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Full Doc	2004	Adoption Agreement Adoption Agreement (635K) Doc #382427: This document is immediately available for purchase, but does not have a preview available for viewing. {DOCUMENT} {TYPE}EX-4.6 {SEQUENCE}2 {FILENAME}d14879exv4w6.txt {DESCRIPTION}401(K) PLAN DOCUMENTS {TEXT} {PAGE} EXHIBIT 4.6 THE SHAW GROUP INC. 401(K) PLAN & THE SHAW GROUP INC. 401(K) PLAN FOR CERTAIN HOURLY EMPLOYEES {PAGE} ADOPTION AGREEMENT #005 NONSTANDARDIZED 401(k) PROFIT SHARING PLAN The undersigned, The Shaw Group Inc. ("Employer"), by executing this Adoption Agreement, elects to establish a retirement plan and trust ("Plan") under the AMVESCAP National Trust Company (basic plan document #01). The Employer, subject to the Employer's Adoption Agreement elections, adopts fully the Prototype Plan and Trust provisions. This Adoption Agreement, the basic plan document and any attached appendices or addenda, constitute the Employer's entire plan and trust document. All section references within this Adoption Agreement are Adoption Agreement section references unless the Adoption Agreement or the context indicate otherwise. All article references are basic plan document and Adoption Agreement references as applicable. Numbers in parenthesis which follow headings are references to basic plan document sections. The Employer makes the following elections granted under the corresponding provisions of the basic plan document. ARTICLE I DEFINITIONS 1. PLAN (1.21). The name of the Plan as adopted by the Employer is The Shaw Group Inc. 40(k) Plan. 2. TRUSTEE (1.33). The Trustee executing this Adoption Agreement is: (Choose one of (a), (b) or (c)) [ ] (a) A DISCRETIONARY TRUSTEE. See Plan Section 10.03[A]. [X] (b) A NONDISCRETIONARY TRUSTEE. See Plan Section 10.03[B]. [ ] (c) A TRUSTEE UNDER A SEPARATE TRUST AGREEMENT. See Plan Section 10.03[G]. 3. EMPLOYEE (1.11). The following Employees are not eligible to participate in the Plan: (Choose (a) or one or more of (b) through (g) as applicable) [ ] (a) NO EXCLUSIONS. [ ] (b) COLLECTIVE BARGAINING EMPLOYEES. [X] (c) NONRESIDENT ALIENS. [X] (d) LEASED EMPLOYEES. [ ] (e) RECLASSIFLED EMPLOYEES. [X] (f) CLASSIFICATIONS: All employees who are collective bargaining Employees except that those employees who are employees of S & W Drafters are eligible to participate in this plan. [ ] (g) EXCLUSIONS BY TYPES OF CONTRIBUTIONS. The following classification(s) of Employees are not eligible for the specified contributions: EMPLOYEE CLASSIFICATION:________________________ CONTRIBUTION TYPE:______________________ 4. COMPENSATION (1.07). The Employer makes the following election(s) regarding the definition of Compensation for purposes of the contribution allocation formula under Article III: (Choose one of (a), (b) or (c)) [ ] (a) W-2 WAGES INCREASED BY ELECTIVE CONTRIBUTIONS. [ ] (b) CODE SECTION 3401(a) FEDERAL INCOME TAX WITHHOLDING WAGES INCREASED BY ELECTIVE CONTRIBUTIONS. [X] (c) 415 COMPENSATION. (C) Copyright 2001 AMVESCAP National Trust Company 11/02 1 {PAGE} [Note: Each of the Compensation definitions in (a), (b) and (c) includes Elective Contributions. See Plan Section 1.07(D). To exclude Elective Contributions, the Employer must elect (g).] COMPENSATION TAKEN INTO ACCOUNT. For the Plan Year in which an Employee first becomes a Participant, the Plan Administrator will determine the allocation of Employer contributions (excluding deferral contributions) by taking into account: (Choose one of (d) or (e)) [X] (d) PLAN YEAR. The Employee's Compensation for the entire Plan Year. [ ] (e) COMPENSATION WHILE A PARTICIPANT. The Employee's Compensation only for the portion of the Plan Year in which the Employee actually is a Participant. MODIFICATIONS TO COMPENSATION DEFINITION. The Employer elects to modify the Compensation definition elected in (a), (b) or (c) as follows. (Choose one or more of(f) through (n) as applicable. If the Employer elects to allocate its nonelective contribution under Plan Section 3.04 using permitted disparity, (i), (j), (k) and (l) do not apply): [ ] (f) FRINGE BENEFITS. The Plan excludes all reimbursements or other expense allowances, fringe benefits (cash and noncash), moving expenses, deferred compensation and welfare benefits. [ ] (g) ELECTIVE CONTRIBUTIONS. The Plan excludes a Participant's Elective Contributions. See Plan Section 1.07(D). [ ] (h) EXCLUSION. The Plan excludes Compensation in excess of:________. [ ] (i) BONUSES. The Plan excludes bonuses. [ ] (0) OVERTIME. The Plan excludes overtime. [ ] (k) COMMISSIONS. The Plan excludes commissions. [ ] (1) NONELECTIVE CONTRIBUTIONS. The following modifications apply to the definition of Compensation for nonelective contributions:_________. [ ] (m) DEFERRAL CONTRIBUTIONS. The following modifications apply to the definition of Compensation for deferral contributions:_______________. [ ] (n) MATCHING CONTRIBUTIONS. The following modifications apply to the definition of Compensation for matching contributions:___________. 5. PLAN YEAR/LIMITATION YEAR (1.24). Plan Year and Limitation Year mean the 12-consecutive month period (except for a short Plan Year) ending every: (Choose (a) or (b). Choose (c) if applicable) [X] (a) DECEMBER 31. [X] (b) OTHER: August 30, 2000 (effective January 1, 2000 through 8/30/2002). [X] (c) SHORT PLAN YEAR: commencing on: August 31, 2002 and ending on: December 31, 2002. 6. EFFECTIVE DATE (1.10). The Employer's adoption of the Plan is a: (Choose one of (a) or (b)) [ ] (a) NEW PLAN. The Effective Date of the Plan is:___________________. [X] (b) RESTATED PLAN. The restated Effective Date is: 9/1/1998. This Plan is an amendment and restatement of an existing retirement plan(s) originally established effective as of: 9/1/1998. 7. HOUR OF SERVICE/ELAPSED TIME METHOD (1.15). The crediting method for Hours of Service is: (Choose one or more of (a) through (d) as applicable) [X] (a) ACTUAL METHOD. See Plan Section 1.15(B). (C) Copyright 2001 AMVESCAP National Trust Company 11/02 2 {PAGE} [ ] (b) EQUIVALENCY METHOD. The Equivalency Method is:________________. [Note: Insert "daily," "weekly," "semi-monthly payroll periods" or "monthly."] See Plan Section 1.15(C). [ ] (c) COMBINATION METHOD. In lieu of the Equivalency Method specified in (b), the Actual Method applies for purposes of:__________. [ ] (d) ELAPSED TIME METHOD. In lieu of crediting Hours of Service, the Elapsed Time Method applies for purposes of crediting Service for: (Choose one or more of (1), (2) or (3) as applicable) [ ] (1) Eligibility under Article II. [ ] (2) Vesting under Article V. [ ] (3) Contribution allocations under Article III. 8. PREDECESSOR EMPLOYER SERVICE (1.30). In addition to the predecessor service the Plan must credit by reason of Section 1.30 of the Plan, the Plan credits as Service under this Plan, service with the following predecessor employers): any and all employers whose employees become employers of The Shaw Group, Inc. as a result of a (i) contract takeover or acquisition or (ii) corporate acquistion, whether by asset purchase or stock purchase. [Note: If the Plan does not credit any additional predecessor service under this Section 1.30, insert "N/A " in the blank