EXHIBIT O
EXECUTION COPY
6,097,145 SHARES
CHICAGO BRIDGE & IRON COMPANY N.V.
COMMON STOCK (EURO 0.01 PAR VALUE)
UNDERWRITING AGREEMENT
January 22, 2004
CREDIT SUISSE FIRST BOSTON LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. INTRODUCTORY. First Reserve Fund VIII, L.P. ("FIRST RESERVE"
or the "SELLING STOCKHOLDER") proposes to sell an aggregate of 6,097,145
outstanding shares (the "OFFERED SECURITIES") of the Common Stock (THE
"SECURITIES") of Chicago Bridge & Iron Company N.V., a Netherlands company with
its statutory seat in Amsterdam ("COMPANY"), to Credit Suisse First Boston LLC
(the "UNDERWRITER").
The Company and the Selling Stockholder hereby agree with the
Underwriter as follows, it being understood and agreed that the respective
obligations of the Company and the Selling Stockholder are several and not
joint:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDER. (a) The Company represents and warrants to, and agrees with, the
Underwriter that:
(i) A registration statement (No. 333-111714) relating to the
Offered Securities, including a form of prospectus (the "INITIAL
REGISTRATION STATEMENT"), has been filed with the Securities and
Exchange Commission ("COMMISSION") and has been declared effective
under the Securities Act of 1933 ("ACT"). If an additional registration
statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities is or will be filed with the Commission pursuant to
Rule 462(b) ("RULE 462(b)") under the Act, such registration statement
has or will become effective upon filing pursuant to such Rule and the
Offered Securities all have been or will be upon such filing duly
registered under the Act pursuant to the initial registration statement
and the additional registration statement. If any post-effective
amendment to either the initial registration statement or
the additional 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
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).
"EFFECTIVE TIME" with respect to an amendment or post-effective
amendment to a registration statement, means 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 Underwriter 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 and all exhibits and schedules thereto, 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 under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The
additional registration statement (if any), as amended at its Effective
Time, including the contents of the initial registration statement
incorporated by reference therein, is hereinafter referred to as the
"ADDITIONAL REGISTRATION STATEMENT". The Initial Registration Statement
and the Additional Registration Statement (if any) are hereinafter
referred to collectively as the "REGISTRATION STATEMENTS" and
individually as a "REGISTRATION STATEMENT". Each prospectus supplement
relating to the Offered Securities (including the above-referenced
prospectus included in the initial registration statement), as first
filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(b)") and as supplemented by any subsequent prospectus
supplement under the Act, including all material incorporated by
reference therein, 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. No stop order suspending the effectiveness of
the Initial Registration Statement or the Additional Registration
Statement (if any), or any post-effective amendment thereto, has been
issued and served on the Company, and no proceedings for that purpose
are pending or, to the knowledge of the Company, threatened by the
Commission.
(ii) (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
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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. The Prospectus (X) did, at the time
of filing thereof with the Commission, and will, at the Closing Date,
conform in all respects to the requirements of the Act and the Rules
and Regulations, and (Y) did not, at the time of filing thereof with
the Commission, and will not, at the Closing Date, 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, in light of the circumstances under which they were made, not
misleading. 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) the Underwriter
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)
the 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,
2002, 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; 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.
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(vi) There are no contracts, agreements or understandings
between the Company and any person (other than the Underwriter) 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 Stockholder 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
other 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 the Underwriter 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 account of the Underwriter or (B) the sale and delivery
outside the Netherlands by the Underwriter of the Offered Securities to
the initial purchasers thereof provided that: (x) the Underwriter is
neither resident nor deemed to be resident in the Netherlands; (y) the
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
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a permanent representative in the Netherlands, or, if the 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) the
Underwriter does not have a substantial interest in the Company, or, if
the 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.
(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 all material leased
real and 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
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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 in compliance 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) except as disclosed
in the Prospectus, 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.
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(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. 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 0000 (xxx "XXXXXXXX XXX").
(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.
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(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, 2002, the Company did not have any
material subsidiaries organized in a jurisdiction outside of the U.S.,
other than CBI Venezolana, S.A. (organized in Venezuela), Chicago
Bridge & Iron Company, B.V. (organized in the Netherlands) and Southern
Tropic Material Supply (organized in the Cayman Islands)) (each, a
"FOREIGN MATERIAL SUBSIDIARY").
