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EXHIBIT 99.9
[Execution]
AMENDMENT TO SHAREHOLDER AGREEMENT
This AMENDMENT TO SHAREHOLDER AGREEMENT ("Amendment") is dated as of
February 7, 2001 by and among WEDGE GROUP INCORPORATED, a Delaware corporation
("WGI"), CHICAGO BRIDGE & IRON COMPANY N.V., a company organized under the laws
of the Netherlands ("CB&I"), and certain shareholders of CB&I.
W I T N E S S E T H:
WHEREAS, WGI, CB&I and certain shareholders of CB&I are parties to that
certain Shareholder Agreement dated as of December 28, 2000 relating to the
shares of common stock, par value NLG .01 per share, of CB&I ("CB&I Stock")
owned by WGI and its Affiliates (the "Shareholder Agreement");
WHEREAS, WGI and its Affiliates currently beneficially own 3,675,072
shares of CB&I Stock;
WHEREAS, in order to facilitate the acquisition by CB&I of certain assets
of the engineering and construction and water divisions of Pitt-Des Moines, Inc.
("PDM") pursuant to an Asset Purchase Agreement of even date herewith between
CB&I and PDM (the "Asset Purchase Agreement"), a transaction which the
Supervisory Board has determined to be in the best interests of, and of
significant potential benefit to, CB&I, its shareholders and other
constituencies, Farinvest, Ltd. (an Affiliate of WGI) is willing to assist in
the financing for such acquisition by purchasing additional shares of CB&I Stock
pursuant to that certain Stock Purchase Agreement of even date herewith (the
"Purchase Agreement");
WHEREAS, in connection with the Asset Purchase Agreement, CB&I, PDM and
certain shareholders of CB&I are simultaneously entering into that certain
Shareholder Agreement of even date herewith (the "PDM Shareholder Agreement")
pursuant to which PDM may require CB&I to acquire any or all of the Put Shares
(as such term is defined in the PDM Shareholder Agreement) under certain
conditions (the "Put");
WHEREAS, in order to assist CB&I in funding the Put, in the event that the
Put is exercised in whole or in part by PDM and certain conditions are met
(including the condition that CB&I does not deliver the purchase price for the
Put Shares to PDM), PDM, CB&I and Farinvest, Ltd. are entering into that certain
Standby Funding Agreement of even date herewith (the "Funding Agreement") and
that certain Agreement and Deed of Pledge of even date herewith (the "Pledge
Agreement"); and
WHEREAS, in order to induce and allow Farinvest, Ltd. to enter into (i)
the Purchase Agreement to provide such financing to CB&I for the purpose of
consummating the PDM acquisition, and (ii) the Funding Agreement and the Pledge
Agreement to provide such funding to CB&I in the event that the Put is exercised
in whole or in part by PDM and certain
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conditions are met (including the condition that CB&I does not deliver the
purchase price for the Put Shares to PDM), the parties are entering into this
Amendment;
NOW THEREFORE, in consideration of the premises herein contained, and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
I. Defined Terms
Each capitalized term used herein but not otherwise defined herein shall
have the meaning ascribed to such term in the Shareholder Agreement.
The following defined terms are added to Section 1.01 of the Shareholder
Agreement:
"'General Shareholders' means the shareholders of CB&I other than
WGI and First Reserve and their respective Affiliates and Associates.
'Opposed Transaction' means any (i) Business Combination, (ii)
Recapitalization or (iii) other transaction that involves the issuance of
CB&I Stock that, in the case of a transaction referred to in (i), (ii) or
(iii), all of the WGI Designees then serving on the Supervisory Board have
voted against at the Supervisory Board level.
'PDM Shares' means (i) the 837,692 registered shares of CB&I Stock
issued to Farinvest, Ltd. on February 7, 2001 pursuant to that certain
Stock Purchase Agreement of such date between CB&I and WGI, and (ii) the
Put Shares as defined in that certain Standby Funding Agreement dated
February 7, 2000 among Pitt-Des Moines, Inc., CB&I and Farinvest, Ltd."