line. The Employer also may elect to credit predecessor service with specified Participating Employers only. See the Participation Agreement.] Service with the designated predecessor employers) applies: (Choose one or more of (a) through (d) as applicable) [X] (a) ELIGIBILITY. For eligibility under Article II. See Plan Section 1.30 for time of Plan entry. [X] (b) VESTING. For vesting under Article V. [ ] (c) CONTRIBUTION ALLOCATION. For contribution allocations under Article III. [ ] (d) EXCEPTIONS. Except for the following Service:____________. ARTICLE II ELIGIBILITY REQUIREMENTS 9. ELIGIBILITY (2.01). ELIGIBILITY CONDITIONS. To become a Participant in the Plan, an Employee must satisfy the following eligibility conditions: (Choose one or more of (a) through (e) as applicable) [Note: If the Employer does not elect (c), the Employer's elections under (a) and (b) apply to all types of contributions. The Employer as to deferral contributions may not elect (b)(2) and may not elect more than 12 months in (b)(4) and (b)(5).] [X] (a) AGE. Attainment of age 21 (not to exceed age 21). [X] (b) SERVICE. Service requirement. (Choose one of (1) through (5)) [X] (1) One Year of Service. [ ] (2) Two Years of Service, without an intervening Break in Service. See Plan Section 2.03(A). [ ] (3) One Hour of Service (immediate completion of Service requirement). The Employee satisfies the Service requirement on his/her Employment Commencement Date. [ ] (4) ____________ months (not exceeding 24). [ ] (5) An Employee must complete __________ Hours of Service within the ___________ time period following the Employee's Employment Commencement Date. If an Employee does not complete the stated Hours of Service during the specified time period (if any), the Employee is subject to the One Year of Service requirement. [Note: The number of hours may not exceed 1,000 and the time period may not exceed 24 months. If the Plan does not require the Employee to satisfy the Hours of Service requirement within a specified time period, insert "N/A " in the second blank line.] (C) Copyright 2001 AMVESCAP National Trust Company 11/02 3 {PAGE} [X] (c) ALTERNATIVE 401(k)/401(m) ELIGIBILITY CONDITIONS. In lieu of the elections in (a) and (b), the Employer elects the following eligibility conditions for the following types of contributions: (Choose (1) or (2) or both if the Employer wishes to impose less restrictive eligibility conditions for deferral/Employee contributions or for matching contributions) (1) [X] DEFERRAL/EMPLOYEE CONTRIBUTIONS: (Choose one of a. through d. Choose e. if applicable) a. [ ] One Year of Service b. [X] One Hour of Service (immediate completion of Service requirement) c. [ ] ____________months (not exceeding 12) d. [ ] An Employee must complete__________Hours of Service within the_________time period following an Employee's Employment Commencement Date. If an Employee does not complete the stated Hours of Service during the specified time period (if any), the Employee is subject to the One Year of Service requirement. [Note: The number of hours may not exceed 1,000 and the time period may not exceed 12 months. If the Plan does not require the Employee to satisfy the Hours of Service requirement within a specified time period, insert "N/A " in the second blank line.] e. [X] Age 21 (not exceeding age 21) (2) [ ] MATCHING CONTRIBUTIONS: (Choose one of f. through i. Choose j. if applicable) f. [ ] One Year of Service g. [ ] One Hour of Service (immediate completion of Service requirement) h. [ ] ___________months (not exceeding 24) i. [ ] An Employee must complete_______Hours of Service within the_________time period following an Employee's Employment Commencement Date. If an Employee does not complete the stated Hours of Service during the specified time period (if any), the Employee is subject to the One Year of Service requirement. [Note: The number of hours may not exceed 1,000 and the time period may not exceed 24 months. If the Plan does not require the Employee to satisfy the Hours of Service requirement within a specified time period, insert "N/A " in the second blank line.] j. [ ] Age______(not exceeding age 21) [ ] (d) SERVICE REQUIREMENTS:_______. [Note: Any Service requirement the Employer elects in (d) must be available under other Adoption Agreement elections or a combination thereof.] [X] (e) DUAL ELIGIBILITY. The eligibility conditions of this Section 2.01 apply solely to an Employee employed by the Employer after September 1, 1998. Also, employees of NAPTECH, Inc. who were hired between 5/2/1998 and 8/1/1999 shall become participants following their completion of 2 months of service. If the Employee was employed by the Employer by the specified date, the Employee will become a Participant on the latest of: (i) the Effective Date; (ii) the restated Effective Date; (iii) the Employee's Employment Commencement Date; or (iv) on the date the Employee attains age__________________________(not exceeding age 21). PLAN ENTRY DATE. "Plan Entry Date" means the Effective Date and: (Choose one of(f) through (j). Choose (k) if applicable) [Note: If the Employer does not elect (k), the elections under (f) through (j) apply to all types of contributions. The Employer must elect at least one Entry Date per Plan Year.] [X] (f) SEMI-ANNUAL ENTRY DATES. The first day of the Plan Year and the first day of the seventh month of the Plan Year. [ ] (g) THE FIRST DAY OF THE PLAN YEAR. [ ] (h) EMPLOYMENT COMMENCEMENT DATE (immediate eligibility). [ ] (i) THE FIRST DAY OF EACH:_____________(e.g., "Plan Year quarter"). [X] (j) THE FOLLOWING PLAN ENTRY DATES: For employees of NAPTECH, Inc. & United Crafts, Inc. 10/1/1998, in addition to the regular semi-annual entry dates. [ ] (k) ALTERNATIVE 401(k)/401(m) PLAN ENTRY DATE(s). For the alternative 401(k)/401(m) eligibility conditions under (c), Plan Entry Date means: (Choose (1) or (2) or both as applicable) (C) Copyright 2001 AMVESCAP National Trust Company 11/02 4 {PAGE} {TABLE} {S} {C} (1) [ ] DEFERRAL/EMPLOYEE CONTRIBUTIONS (2) [ ] MATCHING CONTRIBUTIONS (Choose one of a. through d.) (Choose one of e. through h.) a. [ ] Semi-annual Entry Dates e. [ ] Semi-annual Entry Dates b. [ ] The first day of the Plan Year f. [ ] The first day of the Plan Year c. [ ] Employment Commencement Date g. [ ] Employment Commencement Date (immediate eligibility) (immediate eligibility) d. [ ] The first day of each:_________ h. [ ] The first day of each:___________ {/TABLE} TIME OF PARTICIPATION. An Employee will become a Participant, unless excluded under Section 1.11, on the Plan Entry Date (if employed on that date): (Choose one of (l), (m) or (n). Choose (o) if applicable): [Note: If the Employer does not elect (o), the election under (l), (m) or (n) applies to all types of contributions.] [X] (l) IMMEDIATELY FOLLOWING OR COINCIDENT WITH [ ] (m) IMMEDIATELY PRECEDING OR COINCIDENT WITH [ ] (n) NEAREST [ ] (o) ALTERNATIVE 401(k)/401(m) ELECTION(s): (Choose (1) or (2) or both as applicable) {TABLE} {S} {C} (1) [ ] DEFERRAL CONTRIBUTIONS (2) [ ] MATCHING CONTRIBUTIONS (Choose one of b., c. or d.) a. [ ] Immediately following b. [ ] Immediately following or coincident with or coincident with c. [ ] Immediately preceding or coincident with d. [ ] Nearest {/TABLE} the date the Employee completes the eligibility conditions described in this Section 2.01. [Note: Unless otherwise excluded under Section 1.11, an Employee must become a Participant by the earlier of: (1) the first day of the Plan Year beginning after the date the Employee completes the age and service requirements of Code Section 410(a); or (2) 6 months after the date the Employee completes those requirements.] 