EXHIBIT M
8,592,542 SHARES
CHICAGO BRIDGE & IRON COMPANY N.V.
COMMON STOCK (EURO 0.01 PAR VALUE)
UNDERWRITING AGREEMENT
June 26, 2003
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇ BROTHERS INC.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
FIRST ALBANY CORPORATION
HIBERNIA SOUTHCOAST CAPITAL
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. INTRODUCTORY. The stockholders listed in Schedule A hereto
(the "SELLING STOCKHOLDERS") propose severally to sell an aggregate of 7,592,542
outstanding shares of the Common Stock ("SECURITIES") of Chicago Bridge & Iron
Company N.V., a Netherlands company with its statutory seat in Amsterdam
("COMPANY"), to the several underwriters named in Schedule B hereto
("UNDERWRITERS"), for whom Credit Suisse First Boston LLC ("CSFB"), Banc of
America Securities LLC ("BAS"), ▇▇▇▇▇▇ Brothers Inc., BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.,
First Albany Corporation, Hibernia Southcoast Capital and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Inc. are acting as Representatives, and the Company proposes to issue an
aggregate of 1,000,000 shares of the Company's Securities to the Underwriters
("COMPANY FIRM SECURITIES"). The aggregate of 7,592,542 outstanding shares of
Securities to be sold by the Selling Stockholders and the Company Firm
Securities to be issued by the Company are herein called the "FIRM SECURITIES".
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One of the Selling Stockholders, First Reserve Fund VIII, L.P. ("FIRST RESERVE")
also proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 1,288,881 additional outstanding shares of the
Company's Securities as set forth below (such 1,288,881 additional shares being
hereinafter referred to as the "OPTIONAL SECURITIES"). The Firm Securities and
the Optional Securities are herein collectively called the "OFFERED SECURITIES".
The Company and the Selling Stockholders hereby agree with the
several Underwriters as follows, it being understood and agreed that the
respective obligations of the Company and the Selling Stockholders are several
and not joint:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
(a) The Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) A registration statement (No. 333-103972) relating to
the Offered Securities, including a form of prospectus, has been filed
with the Securities and Exchange Commission ("COMMISSION") and either
(A) has been declared effective under the Securities Act of 1933
("ACT") and is not proposed to be amended or (B) is proposed to be
amended by amendment or post-effective amendment. If such registration
statement (the "INITIAL REGISTRATION STATEMENT") has been declared
effective, either (A) an additional registration statement (the
"ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities
may have been filed with the Commission pursuant to Rule 462(b) ("RULE
462(b)") under the Act and, if so filed, has become effective upon
filing pursuant to such Rule and the Offered Securities all have been
duly registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement or
(B) such an additional registration statement is proposed to be filed
with the Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (A) if the Company has advised the Representatives that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (B) if the Company has advised the Representatives that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such
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registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission.
If an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised
the Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and become
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
material incorporated by reference therein, including all information
contained in the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(o)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required), as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
respects to the
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requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and no Additional Registration Statement has
been or will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by
(x) any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) or (y) any Selling
Stockholder specifically for use therein.
(iii) The Company has been duly incorporated and is validly
existing as a public company with limited liability (naamloze
vennootschap) under the laws of the Netherlands, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure to be so qualified would not have a material adverse effect
on the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company that met the
definition of "Significant Subsidiary" under Rules and Regulations at
December 31, 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
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individual, fiduciary or other capacity) to acquire any such capital
stock or other equity interests, any additional capital stock or other
equity interests or any other securities of any material subsidiary.
(v) The Offered Securities and all other outstanding
shares of capital stock of the Company have been duly authorized,
validly issued, fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and except as
described in the Prospectus, the stockholders of the Company have no
preemptive rights with respect to the Offered Securities which have not
been waived.
(vi) There are no contracts, agreements or understandings
between the Company and any person (other than the Underwriters) that
would give rise to a valid claim against the Company or any Underwriter
for a brokerage commission, finder's fee or other like payment in
connection with the transactions contemplated by this Agreement.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act; and there are no legal or governmental
proceedings, statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or
Prospectus or required to be filed as exhibits to the Registration
Statement that are not described or filed as required. Except as
disclosed in the Prospectus and except with respect to the registration
rights exercised by the Selling Stockholders hereunder, all persons (i)
to whom the Company has granted such demand or piggyback registration
rights and (ii) whose rights may be exercised in connection with the
registration and offering of the Offered Securities have waived such
registration rights.
(viii) The Offered Securities are listed on The New York
Stock Exchange.
(ix) No consent, approval, authorization or order and no
registration or qualification of, or filing with, any third party
(whether acting in an individual or fiduciary or other capacity) or any
governmental or regulatory agency or body or any court is required to
be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state or foreign
securities laws in connection with the offer and sale of the Offered
Securities.
(x) Except as disclosed in the Prospectus, under current
laws and regulations of the Netherlands and any political subdivision
or taxing authority thereof or therein, all dividends and other
distributions declared and payable on the Offered Securities may be
paid by the Company to the holder thereof in United States dollars
(including, without limitation, payment on any Offered Securities in
the form of New York Shares (as defined
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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 any of the Underwriters to the Netherlands
or any political subdivision or taxing authority thereof or therein in
connection with (A) the sale and delivery of the Offered Securities to
or for the respective accounts of the Underwriters or (B) the sale and
delivery outside the Netherlands by the Underwriters of the Offered
Securities to the initial purchasers thereof provided that: (x) such
Underwriter is neither resident nor deemed to be resident in the
Netherlands; (y) such Underwriter does not have an enterprise or an
interest in an enterprise which enterprise is either managed in the
Netherlands, or in whole or in part, carried on through a permanent
establishment or a permanent representative in the Netherlands, or, if
such Underwriter does have such an enterprise or an interest in such an
enterprise, provided that such income or capital gains are not
attributable to such permanent establishment or permanent
representative; and (z) such Underwriter does not have a substantial
interest in the Company, or, if such Underwriter does have such an
interest, it forms part of the assets of an enterprise.
(xii) The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein contemplated
(including the exercise of ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇'▇ Options (as herein
defined)) 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
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defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except
as disclosed in the Prospectus, the Company and its subsidiaries hold
any material leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them and neither the Company
nor any subsidiary has been notified of any material claim that has
been asserted by anyone adverse to the rights of the Company or any
subsidiary under any such leases.
(xv) The Company and its subsidiaries possess adequate
certificates, authorizations, licenses or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of threatened or
actual proceedings (and are not aware of any facts that would be
expected to result in such proceeding) relating to the revocation or
modification of any such certificate, authorization, license or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect. The Company and its subsidiaries are in compliance with
their respective obligations under such certificates, authorizations,
licenses or permits and no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination of such
certificates, authorizations, license or permits, except for such
non-compliance and events as would not, individually or in the
aggregate, have a Material Adverse Effect.
(xvi) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that would, individually or in the aggregate, have a Material Adverse
Effect.
(xvii) The Company and its subsidiaries own or have obtained
valid and enforceable licenses for all material trademarks, trademark
registrations, trade names, service marks, service ▇▇▇▇ registrations,
computer software, other rights to inventions, know-how, patents,
copyrights, copyright registrations, trade secrets and proprietary or
other intellectual property owned, sold or used by or licensed to or by
the Company or any of its subsidiaries or that are necessary for the
conduct of their business (collectively, "INTELLECTUAL PROPERTY"), and
the Company and its subsidiaries are not aware of any material claim or
challenge by any third party to the rights of the Company or its
subsidiaries with respect to any Intellectual Property or the validity
or scope of the Intellectual Property. Neither the Company nor any
subsidiary has received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any
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substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws,
or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which could reasonably be expected
to lead to such a claim.
(xix) Each "EMPLOYEE BENEFIT PLAN" within the meaning of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), in which employees of the Company or any subsidiary
participate or as to which the Company or any subsidiary has any
liability (the "ERISA Plans") is in compliance with the applicable
provisions of ERISA and the Internal Revenue Code of 1986, as amended
(the "Code"), except where failure to be incompliance would not have a
Material Adverse Effect. Neither the Company nor any subsidiary has any
liability with respect to the ERISA Plans, nor does the Company expect
that any such liability will be incurred, that could, individually or
in the aggregate, have a Material Adverse Effect. Except as described
in the Prospectus, the value of the aggregate vested and nonvested
benefit liabilities under each of the ERISA Plans that is subject to
Section 412 of the Code, determined as of the end of such ERISA Plan's
most recent ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the
assets of such ERISA Plan allocable to such benefit liabilities.