(b) The Selling Stockholder represents and warrants to, and agrees
with, the Underwriter that:
(i) The Selling Stockholder has, and, on the Closing Date
hereinafter mentioned will have, valid and unencumbered title to the
Offered Securities to be delivered by the Selling Stockholder on the
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by the Selling Stockholder on the Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on the Closing Date hereunder the Underwriter will acquire
valid and unencumbered title to the Offered Securities to be delivered
by the Selling Stockholder on the Closing Date.
(ii) Subject to the last two sentences 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 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
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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 two sentences 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 the 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 the Selling Stockholder consists of the
following information in the Prospectus (A) under the caption "Selling
Shareholder": (1) the name and address of the Selling Stockholder in
the column captioned "Name" and the footnote thereto, and (2) the
number of shares beneficially owned by the Selling Stockholder in the
column captioned "Number of Common Shares Beneficially Owned" and the
footnote thereto and (B) under the caption "Plan of Distribution".
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling Stockholder
and any person that would give rise to a valid claim against the
Selling Stockholder or the Underwriter for a brokerage commission,
finder's fee or other like payment in connection with the transactions
contemplated by this Agreement.
(iv) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder.
(v) The execution, delivery and performance of this Agreement
by the 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 the Selling Stockholder or any of its properties or
operations (excluding the matters covered by paragraph (b)(ii) above),
or any agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of
the properties or operations of the Selling Stockholder is subject, or
(B) the charter, by-laws, certificate of formation, partnership
agreement or other applicable governing documents (if any) of the
Selling Stockholder, except, in the case of clause (A), for such
conflicts, breaches, violations or defaults which could not,
individually or in the aggregate, be reasonably expected to 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 the Selling Stockholder of its obligations under
this Agreement except such as have been, or will be obtained or made
under the Act and the Rules and Regulations and such as may be required
under state or foreign securities laws or by the New York Stock
Exchange or the National Association of Securities Dealers, Inc. in
connection with the offer and sale of the Offered Securities.
9
(vii) The 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 the 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 the 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, the Selling Stockholder agrees to
sell and the Underwriter agrees to purchase from the Selling Stockholder at a
purchase price of $28.65 per share, the Offered Securities. Unless all Offered
Securities are to be purchased and sold, none shall be purchased and sold.
The Selling Stockholder will deliver the Offered Securities to the
Underwriter for the account of the Underwriter 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 Selling Stockholder for Offered Securities to be sold by the Selling
Stockholder at a bank acceptable to the Underwriter. The time and date of such
delivery and payment with respect to the Offered Securities shall be 9:00 A.M.,
New York time, on Wednesday, January 28, 2004, or at such other time not later
than seven (7) full business days thereafter as the Underwriter and the Selling
Stockholder determine, such time being herein referred to as the "CLOSING DATE".
The certificates for the Offered Securities so to be delivered will be in
definitive form (i.e. accompanied by a deed of transfer/stock power, duly
executed by the Selling Stockholder and acknowledged by the Company in
accordance with its Articles of Association), in such denominations and
registered in such names as the Underwriter requests at least 48 hours prior to
the 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 Closing Date.
The documents to be delivered on the Closing Date by or on behalf of
the parties hereto pursuant to Section 6 hereof will be delivered at the offices
of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx.
4. OFFERING BY UNDERWRITER. It is understood that the Underwriter
proposes to offer the Offered Securities for sale to the public as set forth in
the Prospectus. It is understood that the Underwriter will offer the Offered
Securities to persons who are established, domiciled or have their residence in
the Netherlands in compliance with the dispensation from the Authority for the
Financial Markets (AFM) granted to the Company on January 16, 2004.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDER. (a)
The Company agrees with the Underwriter and the Selling Stockholder that:
(i) The Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) or (2) (as
consented to by the Underwriter) of Rule 424(b), not later than the
second business day following the execution and delivery of this
Agreement (or, if applicable and if consented to by the Underwriter,
subparagraph (4) or (5)). The Company will advise the Underwriter
promptly of any such filing pursuant to Rule 424(b). If 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 the execution and delivery of this Agreement, the
10
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 the
Underwriter, or will make such filing at such later date as shall have
been consented to by the Underwriter.
