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EXHIBIT 99(H)
[Execution]
AMENDMENT TO SHAREHOLDER AGREEMENT
This AMENDMENT TO SHAREHOLDER AGREEMENT ("Amendment") is dated as of
February 7, 2001 by and among FIRST RESERVE FUND VIII, L.P., a Delaware limited
partnership ("FRF"), CHICAGO BRIDGE & IRON COMPANY N.V., a company organized
under the laws of the Netherlands ("CB&I"), and certain shareholders of CB&I.
WITNESSETH:
WHEREAS, FRF and CB&I are parties to that certain Shareholder Agreement
dated as of December 28, 2000 relating to the shares of common stock, par value
NLG .01 per share, of CB&I ("CB&I Stock") owned by FRF (the "Shareholder
Agreement");
WHEREAS, FRF and its Affiliates currently beneficially own 4,935,451
shares of CB&I Stock, which represents approximately 27.72% of the outstanding
CB&I Stock;
WHEREAS, in order to facilitate the acquisition by CB&I of certain
assets of the engineering and construction and water divisions of Pitt-Des
Moines, Inc. ("PDM"), a transaction which the Supervisory Board has determined
to be in the best interests of, and of significant potential benefit, to CB&I,
its shareholders and other constituencies, FRF is willing to assist in the
financing for such acquisition by purchasing additional shares of CB&I Stock
pursuant to that certain Stock Purchase Agreement of even date herewith (the
"FRF Purchase Agreement"); and
WHEREAS, in order to induce and allow FRF to enter into the FRF
Purchase Agreement and to provide such funding to CB&I for the purpose of
consummating the PDM acquisition, the parties are entering into this Amendment;
NOW THEREFORE, in consideration of the premises herein contained, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
I. Defined Terms
Each capitalized term used herein but not otherwise defined herein
shall have the meaning ascribed to such term in the Shareholder Agreement.
The following defined terms are added to Section 1.01 of the
Shareholder Agreement:
"'General Shareholders' means the shareholders of CB&I other
than FRF and WGI and their respective Affiliates and Associates.
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'Opposed Transaction' means any (i) Business Combination, (ii)
Recapitalization or (iii) other transaction that involves the issuance
of CB&I Stock that, in the case of a transaction referred to in (i),
(ii) or (iii), both of the FRF Designees then serving on the
Supervisory Board have voted against at the Supervisory Board level.
'PDM Shares' means (i) the 1,623,846 registered shares of CB&I
Stock to be issued to FRF on February 7, 2001 and (ii) the up to
501,598 shares of CB&I Stock issuable to FRF pursuant to the Purchase
Warrant and the Additional Warrant (as those terms are defined in the
Stock Purchase Agreement dated February 7, 2001 between CB&I and FRF)."
II. Amendment of Shareholder Agreement
2.1 Section 2.01(a) of the Shareholder Agreement is hereby amended in
its entirety to read as follows:
"(a) acquire, offer to acquire, announce an intention to acquire,
solicit an offer to sell or agree to acquire by purchase or otherwise,
any Securities, except (i) as a result of a stock split, stock dividend
or Recapitalization approved by the Supervisory Board, (ii) in
connection with a Business Combination approved by the Supervisory
Board, (iii) as funding for the acquisition by CB&I of certain assets
of Pitt-Des Moines, Inc. ("PDM") relating to PDM's engineering and
construction and water divisions, if, as a result of the transactions
contemplated thereby, the total number of shares of Voting Securities
beneficially owned (including as a member of a group, regardless of
whether such beneficial ownership is disclaimed) by FRF and its
Affiliates and Associates does not, after giving effect to such
transactions, exceed 7,060,895 shares, which is less than 30% of the
total number of shares of Voting Securities outstanding (including the
shares issued or to be issued in such transactions), or (iv) if, as a
result of such acquisition of Voting Securities, FRF and its Affiliates
and Associates would beneficially own (including as a member of a
group, regardless of whether such beneficial ownership is disclaimed)
in the aggregate no more than 10.1% of the total number of Voting
Securities outstanding;"
2.2 The first sentence of Section 2.02(a) of the Shareholder Agreement
is hereby amended to add the following proviso at the end of such sentence
(following the second parenthetical and before the period):
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"; provided, however, that in the case of an Opposed Transaction, FRF
and its Affiliates shall be permitted to vote their PDM Shares in the
same proportion as the votes of the General Shareholders who vote upon
the Opposed Transaction."