Neither the Company nor any subsidiary has any liability, whether or
not contingent, with respect to any ERISA Plan that provides
post-retirement welfare benefits that could, individually or in the
aggregate, have a Material Adverse Effect. The descriptions of the
Company's stock option, incentive compensation and other employee
benefits plans or arrangements, and the options or other rights granted
and exercised thereunder, set forth or incorporated by reference in the
Prospectus are accurate in all material respects.
(xx) (A) Neither the Company nor any of its subsidiaries
is in violation of its articles of incorporation, articles of
association or of its charter or by-laws, as the case may be, (B)
neither the Company nor any of its subsidiaries is in violation of any
applicable law, ordinance, administrative or governmental rule or
regulation, or any order, decree or judgment of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries and (C) no event of default or event that, but for
the giving of notice or the lapse of time or both, would constitute an
event of default exists, and upon the sale of the Offered Securities
will exist, under any indenture, mortgage, loan agreement, note, lease,
permit, license or other agreement or instrument to which the Company
or any of its subsidiaries is a party or to which any of the
properties, assets or operations of the Company or any such subsidiary
is subject, except, in the case of clauses (B) and (C), for such
violations and defaults that would not, individually or in the
aggregate, have a Material Adverse Effect.
(xxi) The Company and its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts (with customary deductibles and/or
self-insured retentions) as are customary in the businesses in which
they are engaged; all material policies of insurance and material
performance bonds insuring the
8
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 1934.
(xxvi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" or any entity "controlled" by an "investment company" as
defined in the Investment Company Act of 1940.
(xxvii) The Company has not taken and will not take, directly
or indirectly, any action designed to or that could reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Offered Securities and the Company has not distributed and
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will not distribute any offering material in connection with the
offering and sale of the Offered Securities other than any preliminary
prospectus filed with the Commission or the Prospectus or other
materials, if any, permitted by the Act or the Rules and Regulations.
(xxviii) Each of the Company and the subsidiaries has timely
filed (or joined in the filing of) all federal and foreign and state
and local tax reports and returns that it was required to file (or join
in the filing of), except where the failure to file a report or return
would not have a Material Adverse Effect, and such reports and returns
are complete and correct in all material respects. All material taxes
shown to be due on such reports and returns or otherwise relating to
periods ending on or before the Closing Date, owed by the Company or
any of its subsidiaries (whether or not shown on any report or return)
or to which the Company or any of the subsidiaries may be liable under
the Treasury regulations section 1.1502-6 (or analogous state or
foreign law provisions) on account of having been a member of an
"affiliated group" as defined in section 1504 of the Code (or other
group filing on a combined basis) at any time on or prior to the
Closing Date, if required to have been paid, have been paid, except
such tax assessments, if any, as are being contested in good faith and
as to which reserves have been provided which the Company reasonably
believes are adequate. To the Company's knowledge after due inquiry,
the charges, accruals and reserves on the books of the Company and the
subsidiaries in respect of any tax liability for any year not finally
determined are adequate to meet any assessments or reassessments. No
tax deficiency has been asserted or threatened against the Company or
any of the subsidiaries that would, individually or in the aggregate,
have a Material Adverse Effect.
(xxix) The Company is neither a foreign personal holding
company ("FPHC") within the meaning of section 552 of the Code nor a
passive foreign investment company ("PFIC") within the meaning of
section 1297 of the Code, and the Company is not contemplating any
action and is not aware of any contemplated action by any stockholder
or stockholders of the Company that would be likely to cause the
Company to become an FPHC, PFIC or controlled foreign corporation
("CFC") (within the meaning of section 957 of the Code).
(xxx) As of December 31, 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").
(xxxi) The Options (as defined below) have been duly granted
and represent a legal and binding commitment of the Company to deliver
the shares of Common Stock subject to such Options upon satisfactions
of all the terms and conditions for exercise of the Options as set
forth in the employee benefit plans, option agreements or other
agreements governing such options. The Options were granted in
compliance with any and all applicable laws.
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(xxxii) Neither the exercise by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ of his
Options on or prior to the First Closing Date, nor the issuance by the
Company of shares of Common Stock in connection with ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇'▇ exercise of his Options will violate or conflict with the (i)
the employee benefits plans, option agreements or other agreements
governing such Options, (ii) the organizational documents of the
Company or (iii) any and all laws.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) In the case of Wedge Engineering B.V. ("WEDGE") or
First Reserve, such Selling Stockholder has, and, on the First Closing
Date hereinafter mentioned will have, valid and unencumbered title to
the Offered Securities to be delivered by such Selling Stockholder on
the First Closing Date and full right, power and authority to enter
into this Agreement and the Power of Attorney, if applicable, and the
Custody Agreement, if applicable, referred to below and to sell,
assign, transfer and deliver the Offered Securities to be delivered by
such Selling Stockholder on the First Closing Date hereunder; and upon
the delivery of and payment for the Offered Securities on the First
Closing Date hereunder the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by such
Selling Stockholder on the First Closing Date.
(ii) Subject to the last 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 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. With respect
to First Reserve and Wedge, 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 First Reserve or Wedge
11
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 First Reserve and Wedge consists of the
following information in the Prospectus under the caption "Principal
and Selling Shareholders": (1) the name and address of First Reserve or
Wedge, as the case may be, in the column captioned "Name and Address of
Beneficial Owner" and (2) the number of shares beneficially owned by
First Reserve or Wedge, as the case may be, in the column captioned
"Shares Beneficially Owned Prior to the Offering". With respect to ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the first two sentences of this paragraph do not apply
to statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by
any Underwriter through the Representatives or by First Reserve or
Wedge 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 Section 7(c) and that the only such
information furnished by First Reserve and Wedge consists of the
information in the immediately preceding sentence; provided, further,
with respect to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, that the representations and
warranties in the first two sentences of this paragraph will be
breached only to the extent that ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ had knowledge of
an untrue statement of a material fact or omission to state a material
fact required to be stated in any Registration Statement or Prospectus.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the
transactions contemplated by this Agreement.
(iv) This Agreement and the Power of Attorney, if
applicable, and the Custody Agreement, if applicable, have been duly
authorized, executed and delivered by such Selling Stockholder. Each of
the Power of Attorney, if applicable, and the Custody Agreement, if
applicable, constitutes a legally valid and binding agreement of such
Selling Stockholder and is enforceable against such Selling Stockholder
in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws relating to or affecting
creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or law).
(v) The execution, delivery and performance of this
Agreement by such Selling Stockholder and the consummation of the
transactions (including, with respect to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the
exercise of his Options contemplated herein) herein contemplated will
not conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under (A) any statute,
any rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over such Selling
Stockholder or any of its properties or operations (excluding the
matters covered by paragraph (b)(ii) above), or any agreement or
instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or to which any of the
12
properties or operations of such Selling Stockholder is subject, or (B)
the charter, by-laws, certificate of formation, partnership agreement
or other applicable governing documents (if any) of such Selling
Stockholder, except, in the case of clause (A), for such conflicts,
breaches, violations or defaults which could not, individually or in
the aggregate, 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 such Selling Stockholder of its obligations under
this Agreement (including, with respect to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ only,
the full exercise of his Options as contemplated herein), 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.
(vii) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Offered Securities and such Selling
Stockholder has not distributed and will not distribute any offering
material in connection with the offering and sale of the Offered
Securities other than any preliminary prospectus filed with the
Commission or the Prospectus or other materials, if any, permitted by
the Act or the Rules and Regulations.
(viii) The sale of the Offered Securities by such Selling
Stockholder pursuant hereto is not prompted by any material nonpublic
information concerning the Company or any of its subsidiaries which is
not set forth in the Prospectus or any supplement thereto.
(c) ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ represents and warrants to, and agrees
with, the several Underwriters that:
(i) ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, upon exercise of the Options,
and if later, on the First Closing Date hereinafter mentioned, will
have valid and unencumbered title to the Offered Securities to be
delivered by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ on the First 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
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ on the First Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on the First Closing
Date hereunder, the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ on the First Closing Date.