(ii) The Company will advise the Underwriter promptly of any
proposal to amend or supplement the initial registration statement 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 afford the
Underwriter a reasonable opportunity to comment on any such amendment
or supplement, and will not prior to the Closing Date, effect such
amendment or supplementation without the Underwriter's consent, which
consent shall not be unreasonably withheld; and the Company will also
advise the Underwriter 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
supplement to 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. Solely for the purpose of this Section
5(a)(ii), the filing by the Company of any reports on Form 8-K, Form
10-K and Form 10-Q shall not be deemed amendments or supplements of the
initial registration statement, any additional registration statement
or any Prospectus which would be subject to terms of this paragraph.
(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 the 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 the Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement or Exchange Act report, as applicable, which
will correct such statement or omission or an amendment or Exchange Act
Report, as applicable, which will effect such compliance. Neither the
Underwriter's consent to, nor the Underwriter's 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 Underwriter copies of each
Registration Statement (two of which will be signed originals and two
of which will include photocopies of the signed signature page and all
of which 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
the Underwriter
11
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
execution and delivery of this Agreement. All other such documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriter 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 the Underwriter
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 Underwriter, 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 Underwriter (i) as soon
as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the Exchange Act or
mailed to stockholders, and (ii) from time to time, such other public
information concerning the Company as the Underwriter may reasonably
request.
(viii) For a period of 45 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 the Underwriter, except (w) offers and sales of
shares of the Company's common stock pursuant to a dividend
reinvestment plan, including additional share purchases from new funds
by participants in accordance with such plan, (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 or (z) the filing of registration statements with
the SEC for the securities described in (w), (x) or (y) above.
(ix) Except as provided in Section 5(b)(i) below, Section 7
and Section 8, the Underwriter shall pay its own costs and expenses,
including the fees and expenses of its counsel and the expenses of
advertising any offering of the Offered Securities made by the
Underwriter.
(b) The Selling Stockholder agrees with the Underwriter and the Company
that:
(i) The Selling Stockholder will pay all expenses incident to
the performance of the obligations of the Selling Stockholder and the
obligations of the Company under this Agreement, including, without
limitation, (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 the Underwriter reasonably
designates and the printing of memoranda relating thereto, and the
reasonable fees and disbursements of counsel to the Underwriter 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, (F) expenses incurred
in
12
distributing preliminary prospectus and the Prospectus (including any
amendments and supplements thereto) to the Underwriter, (G) expenses
for document, stamp, transfer and similar taxes on the sale of the
Offered Securities to the Underwriter or on the execution and delivery
of this Agreement as to such Offered Securities, and (H) any expenses
of counsel to the Selling Stockholder and all underwriting fees,
discounts and commissions in respect of the Offered Securities sold by
the Selling Stockholder.
(ii) The Selling Stockholder will indemnify and hold harmless
the Underwriter against any documentary, stamp or similar issue tax,
including any interest and penalties, on the sale of the Offered
Securities and on the execution and delivery of this Agreement. All
payments to be made by the Selling Stockholder 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
Selling Stockholder is compelled by law to deduct or withhold such
taxes, duties or charges. In that event, unless such deduction or
withholding relates to any taxes imposed on or measured by net or gross
income, capital or net worth of the Underwriter, the 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.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER. The obligations of
the Underwriter to purchase and pay for the Offered Securities on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company and the Selling Stockholder 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 Stockholder of their obligations
hereunder and to the following additional conditions precedent:
(a) The Underwriter and the Board of Directors of the Company shall
have received a letter, dated the date of delivery thereof (which shall be on or
prior to the date of this Agreement), 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) 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. 100, Interim Financial Information, on the unaudited
financial statements of the Company as of the last day of and for each
of the Company's fiscal quarters ended March 31, 2003, June 30, 2003
and September 30, 2003 included in the Registration Statements;
(iii) 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 each of the Company's
fiscal quarters ended March 31, 2002, June 30, 2002 and September 30,
2002 included in the Registration Statements;
(iv) on the basis of the review referred to in clause (ii) and
(iii) above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
13
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 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
(v) 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 prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
(if any) 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 plus the prospectus related to the Securities, in form in which it
has most recently been filed or transmitted for filing with the Commission on or
prior to the date of this Agreement, as amended or supplemented in relation to
the Securities in the form in which it is filed with the Commission pursuant to
Rule 424(b) under the Act, including any documents incorporated by reference
therein as of the date of such filing. 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) 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
14
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 the Underwriter. 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 the 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 the Selling
Stockholder, the Company or the Underwriter, shall be contemplated by the
Commission.
