
Company or (b) assets (including cash dividends paid or
payable solely out of retained earnings), then, in each such
case, the Holder of this Warrant on exercise hereof at any
time after the consummation, effective date or record date of
such dividend or other distribution, shall receive, in
addition to the shares of Common Stock (or such other stock or
securities) issuable on such exercise prior to such date, and
without the payment of additional consideration therefor, the
securities or such other assets of the Company to which such
Holder would have been entitled upon such date if such Holder
had exercised this Warrant on the date hereof and had
thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and
all such additional securities or other assets distributed
with respect to such shares as aforesaid during such period
giving effect to all adjustments called for by this Section 4.
4.3. Reclassification. If the Company, by reclassification of
securities or otherwise, shall change any of the securities as
to which purchase rights under this Warrant exist into the
same or a different number of securities of any other class or
classes, this Warrant shall thereafter represent the right to
acquire such number and kind of securities as would have been
issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this
Warrant immediately prior to such reclassification or other
change, and the Purchase Price therefor shall be appropriately
adjusted, all subject to further adjustment as provided in
this Section 4. No adjustment shall be made pursuant to this
Section 4.3 upon any conversion or redemption of the Common
Stock which is the subject of Section 4.5.
4.4. Adjustment for Capital Reorganization, Merger or
Consolidation. In case of any capital reorganization of the
capital stock of the Company (other than a combination,
reclassification, exchange or subdivision of shares otherwise
provided for herein), or any merger or consolidation of the
Company with or into
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another corporation, or the sale of all or substantially all
the assets of the Company then, and in each such case, as a
part of such reorganization, merger, consolidation, sale or
transfer, lawful provision shall be made so that the Holder of
this Warrant shall thereafter be entitled to receive upon
exercise of this Warrant, during the period specified herein
and upon payment of the Purchase Price then in effect, the
number of shares of stock or other securities or property of
the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have
been entitled to receive in such reorganization,
consolidation, merger, sale or transfer if this Warrant had
been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further
adjustment as provided in this Section 4. The foregoing
provisions of this Section 4.4 shall similarly apply to
successive reorganizations, consolidations, mergers, sales and
transfers and to the stock or securities of any other
corporation that are at the time receivable upon the exercise
of this Warrant. If the per-share consideration payable to the
Holder hereof for shares in connection with any such
transaction is in a form other than cash or marketable
securities, then the value of such consideration shall be
determined in good faith by the Company's Supervisory Board of
Directors. In all events, appropriate adjustment (as
determined in good faith by the Company's Board of Directors)
shall be made in the application of the provisions of this
Warrant with respect to the rights and interests of the Holder
after the transaction, to the end that the provisions of this
Warrant shall be applicable after that event, as near as
reasonably may be, in relation to any shares or other property
deliverable after that event upon exercise of this Warrant.
4.5. Conversion of Common Stock. In case all or any portion of the
authorized and outstanding shares of Common Stock of the
Company are redeemed or converted or reclassified into other
securities or property pursuant to the Company's Certificate
of Incorporation or otherwise, or the Common Stock otherwise
ceases to exist, then, in such case, the Holder of this
Warrant, upon exercise hereof at any time after the date on
which the Common Stock is so redeemed or converted,
reclassified or ceases to exist (the "Termination Date"),
shall receive, in lieu of the number of shares of Common Stock
that would have been issuable upon such exercise immediately
prior to the Termination Date, the securities or property that
would have been received if this Warrant had been exercised in
full and the Common Stock received thereupon had been
simultaneously converted immediately prior to the Termination
Date, all subject to further adjustment as provided in this
Warrant.