II. Amendment of Shareholder Agreement
2.1 Section 2.01(a) of the Shareholder Agreement is hereby amended in its
entirety to read as follows:
"(a) acquire, offer to acquire, announce an intention to acquire, solicit
an offer to sell or agree to acquire by purchase or otherwise, any
Securities, except (i) as a result of a stock split, stock dividend or
Recapitalization approved by the Supervisory Board, (ii) in connection
with a Business Combination approved by the Supervisory Board, (iii) as
funding for the acquisition by CB&I of certain assets of Pitt-Des Moines,
Inc. ("PDM") relating to PDM's engineering and construction and water
divisions, if, as a result of the transactions contemplated thereby, the
total number of shares
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of Voting Securities beneficially owned (including as a member of a group,
regardless of whether such beneficial ownership is disclaimed) by WGI and
its Affiliates and Associates does not, after giving effect to such
transactions, exceed 19.9% of the total number of shares of Voting
Securities then outstanding (including the shares issued or to be issued
in such transactions), (iv) pursuant to or in connection with the Standby
Funding Agreement or the Pledge Agreement entered into in connection with
the transactions contemplated by the PDM acquisition, or (v) if, as a
result of such acquisition of Voting Securities, WGI and its Affiliates
and Associates would beneficially own (including as a member of a group,
regardless of whether such beneficial ownership is disclaimed) in the
aggregate no more than 10.1% of the total number of Voting Securities
outstanding;"
2.2 The first sentence of Section 2.02(a) of the Shareholder Agreement is
hereby amended to add the following proviso at the end of such sentence
(following the second parenthetical and before the period):
"; provided, however, that in the case of an Opposed Transaction, WGI and
its Affiliates shall be permitted to vote their PDM Shares in the same
proportion as the votes of the General Shareholders who vote upon the
Opposed Transaction."
2.3 The first sentence of Section 2.03 is hereby amended to add a proviso
at the end of such sentence (following the phrase "not contemplated by this
Agreement" and before the period):
"; and provided further, that in the case of an Opposed Transaction, WGI
and its Affiliates shall be permitted to vote their PDM Shares in the same
proportion as the votes of the General Shareholders who vote upon the Opposed
Transaction."
2.4 A new Section 2.04 entitled "Representations of WGI" is hereby
inserted after Section 2.03 at the end of Article II of the Shareholder
Agreement to read as follows:
"Section 2.04 Representations of WGI. WGI has previously provided to
CB&I a true and complete copy of its Schedule 13D dated January 8, 2001
filed with the Commission relating to WGI's beneficial ownership of CB&I
Stock. Neither First Reserve, PDM, nor any Affiliate of any of such
Persons known to WGI (all such Persons and their Affiliates are
collectively hereinafter referred to as "Significant CB&I Shareholders"),
is an Affiliate or Associate of WGI; neither WGI nor any of WGI's
Affiliates or Associates has any arrangement, contract, understanding or
relationship with any of such Significant CB&I Shareholders with respect
to voting power or investment power (which terms shall have the meanings
ascribed to such terms under
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Rule 13d-3(a) under the Exchange Act) with respect to any Voting
Securities, and WGI further specifically confirms that it will observe all
restrictions set forth in Section 2.01, including subsections (g) and (i)
thereof, to the extent such restrictions prohibit any such arrangement,
contract, understanding or relationship by WGI or its Affiliates or
Associates with First Reserve, PDM or any other Significant CB&I
Shareholder. Neither WGI nor any of its Affiliates or Associates has in
the past had any arrangement, contract, understanding or relationship with
First Reserve or PDM (or any of their respective Affiliates known to WGI)
with respect to voting power or investment power (which terms shall have
the meanings ascribed to such terms under Rule 13d-3(a) under the Exchange
Act) relating to the securities of CB&I."
III. Consent to Transaction.
CB&I's Supervisory Board has, and CB&I hereby does, consent to the
Purchase Agreement, the Funding Agreement, the Pledge Agreement and this
Amendment and waives any restrictions in the Shareholder Agreement that might
restrict either (i) the ability of WGI or any of its Affiliates to enter into or
consummate the transactions contemplated by the Purchase Agreement, the Asset
Purchase Agreement, the Funding Agreement or the Pledge Agreement, or to hold
any shares of CB&I Stock pursuant to or in connection with the Purchase
Agreement, the Funding Agreement or the Pledge Agreement, or (ii) the ability of
WGI or any of its Affiliates to propose or enter into the Purchase Agreement,
the Funding Agreement, the Pledge Agreement or this Amendment.
IV. Effectiveness
Except as specifically provided herein, the Shareholder Agreement shall
otherwise remain unaltered and in full force and effect. This Amendment may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned parties have executed this Amendment
as of the date first written above.
WEDGE GROUP INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
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CHICAGO BRIDGE & IRON COMPANY N.V.
By: CHICAGO BRIDGE & IRON COMPANY B.V.,
ITS MANAGING DIRECTOR
By: /s/ Xxxxxx X. Xxxxx
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Title: Managing Director
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XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
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CB&I Shareholder
XXXXXXX X. XXXXXXX
/s/ X. X. Xxxxxxx
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CB&I Shareholder