(c) 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 the Underwriter, 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 the Underwriter, 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 the Underwriter, 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.
(d) The Underwriter shall have received an opinion, dated the 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 such counsel's knowledge, result in a breach or
violation
15
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, 2002 pursuant to Item 10 of Rule 601 of Regulation S-K and
any material agreement or instrument filed by the Company with the
Commission during 2003 as an exhibit to any Current Report on Form 8-K
or Quarterly Report on Form 10-Q 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
"Certain United States Federal Tax Considerations" and the first
paragraph under the heading "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 Dutch Legislation," the U.S.
governmental proceeding under the caption "Risk Factors--Certain
Remedies Ordered in a Federal Trade Commission Proceeding Could
Adversely Affect Us," and the shareholder agreement under the caption
"Selling Shareholder" insofar as such descriptions purport to
constitute summaries of legal matters or the terms of the shareholder
agreement fairly present the information with respect to such legal
matters and the terms of such shareholder agreement and fairly
summarize the matters referred to therein in all material respects; 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 Stockholder, Deloitte & Touche LLP,
representatives of the Underwriter and Xxxxxx & Xxxxxxx LLP 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) above) 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
Stockholder), 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 the 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
16
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
the 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.
(e) The Underwriter shall have received an opinion, dated the
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
17
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
18
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
Stockholder, special counsel for the Company, representatives of the
independent public accountants of the Company and representatives of
the Underwriter 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 of its date and as of
the 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.
(f) The Underwriter shall have received an opinion or opinions,
dated the 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
(Although Dutch law is not familiar with the term "non-assessable", I
believe that it is best described as meaning that 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 the Closing
Date have been duly authorized and validly issued in accordance with
Dutch law and are fully paid and non-assessable (Although Dutch law is
not familiar with the term "non-assessable", I believe that it is best
described as meaning that 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); no
preemptive rights exist with respect to the Offered Securities;
19
(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 the Selling Stockholder of
the relevant deed of transfer relating to the Offered Securities to be
sold by the Selling Stockholder to the Underwriter pursuant to this
Agreement, (ii) the delivery by the Selling Stockholder to the Bank of
New York (the "TRANSFER AGENT") of the share certificates issued for
such Offered Securities and acknowledgement by the Company by its
endorsement on the share certificates for such Offered Securities and
(iii) the acceptance of the transfer of such Offered Securities by CEDE
& CO. and payment therefor to the Selling Stockholder as provided in
this Agreement, title to such Offered 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;
(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 14 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 14 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
20
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 heading
"Description of Capital Stock," 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 or, as a rule, consideration for the
repurchase 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 (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 an anti-dividend stripping provision, 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.
21
(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) 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 Underwriter 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 Underwriter or (B)
the sale and delivery outside the Netherlands by the Underwriter of the
Offered Securities to the initial purchasers thereof in the manner
contemplated herein;
(xviii) The descriptions contained in the Prospectus on page
11 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 Dutch Legislation," to the extent they
are descriptions of Dutch law, are correct; and
(xix) The descriptions contained in the Company's Registration
Statement on Form 8-A (as amendment by Amendment No. 4 dated January 8,
2004) 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.
(g) The Underwriter shall have received the an opinion, dated the
Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, U.S. counsel for the Selling
Stockholder, to the effect that:
(i) The Selling Stockholder has the limited partnership power
and authority to execute this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated in this
Agreement;
(ii) The Selling Stockholder has taken all necessary limited
partnership action to authorize the execution of this Agreement, the
performance of its obligations hereunder and the consummation of the
transactions contemplated therein;
(iii) 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 the Selling Stockholder for the consummation of the
transactions contemplated by 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 (as to which laws we express no opinion), except for
consents, approvals, authorizations, orders, registrations,
qualifications or
22
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;
(iv) 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, (x) any provision of
the Selling Stockholder's agreement of limited partnership or any other
organizational documents of the Selling Stockholder or (y), to the best
of our knowledge, any Delaware or Federal statute, any rule, regulation
(other than Federal, state or foreign securities or "blue sky" laws and
the laws, rules and regulations of the NASD, as to which federal and
state law such counsel need express no opinion, including, without
limitation, the anti-fraud provisions thereof) or order of any Delaware
or Federal governmental agency or body or any Delaware or Federal court
having jurisdiction over the Selling Stockholder or any of its
properties or any agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or
to which any of the properties of the Selling Stockholder is subject,
except for such conflicts, breaches, violations, or defaults under
subsection (y) above which would not, individually or in the aggregate,
have a material adverse effect on the consummation of the transactions
contemplated by this Agreement;
(v) This Agreement with respect to the Selling Stockholder has
been duly executed and delivered by the Selling Stockholder; and
(vi) Upon (i) payment for the Offered Securities to be sold by
such Selling Stockholder pursuant to this Agreement, (ii) physical
delivery of the certificates representing such Offered Securities to
the Transfer Agent, and registration of such Offered Securities in the
name of DTC upon registration of transfer by the issuer thereof, (iii)
registration by book-entry of the credit to the Underwriter's
securities accounts with DTC of the purchase of such Offered Securities
in the records of DTC, and (iv) registration by book-entry of the
credit to the other Underwriter's securities accounts of their purchase
of such Offered 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 Offered 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 Offered Securities,
free of any "adverse claims" (as defined in Section 8-102(a)(1) of the
New York UCC).