4.6. Adjustment for Issuance of Additional Shares of Common Stock.
This Section 4.6 shall not apply to the issuance of shares of
Common Stock upon an issuance by the Company of options
exercisable for the purchase of that number of shares of
Common Stock under the Company's existing option plans to
existing and future officers, employees, outside directors,
consultant, vendors and advisors of the Company, and the
subsequent exercise of any such options (collectively, the
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"Exempted Issuances"). Upon issuance by the Company of Common
Stock, or any right or option to Common Stock or other stock
convertible into Common Stock, or any obligation or any share
of stock convertible into or exchangeable for Common Stock for
a price per share that is less than the Fair Market Value on
the date of such issuance or sale, other than Exempted
Issuances (a "Triggering Issuance"), then forthwith upon such
issuance or sale the Warrant Price in effect immediately prior
to such issuance and the number of shares of Common Stock for
which the Warrant is exercisable will be adjusted as follows:
(a) Adjustment to Number of Shares of Common Stock for
Which Warrant is Exercisable. The number of shares of
Common Stock for which this Warrant is exercisable
shall be adjusted to equal the number of shares of
Common Stock for which this Warrant is exercisable
immediately prior to such issue or sale, multiplied
by a fraction, (i) the numerator of which is the
number of shares of Common Stock outstanding
immediately prior to the Triggering Issuance plus the
number of shares of Common Stock issued in the
Triggering Issuance, and (ii) the denominator of
which is the number of shares of Common Stock
outstanding immediately prior to the Triggering
Issuance plus the number of shares which the
aggregate amount of consideration, if any, received
by CB&I upon the Triggering Issuance of all such
shares of Common Stock would purchase at the Fair
Market Value as of such time.
(b) Adjustment to the Purchase Price. The Purchase Price
shall be adjusted to equal the Purchase Price
immediately prior to the Triggering Issuance
multiplied by the quotient obtained by dividing the
number of shares of Common Stock for which this
Warrant was exercisable immediately prior to the
adjustment under (a) above by the number of shares of
Common Stock for which this warrant is exercisable
immediately after the adjustment under (a) above.
5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in the
Purchase Price, or number or type of shares issuable upon exercise of
this Warrant, the Chief Financial Officer or Controller of the Company
shall compute such adjustment in accordance with the terms of this
Warrant and prepare a certificate setting forth such adjustment and
showing in detail the facts upon which such adjustment is based,
including a statement of the adjusted Purchase Price. The Company shall
promptly send (by facsimile and by either first class mail, postage
prepaid or overnight delivery) a copy of each such certificate to the
Holder.
6. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory to
the Company of the ownership of and the loss, theft, destruction or
mutilation of this Warrant, and of indemnity reasonably satisfactory to
it, and (in the case of mutilation) upon surrender and cancellation of
this Warrant, the Company will execute and deliver in lieu thereof a
new Warrant of like tenor as the lost, stolen, destroyed or mutilated
Warrant.
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7. RESERVATION OF COMMON STOCK. The Company hereby covenants that at all
times there shall be reserved for issuance and delivery upon exercise
of this Warrant such number of shares of Common Stock or other shares
of capital stock of the Company as are from time to time issuable upon
exercise of this Warrant and, from time to time, will take all steps
necessary to amend its Articles of Association to increase its
authorized capital in order to allow the issue of Common Stock upon
exercise of this Warrant. All such shares shall be duly authorized, and
when issued upon such exercise, shall be validly issued, fully paid and
non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale and free and
clear of all preemptive rights, except encumbrances or restrictions
arising under federal or state securities laws. Issuance of this
Warrant shall constitute full authority to the Company's officers who
are charged with the duty of executing stock certificates to execute
and issue the necessary certificates for shares of Common Stock upon
the exercise of this Warrant.
8. TRANSFER AND EXCHANGE. Subject to the terms and conditions of this
Warrant and compliance with all applicable securities laws, this
Warrant and all rights hereunder may be transferred to any Registered
Holder's affiliate, in whole or in part, on the books of the Company
maintained for such purpose at the principal office of the Company
referred to above, by the Registered Holder hereof in person, or by
duly authorized attorney, upon execution of a form of assignment in the
form of Exhibit 2, notification of the Company thereof, and surrender
of this Warrant properly endorsed and upon payment of any necessary
transfer tax or other governmental charge imposed upon such transfer.