(ii) ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is the lawful owner of the
options to purchase up to 427,142 shares of the Company's Common Stock
which were granted by the Company on April 2, 1997, July 30, 1998, May
13, 1999, February 10, 2000 and May 15, 2000 at the exercise prices of
$9.00 $6.56, $6.56, $8.00 and $8.00, respectively (collectively, the
"Options"), and has, and on the First Closing Date will have, good and
clear title to the
13
Options free of all restrictions on their exercise (other than pursuant
to the terms of the Company employee benefit plans and option
agreements governing the Options), liens, encumbrances, security
interests, equities and claims, except as set forth in this Agreement.
(iii) ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ has the legal right and power and
all approvals required by law and under any agreement to exercise the
Options on or prior to the First Closing Date, and such exercise of
Options by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ will be done in full compliance with the
applicable provisions of the applicable Company employee benefit plans,
the applicable option agreements or any other agreements pursuant to
which such Options were granted or issued or which govern or are
applicable to the exercise of such Options. On or prior to the First
Closing Date, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ will have taken all actions and
executed all necessary documentation (including appropriate Option
Exercise Notices (as defined below)) to properly exercise his Options
in compliance with (i) the applicable Company employees benefit plans,
the applicable option agreements and other agreements governing such
Options, (ii) the organizational documents of the Company and (iii) all
applicable laws.
(iv) On or prior to the First Closing Date, ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ shall have satisfied all income and employment tax withholding
obligations related to the exercise of the Options.
(v) The agreements, contracts and instruments listed in
Schedule C hereto are all the material agreements, contracts and
instruments to which ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is a party or by which ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or any of his properties or assets are subject or bound
which relate to or are incident to (i) any capital stock of the Company
or any options or other rights with respect to any capital stock of the
Company or (ii) the sale, disposition or transfer of any capital stock
of the Company or the exercise of any options or other rights related
to any capital stock of the Company ("▇▇▇▇▇ EQUITY AGREEMENTS").
(vi) ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is not a party to, nor is ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or any of his properties or assets bound by, any order
of any court or governmental agency or body.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, each of the Selling
Stockholders, severally and not jointly, agrees to sell and the Company agrees
to issue to the Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from each Selling Stockholder and the Company, at a
purchase price of $20.662 per share, that number of Firm Securities (rounded up
or down, as determined by CSFB in its discretion, in order to avoid fractions)
obtained by multiplying the number of Firm Securities set forth opposite the
name of such Selling Stockholder and the Company in Schedule A hereto under the
caption "Number of Firm Securities to be Sold" by a fraction the numerator of
which is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total
number of Firm Securities. Unless all Firm Securities are to be purchased and
sold (or, in the case of the
14
Company Firm Securities, issued), none shall be purchased and sold (or, in the
case of the Company Firm Securities, issued).
Certificates in negotiable form (i.e. accompanied by a deed of
transfer/stock power, duly executed by each of First Reserve and Wedge and
acknowledged by the Company in accordance with its Articles of Association) for
the Offered Securities to be sold by such Selling Stockholders have been (or
will, by the close of business on June 27, 2003, be) placed in custody by each
of the First Reserve and Wedge, for delivery under this Agreement, under Custody
Agreements made with The Bank of New York, as custodian ("CUSTODIAN"). Each of
First Reserve and Wedge agrees that the shares represented by the certificates
held in custody (or that will be held in custody) for such Selling Stockholder
under its Custody Agreement are subject to the interests of the Underwriters
hereunder, that the arrangements made by such Selling Stockholder for such
custody are to that extent irrevocable, and that the obligations of such Selling
Stockholder hereunder shall not be terminated by operation of law, whether by
the death of any such individual Selling Stockholder or the occurrence of any
other event, or in the case of a trust, by the death of any trustee or trustees
or the termination of such trust. If any individual Selling Stockholder (other
than ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇) or any such trustee or trustees should die, or if any
other such event should occur, or if any of such trusts should terminate, before
the delivery of the Offered Securities hereunder, certificates for the Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Custodian on behalf of First Reserve and Wedge, in respect to Firm
Securities to be sold by each of First Reserve and Wedge, and ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, in respect of the Firm Securities to be sold by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, will
deliver their Firm Securities to the Representatives for the accounts of the
Underwriters through the facilities of The Depository Trust Company ("DTC"),
against payment of the purchase price in Federal (same day) funds by wire
transfer to accounts designated in writing by the Custodian for Firm Securities
to be sold by each of First Reserve and Wedge and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for Firm
Securities to be sold by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in each case at a bank acceptable
to CSFB. The Company, in respect of Firm Securities to be issued by the Company,
will issue the Company Firm Securities to the Representatives for the accounts
of the Underwriters through the facilities of DTC, against payment of the
purchase price in Federal (same day) funds by wire transfer to an account
designated in writing by the Company, for the Company Firm Securities to be
issued by the Company, in each case at a bank acceptable to CSFB. The time and
date of such delivery or issuance, as the case may be, and payment with respect
to the Firm Securities shall be 9:00 A.M., New York time, on July 2, 2003, or at
such other time not later than seven full business days thereafter as CSFB, the
Company and the Custodian determine, such time being herein referred to as the
"FIRST CLOSING DATE". The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFB requests at least 48 hours prior to the First Closing Date
and will be made available for checking and packaging at the office of DTC or
the Bank of New York, as its designated custodian, in New York City at least 24
hours prior to the First Closing Date.
15
In addition, upon written notice from CSFB given to the Company and
First Reserve from time to time not more than 30 days subsequent to the date of
the Prospectus, the Underwriters may purchase all or less than all of the
Optional Securities at the purchase price per Security to be paid for the Firm
Securities. First Reserve agrees to sell to the Underwriters the number of
Optional Securities specified in such notice, which amount shall not exceed the
number of shares set forth opposite the name of First Reserve in Schedule A
hereto under the caption "Number of Optional Securities to be Sold". Such
Optional Securities shall be purchased from First Reserve for the account of
each Underwriter in the same proportion as the number of Firm Securities set
forth opposite such Underwriter's name bears to the total number of Firm
Securities (subject to adjustment by CSFB to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFB on behalf of the Underwriters to First Reserve.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFB
but shall be not later than five (5) full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters through the
facilities of DTC, against payment of the purchase price in Federal (same day)
funds by wire transfer to an account at a bank reasonably acceptable to CSFB.
The certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFB requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the above
office of DTC or the Bank of New York, as its designated custodian, in New York
City at a reasonable time in advance of such Optional Closing Date.
The documents to be delivered at each Closing Date by or on behalf of
the parties hereto pursuant to Section 6 hereof will be delivered at the offices
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus. It is understood that the Underwriters will offer
the Offered Securities to persons who are established, domiciled or have their
residence in the Netherlands in compliance with the dispensations from the
Authority for the Financial Markets (AFM) granted to the Company on April 3,
2003, May 8, 2003 and June 17, 2003.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. (a)
The Company agrees with the several Underwriters and the several Selling
Stockholders that:
16
(i) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFB, subparagraph (4)) of Rule 424(b) not later than the earlier of
(A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement. The Company will advise
CSFB promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by CSFB.
(ii) The Company will advise CSFB promptly of any proposal
to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFB's consent, which shall not be unreasonably withheld; and
the Company will also advise CSFB promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Act, the Company will promptly notify CSFB of such event and will
promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither CSFB's
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 6 hereof.
(iv) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
17
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Representatives
copies of each Registration Statement (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 CSFB reasonably requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other
such documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the Underwriters
all such documents.
(vi) The Company will arrange for the qualification of the
Offered Securities for offering and sale under the laws of such
jurisdictions (other than the Netherlands) as CSFB reasonably
designates and will continue such qualifications in effect so long as
required for the distribution (provided that the Company shall not be
required to submit generally to the jurisdiction of courts in any such
jurisdiction where it is not currently so subject).
(vii) During the period of five years hereafter, the
Company will furnish to the Representatives and, upon request, to each
of the other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year;
and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act
of 1934 or mailed to stockholders, and (ii) from time to time, such
other public information concerning the Company as CSFB may reasonably
request.
(viii) For a period of 90 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFB and BAS, except (x) grants or issuances of
options, restricted shares or restricted stock units, performance
shares or performance units, or any other Securities issued pursuant to
the Company's existing compensation or employee benefit plans, as such
plans are in effect as of the date hereof or (y) the payment in
Securities to supervisory
18
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 (x) and (y) above.