10. YEAR OF SERVICE - ELIGIBILITY (2.02). (Choose (a) and (b) as applicable): [Note: If the Employer does not elect a Year of Service condition or elects the Elapsed Time Method, the Employer should not complete (a) or (b).] [X] (a) YEAR OF SERVICE. An Employee must complete 1000 Hour(s) of Service during an eligibility computation period to receive credit for a Year of Service under Article II: [Note: The number may not exceed 1,000. If left blank, the requirement is 1,000.] [X] (b) ELIGIBILITY COMPUTATION PERIOD. After the initial eligibility computation period described in Plan Section 2.02, the Plan measures the eligibility computation period as: (Choose one of (l) or (2)) [X] (1) The Plan Year beginning with the Plan Year which includes the first anniversary of the Employee's Employment Commencement Date. [ ] (2) The 12-consecutive month period beginning with each anniversary of the Employee's Employment Commencement Date. 11. PARTICIPATION - BREAK IN SERVICE (2.03). The one year hold-out rule described in Plan Section 2.03(B): (Choose one of (a), (b) or (c)) [X] (a) NOT APPLICABLE. Does not apply to the Plan. [ ] (b) APPLICABLE. Applies to the Plan and to all Participants. [ ] (c) LIMITED APPLICATION. Applies to the Plan, but only to a Participant who has incurred a Separation from Service. 12. ELECTION NOT TO PARTICIPATE (2.06). The Plan: (Choose one of (a) or (b)) [X] (a) ELECTION NOT PERMITTED. Does not permit an eligible Employee to elect not to participate. (C) Copyright 2001 AMVESCAP National Trust Company 11/02 5 {PAGE} [ ] (b) IRREVOCABLE ELECTION. Permits an Employee to elect not to participate if the Employee makes a one-time irrevocable election prior to the Employee's Plan Entry Date. ARTICLE III EMPLOYER CONTRIBUTIONS, DEFERRAL CONTRIBUTIONS AND FORFEITURES 13. AMOUNT AND TYPE (3.01). The amount and type(s) of the Employer's contribution to the Trust for a Plan Year or other specified period will equal: (Choose one or more of (a) through (f) as applicable) [X] (a) DEFERRAL CONTRIBUTIONS (401 (k) ARRANGEMENT). The dollar or percentage amount by which each Participant has elected to reduce his/her Compensation, as provided in the Participant's salary reduction agreement and in accordance with Section 3.02. [X] (b) MATCHING CONTRIBUTIONS (OTHER THAN SAFE HARBOR MATCHING CONTRIBUTIONS UNDER SECTION 3.01(d)). The matching contributions made in accordance with Section 3.03. [X] (c) NONELECTIVE CONTRIBUTIONS (PROFIT SHARING). The following nonelective contribution (Choose (1) or (2) or both as applicable):. [Note: The Employer may designate as a qualified nonelective contribution, all or any portion of its nonelective contribution. See Plan Section 3.04(f).] [X] (1) DISCRETIONARY. An amount the Employer in its sole discretion may determine. [ ] (2) FIXED. The following amount:_______ [ ] (d) 401(k) SAFE HARBOR CONTRIBUTIONS. The following 401(k) safe harbor contributions described in Plan Section 14.02(d): (Choose one of (1), (2) or (3). Choose (4), if applicable) [ ] (1) SAFE HARBOR NONELECTIVE CONTRIBUTION. The safe harbor nonelective contribution equals __________%of a Participant's Compensation [Note: the amount in the blank must be at least 3%.]. [ ] (2) BASIC SAFE HARBOR MATCHING CONTRIBUTION. A matching contribution equal to 100% of each Participant's deferral contributions not exceeding 3% of the Participant's Compensation, plus 50% of each Participant's deferral contributions in excess of 3% but not in excess of 5% of the Participant's Compensation. For this purpose, "Compensation" means Compensation for:____________. [Note: The Employer must complete the blank line with the applicable time period for computing the Employer's basic safe harbor match, such as "each payroll period," "each month," "each Plan Year quarter" or "the Plan Year".] [ ] (3) ENHANCED SAFE HARBOR MATCHING CONTRIBUTION. (Choose one of a. or b.). [ ] a. UNIFORM PERCENTAGE. An amount equal to_______% of each Participant's deferral contributions not exceeding_______ % of the Participant's Compensation. For this purpose, "Compensation" means Compensation for:__________. [See the Note in (d)(2).] [ ] b. TIERED FORMULA. An amount equal to the specified matching percentage for the corresponding level of each Participant's deferral contribution percentage. For this purpose, "Compensation" means Compensation for:_____________. [See the Note in (d)(2).] {TABLE} {CAPTION} Deferral Contribution Percentage Matching Percentage -------------------------------- ------------------- {S} {C} ____________ ___________ ____________ ___________ ____________ ___________ {/TABLE} [Note: The matching percentage may not increase as the deferral contribution percentage increases and the enhanced matching formula otherwise must satisfy the requirements of Code Sections 401(k)(12)(B)(ii) and (ii). If the Employer wishes to avoid ACP testing on its enhanced safe harbor matching contribution, the Employer also must limit deferral contributions taken into account (the "Deferral Contribution Percentage") for the matching contribution to 6% of Plan Year Compensation.] [ ] (4) ANOTHER PLAN. The Employer will satisfy the 401(k) safe harbor contribution in the following plan:_______. [ ] (e) DAVIS-BACON CONTRIBUTIONS. The amount(s) specified for the applicable Plan Year or other applicable period in the Employer's Davis-Bacon contract(s). The Employer will make a contribution only to Participants covered by the contract and only with respect to Compensation paid under the contract. If the Participant accrues an allocation of (C) Copyright 2001 AMVESCAP National Trust Company 11/02 6 {PAGE} nonelective contributions (including forfeitures) under the Plan in addition to the Davis-Bacon contribution, the Plan Administrator will: (Choose one of (1) or (2)) [ ] (1) Not reduce the Participant's nonelective contribution allocation by the Davis-Bacon contribution. [ ] (2) Reduce the Participant's nonelective contribution allocation by the Davis-Bacon contribution. [ ] (f) FROZEN PLAN. This Plan is a frozen Plan effective:_________. For any period following the specified date, the Employer will not contribute to the Plan, a Participant may not contribute and an otherwise eligible Employee will not become a Participant in the Plan. 14. DEFERRAL CONTRIBUTIONS (3.02). The following limitations and terms apply to an Employee's deferral contributions: (If the Employer elects Section 3.01 (a), the Employer must elect (a). Choose (b) or (c) as applicable) [X] (a) LIMITATION ON AMOUNT. An Employee's deferral contributions are subject to the following limitation(s) in addition to those imposed by the Code: (Choose (1), (2) or (3) as applicable) [ ] (1) Maximum deferral amount:__________. [ ] (2) Minimum deferral