Upon any permitted partial transfer, the Company will issue and deliver
to the Registered Holder a new Warrant or Warrants with respect to the
shares of Common Stock not so transferred. Each taker and holder of
this Warrant, by taking or holding the same, consents and agrees that
when this Warrant shall have been so endorsed, the person in possession
of this Warrant may be treated by the Company, and all other persons
dealing with this Warrant, as the absolute owner hereof for any purpose
and as the person entitled to exercise the rights represented hereby,
any notice to the contrary notwithstanding; provided, however that
until a transfer of this Warrant is duly registered on the books of the
Company, the Company may treat the Registered Holder hereof as the
owner for all purposes.
9. RESTRICTIONS ON TRANSFER. The Holder, by acceptance hereof, agrees
that, absent an effective registration statement filed with the
Securities and Exchange Commission (the "SEC") under the Securities Act
covering the disposition or sale of this Warrant or the Common Stock
issued or issuable upon exercise hereof, as the case may be, and
registration or qualification under applicable state securities laws,
such Holder will not sell, transfer, pledge, or hypothecate any or all
such Warrants or such Common Stock, as the case may be, unless such
transfer is made in accordance with the provisions of the Shareholder
Agreement and either (i) the Company has received an opinion of
counsel, in form and substance reasonably satisfactory to the Company,
to the effect that such registration is not required in connection with
such disposition or (ii) the sale of such securities is made pursuant
to SEC Rule 144.
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10. COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant, the
Holder hereby represents, warrants and covenants that any shares of
stock purchased upon exercise of this Warrant shall be acquired for
investment only and not with a view to, or for sale in connection with,
any distribution thereof; that the Holder has had such opportunity as
such Holder has deemed adequate to obtain from representatives of the
Company such information as is necessary to permit the Holder to
evaluate the merits and risks of its investment in the Company; that
the Holder is able to bear the economic risk of holding such shares as
may be acquired pursuant to the exercise of this Warrant for an
indefinite period; that the Holder understands that the shares of stock
acquired pursuant to the exercise of this Warrant will not be
registered under the 1933 Act (unless otherwise required pursuant to
exercise by the Holder of the registration rights, if any, granted to
the Registered Holder) and will be "restricted securities" within the
meaning of Rule 144 under the 1933 Act and that the exemption from
registration under Rule 144 will not be available for at least one (1)
year from the date of exercise of this Warrant, subject to any special
treatment by the SEC for exercise of this Warrant pursuant to Section
2.2, and even then will not be available unless a public market then
exists for the stock, adequate information concerning the Company is
then available to the public, and other terms and conditions of Rule
144 are complied with; and that all stock certificates representing
shares of stock issued to the Holder upon exercise of this Warrant or
upon conversion of such shares may have affixed thereto a legend
substantially in the following form:
"THE ISSUANCE OF THE SHARES REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE
SECURITIES LAWS. SUCH SHARES MAY NOT BE OFFERED, SOLD, TRANSFERRED (BY
MERGER OR OTHERWISE), ASSIGNED, DEVISED, EXCHANGED, GIFTED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH
TRANSFER IS EXEMPT FROM REGISTRATION, AND CHICAGO BRIDGE & IRON COMPANY
N.V. (THE "COMPANY") SHALL HAVE BEEN FURNISHED WITH AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY, TO SUCH EFFECT.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER AS SET FORTH IN THAT CERTAIN SHAREHOLDER
AGREEMENT DATED AS OF DECEMBER 28, 2000 BETWEEN THE COMPANY AND FIRST
RESERVE FUND VIII, L.P., AS AMENDED (THE "SHAREHOLDER AGREEMENT"). NO
TRANSFER OF THESE SHARES WILL BE EFFECTIVE UNLESS AND UNTIL THE TERMS
AND CONDITIONS OF SUCH SHAREHOLDER AGREEMENT HAVE BEEN COMPLIED WITH IN
FULL AND NO PERSON MAY REQUEST THE COMPANY TO RECORD THE TRANSFER OF
ANY SHARES IF SUCH TRANSFER IS IN VIOLATION OF SUCH SHAREHOLDER
AGREEMENT. A COPY OF THE SHAREHOLDER AGREEMENT IS ON FILE AT THE
ADMINISTRATIVE OFFICES OF THE COMPANY IN PLAINFIELD, ILLINOIS AND WILL
BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH
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SHARES UPON WRITTEN REQUEST. THE SHARES EVIDENCED BY THIS CERTIFICATE
ARE SUBJECT TO RESTRICTIONS ON VOTING PROVIDED FOR IN THE SHAREHOLDER
AGREEMENT AND NO VOTE OF SUCH SHARES THAT CONTRAVENES THE SHAREHOLDER
AGREEMENT SHALL BE EFFECTIVE.
11. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS. This Warrant shall not
entitle the Holder to any voting rights or other rights as a
stockholder of the Company. In the absence of affirmative action by
such Holder to purchase Common Stock by exercise of this Warrant, no
provisions of this Warrant, and no enumeration herein of the rights or
privileges of the Holder hereof shall cause such Holder hereof to be a
stockholder of the Company for any purpose.
12. REGISTRATION RIGHTS. All shares of Common Stock issuable upon exercise
of this Warrant shall be "Holders' Securities" or such other definition
of securities entitled to registration rights pursuant to the
Shareholder Agreement and are otherwise subject to the restrictions of
the Shareholder Agreement.
13. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Holder that:
13.1. Due Authorization; Consents. All corporate action on the part
of the Company, its officers, directors and shareholders
necessary for (a) the authorization, execution and delivery
of, and the performance of all obligations of the Company
under, this Warrant, and (b) the authorization, issuance,
reservation for issuance and delivery of all of the Common
Stock issuable upon exercise of this Warrant, has been duly
taken. This Warrant constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms,
subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, moratorium, reorganization and similar
laws affecting creditors' rights generally and to general
equitable principles. All consents, approvals and
authorizations of, and registrations, qualifications and
filings with, any federal or state governmental agency,
authority or body, or any third party, required in connection
with the execution, delivery and performance of this Warrant
and the consummation of the transactions contemplated hereby
and thereby have been obtained.
13.2. Organization. The Company is a corporation duly organized and
validly existing under the laws of the Netherlands and has all
requisite corporate power to own, lease and operate its
property and to carry on its business as now being conducted
and as currently proposed to be conducted.
13.3. SEC Reports; Financial Statements.
(a) The Company has duly filed with the SEC the Company's
annual report on Form 10-K for the year ended
December 31, 1999 and its quarterly reports on Form
10-Q for the quarters ended March 31, 2000, June 30,
2000 and September 30, 2000 (collectively, the "CB&I
SEC Reports"). As of their
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respective filing dates, the CB&I SEC Reports
complied in all material respects with the
requirements of the Securities Exchange Act of 1934,
as amended, and none of the SEC Documents contained
any untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements made therein, in
light of the circumstances in which they were made,
not misleading, except to the extent corrected by a
subsequently filed document with the SEC.
(b) Each of the consolidated financial statements
(including, in each case, any related notes)
contained in the CB&I SEC Reports complied as to form
in all material respects with the applicable
published rules and regulations of the SEC with
respect thereto, was prepared in accordance with
generally accepted accounting principles applied on a
consistent basis throughout the periods involved
(except as may be indicated in the notes to such
financial statements or, in the case of unaudited
statements, as permitted for by Form 10-Q) and
presented fairly, in all material respects, the
consolidated financial position of the Company and
its subsidiaries as at the respective dates and the
consolidated results of its operations and cash flows
for the periods indicated, except that the unaudited
interim financial statements are subject to normal
and recurring year-end adjustments which are not
expected to be material in amount.
13.4. Capitalization. The authorized capital stock of the Company
consists of 35,000,000 shares of Common Stock. As of December
28, 2000: (i) 17,720,350 shares of Common Stock were issued
and outstanding, all of which are validly issued, fully paid
and nonassessable; (ii) 4,181,755 shares of Common Stock were
reserved for issuance under the Company's stock option plans,
1,557,813 of which shares were subject to options outstanding
on such date; (iii) 250,000 shares of Common Stock were
reserved for issuance under the Company's employee stock
purchase plan; (iv) 82,118 shares of Common Stock were
reserved for issuance upon exercise of outstanding warrants;
and (v) no shares of Preferred Stock were issued and
outstanding. No material change in such capitalization has
occurred between December 28, 2000 and the issuance date of
this Warrant.