2.3 The first sentence of Section 2.03 is hereby amended to add a
proviso at the end of such sentence (following the phrase "not contemplated by
this Agreement" and before the period):
"; and provided further, that in the case of an Opposed Transaction,
FRF and its Affiliates shall be permitted to vote their PDM Shares in
the same proportion as the votes of the General Shareholders who vote
upon the Opposed Transaction."
2.4 A new Section 2.04 entitled "Representations of FRF" is hereby
inserted after Section 2.03 at the end of Article II of the Shareholder
Agreement to read as follows:
"Section 2.04 Representations of FRF. FRF has previously
provided to CB&I a true and complete copy of its Schedule 13D dated
January 8, 2001 filed with the Commission relating to FRF's beneficial
ownership of CB&I Stock. Neither WGI, PDM, nor any Affiliate of any of
such Persons known to FRF (all such Persons and their Affiliates are
collectively hereinafter referred to as "Significant CB&I
Shareholders"), is an Affiliate or Associate of FRF; neither FRF nor
any of FRF's Affiliates or Associates has any arrangement, contract,
understanding or relationship with any of such Significant CB&I
Shareholders with respect to voting power or investment power (which
terms shall have the meanings ascribed to such terms under Rule
13d-3(a) under the Exchange Act) with respect to any Voting Securities,
and FRF further specifically confirms that it will observe all
restrictions set forth in Section 2.01, including subsections (g) and
(i) thereof, to the extent such restrictions prohibit any such
arrangement, contract, understanding or relationship by FRF or its
Affiliates or Associates with WGI, PDM or any other Significant CB&I
Shareholder. Neither FRF nor any of its Affiliates or Associates has in
the past had any arrangement, contract, understanding or relationship
with WGI or PDM (or any of their respective Affiliates known to FRF)
with respect to voting power or investment power (which terms shall
have the meanings ascribed to such terms under Rule 13d-3(a) under the
Exchange Act) relating to the securities of CB&I."
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III. Consent to Transaction.
CB&I's Supervisory Board has, and CB&I hereby does, consent to the FRF
Purchase Agreement and this Amendment and waives any restrictions in the
Shareholder Agreement that might restrict either (i) FRF's ability to enter into
or consummate the transactions contemplated by the FRF Purchase Agreement,
including the purchase and exercise of the Purchase Warrant and the Additional
Warrant, or this Amendment, or (ii) FRF's ability to propose or enter into the
FRF Purchase Agreement or this Amendment.
IV. Effectiveness
Except as specifically provided herein, the Shareholder Agreement shall
otherwise remain unaltered and in full force and effect. This Amendment may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment as of the date first written above.
FIRST RESERVE FUND VIII, L.P.
A DELAWARE LIMITED PARTNERSHIP
BY: FIRST RESERVE GP VIII, L.P., A DELAWARE
LIMITED PARTNERSHIP, ITS GENERAL PARTNER
BY: FIRST RESERVE CORPORATION, A DELAWARE
CORPORATION, ITS GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
CHICAGO BRIDGE & IRON COMPANY N.V.
BY: CHICAGO BRIDGE & IRON COMPANY B.V., ITS
MANAGING DIRECTOR
By: /s/ Xxxxxx X. Xxxxx
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Title: Managing Director
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XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
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CB&I Shareholder
XXXXXXX X. XXXXXXX
/s/ X. Xxxxxxx
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CB&I Shareholder