(h) The Underwriter shall have received from Xxxxxx & Xxxxxxx LLP, U.S.
counsel for the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to the Registration Statements, the Prospectus and other related
matters as the Underwriter reasonably may require, and the Selling Stockholder
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.
(i) The Underwriter shall have received from Loyens & Loeff, Dutch
counsel for the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company and other related matters as
the Underwriter may reasonably require, and the Selling Stockholder 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.
(j) The Underwriter shall have received a certificate, dated the
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
23
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the 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.
(k) The Underwriter and the Board of Directors of the Company
shall have received a letter, dated the Closing Date, of Deloitte & Touche LLP,
which meet the requirements of subsection (a) of this Section 6, except that the
specified date referred to in such subsection will be a date not more than three
days prior to the Closing Date for the purposes of this subsection.
(l) The Selling Stockholder agrees to deliver to the Underwriter a
properly completed and executed United States Treasury Department Form 1099 (or
other applicable form or statement specified by the United States Treasury
Department regulations in lieu thereof).
(m) The Underwriter shall have received legal opinions, good
standing certificates or other evidence reasonably satisfactory to it of the
incorporation, existence and good standing of the foreign material subsidiaries.
(n) The Underwriter shall have received a Certificate of Xxxxxx X.
Xxxxx, 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 Stockholder and the Company will furnish the Underwriter with such
conformed copies of such opinions, certificates, letters and documents as the
Underwriter reasonably request. The Underwriter may in its sole discretion waive
compliance with any conditions to the obligations of the Underwriter hereunder,
whether in respect of the Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will
indemnify and hold harmless the Underwriter, its partners, directors and
officers and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which the 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 the Underwriter for any legal or other expenses reasonably
incurred by the 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
24
information furnished to the Company by (x) the Underwriter 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) the Selling Stockholder specifically for use therein, it being
understood that the only such information furnished by the 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 the
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
the Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of the 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 the Underwriter.
(b) The Selling Stockholder will indemnify and hold harmless the
Underwriter, its partners, directors and officers and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which the
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 the Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the 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 the Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by the Underwriter consists of
the information described as such in subsection (c) below; provided, further,
that the 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 the Selling Stockholder,
it being understood that the only such information furnished by the Selling
Stockholder consists of the information described in Section 2(b)(ii) hereof, or
contained in a representation or warranty given by the Selling Stockholder in
this Agreement; 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 the 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 the Underwriter under the Act in connection with
such purchase and any such loss, claim, damage or liability of the 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), as then amended or supplemented if the Company shall have furnished
such amendments or supplements thereto, if the Company had previously furnished
copies thereof to the Underwriter; and provided, further, that the aggregate
liability of the Selling Stockholder under this Section 7 and with respect to
any breach of the representations and warranties contained in Section 2(b)(ii)
hereof shall be limited to an amount equal to the aggregate gross proceeds, net
of underwriting commissions and discounts, but before expenses, to the Selling
Stockholder from the sale of Securities sold by the Selling Stockholder
hereunder.