13.5. Valid Issuance of Stock. The outstanding shares of the capital
stock of the Company are duly and validly issued, fully paid
and non-assessable, and such shares, and all outstanding
options and other securities of the Company, have been issued
in full compliance with the registration and prospectus
delivery requirements of the Securities Act and the
registration and qualification requirements of all applicable
state securities laws, or in compliance with applicable
exemptions therefrom, and all other provisions of applicable
federal and state securities laws, including without
limitation, anti-fraud provisions.
13.6. Governmental Consents. All consents, approvals, orders,
authorizations or registrations, qualifications, declarations
or filings with any federal or state governmental authority on
the part of the Company required in connection with
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the consummation of the transactions contemplated herein shall
have been obtained prior to and be effective as of the
Effective Date.
14. NOTICES. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this
Agreement shall be in writing and shall be conclusively deemed to have
been duly given (a) when hand delivered to the other party; (b) when
received when sent by facsimile at the address and number set forth
below; (c) three business days after deposit in the U.S. mail with
first class or certified mail receipt requested postage prepaid and
addressed to the other party as set forth below; or (d) the next
business day after deposit with a national overnight delivery service,
postage prepaid, addressed to the parties as set forth below with
next-business-day delivery guaranteed.
To Holder: To the Company:
First Reserve Fund VIII, L.P Chicago Bridge & Iron Company N.V.
c/o First Reserve Corporation c/o Chicago Bridge & Iron Company
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxx Attn: Secretary
Fax Number: (000) 000-0000 Fax: (000) 000-0000
With copies to:
Xxxxxx, Xxxx & Xxxxxxxx LLP Winston and Xxxxxx
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 00 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxx Xxxx
Fax Number: (000) 000-0000 Fax: (000) 000-0000
Each person making a communication hereunder by facsimile shall
promptly confirm by telephone to the person to whom such communication
was addressed each communication made by it by facsimile pursuant
hereto but the absence of such confirmation shall not affect the
validity of any such communication. A party may change or supplement
the addresses given above, or designate additional addresses, for
purposes of this Section 14 by giving the other party written notice of
the new address in the manner set forth above.
15. HEADINGS. The headings in this Warrant are for purposes of convenience
in reference only, and shall not be deemed to constitute a part hereof.
16. LAW GOVERNING. This Warrant shall be, to the extent possible under
applicable (mandatory) Dutch law, construed and enforced in accordance
with, and governed by, the laws of the State of New York.
17. NO IMPAIRMENT. The Company will not, by amendment of its Articles of
Association or bylaws, or through reorganization, consolidation,
merger, dissolution,
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issue or sale of securities, sale of assets or any other voluntary
action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the
rights of the Registered Holder of this Warrant against impairment.
Without limiting the generality of the foregoing, the Company (a) will
not increase the par value of any shares of stock issuable upon the
exercise of this Warrant above the amount payable therefor upon such
exercise without giving Holder 30 days advance notice of such increase,
and (b) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock upon exercise of this Warrant.
18. NOTICES OF RECORD DATE. If at any time Xxxxxx should not have
representatives elected to and serving on the Supervisory Board of
Directors of the Company, then in case:
18.1. the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable
upon the exercise of this Warrant), for the purpose of
entitling them to receive any dividend or other distribution,
or any right to subscribe for or purchase any shares of stock
of any class or any other securities or to receive any other
right; or
18.2. of any consolidation or merger of the Company with or into
another corporation, any capital reorganization of the
Company, any reclassification of the Capital Stock of the
Company, or any conveyance of all or substantially all of the
assets of the Company to another corporation in which holders
of the Company's stock are to receive stock, securities or
property of another corporation; or
18.3. of any voluntary dissolution, liquidation or winding-up of the
Company; or
18.4. of any redemption or conversion of all outstanding Common
Stock;
then, and in each such case, the Company will mail or cause to be
mailed to the Registered Holder of this Warrant a notice specifying, as
the case may be, (i) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, or (ii) the date on
which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation, winding-up, redemption or
conversion is to take place, and the time, if any is to be fixed, as of
which the holders of record of Common Stock or (such stock or
securities as at the time are receivable upon the exercise of this
Warrant), shall be entitled to exchange their shares of Common Stock
(or such other stock or securities), for securities or other property
deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up. Such notice
shall be delivered at least ten (10) days prior to the date therein
specified.