amount:__________. [X] (3) No limitations. For the Plan Year in which an Employee first becomes a Participant, the Plan Administrator will apply any percentage limitation the Employer elects in (1) or (2) to the Employee's Compensation: (Choose one of (4) or (5) unless the Employer elects (3)) [ ] (4) Only for the portion of the Plan Year in which the Employee actually is a Participant. [ ] (5) For the entire Plan Year. [ ] (b) NEGATIVE DEFERRAL ELECTION. The Employer will withhold________% from the Participant's Compensation unless the Participant elects a lesser percentage (including zero) under his/her salary reduction agreement. See Plan Section 14.02(C). The negative election will apply to: (Choose one of (1) or (2)) [ ] (1) All Participants who have not deferred at least the automatic deferral amount as of:_______. [ ] (2) Each Employee whose Plan Entry Date is on or following the negative election effective date. [X] (c) CASH OR DEFERRED CONTRIBUTIONS. For each Plan Year for which the Employer makes a designated cash or deferred contribution under Plan Section 14.02(B), a Participant may elect to receive directly in cash not more than the following portion (or, if less, the 402(g) limitation) of his/her proportionate share of that cash or deferred contribution: (Choose one of (1) or (2)) [X] (1) All or any portion. [ ] (2) _______%. MODIFICATION/REVOCATION OF SALARY REDUCTION AGREEMENT. A Participant prospectively may modify or revoke a salary reduction agreement, or may file a new salary reduction agreement following a prior revocation, at least once per Plan Year or during any election period specified by the basic plan document or required by the Internal Revenue Service. The Plan Administrator also may provide for more frequent elections in the Plan's salary reduction agreement form. 15. MATCHING CONTRIBUTIONS (INCLUDING ADDITIONAL SAFE HARBOR MATCH UNDER PLAN SECTION 14.02(D)(3)) (3.03). The Employer matching contribution is: (If the Employer elects Section 3.01 (b), the Employer must elect one or more of (a), (b) or (c) as applicable. Choose (d) if applicable) [X] (a) FIXED FORMULA. An amount equal to 50% of each Participant's deferral contributions. [ ] (b) DISCRETIONARY FORMULA. An amount (or additional amount) equal to a matching percentage the Employer from time to time may deem advisable of the Participant's deferral contributions. The Employer, in its sole discretion, may designate as a qualified matching contribution, all or any portion of its discretionary matching contribution. The portion of the Employer's discretionary matching contribution for a Plan Year not designated as a qualified matching contribution is a regular matching contribution. (C) Copyright 2001 AMVESCAP National Trust Company 11/02 7 {PAGE} [ ] (c) MULTIPLE LEVEL FORMULA. An amount equal to the following percentages for each level of the Participant's deferral contributions. [Note: The matching percentage only will apply to deferral contributions in excess of the previous level and not in excess of the stated deferral contribution percentage.] {TABLE} {CAPTION} Deferral Contributions Matching Percentage ---------------------- ------------------- {S} {C} __________ ____________ __________ ____________ __________ ____________ {/TABLE} [ ] (d) RELATED EMPLOYERS. If two or more Related Employers contribute to this Plan, the Plan Administrator will allocate matching contributions and matching contribution forfeitures only to the Participants directly employed by the contributing Employer. The matching contribution formula for the other Related Employers) is:_______. [Note: If the Employer does not elect (d), the Plan Administrator will allocate all matching contributions and matching forfeitures without regard to which contributing Related Employer directly employs the Participant.] TIME PERIOD FOR MATCHING CONTRIBUTIONS. The Employer will determine its matching contribution based on deferral contributions made during each: (Choose one of (e) through (h)) [ ] (e) PLAN YEAR. [ ] (f) PLAN YEAR QUARTER. [X] (g) PAYROLL PERIOD. [ ] (h) ALTERNATIVE TIME PERIOD:_________. [Note: Any alternative time period the Employer elects in (h) must be the same for all Participants and may not exceed the Plan Year.] DEFERRAL CONTRIBUTIONS TAKEN INTO ACCOUNT. In determining a Participant's deferral contributions taken into account for the above-specified time period under the matching contribution formula, the following limitations apply: (Choose one of (i), (j) or (k)) [ ] (i) ALL DEFERRAL CONTRIBUTIONS. The Plan Administrator will take into account all deferral contributions. [X] (j) SPECIFIC LIMITATION. The Plan Administrator will disregard deferral contributions exceeding 6% of the Participant's Compensation. [Note: To avoid the ACP test in a safe harbor 401 (k) plan, the Employer must limit deferrals and Employee contributions which are subject to match to 6% of Plan Year Compensation.] [ ] (k) DISCRETIONARY. The Plan Administrator will take into account the deferral contributions as a percentage of the Participant's Compensation as the Employer determines. OTHER MATCHING CONTRIBUTION REQUIREMENTS. The matching contribution formula is subject to the following additional requirements: (Choose (l) or (m) or both if applicable) [ ] (l) MATCHING CONTRIBUTION LIMITS. A Participant's matching contributions may not exceed: (Choose one of (1) or (2)) [ ] (1) ________. [Note: The Employer may elect (1) to place an overall dollar or percentage limit on matching contributions.] [ ] (2) 4% of a Participant's Compensation for the Plan Year under the discretionary matching contribution formula. [Note: The Employer must elect (2) if it elects a discretionary matching formula with the safe harbor 401 (k) contribution formula and wishes to avoid the ACP test.] [ ] (m) QUALIFIED MATCHING CONTRIBUTIONS. The Plan Administrator will allocate as qualified matching contributions, the matching contributions specified in Adoption Agreement Section:_________. The Plan Administrator will allocate all other matching contributions as regular matching contributions. [Note: If the Employer elects two matching formulas, the Employer may use (m) to designate one of the formulas as a qualified matching contribution.] 