25
(c) The Underwriter will 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 the Selling Stockholder, its
directors and officers and each person, if any, who controls the Selling
Stockholder against any losses, claims, damages or liabilities to which the
Company or the 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 the Underwriter
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and the 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 the Underwriter consists of the following
information in the Prospectus furnished by the Underwriter: the concession and
reallowance figures appearing in the third paragraph, the material regarding
stabilizing, over-allotment and covering transactions appearing in the ninth
paragraph and the matters described in the tenth paragraph, in each case under
the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this
Section 7 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 7 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 the Underwriter and all persons, if any, who
control the 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 Stockholder and all persons, if any, who control
the 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 Underwriter and such control persons of the
Underwriter, such firm shall be designated in writing by the Underwriter. 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
26
separate firm for the Selling Stockholder and such control persons of the
Selling Stockholder, such firm shall be designated in writing by the Selling
Stockholder. 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 7 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 Stockholder on the one hand and the
Underwriter 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 Stockholder on the one hand and the Underwriter 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
Stockholder on the one hand and the Underwriter 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 Selling Stockholder bear to the total
underwriting discounts and commissions received by the Underwriter. 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 Stockholder or the Underwriter 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), the
Underwriter shall not 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 the 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 Underwriter's obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
27
(f) The obligations of the Company and the Selling Stockholder
under this Section 7 shall be in addition to any liability which the Company and
the Selling Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Underwriter within the
meaning of the Act; and the obligations of the Underwriter under this Section 7
shall be in addition to any liability which the Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each director of the
Company or the 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 the Selling Stockholder within the meaning of the Act.
(g) The obligations of the Company hereunder are in addition to,
and shall have no effect on, the obligations of the Company to indemnify the
Selling Stockholder as set forth in the Fund VIII Stockholder Agreement.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, of the Company or its officers and of the Underwriter 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 the Underwriter, the 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 for any reason the purchase of the Offered Securities by the
Underwriter is not consummated, the Selling Stockholder shall remain responsible
for the expenses to be paid or reimbursed by it pursuant to Section 5(b) and the
respective obligations of the Company, the Selling Stockholder, and the
Underwriter 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 Underwriter is not consummated for
any reason other than solely because of the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) of Section 6(c), the Selling Stockholder
will reimburse the Underwriter 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.
9. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriter, will be mailed, delivered or telecopied and confirmed
to the Underwriter, 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 Xxxxxxxx Xxxxxx Xxxxx, Xxx
Xxxxxxxxx, Xxxxx 00000, Attention Secretary or, if sent to the Selling
Stockholder will be mailed, delivered or telecopied and confirmed to First
Reserve Fund VIII, L.P., Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx for First Reserve; provided, however, that any
notice to the Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to the Underwriter.
10. 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.
11. 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.
12. 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 THAT WOULD APPLY THE LAW OF ANY OTHER
JURISDICTION.
28
13. 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 9,
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) The Selling Stockholder 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. The Selling Stockholder
irrevocably appoints CT Corporation System as its respective 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 Selling Stockholder by the
person serving the same to the address provided in Section 9, shall be deemed in
every respect effective service of process upon the Selling Stockholder in any
such suit or proceeding. The Selling Stockholder 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.
14. FOREIGN CURRENCY JUDGMENTS. The obligation of the Company or
the Selling Stockholder in respect of any sum due to the Underwriter shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by the Underwriter
of any sum adjudged to be so due in such other currency, on which (and only to
the extent that) the 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 the
Underwriter hereunder, the Company or the Selling Stockholder, as the case may
be, agree, as a separate obligation and notwithstanding any such judgment, to
indemnify the Underwriter against such loss. If the United States dollars so
purchased are greater than the sum originally due to the Underwriter hereunder,
the Underwriter agrees to pay to the Company or the Selling Stockholder, as the
case may be, an amount equal to the excess of the dollars so purchased over the
sum originally due to the Underwriter hereunder.
29
If the foregoing is in accordance with the Underwriter's 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
Stockholder, the Company and the Underwriter in accordance with its terms.
Very truly yours,
SELLING STOCKHOLDER
FIRST RESERVE FUND VIII, L.P.
By its General Partner, First Reserve GP VIII, L.P.
By its General Partner, First Reserve
Corporation
/s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------
Duly authorized signatory
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 LLC
By CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
[Signature Page - Underwriting Agreement]
EXHIBIT A
MATERIAL SUBSIDIARIES
Jurisdiction in which
Subsidiary or Affiliate Incorporated or Organized
----------------------- -------------------------
CBI Venezolana, S.A. Venezuela
Chicago Bridge & Iron Company, 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
CBI Company Limited Delaware Delaware
Southern Tropic Material Supply Cayman Islands