19. SEVERABILITY. If any term, provision, covenant or restriction of this
Warrant is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of
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the terms, provisions, covenants and restrictions of this Warrant shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated.
20. COUNTERPARTS. For the convenience of the parties, any number of
counterparts of this Warrant may be executed by the parties hereto and
each such executed counterpart shall be, and shall be deemed to be, an
original instrument.
21. NO INCONSISTENT AGREEMENTS. The Company will not on or after the date
of this Warrant enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Holders of this
Warrant or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to holders of the
Company's securities under any other agreements, except rights that
have been waived.
22. SATURDAYS, SUNDAYS AND HOLIDAYS. If the Expiration Date falls on a
Saturday, Sunday or legal holiday, the Expiration Date shall
automatically be extended until 5:00 p.m. the next business day.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of
the Effective Date.
FIRST RESERVE FUND VIII, L.P.,
a Delaware limited partnership
By: First Reserve GP VIII, L.P.
a Delaware limited partnership, its general partner
By: First Reserve Corporation,
a Delaware corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
CHICAGO BRIDGE & IRON COMPANY N.V
By: Chicago Bridge & Iron Company B.V.
Its: Managing Director
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
SIGNATURE PAGE TO WARRANT TO PURCHASE COMMON STOCK
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EXHIBIT 1
NOTICE OF EXERCISE
(To be executed upon exercise of Warrant)
CHICAGO BRIDGE & IRON COMPANY N.V.
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
the securities Chicago Bridge & Iron Company N.V., as provided for therein, and
(check the applicable box):
[ ] tenders herewith payment of the exercise price in full in the form of
cash or a certified or official bank check in same-day funds in the
amount of $____________ for _________ such securities.
[ ] Elects the Net Issue Exercise option pursuant to Section 2.2 of the
Warrant, and accordingly requests delivery of a net of ______________
of such securities.
Please issue a certificate or certificates for such securities in the name of,
and pay any cash for any fractional share to (please print name, address and
social security number):
Name:
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Address:
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Signature:
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Note: The above signature should correspond exactly with the name on the first
page of this Warrant Certificate or with the name of the assignee appearing in
the assignment form below.
If said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder rounded up to the next higher whole number of shares.
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EXHIBIT 2
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, hereby sells, assigns and transfers unto ________________
____________________________ the within Warrant Certificate, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint ____________________________ attorney, to transfer said Warrant
Certificate on the books of the within-named Company with respect to the number
of Warrants set forth below, with full power of substitution in the premises:
NAME(S) OF ASSIGNEE(S) ADDRESS # OF WARRANTS
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And if said number of Warrants shall not be all the Warrants represented by the
Warrant Certificate, a new Warrant Certificate is to be issued in the name of
said undersigned for the balance remaining of the Warrants registered by said
Warrant Certificate.
To the extent Dutch law applies, ______________ hereby assigns within the
meaning of Section 3:94 paragraph 1 of the Dutch Civil Code, the Warrant
Certificate and the Warrant to the Assignee, notice of which shall be given to
the Company.
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Dated:
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Signature:
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Notice: The signature to the foregoing Assignment must correspond to the name as
written upon the face of this security in every particular, without alteration
or any change whatsoever; signature(s) must be guaranteed by an eligible
guarantor institution (banks, stock brokers, savings and loan associations and
credit unions with membership in an approved signature guarantee medallion
program) pursuant to Securities and Exchange Commission Rule 17Ad-15.
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