16. CONTRIBUTION ALLOCATION (3.04). EMPLOYER NONELECTIVE CONTRIBUTIONS (3.04(A)). The Plan Administrator will allocate the Employer's nonelective contribution under the following contribution allocation formula: (Choose one of (a), (b) or (c). Choose (d) if applicable) [X] (a) NONINTEGRATED (PRO RATA) ALLOCATION FORMULA. (C) Copyright 2001 AMVESCAP National Trust Company 11/02 8 {PAGE} [ ] (b) PERMITTED DISPARITY. The following permitted disparity formula and definitions apply to the Plan: (Choose one of (1) or (2). Also choose (3)) [ ] (1) Two-tiered allocation formula. [ ] (2) Four-tiered allocation formula. [ ] (3) For purposes of Section 3.04(b), "Excess Compensation" means Compensation in excess of: (Choose one of a. or b.) [ ] a. _______% of the taxable wage base in effect on the first day of the Plan Year, rounded to the next highest $________(not exceeding the taxable wage base). [ ] b. The following integration level:_______. [Note: The integration level cannot exceed the taxable wage base in effect for the Plan Year for which this Adoption Agreement first is effective.] [ ] (c) UNIFORM POINTS ALLOCATION FORMULA. Under the uniform points allocation formula, a Participant receives: (Choose (1) or both (1) and (2) as applicable) [ ] (1) _____ point(s) for each Year of Service. Year of Service means:_____. [ ] (2) One point for each $______[not to exceed $200] increment of Plan Year Compensation. [ ] (d) INCORPORATION OF CONTRIBUTION FORMULA. The Plan Administrator will allocate the Employer's nonelective contribution under Section(s) 3.01(c)(2), (d)(l) or (e) in accordance with the contribution formula adopted by the Employer under that Section. QUALIFIED NONELECTIVE CONTRIBUTIONS. (3.04(F)). The Plan Administrator will allocate the Employer's qualified nonelective contributions to: (Choose one of (e) or (f)) [X] (e) NONHIGHLY COMPENSATED EMPLOYEES ONLY. [ ] (f) ALL PARTICIPANTS. RELATED EMPLOYERS. (Choose (g) if applicable) [ ] (g) ALLOCATE ONLY TO DIRECTLY EMPLOYED PARTICIPANTS. If two or more Related Employers adopt this Plan, the Plan Administrator will allocate all nonelective contributions and forfeitures attributable to nonelective contributions only to the Participants directly employed by the contributing Employer. If a Participant receives Compensation from more than one contributing Employer, the Plan Administrator will determine the allocations under this Section 3.04 by prorating the Participant's Compensation between or among the participating Related Employers. [Note: If the Employer does not elect 3.04(g), the Plan Administrator will allocate all nonelective contributions and forfeitures without regard to which contributing Related Employer directly employs the Participant. The Employer may not elect 3.04(g) under a safe harbor 401(k) Plan.] 17. FORFEITURE ALLOCATION (3.05). The Plan Administrator will allocate a Participant forfeiture: (Choose one or more of (a), (b) or (c) as applicable) [Note: Even if the Employer elects immediate vesting, the Employer should complete Section 3.05. See Plan Section 9.11] [X] (a) MATCHING CONTRIBUTION FORFEITURES. To the extent attributable to matching contributions: (Choose one of (l) through (4)) [ ] (1) As a discretionary matching contribution. [X] (2) To reduce matching contributions. [ ] (3) As a discretionary nonelective contribution. [ ] (4) To reduce nonelective contributions. [X] (b) NONELECTIVE CONTRIBUTION FORFEITURES. To the extent attributable to Employer nonelective contributions: (Choose one of (1) through (4)) (C) Copyright 2001 AMVESCAP National Trust Company 11/02 9 {PAGE} [ ] (1) As a discretionary nonelective contribution. [ ] (2) To reduce nonelective contributions. [ ] (3) As a discretionary matching contribution. [X] (4) To reduce matching contributions. [ ] (c) REDUCE ADMINISTRATIVE EXPENSES. First to reduce the Plan's ordinary and necessary administrative expenses for the Plan Year and then allocate any remaining forfeitures in the manner described in Sections 3.05(a) or (b) as applicable. TIMING OF FORFEITURE ALLOCATION. The Plan Administrator will allocate forfeitures under Section 3.05 in the Plan Year: (Choose one of (d) or (e)) [X] (d) In which the forfeiture occurs. [ ] (e) Immediately following the Plan Year in which the forfeiture occurs. 18. ALLOCATION CONDITIONS (3.06). ALLOCATION CONDITIONS. The Plan does not apply any allocation conditions to deferral contributions, 401(k) safe harbor contributions (under Section 3.01(d)) or to Davis-Bacon contributions (except as the Davis-Bacon contract provides). To receive an allocation of matching contributions, nonelective contributions, qualified nonelective contributions or Participant forfeitures, a Participant must satisfy the following allocation condition(s): (Choose one or more of (a) through (i) as applicable) [X] (a) HOURS OF SERVICE CONDITION. The Participant must complete at least the specified number of Hours of Service (not exceeding 1,000) during the Plan Year: 1000. [X] (b) EMPLOYMENT CONDITION. The Participant must be employed by the Employer on the last day of the Plan Year (designate time period). [ ] (c) NO ALLOCATION CONDITIONS. [ ] (d) ELAPSED TIME METHOD. The Participant must complete at least the specified number (not exceeding 182) of consecutive calendar days of employment with the Employer during the Plan Year:_________. [ ] (e) TERMINATION OF SERVICE/501 HOURS OF SERVICE COVERAGE RULE. The Participant either must be employed by the Employer on the last day of the Plan Year or must complete at least 501 Hours of Service during the Plan Year. If the Plan uses the Elapsed Time Method of crediting Service, the Participant must complete at least 91 consecutive calendar days of employment with the Employer during the Plan Year. [ ] (f) SPECIAL ALLOCATION CONDITIONS FOR MATCHING CONTRIBUTIONS. The Participant must complete at least________Hours of Service during the_______(designate time period) for the matching contributions made for that time period. [ ] (g) DEATH, DISABILITY OR NORMAL RETIREMENT AGE. Any condition specified in Section 3.06________applies if the Participant incurs a Separation from Service during the Plan Year on account of:________(e.g., death, Disability or Normal Retirement Age). [X] (h) SUSPENSION OF ALLOCATION CONDITIONS FOR COVERAGE. The suspension of allocation conditions of Plan Section 3.06(E) applies to the Plan. [X] (i) LIMITED ALLOCATION CONDITIONS. The Plan does not impose an allocation condition for the following types of contributions: matching contributions. [Note: Any election to limit the Plan's allocation conditions to certain contributions must be the same for all Participants, be definitely determinable and not discriminate in favor of Highly Compensated Employees. ] ARTICLE IV PARTICIPANT CONTRIBUTIONS 19. EMPLOYEE (AFTER TAX) CONTRIBUTIONS (4.02). The following elections apply to Employee contributions: (Choose one of (a) or (b). Choose (c) if applicable) (C) Copyright 2001 AMVESCAP National Trust Company 11/02 10 {PAGE} [X] (a) NOT PERMITTED. The Plan does not permit Employee contributions. [X] (b) PERMITTED. The Plan permits Employee contributions subject to the following limitations: n/a. [Note: Any designated limitation(s) must be the same for all Participants, be definitely determinable and not discriminate in favor of Highly Compensated Employees.] [ ] (c) MATCHING CONTRIBUTION. For each Plan Year, the Employer's matching contribution made with respect to Employee contributions is:_________. ARTICLE V VESTING REQUIREMENTS 20. NORMAL/EARLY RETIREMENT AGE (5.01). A Participant attains Normal Retirement Age (or Early Retirement Age, if applicable) under the Plan on the following date: (Choose one of (a) or (b). Choose (c) if applicable) [X] (a) SPECIFIC AGE. The date the Participant attains age 65. [Note: The age may not exceed age 65.] [ ] (b) AGE/PARTICIPATION. The later of the date the Participant attains_______years of age or the________anniversary of the first day of the Plan Year in which the Participant commenced participation in the Plan. [Note: The age may not exceed age 65 and the anniversary may not exceed the 5th.] [ ] (c) EARLY RETIREMENT AGE. Early Retirement Age is the later of: (i) the date a Participant attains age_______or (ii) the date a Participant reaches his/her______anniversary of the first day of the Plan Year in which the Participant commenced participation in the Plan. 21. PARTICIPANT'S DEATH OR DISABILITY (5.02). The 100% vesting rule under Plan Section 5.02 does not apply to: (Choose (a) or (b) or both as applicable) [ ] (a) DEATH. [ ] (b) DISABILITY. 