(ix) The Company agrees with the several Underwriters and,
subject to Section 5(b) below, the several Selling Stockholders that
the Company will pay all expenses incident to the performance of the
obligations of the Selling Stockholders and the obligations of the
Company under this Agreement (other than expenses and disbursements of
counsel to the Selling Stockholders, underwriting fees, discounts and
commissions and document, stamp, transfer or similar taxes in respect
of the Offered Securities to be sold by the several Selling
Stockholders or in respect of the execution and delivery of this
Agreement as to such Offered Securities to be sold by the several
Selling Stockholders), including (A) any registration or filing fees
and other fees and expenses in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFB reasonably designates and the printing of memoranda relating
thereto, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with such qualification, (B) the filing fee
incident to the review by the National Association of Securities
Dealers, Inc. of the Offered Securities (and associated reasonable
legal fees), (C) fees, expenses and disbursements of counsel for the
Company and all independent certified public accountants and other
persons or entities retained by the Company, (D) any fees and expenses
for listing the Offered Securities on The New York Stock Exchange, (E)
any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities and (F)
expenses incurred in distributing preliminary prospectus and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters. Except as provided in this Section, Section 7 and Section
9, the Underwriters shall pay their own costs and expenses, including
the fees and expenses of their counsel and the expenses of advertising
any offering of the Offered Securities made by the Underwriters.
(x) The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the sale of the Offered
Securities sold by it and, with respect to the Offered Securities to be
sold by it, on the execution and delivery of this Agreement. All
payments to be made by the Company hereunder shall be made without
withholding or deduction for or on account of any present or future
taxes, duties or governmental charges whatsoever unless the Company is
compelled by law to deduct or withhold such taxes, duties or charges.
In that event, the Company shall pay such additional amounts as may be
necessary in order that the net amounts received after such withholding
or deduction shall equal the amounts that would have been received if
no withholding or deduction had been made.
(xi) The Company will honor ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇'▇ exercise
of the Options upon their proper exercise and payment, and the Company
shall provide all incidental opinions, instructions, certificates and
documentation in connection therewith required of the Company. The
Company will pay when due and will withhold all income and employment
tax obligations as required by law in connection with such exercise of
Options
19
by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇. On or prior to the First Closing Date, subject
to receipt of fully executed Option Exercise Notices (as defined below)
from ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and receipt of the aggregate option exercise
price (whether it be cash or other shares of the Company's Common Stock
owned by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇) for the Options and satisfaction of all
income and employment tax withholding obligations, the Company shall
issue and deliver to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ the Firm Securities to be sold
by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ hereunder on the First Closing Date.
(b) Each Selling Stockholder severally and not jointly agrees with
the several Underwriters and the Company that:
(i) Such Selling Stockholder will pay all expenses
incident to the performance of such Selling Stockholder under this
Agreement, including any expenses for document, stamp, transfer and
similar taxes on the sale of the Offered Securities to the Underwriters
or on the execution and delivery of this Agreement as to such Offered
Securities, any expenses of counsel to such Selling Stockholder and all
underwriting fees, discounts and commissions in respect of the Offered
Securities sold by it. In accordance with Section 3.04(a) and (b) of
the First Reserve Shareholder Agreement, dated December 28, 2000 (as
amended by an amendment thereto dated February 7, 2001), between the
Company and First Reserve (the "FUND VIII STOCKHOLDER AGREEMENT") and
Section 3.04(a) of the WEDGE Shareholder Agreement dated as of December
28, 2000 by and among Wedge Engineering B.V., the Company and certain
of the Company's other shareholders (as amended by amendments thereto
dated February 7, 2001 and March 19, 2003) (the "WEDGE STOCKHOLDER
AGREEMENT"), the Company shall be responsible for (a) the expenses to
be paid by the Company pursuant to the second sentence of the Section
3.04(b) of the Fund VIII Stockholder Agreement and (b) the first
$400,000 of Registration Expenses (as defined in the Fund VIII
Stockholder Agreement) in connection with the sale of the Offered
Securities. First Reserve and Wedge shall reimburse the Company on a
pro rata basis, for Registration Expenses incurred in excess of
$400,000 as provided in the Fund VIII Stockholder Agreement and the
WEDGE Stockholder Agreement.
(ii) Such Selling Stockholder will indemnify and hold
harmless the Underwriters against any documentary, stamp or similar
issue tax, including any interest and penalties, on the sale of the
Offered Securities sold by it and on the execution and delivery of this
Agreement. All payments to be made by such 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 such 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
Underwriters, such Selling Stockholder shall pay such additional
amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amounts that would
have been received if no withholding or deduction had been made.
20
(iii) Each Selling Stockholder agrees, from the date of
this Agreement to 90 days after the date of the public offering of the
Offered Securities, not to offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional shares of
the Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction that would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of
Securities or other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or to enter into any transaction, swap, hedge or other
arrangement, without the prior written consent of CSFB and BAS. During
such period, such Selling Stockholder will not make any demand for or
exercise any rights with respect to the registration of any securities
or any security convertible into or exercisable or exchangeable for the
Securities. The foregoing shall not prohibit transfers to Affiliates
(as defined under the Act) or family members of such Selling
Stockholder, or partnerships, trusts or other entities controlled by
family members of such Selling Stockholder, that agree in writing to be
bound by this restriction.
(c) ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ agrees with the several Underwriters and
the Company that:
(i) On or prior to the First Closing Date, ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ shall fully exercise his Options, by providing the Company, the
Bank of New York, and the Representatives with fully executed Option
exercise notices as required by the applicable employee benefit plans,
option agreements and other agreements governing or applicable to such
Options (the "OPTION EXERCISE NOTICES"). ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ will take,
or cause to be taken, all actions necessary to fully and properly
exercise his Options on or prior to the First Closing Date, including
providing all documentation (including the Option Exercise Notices),
certificates and instructions as may be reasonably requested by the
Company, the Representatives or the Bank of New York, as transfer agent
for the Company. After exercising such Options, such Option Exercise
Notices shall be irrevocable and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ will not
terminate, cancel or revoke his Option Exercise Notices with respect to
such Options, nor take any action which would result in any such
termination, cancellation or revocation of such Option Exercise Notice
or would cause the exercise of the Options not to occur.
(ii) Prior to the First Closing Date, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
shall have, or caused to have been, furnished for review by the
Representatives copies or originals of all documentation, certificates
and instructions related to the full and proper exercise of the Options
as contemplated by this Agreement.
(iii) At least two business days prior to the First Closing
Dated, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall place in custody of the Bank of New
York deeds of transfer/stock powers in original form, duly executed by
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (with medallion signature guarantees), and
acknowledged by the Company in accordance with its Articles of
Association for the Firm Shares to be sold by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
hereunder.
21
(iv) Prior to the First Closing Date, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
will deliver to the Representatives a properly completed and executed
United States Treasury Department Form W-9.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be purchased
on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholders of their obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives and the Board of Directors of the Company
shall have received a letter, dated the date of delivery thereof (which, if the
Effective Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be prior to
the filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of 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 and for the three-month
period ended March 31, 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 the three-month
period ended March 31, 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 who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
22
(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 subsequent to the execution and delivery
of this Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "PROSPECTUS"
23
shall mean the prospectus included in the Registration
Statements. All financial statements included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or such later date as shall have been consented to by CSFB. If
the Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later that 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, the time the Prospectus is printed and distributed to
any Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFB. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(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 a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of a majority in interest of the
Underwriters including the Representatives, be likely to prejudice materially
the success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealing in the
secondary market; (iv) any material suspension or material limitation of trading
in securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market; (v)
any banking moratorium declared by U.S. Federal or New York authorities; (vi)
any major disruption of settlements of securities or clearance services in the
United States; or (vii) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States or the Netherlands, any declaration
of war by Congress or any other substantial national or international calamity
or emergency if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
24
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Winston & ▇▇▇▇▇▇, 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 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;
(iv) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed and
became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was included
in the Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act;
(v) Each Registration Statement and the Prospectus and
each amendment and supplement thereto, as of their respective effective
or issue date, (other than the financial statements and related
schedules therein and other financial data derived therefrom) complied
as to form in all material respects with the requirements of the Act
and the Rules and the Regulations;
(vi) The descriptions in the Registration Statements and
Prospectus of the U.S. Internal Revenue Code of 1986, as amended, and
the rules and regulations promulgated thereunder under the heading
"Taxation - Certain United States Federal Tax Considerations" and "Risk
Factors--We Have a Risk of Being Classified as a Controlled Foreign
Corporation and Certain Shareholders Who Do Not Beneficially Own Shares
May
25
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 shareholders agreements
under the caption "Principal and Selling Shareholders - Shareholder
Agreements" insofar as such descriptions purport to constitute
summaries of legal matters or the terms of the shareholders agreements
fairly present the information with respect to such legal matters and
the terms of such shareholders agreements 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 Stockholders, Deloitte & Touche LLP,
representatives of the Underwriters and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 Stockholders), no facts
have come to the attention of such counsel which lead them to believe
that (x) any part of a Registration Statement or any amendment thereto,
as of its effective date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or (y) that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that such counsel need not express an opinion or
belief as to any financial statements and schedules and other financial
information derived therefrom or any matter of Dutch law included in or
excluded from any Registration Statement or the Prospectus.