22. VESTING SCHEDULE (5.03). A Participant has a 100% Vested interest at all times in his/her deferral contributions, qualified nonelective contributions, qualified matching contributions, 401(k) safe harbor contributions and Davis-Bacon contributions (unless otherwise indicated in (f)). The following vesting schedule applies to Employer regular matching contributions and to Employer nonelective contributions: (Choose (a) or choose one or more of (b) through (f) as applicable) [ ] (a) IMMEDIATE VESTING. 100% Vested at all times. [Note: The Employer must elect (a) if the Service condition under Section 2.01 exceeds One Year of Service or more than twelve months.] [X] (b) TOP-HEAVY VESTING SCHEDULES. [Note: The Employer must choose one of (b)(1), (2) or (3) if it does not elect (a).] [ ] (1) 6-year graded as specified in the Plan. [ ] (2) 3-year cliff as specified in the Plan. [X] (3) Modified top-heavy schedule {TABLE} {CAPTION} Years of Vested Service Percentage ------- ---------- {S} {C} Less than 1 ................... 0% 1 ........................ 20% 2 ........................ 40% 3 ........................ 60% 4 ........................ 80% 5 ........................ 100% 6 or more ................ 100% {/TABLE} (C) Copyright 2001 AMVESCAP National Trust Company 11/02 11 {PAGE} [ ] (c) NON-TOP-HEAVY VESTING SCHEDULES. [Note: The Employer may elect one of (c)(l), (2) or (3) in addition to (b).] [ ] (1) 7-year graded as specified in the Plan. [ ] (2) 5-year cliff as specified in the Plan. [ ] (3) Modified non-top-heavy schedule {TABLE} {CAPTION} Years of Vested Service Percentage ------- ---------- {S} {C} Less than 1 ................... ___ % 1 ....................... ___ % 2 ....................... ___ % 3 ....................... ___ % 4 ........................ ___ % 5 ........................ ___ % 6 ........................ ___ % 7 or more ................ ___ % {/TABLE} If the Employer does not elect (c), the vesting schedule elected in (b) applies to all Plan Years. [Note: The modified top-heavy schedule of (b)(3) must satisfy Code Section 416. If the Employer elects (c)(3), the modified non-top-heavy schedule must satisfy Code Section 411(a)(2).] [ ] (d) SEPARATE VESTING ELECTION FOR REGULAR MATCHING CONTRIBUTIONS. In lieu of the election under (a), (b) or (c),l The following vesting schedule applies to a Participant's regular matching contributions: (Choose one of (1) or (2)) [ ] (1) 100% Vested at all times. [ ] (2) Regular matching vesting schedule:________. [Note: The vesting schedule completed under (d)(2) must comply with Code Section 411(a)(4).] [ ] (e) APPLICATION OF TOP-HEAVY SCHEDULE. The non-top-heavy schedule elected under (c) applies in all Plan Years in which the Plan is not a top-heavy plan. [Note: If the Employer does not elect (e), the top-heavy vesting schedule will apply for the first Plan Year in which the Plan is top-heavy and then in all subsequent Plan Years.] [ ] (f) SPECIAL VESTING PROVISIONS:______. [Note: Any special vesting provision must satisfy Code Section 411(a). Any special vesting provision must be definitely determinable, not discriminate in favor of Highly Compensated Employees and not violate Code Section 401(a)(4).] 23. YEAR OF SERVICE - VESTING (5.06). (Choose (a) and (b)): [Note: If the Employer elects the Elapsed Time Method or elects immediate vesting, the Employer should not complete (a) or (b).] [X] (a) YEAR OF SERVICE. An Employee must complete at least 1000 Hours of Service during a vesting computation period to receive credit for a Year of Service under Article V. [Note: The number may not exceed 1,000. If left blank, the requirement is 1,000.] [X] (b) VESTING COMPUTATION PERIOD. The Plan measures a Year of Service on the basis of the following 12-consecutive month period: (Choose one of (1) or (2)) [X] (1) Plan Year. [ ] (2) Employment year (anniversary of Employment Commencement Date). 24. EXCLUDED YEARS OF SERVICE - VESTING (5.08). The Plan excludes the following Years of Service for purposes of vesting: (Choose (a) or choose one or more of (b) through (f) as applicable) [X] (a) NONE. None other than as specified in Plan Section 5.08(a). (C) Copyright 2001 AMVESCAP National Trust Company 11/02 12 {PAGE} [ ] (b) AGE 18. Any Year of Service before the Year of Service during which the Participant attained the age of 18. [ ] (c) PRIOR TO PLAN ESTABLISHMENT. Any Year of Service during the period the Employer did not maintain this Plan or a predecessor plan. [ ] (d) PARITY BREAK IN SERVICE. Any Year of Service excluded under the rule of parity. See Plan Section 5.10. [ ] (e) PRIOR PLAN TERMS. Any Year of Service disregarded under the terms of the Plan as in effect prior to this restated Plan. [ ] (f) ADDITIONAL EXCLUSIONS. Any Year of Service before:_______. [Note: Any exclusion specified under (f) must comply with Code Section 411(a) (4). Any exclusion must be definitely determinable, not discriminate in favor of Highly Compensated Employees and not violate Code Section 401(a)(4). If the Employer elects immediate vesting, the Employer should not complete Section 5.08.] ARTICLE VI DISTRIBUTION OF ACCOUNT BALANCE 25. TIME OF PAYMENT OF ACCOUNT BALANCE (6.01). The following time of distribution elections apply to the Plan: SEPARATION FROM SERVICE/VESTED ACCOUNT BALANCE NOT EXCEEDING $5,000. Subject to the limitations of Plan Section 6.01(A)(1), the Trustee will distribute in a lump sum (regardless of the Employer's election under Section 6.04) a separated Participant's Vested Account Balance not exceeding $5,000: (Choose one of (a) through (d)) [X] (a) IMMEDIATE. As soon as administratively practicable following the Participant's Separation from Service. [ ] (b) DESIGNATED PLAN YEAR. As soon as administratively practicable in the_______Plan Year beginning after the Participant's Separation from Service. [ ] (c) DESIGNATED PLAN YEAR QUARTER. As soon as administratively practicable in the_______Plan Year quarter beginning after the Participant's Separation from Service. [ ] (d) DESIGNATED DISTRIBUTION. As soon as administratively practicable in the:_______following the Participant's Separation from Service. [Note: The designated distribution time must be the same for all Participants, be definitely determinable, not discriminate in favor of Highly Compensated Employees and not violate Code Section 401(a)(4).] SEPARATION FROM SERVICE/VESTED ACCOUNT BALANCE EXCEEDING $5,000. A separated Participant whose Vested Account Balance exceeds $5,000 may elect to commence distribution of his/her Vested Account Balance no earlier than: (Choose one of (e) through (i). Choose (j) if applicable) [X] (e) IMMEDIATE. As soon as administratively practicable following the Participant's Separation from Service. [ ] (f) DESIGNATED PLAN YEAR. As soon as administratively practicable