In giving such opinions, such counsel may limit its opinion to
the Federal laws of the United States of America and the laws of the
State of Illinois, and matters specifically governed thereby.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 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
26
person the right to require the Company to file a registration
statement under the Act with respect to any Securities of the Company
owned or to be owned by such person or to require the Company to
include such Securities in the Securities registered pursuant to the
Registration Statement;
(ii) Each of the Company's U.S. subsidiaries listed on
Exhibit A has been duly incorporated or organized and is a validly
existing corporation or other entity in good standing under the laws of
the jurisdiction of its incorporation or organization, with corporate
or other power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus; and each of
the Company and its U.S. subsidiaries listed on Exhibit A is duly
qualified to transact business as a foreign corporation or other entity
in good standing in all other U.S. jurisdictions in which it owns,
leases or operates properties or in which the conduct of its business
or its ownership, leasing or operation of property requires such
qualification; and all of the outstanding shares of capital stock or
other equity interests of the Company's U.S. subsidiaries listed on
Exhibit A have been duly authorized and validly issued and are fully
paid and non-assessable and all shares or other equity interests owned
by the Company, directly or through subsidiaries, are free and clear of
any mortgage, pledge, lien, security interest, restriction upon voting
or transfer, claim or encumbrance of any kind; and there are no rights
granted to or in favor of any third party (whether acting in an
individual, fiduciary or other capacity) to acquire any such capital
stock or other equity interests, any additional capital stock or other
equity interests or any other securities of any U.S. subsidiary of the
Company listed on Exhibit A;
(iii) No consent, approval or authorization and no order,
registration or qualification of, or filing with, any non-governmental
third party (whether acting in an individual fiduciary or other
capacity) or any United States Federal or Illinois state governmental
or regulatory agency or body or, any Federal or state court is required
to be obtained or made by the Company for the consummation of the
transactions to be effected by the Company contemplated by this
Agreement, except such as have been obtained and made under the Act and
such as may be required under state or foreign securities laws in
connection with the offer and sale of the Offered Securities;
(iv) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions herein contemplated will not conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under (A) the DGCL or any Federal or Illinois
statute, rule or regulation applicable to the Company (other than
Federal, state or foreign securities or "blue sky" laws and the rules
and regulations of the NASD, as to which such counsel need express no
opinion) or any order, judgment or decree of any Federal or state
governmental agency or body or any U.S. court having jurisdiction over
the Company or any subsidiary of the Company or any of their properties
or operations, or any material agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company
27
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;
28
(viii) Such counsel does not know of any legal or
governmental proceedings required to be described in the Registration
Statements or the Prospectus which are not described as required or of
any contracts or documents of a character required to be described in
the Registration Statements or the Prospectus or to be filed as
exhibits to the Registration Statements which are not described or
filed as required; and
Such counsel shall also state that he or attorneys acting
under his direction and supervision have participated in conferences
with officers and other representatives of the Company and the Selling
Stockholders, special counsel for the Company, representatives of the
independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and such counsel
has been advised of such conferences and has had the opportunity to
review the contents of the Registration Statement, and, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and the Prospectus, such counsel shall
advise that, on the basis of the foregoing, no facts have come to the
attention of such counsel (or the attorneys acting under his direction
and supervision) that lead him to believe that the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date and as of
such Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need not express any comment with respect
to the financial statements and schedules and other financial
information derived therefrom or any matter of Dutch law included in or
excluded from any Registration Statement or the Prospectus).
In giving such opinions, such counsel may limit its opinion to laws of
the State of Illinois, the DGCL and the Federal laws of the United States of
America, and matters specifically governed thereby.
(f) The Representatives shall have received an opinion or
opinions, dated such Closing Date, of De Brauw Blackstone Westbroek N.V. and
P.C., Netherlands counsel for the Company, to the effect that:
(i) The Company has been incorporated and is existing as
a limited liability company (naamloze vennootschap) under Dutch law;
the Company has the corporate power to conduct any business which (i)
falls within the objects clause of its Articles of Association and (ii)
is in its corporate interest;
(ii) Chicago Bridge & Iron Company B.V. ("CBICBV") has
been incorporated and is existing as a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid) under
Dutch law, and has the corporate power to conduct any business which
(i) falls within the objects clause of its Articles of Association and
(ii) is in
29
its corporate interest. All of the issued shares in the share capital
of CBICBV have been duly authorized and validly issued in accordance
with Dutch law and are fully paid and non-assessable (and accordingly,
no obligation other than to pay up the nominal amount of a share may be
imposed upon a shareholder against his will even by an amendment of the
articles of association of CBICBV); according to CBICBV's shareholder
register, the Company is the sole shareholder of CBICBV and no rights
of pledge or rights of usufruct exist in respect of CBICBV's shares;
(iii) The Offered Securities to be delivered on such
Closing Date have been duly authorized and validly issued in accordance
with Dutch law and are fully paid and non-assessable (and accordingly,
no obligation other than to pay up the nominal amount of a share may be
imposed upon a shareholder against his will even by an amendment of the
articles of association of the Company); no preemptive rights exist
with respect to the Offered Securities;
(iv) According to the Company's shareholders register, the
Offered Securities are free of rights of pledge (pandrecht) and rights
of usufruct (vruchtgebruik);
(v) [Opinion to be given at the First Closing] Upon the
placement (plaatsing) of the Company Firm Securities with CEDE & CO.
and the acceptance of the Company Firm Securities by CEDE & CO. and
payment therefor to the Company, as provided in the Underwriting
Agreement, the Company Firm Securities will have been validly issued to
CEDE & CO. in accordance with Dutch law, free from and clear of all
liens, claims or other encumbrances;
(vi) [Opinion to be given at the First Closing] Upon (i)
the due execution by a Selling Stockholder of the relevant deed of
transfer relating to the Firm Securities (other than the Company Firm
Securities) to be sold by such Selling Stockholder to the Underwriters
pursuant to this Agreement, (ii) the delivery by such Selling
Stockholder to the Bank of New York (the "TRANSFER AGENT") of the share
certificates issued for such Firm Securities (other than the Company
Firm Securities) and acknowledgement by the Company by its endorsement
on the share certificates for such Firm Securities (other than the
Company Firm Securities) and (iii) the acceptance of the transfer of
such Firm Securities (other than the Company Firm Securities) by CEDE &
CO. and payment therefor to such Selling Stockholder as provided in
this Agreement, title to such Firm Securities (other than the Company
Firm Securities) will validly have been transferred to CEDE & CO. in
accordance with Dutch law, free from and clear of all liens, claims or
other encumbrances;
(vi) [Opinion to be given at the Optional Closing] Upon
(i) the due execution by First Reserve of the relevant deed of transfer
relating to the Optional Securities to be sold by First Reserve to the
Underwriters pursuant to this Agreement, (ii) the delivery by First
Reserve to the Transfer Agent of the share certificates issued for such
Optional Securities and acknowledgement by the Company by its
endorsement on the share certificates for such Optional Securities and
(iii) the acceptance of the transfer of such
30
Optional Securities by CEDE & CO. and payment therefor to First Reserve
as provided in this Agreement, title to such Optional Securities will
validly have been transferred to CEDE & CO. in accordance with Dutch
law, free from and clear of all liens, claims or other encumbrances;
(vii) 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;
(viii) 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;
(ix) 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;
(x) 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;
(xi) Under Dutch law, the Company has taken all necessary
corporate action to submit to the jurisdiction of any United States
federal or state courts in the State of New York, County of New York,
and to appoint CT Corporation System as the authorized agent of the
Company for the purpose described in Section 15 hereof; under Dutch
law, in proceedings in the State of New York, County of New York, the
law of the State of New York determines the validity, binding effect
and enforceability against the Company of the jurisdiction clause
contained in Section 15 of this Agreement. A judgment rendered by a
court in the State of New York will not be recognized and enforced by
the Dutch courts. However, if a person has obtained a final and
conclusive judgment rendered by a federal or state court in the State
of New York (the "FOREIGN COURT") which is enforceable in the State of
New York (the "FOREIGN JUDGMENT") and files his claim with the
competent Dutch court, the Dutch court will generally give binding
effect to the foreign judgment insofar as it finds that the
jurisdiction of the foreign court has been based on grounds which are
internationally acceptable and that proper legal procedures have been
observed and unless the foreign judgment contravenes Dutch public
policy;
(xii) Under Dutch law, the Company is not entitled to
immunity from legal proceedings nor are its assets immune from
execution;
(xiii) Under Dutch law, the Dutch courts have jurisdiction
over any civil claims against the Company, subject to any applicable
treaties and unless the Company has properly invoked the exclusive
jurisdiction of a foreign court or arbitral tribunal. Under
31
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;
(xiv) The descriptions in the Prospectus under the last two
paragraphs of the heading "Price Range of Common Stock and Dividend
Policy" on page 14 and 15, and under the heading "Description of
Capital Stock," in each case to the extent they are descriptions of
Dutch law, the terms of the Offered Securities according to the
Company's Articles of Association or the Company's Articles of
Association, are correct in all material respects;
(xv) 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;
(xvi) 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,
32
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.
(xvii) 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;
(xviii) Save for capital tax which will be payable by the
Company, no Netherlands registration tax, transfer tax, stamp duty or
any other similar documentary tax or duty will be payable by or on
behalf of the Underwriters to the Netherlands or to any political
subdivision or taxing authority thereof or therein in respect of or in
connection with (A) the sale and delivery by the Company of the Offered
Securities to or for the respective accounts of the Underwriters or (B)
the sale and delivery outside the Netherlands by the Underwriters of
the Offered Securities to the initial purchasers thereof in the manner
contemplated herein; and
(xix) The descriptions contained in the Prospectus on page
12 and 13 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," and on
page 50 and further under the captions "Taxation - Dutch Taxation for
Non-Resident Shareholders", "Taxation - Dutch Taxation for Resident
Shareholders," and "Taxation - Individual and Corporate Income Tax" to
the extent they are descriptions of Dutch law, are correct.
33
In giving such opinion, such counsel may rely on the opinions of Winston &
▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. referred to above as to matters of laws other
than the laws of the Netherlands.
(g) The Representatives shall have received the opinion, as
contemplated in the Custody Agreement executed and delivered by WEDGE., and an
opinion, dated such Closing Date, of Van Doorne, Netherlands counsel for WEDGE,
to the effect that:
(i) Such Selling Stockholder has the corporate power and
authority to execute this Agreement and the Custody Agreement, to
perform its obligations thereunder and to consummate the transactions
contemplated in this Agreement and the Custody Agreement;
(ii) Such Selling Stockholder has taken all necessary
corporate action to authorize the execution of this Agreement, the
Power of Attorney and the Custody Agreement, the performance of its
obligations thereunder and the consummation of the transactions
contemplated therein;
(iii) No authorizations, consents, approvals, licenses,
registrations, or exemptions from or filings with, governmental,
judicial or public bodies or authorities in the Netherlands, which have
not been obtained, are required under Netherlands law for the execution
of the Custody Agreement or this Agreement by such Selling Stockholder,
the performance of the obligations of such Selling Stockholder under
the Custody Agreement or this Agreement and the consummation of the
transactions contemplated in the Custody Agreement or this Agreement;
(iv) If applicable, the execution, delivery and
performance of the Custody Agreement and this Agreement by such Selling
Stockholder and the consummation of the transactions contemplated in
the Custody Agreement and this Agreement do not conflict with or result
in a violation of (i) any provision of the Articles of Association
(statuten) of such Selling Stockholder or (ii) any existing provision
of, or rule or regulation under, the law of the Netherlands, applicable
to companies generally;
(v) Each of this Agreement, the Power of Attorney and the
Custody Agreement, when duly executed under applicable law (other than
Dutch Law) on behalf of such Selling Stockholder, constitutes valid and
legally binding obligations of such Selling Stockholder enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and
(vi) Upon (i) the due execution by such Selling
Stockholder of the relevant deed of transfer relating to the Firm
Securities to be sold by such Selling Stockholder to the Underwriters
pursuant to this Agreement, (ii) the delivery by such Selling
Stockholder to the Transfer Agent of the share certificates issued for
such Firm Securities and acknowledgement by the Company by its
endorsement on the share certificates for such Offered Securities and
(iii) the acceptance thereof by CEDE & CO. and payment
34
therefor to such Selling Stockholder as provided in this Agreement,
such Firm Securities will validly have been transferred to CEDE & CO.
in accordance with Dutch law, free from and clear of all liens, claims
or other encumbrances;
(h) The Representatives shall have received the opinion, as
contemplated in the Custody Agreement executed and delivered by WEDGE, and an
opinion, dated such Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., U.S. counsel for WEDGE,
to the effect that:
(i) No consent, approval, authorization and no order,
registration or qualification of, or filing with, any third party
(whether acting in an individual, fiduciary or other capacity) or any
Texas or Federal governmental agency or body or any Texas or Federal
court is required to be obtained or made by such Selling Stockholder
for the consummation of the transactions contemplated by the Custody
Agreement and this Agreement, except such as have been obtained and
made under the Act and such as may be required under state securities
laws in connection with the offer and sale of the Firm Securities,
except for consents, approvals, authorizations, orders, registrations,
qualifications or filings the failure to obtain or make would not,
individually or in the aggregate, have a material adverse effect on the
consummation of the transactions contemplated by this Agreement;
(ii) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of the
transactions therein and herein contemplated will not conflict with or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, to the best knowledge of such counsel,
any Texas or Federal statute, any rule, regulation or order of any
Texas or Federal governmental agency or body or any Texas or Federal
court having jurisdiction over such Selling Stockholder or any of its
properties or any agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the properties of such Selling Stockholder is subject,
except for such conflicts, breaches, violations, or defaults which
would not, individually or in the aggregate, have a material adverse
effect on the consummation of the transactions contemplated by this
Agreement;
(iii) This Agreement and the Custody Agreement with respect
to such Selling Stockholder have been duly executed and delivered by
such Selling Stockholder and the Custody Agreement constitutes a valid
and legally binding obligation of such Selling Stockholder enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles (whether considered in a proceeding in equity
or at law), and an implied covenant of good faith and fair dealing; and
(iv) The Power of Attorney has been duly executed and
delivered by such Selling Stockholder and constitutes a valid and
legally binding obligation of the Selling Stockholder enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
of general
35
applicability relating to or affecting creditors' rights, general
equity principles (whether considered in a proceeding in equity or at
law), and an implied covenant of good faith and fair dealing.
(v) Upon (i) payment for the Firm Securities to be sold
by such Selling Shareholder pursuant to this Agreement, (ii) physical
delivery of the certificates representing such Firm Securities to the
Transfer Agent, and registration of such Firm Securities in the name of
DTC upon registration of transfer by the issuer thereof, (iii)
registration by book-entry of the credit to CSFB's securities accounts
with DTC of the purchase of such Firm Securities in the records of DTC,
and (iv) registration by book-entry of the credit to the other
Underwriters' securities accounts of their purchase of such Firm
Securities in the records of any other "securities intermediary" (as
defined in Section 8-102(a)(14) of the New York UCC) which acts as a
"clearing corporation" (as defined in Section 8-102(a)(5) of the New
York UCC) or maintains "securities accounts" (as defined in Section
8-501(a) of the New York UCC) with respect to the transfer of such Firm
Securities to the Underwriters, then the Underwriters will become the
"entitlement holders" (as defined in Section 8-102(a)(7) of the New
York UCC) of such Firm Securities, free of any "adverse claims" (as
defined in Section 8-102(a)(1) of the New York UCC).