in the________Plan Year beginning after the Participant's Separation from Service. [ ] (g) DESIGNATED PLAN YEAR QUARTER. As soon as administratively practicable in the________Plan Year quarter following the Plan Year quarter in which the Participant elects to receive a distribution. [ ] (h) NORMAL RETIREMENT AGE. As soon as administratively practicable after the close of the Plan Year in which the Participant attains Normal Retirement Age and within the time required under Plan Section 6.01(A)(2). [ ] (i) DESIGNATED DISTRIBUTION. As soon as administratively practicable in the:________following the Participant's Separation from Service. [Note: The designated distribution time must be the same for all Participants, be definitely determinable, not discriminate in favor of Highly Compensated Employees and not violate Code Section 401(a)(4).] [ ] (j) LIMITATION ON PARTICIPANT'S RIGHT TO DELAY DISTRIBUTION. A Participant may not elect to delay commencement of distribution of his/her Vested Account Balance beyond the later of attainment of age 62 or Normal Retirement Age. [Note: If the Employer does not elect (j), the Plan permits a Participant who has Separated from Service to delay distribution until his/her required beginning date. See Plan Section 6.01 (A)(2).] PARTICIPANT ELECTIONS PRIOR TO SEPARATION FROM SERVICE. A Participant, prior to Separation from Service may elect any of the following distribution options in accordance with Plan Section 6.01(C). (Choose (k) or choose one or more of (i) through (o) as (C) Copyright 2001 AMVESCAP National Trust Company 11/02 13 {PAGE} applicable). [Note: If the Employer elects any in-service distributions option, a Participant may elect to receive one in-service distribution per Plan Year unless the Plan's in-service distribution form provides for more frequent in-service distributions.] [ ] (k) NONE. A Participant does not have any distribution option prior to Separation from Service, except as may be provided under Plan Section 6.01(C). [X] (1) DEFERRAL CONTRIBUTIONS. Distribution of all or any portion (as permitted by the Plan) of a Participant's Account Balance attributable to deferral contributions if: (Choose one or more of (1), (2) or (3) as applicable) [X] (1) HARDSHIP (SAFE HARBOR HARDSHIP RULE). The Participant has incurred a hardship in accordance with Plan Sections 6.09 and 14.11(A). [X] (2) AGE. The Participant has attained age 59 1/2 (Must be at least age 59 1/2). [ ] (3) DISABILITY. The Participant has incurred a Disability. [X] (m) QUALIFIED NONELECTIVE CONTRIBUTIONS/QUALIFIED MATCHING CONTRIBUTIONS/SAFE HARBOR CONTRIBUTIONS. Distribution of all or any portion of a Participant's Account Balance attributable to qualified nonelective contributions, to qualified matching contributions, or to 401(k) safe harbor contributions if: (Choose (1) or (2) or both as applicable) [X] (1) AGE. The Participant has attained age 59 1/2 (Must be at least age 59 1/2). [ ] (2) DISABILITY. The Participant has incurred a Disability. [X] (n) NONELECTIVE CONTRIBUTIONS/REGULAR MATCHING CONTRIBUTIONS. Distribution of all or any portion of a Participant's Vested Account Balance attributable to nonelective contributions or to regular matching contributions if: (Choose one or more of (1) through (5) as applicable) [X] (1) AGE/SERVICE CONDITIONS. (Choose one or more of a. through d. as applicable): [X] a. AGE. The Participant has attained age 59 1/2. [ ] b. TWO-YEAR ALLOCATIONS. The Plan Administrator has allocated the contributions to be distributed for a period of not less than________Plan Years before the distribution date. [Note: The minimum number of years is 2.] [ ] c. FIVE YEARS OF PARTICIPATION. The Participant has participated in the Plan for at least______Plan Years. [Note: The minimum number of years is 5.] [ ] d. VESTED. The Participant is_________% Vested in his/her Account Balance. See Plan Section 5.03(A). [Note: If an Employer makes more than one election under Section 6.01 (n) (1), a Participant must satisfy all conditions before the Participant is eligible for the distribution.] [ ] (2) HARDSHIP. The Participant has incurred a hardship in accordance with Plan Section 6.09. [X] (3) HARDSHIP (SAFE HARBOR HARDSHIP RULE). The Participant has incurred a hardship in accordance with Plan Sections 6.09 and 14.11(A). [ ] (4) DISABILITY. The Participant has incurred a Disability. [ ] (5) DESIGNATED CONDITION. The Participant has satisfied the following condition(s):_______. [Note: Any designated condition(s) must be the same for all Participants, be definitely determinable and not discriminate in favor of Highly Compensated Employees.] [X] (o) PARTICIPANT CONTRIBUTIONS. Distribution of all or any portion of a Participant's Account Balance attributable to the following Participant contributions described in Plan Section 4.01: (Choose one of (1), (2) or (3)) [ ] (1) ALL PARTICIPANT CONTRIBUTIONS. [ ] (2) EMPLOYEE CONTRIBUTIONS ONLY. [X] (3) ROLLOVER CONTRIBUTIONS ONLY. (C) Copyright 2001 AMVESCAP National Trust Company 11/02 14 {PAGE} PARTICIPANT LOAN DEFAULT/OFFSET. See Section 6.08 of the Plan. 26. DISTRIBUTION METHOD (6.03). A separated Participant whose Vested Account Balance exceeds $5,000 may elect distribution under one of the following method(s) of distribution described in Plan Section 6.03: (Choose one or more of (a) through (d) as applicable) [X] (a) LUMP SUM. [X] (b) INSTALLMENTS. [ ] (c) INSTALLMENTS FOR REQUIRED MINIMUM DISTRIBUTIONS ONLY. [ ] (d) ANNUITY DISTRIBUTION OPTION(s):________. [Note: Any optional method of distribution may not be subject to Employer, Plan Administrator or Trustee discretion.] 27. JOINT AND SURVIVOR ANNUITY REQUIREMENTS (6.04). The joint and survivor annuity distribution requirements of Plan Section 6.04: (Choose one of (a) or (b)) [X] (a) PROFIT SHARING PLAN EXCEPTION. Do not apply to a Participant, unless the Participant is a Participant described in Section 6.04(H) of the Plan. [ ] (b) APPLICABLE. Apply to all Participants. ARTICLE IX PLAN ADMINISTRATOR - DUTIES WITH RESPECT TO PARTICIPANTS' ACCOUNTS 28. ALLOCATION OF NET INCOME, GAIN OR LOSS (9.08). For each type of contribution provided under the Plan, the Plan allocates net income, gain or loss using the following method: (Choose one or more of (a) through (e) as applicable) [X] (a) DEFERRAL CONTRIBUTIONS/EMPLOYEE CONTRIBUTIONS. (Choose one or more of (l) through (5) as applicable) [X] (1) DAILY VALUATION METHOD. Allocate on each business day of the Plan Year during which Plan assets for which there is an established market are valued and the Trustee is conducting business. [ ] (2) BALANCE FORWARD METHOD. Allocate using the balance forward method. [ ] (3) WEIGHTED AVERAGE METHOD. Allocate using the weighted average method, based on the following weighting period:_________. See Plan Section 14.12. [ ] (4) BALANCE FORWARD METHOD WITH ADJUSTMENT. Allocate pursuant to the balance forward method, except treat as part of the relevant Account at the beginning of the valuation period_________% of the contributions made during the following valuation period:________. [ ] (5) INDIVIDUAL ACCOUNT METHOD. Allocate using the individual account method. See Plan Section 9.08. [X] (b) MATCHING CONTRIBUTIONS. (Choose one or more of (l) through (5) as applicable) [X] (1) 382427	Shaw Group Shaw Group Inc. ( Commodities )