(i) The Representatives shall have received the opinion, as
contemplated in the Custody Agreement executed and delivered by First Reserve,
and an opinion, dated such Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S.
counsel for First Reserve, to the effect that:
(i) Such Selling Stockholder has the limited partnership
power and authority to execute this Agreement and the Custody
Agreement, to perform its obligations thereunder and to consummate the
transactions contemplated in this Agreement and the Custody Agreement;
(ii) Such Selling Stockholder has taken all necessary
limited partnership action to authorize the execution of this Agreement
and the Custody Agreement, the performance of its obligations
thereunder 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 such Selling Stockholder for the consummation of the
transactions contemplated by the Custody Agreement and this Agreement,
except such as have been obtained and made under the Act and such as
may be required under state securities laws in connection with the
offer and sale of the Offered Securities (as to which laws we express
no opinion), except for consents, approvals, authorizations, orders,
registrations, qualifications or filings the failure to obtain or make
would not, individually or in the aggregate, have a material adverse
effect on the consummation of the transactions contemplated by this
Agreement;
36
(iv) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of the
transactions therein and herein contemplated will not conflict with or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (x) any provision of such Selling
Stockholder's agreement of limited partnership or any other
organizational documents of such 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 such Selling Stockholder or any
of its properties or any agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the properties of such 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 and the Custody Agreement with respect
to such Selling Stockholder have been duly executed and delivered by
such Selling Stockholder and the Custody Agreement constitutes valid
and legally binding obligations of such Selling Stockholder enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and
(vi) Upon (i) payment for the Offered Securities to be
sold by such Selling Shareholder 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
CSFB'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 Underwriters' 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).
(j) The Representatives shall have received the an opinion, dated
such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, U.S. counsel for ▇▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇, to the effect that:
(i) No consent, approval, authorization order of, and no
registration, qualification, or filing with, any governmental agency or
body is required to be obtained or
37
made by such Selling Stockholder for the consummation by such Selling
Stockholder of the transactions contemplated by this Agreement, except
such as is required under the Act and the Rules and Regulations and as
may be required under state 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 (as to
which laws, rules and regulations we express no opinion), and except
for consents, approvals, authorizations, orders, registrations,
qualifications or filings which have been obtained or made or the
failure to obtain or make would not, individually or in the aggregate,
have a material adverse effect on the consummation of the transactions
contemplated by this Agreement;
(ii) The execution, delivery and performance by such
Selling Stockholder of this Agreement and the consummation by such
Selling Stockholder of the transactions therein and herein contemplated
will not to the best of our knowledge, (A) violate any New York or
Federal statute, or any rule or regulation of any Federal or New York
governmental agency or body, normally applicable to transactions of the
type contemplated by this Agreement (other than Federal and New York
securities laws, rules and regulations, as to which we express no
opinion, including, without limitation, the anti-fraud provisions
thereof) or (B) result in a breach of or default under any agreement or
instrument to which such Selling Stockholder is a party, or by which
such Selling Stockholder or his properties are bound, and which is
identified on a schedule to such opinion;
(iii) This Agreement has been duly executed and delivered
by such Selling Stockholder; and
(iv) Upon (i) payment for the Offered Securities to be
sold by such Selling Shareholder 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
CSFB'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 Underwriters' 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, and assuming each of the Underwriters acquire the Offered
Securities without notice of any "adverse claims" (as defined in
Section 8-102(a)(1) of the New York UCC), 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).
(k) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
U.S. counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the Registration Statements, the Prospectus and other
related matters as the Representatives reasonably
38
may require, and the Selling Stockholders and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(l) The Representatives shall have received from Loyens & Loeff,
Dutch counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company and other related matters
as the Representatives may reasonably require, and the Selling Stockholders and
the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(m) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company and Chicago Bridge & Iron Company
in which such officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of the
Company in this Agreement are true and correct; the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order suspending
the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission; the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) or Rule 462(b) was filed pursuant to
Rule 462(b), including payment of the applicable filing fee in accordance with
Rule 111(a) or (b) under the Act, prior to the time the Prospectus was printed
and distributed to any underwriter; and, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as described in such
certificate.
(n) The Representatives and the Board of Directors of the Company
shall have received a letter, dated such Closing Date, of Deloitte & Touche LLP,
which meet the requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more than three
days prior to such Closing Date for the purposes of this subsection.
(o) The Custodian will deliver to CSFB a letter stating that they
will deliver to each Selling Stockholder a United States Treasury Department
Form 1099 (or other applicable form or statement specified by the United States
Treasury Department regulations in lieu thereof) on or before January 31 of the
year following the date of this Agreement.
(p) The Representatives shall have received legal opinions, good
standing certificates or other evidence reasonably satisfactory to them of the
incorporation, existence and good standing of the foreign material subsidiaries.
(q) The Representatives shall have received a Certificate of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 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
39
Registration Statement and of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ with respect to the financial
statements and other financial information.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFB may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by (x) any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below and (y) any Selling
Stockholder specifically for use therein, it being understood that the only such
information furnished by such Selling Stockholder consists of the information
described in Section 2(b)(ii) hereof; and provided, further, that with respect
to any untrue statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Offered Securities concerned, to the extent that a prospectus relating to
such Offered Securities was required to be delivered by such Underwriter under
the Act in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Offered Securities to such person, a copy of the Prospectus (exclusive of
material incorporated by reference), if the Company had previously furnished
copies thereof to such Underwriter.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
40
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that such Selling Stockholder will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by an Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below; provided, further,
that First Reserve and Wedge 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 First Reserve or Wedge,
as the case may be, it being understood that the only such information furnished
by First Reserve and Wedge consists of the information described in Section
2(b)(ii) hereof, or contained in a representation or warranty given by First
Reserve or Wedge, as the case may be, in this Agreement or the Custody
Agreement; provided, further, that ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be subject to
liability under this paragraph only to the extent that ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ had
knowledge of any untrue statement or alleged untrue statement or omission or
alleged omission in any Registration Statement, the Prospectus, any amendment or
supplement thereto or any preliminary prospectus; and provided, further, that
with respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (b) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference), 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
such Underwriter; and provided, further, that the aggregate liability of each
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 such Selling Stockholder from
the sale of Securities sold by such Selling Stockholder hereunder.
In addition, the Company and each of the Underwriters agree
with ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ that any claim of any such Underwriter (or any such
Underwriter's partners, directors or controlling persons) against ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ for indemnification, reimbursement or
41
advancement of expenses pursuant to this Section 7 or for breach of any
representation or warranty in Section 2(b)(ii) hereof shall first be sought by
such Underwriter to be satisfied in full by the Company and shall be satisfied
by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ only to the extent the Company shall not have paid such
claim in full, or be otherwise fully satisfying its indemnification obligations
with respect to such claim (by assuming the defense of any proceeding giving
rise to such claim or otherwise as set forth in this Section 7), for any reason
within 30 days following the date requested in accordance with the terms of this
Agreement; provided however, that if any time thereafter the Company is no
longer fully satisfying its indemnification obligations with respect to such
claim, such Underwriters may immediately bring such claim against ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇. The Company and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ may agree, as among themselves and
without limiting the rights of the Underwriters under this Agreement, as to the
respective amounts of such liability for which they each shall be responsible,
including, without limitation, allocating between the Company and ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ the liability resulting from a breach of the representations and
warranties of the Company and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ hereunder.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder, its directors and officers and each person, if any, who
controls such Selling Stockholder against any losses, claims, damages or
liabilities to which the Company or such Selling Stockholder may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph, the material regarding
stabilizing, over-allotment and syndicate covering transactions and penalty bids
appearing in the eleventh paragraph and the matters described in the twelfth
paragraph, in each case under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be
42
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that any indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to conflicts of interests
between them. Notwithstanding any such conflict, it is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (i) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Underwriters and all
persons, if any, who control any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section and (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Selling Stockholders and all
persons, if any, who control any Selling Stockholder within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons of any Underwriters, such firm shall be designated in
writing by CSFB. In the case of any such separate firm for the Company, and such
directors officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Stockholders and such control persons of the Selling Stockholders,
such firm shall be designated in writing by the Selling Stockholders. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party. No indemnifying party shall be
liable for any settlement of any action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability (to the extent set
forth in this Section 7 as applicable) by reason of such settlement or judgment.
Notwithstanding the preceding sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying party agrees it shall be
liable for any settlement effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30
43
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. Notwithstanding the provisions of this subsection, no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint. The Selling Stockholders' obligations in
this subsection (e) to contribute are several in proportion to the respective
amount of net proceeds from the offering received by each such Selling
Stockholder and are not joint.
(f) The obligations of the Company and the Selling Stockholders
under this Section shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have
44
and shall extend, upon the same terms and conditions, to each director of the
Company or any Selling Stockholder, to each officer of the Company who has
signed a Registration Statement and to each person, if any, who controls the
Company or a Selling Stockholder within the meaning of the Act.
(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 Stockholders as set forth in the Fund VIII Stockholder Agreement and the
WEDGE Stockholder Agreement.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
CSFB may make arrangements satisfactory to the Selling Stockholders or the
Company, as the case may be, for the purchase of such Offered Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase on such Closing Date. If any Underwriter or Underwriters so
default and the aggregate number of shares of Offered Securities with respect to
which such default or defaults occur exceeds 10% of the total number of shares
of Offered Securities that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to CSFB and the Selling Stockholders
or the Company, as the case may be, for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Stockholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder
45
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv), (v), (vi) or (vii) of Section 6(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telecopied and
confirmed to the Representatives, c/o Credit Suisse First Boston Corporation,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, 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, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention Secretary or, if sent to the Selling Stockholders or any of them, will
be mailed, delivered or telecopied and confirmed to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. c/o
WEDGE Group Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and to First Reserve Fund VIII, L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ for First Reserve and to ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chicago Bridge & Iron Company N.V. c/o Chicago Bridge and Iron
Company, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ for ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; provided, however, that
any notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFB or BAS will be binding upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD APPLY THE LAW OF ANY OTHER
JURISDICTION.
15. SUBMISSION TO JURISDICTION.
(a) The Company hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding
46
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Company appoints CT Corporation System as its authorized agent in
the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service of process upon
such agent, and written notice of said service to the Company by the person
serving the same to the address provided in Section 10, shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. The Company may from time to time appoint one or more successor
agents and further agrees to take any and all action as may be necessary to
maintain such designation and appointment of such an agent in full force and
effect for a period of seven years from the date of this Agreement.
(b) Each of Wedge, First Reserve and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 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. Each of Wedge, First Reserve and ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 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 such Selling Stockholder by the person serving
the same to the address provided in Section 10, shall be deemed in every respect
effective service of process upon such Selling Stockholder in any such suit or
proceeding. Each of Wedge, First Reserve and Mr, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ agrees to take
any and all action as may be necessary to maintain such designation and
appointment of such an agent in full force and effect for a period of seven
years from the date of this Agreement.
16. FOREIGN CURRENCY JUDGMENTS. The obligation of the Company or
any Selling Stockholder in respect of any sum due to any Underwriter shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by such
Underwriter of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Underwriter may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
such Underwriter hereunder, the Company or such Selling Stockholder, as the case
may be, agree, as a separate obligation and notwithstanding any such judgment,
to indemnify such Underwriter against such loss. If the United States dollars so
purchased are greater than the sum originally due to such Underwriter hereunder,
such Underwriter agrees to pay to the Company or such Selling Stockholder, as
the case may be, an amount equal to the excess of the dollars so purchased over
the sum originally due to such Underwriter hereunder.
47
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
SELLING STOCKHOLDERS
FIRST RESERVE FUND VIII, L.P.
By its General Partner, First Reserve GP
VIII, L.P.
By its General Partner, First Reserve
Corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Duly authorized signatory
WEDGE ENGINEERING B.V.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------------
Duly authorized signatory
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
COMPANY
CHICAGO BRIDGE & IRON COMPANY N.V.
By: Chicago Bridge & Iron Company B.V.,
as its Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
[Signature Page - Underwriting Agreement]
48
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇ BROTHERS INC.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
FIRST ALBANY CORPORATION
HIBERNIA SOUTHCOAST CAPITAL
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By CREDIT SUISSE FIRST BOSTON LLC
By: s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
[Signature Page - Underwriting Agreement]
49
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES
SELLER TO BE SOLD TO BE SOLD
--------------------------------- --------------- ----------
First Reserve Fund VIII, L.P. 5,522,014 1,288,881
WEDGE Engineering B.V. 1,705,528
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 365,000
Chicago Bridge & Iron Company N.V. 1,000,000
Total............................... 8,592,542 1,288,881
--------- ---------
50
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
▇▇▇▇▇▇ CBI, Limited Canada
CB&I Constructors, Inc. Texas
▇▇▇▇-▇▇▇▇▇ 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
51
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC............... 3,265,168
Banc of America Securities LLC............... 2,491,837
▇▇▇▇▇▇ Brothers Inc.......................... 859,253
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp....................... 687,403
First Albany Corporation..................... 429,627
Hibernia Southcoast Capital.................. 429,627
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc................... 429,627
Total........................................ 8,592,542
=========
52
SCHEDULE C
▇▇▇▇▇ AGREEMENTS
1. Chicago Bridge & Iron 1997 Long-Term Incentive Plan, adopted
January 17, 1997 and amended through May 1, 2002
2. Agreement and Acknowledgment of Nonqualified Stock Option
Grant under 1997 Long-Term Incentive Plan, dated as of April 2, 1997, by ▇▇▇▇▇▇
▇. ▇▇▇▇▇
3. Agreement and Acknowledgment of Nonqualified Stock Option
Grant under 1997 Long-Term Incentive Plan, dated as of July 30, 1998, by ▇▇▇▇▇▇
▇. ▇▇▇▇▇
4. Agreement and Acknowledgment of Nonqualified Stock Option
Grant under 1997 Long-Term Incentive Plan, dated as of May 13, 1999, by ▇▇▇▇▇▇
▇. ▇▇▇▇▇
5. Agreement and Acknowledgment of Nonqualified Stock Option
Grant under 1997 Long-Term Incentive Plan, dated as of February 10, 2000, by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
6. Agreement and Acknowledgment of Performance Share Grant under
1997 Long-Term Incentive Plan, dated as of September 10, 1998, by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇
7. Agreement and Acknowledgment of Performance Share Grant under
1997 Long-Term Incentive Plan, dated as of May 13, 1999, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
8. Chicago Bridge & Iron 1999 Long-Term Incentive Plan, adopted
May 1, 1999 and amended through May 1, 2002
9. Agreement and Acknowledgment of Nonqualified Stock Option
Grant under 1999 Long-Term Incentive Plan, dated as of May 15, 2000, by ▇▇▇▇▇▇
▇. ▇▇▇▇▇
10. Agreement and Acknowledgment of Nonqualified Stock Option
Grant under 1999 Long-Term Incentive Plan, dated as of December 28, 2000, by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
11. Agreement and Acknowledgment of Nonqualified Stock Option
Grant under 1999 Long-Term Incentive Plan, dated as of February 21, 2002, by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
12. Agreement and Acknowledgment of Nonqualified Stock Option
Grant under 1999 Long-Term Incentive Plan, dated as of February 27, 2003, by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
13. Agreement and Acknowledgment of Performance Share Grant under
1999 Long-Term Incentive Plan, dated as of May 15, 2000, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
14. Agreement and Acknowledgment of Performance Share Grant under
1999 Long-Term Incentive Plan, dated as of February 27, 2003, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
53
15. Letter Agreement between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Praxair, Inc.
dated February 26, 1997
16. Amendment and Restatement of Chicago Bridge & Iron Company
Management Defined Contribution Plan, dated as of September 1, 1999
17. First Amendment of Chicago Bridge & Iron Company Management
Defined Contribution, dated as of February 21, 2002
18. Second Amendment of Chicago Bridge & Iron Company Management
Defined Contribution Plan, dated as of May 29, 2003
19. Agreement, dated as of September 1, 1999, by and between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Chicago Bridge & Iron Company N.V.
20. Agreement, dated as of February 21, 2002, by and between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Chicago Bridge & Iron Company N.V.
21. Chicago Bridge & Iron Company Change of Control Severance
Agreement, dated as of October 13, 2000, by and among Chicago Bridge & Iron
Company N.V., Chicago Bridge & Iron Company, Chicago Bridge & Iron Company
(DELAWARE) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
22. Shareholder Agreement, dated as of December 28, 2000, among
WEDGE Group Incorporated, Chicago Bridge & Iron Company N.V., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
23. Amendment to Shareholder Agreement, dated as of February 7,
2001, among WEDGE Group Incorporated, Chicago Bridge & Iron Company N.V., ▇▇▇▇▇▇
▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
24. Amendment No. 2 to Shareholder Agreement, dated as of March
19, 2003, among WEDGE Group Incorporated, Chicago Bridge & Iron Company N.V. and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
25. Shareholder Agreement, dated as of December 28, 2000, among
First Reserve Fund VIII L.P., Chicago Bridge & Iron Company N.V., ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
26. Amendment to Shareholder Agreement, dated as of February 7,
2001, among First Reserve Fund VIII L.P., Chicago Bridge & Iron Company N.V.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
54