Full Doc	2009	Adoption Agreement Adoption Agreement (28K) Doc #3642409: This document is immediately available for purchase, but does not have a preview available for viewing. 3642409	Shaw Group Shaw Group Inc. ( Commodities )
Preview Full Doc	2003	Agreement and Plan of Merger Agreement and Plan of Merger (153K) Doc #1519873: Click preview link for longer preview. AGREEMENT AND PLAN OF MERGER Among ENVIROGEN, INC., SHAW ENVIRONMENTAL & INFRASTRUCTURE, INC. and TONIC ACQUISITION CORPORATION Dated as of January 30, 2003 <PAGE> AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"), dated as of January 30, 2003, . . . 1519873	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Agreement and Plan of Merger: Shaw Group, Inc – shall comply with, and shall cause their respective Representatives to comply with, all their respective obligations under, the Confidential Disclosure Agreement, dated December 2, 2002, between the Company and The Shaw Group, Inc . (the "Confidentiality Agreement"). Parent and Merger Sub shall be bound by the Confidentiality Agreement as if original parties thereto. 5.7 Publicity. The initial press release concerning the Merger _____________ dt 1664979 ; Citibank Citibank, NA As referenced in this Agreement and Plan of Merger: Citibank, N.A. – one year after completion of the project involved. Any over- or under-billing shall be paid to the party entitled thereto promptly after completion of the audit with interest at Citibank, N.A. 's prime rate of interest. The Option and the Company's obligations in connection therewith shall be collectively referred to as the "Break-up Arrangements". (c) In the event _____________ dt 1675591 ;	Envirogen Envirogen Inc ( Waste Management Services ) ; Drinker Biddle Drinker Biddle & Reath LLP ( Legal ) As referenced in this Agreement and Plan of Merger: Drinker Biddle – gt; If to the Company: Envirogen, Inc. 4100 Quakerbridge Rd. Lawrenceville, NJ 08648 Attention: Robert S. Hillas, President Fax: (609) 275-9208 with a copy to: Morgan R. Jones, Esq. Drinker Biddle & Reath LLP One Logan Square 18th and Cherry Streets Philadelphia, PA 19103-6996 Fax: (215) 569-1867 or to such other Persons or addresses as may be designated _____________ dt 1678964
Preview Full Doc	2001	Agreement for Purchase and Sale of Property Agreement for Purchase and Sale of Property (62K) Doc #256123: Click preview link for longer preview. AGREEMENT FOR PURCHASE AND SALE OF PROPERTY FOR THE STONE & WEBSTER BUILDING AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY 1430 Enclave Parkway, Houston, Texas ------------------------------------ THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is made and entered into as of the 28 day of November, 2000, by and between CARDINAL PARAGON, INC., a Texas corporation ("Seller"), and WELLS OPERATING PARTNERSHIP, L.P., a . . . 256123	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Agreement for Purchase and Sale of Property: Shaw Group, – to the ownership of or use and operation of the Land, Personal Property, or Improvements, if any (but not including the names "The Shaw Group, Inc.", "Stone & Webster, Inc." or any derivations thereof or logos therefor), all if and only to the extent acquired by Seller from _____________ Shaw Group, – shall own unencumbered legal and beneficial title thereto and the rents and other income thereunder. The Stone Lease shall be guaranteed by The Shaw Group, Inc., a Texas corporation ("Shaw") pursuant to a Guaranty of Lease attached hereto and made a part hereof as Exhibit B-3 ----------- ( _____________ dt 118976 ; Sysco Sysco Corp. ( Grocery ) As referenced in this Agreement for Purchase and Sale of Property: Sysco Corp – the Land and Improvements pursuant to such Title Commitment. (d) Tenant Estoppels. Purchaser shall have received a tenant estoppel ---------------- certificate duly executed by Sysco Corp . ("Sysco") at or prior to Closing in a form approved by Purchaser prior to the expiration of the Feasability Period, and, if _____________ dt 151818 ; Wells Operating Wells Operating Partnership, LP ( Miscellany ) As referenced in this Agreement for Purchase and Sale of Property: WELLS OPERATING PARTNERSHIP, – made and entered into as of the 28 day of November, 2000, by and between CARDINAL PARAGON, INC., a Texas corporation ("Seller"), and WELLS OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Purchaser"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, Cardinal Capital Partners, Inc., _____________ WELLS OPERATING PARTNERSHIP, – and year first above written. SELLER: CARDINAL PARAGON, INC., a Texas corporation By: /s/ Gil J. Besing ----------------------------------- Gil J. Besing, Vice President PURCHASER: WELLS OPERATING PARTNERSHIP, L.P., a Delaware limited partnership By: WELLS REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust, its general partner By: / _____________ dt 120425 ;	Wells REIT Wells Real Estate Investment Trust Inc. ( Real Estate ) ; Wells Capital Wells Capital, Inc. ( Financial ) As referenced in this Agreement for Purchase and Sale of Property: Wells Capital, Inc – the addresses set out below or at such other addresses as are specified by written notice delivered in accordance herewith: PURCHASER: c/o Wells Capital, Inc . 6200 The Corners Parkway, Suite 250 Norcross, Georgia 30092 Attn: Mr. Michael C. Berndt Fax No. 770-840-7224 with a copy _____________ dt 120621
Preview Full Doc	2003	Asset Purchase Agreement Asset Purchase Agreement (228K) Doc #130881: Click preview link for longer preview. ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT, dated as of April 17, 2003, is by and between Washington Group International, Inc., an Ohio corporation ("WGI" or "Seller") and The Shaw Group Inc., a Louisiana corporation ("Buyer"). Buyer and Seller are collectively referred to herein as the "Parties." RECITAL The Parties contemplate a transaction in which Buyer will purchase Seller's assets primarily relating to Seller's U. S. operations of its Petroleum & Chemicals business unit and the assumption by Buyer of specified liabilities and obligations of Seller and its Affiliates. NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants herein contained, and on the terms and subject to the conditions herein set forth, the Parties hereto agree as follows: ARTICLE IDEFINITIONS As used herein, the following definitions apply: "Accounting Objections" shall have the meaning set forth in Section 3.03(e). "Acquired Assets" shall have the meaning set forth in Section 2.01(a). "Adjustment" shall have the meaning set forth in Section 3.03(c). "Affected Employees" shall have the meaning specified in Section 5.13. "Affiliate" shall, with respect to any Person, mean any other Person that controls, is controlled by or is under common control with the former. "Agreement" shall have the meaning set forth in the first paragraph of this document. "Assigned Contracts" shall mean all rights under all license or sublicense agreements, distributor agreements, sales agents agreements, leases of real or personal property (including the Leases), Equitably Assigned Contracts, cooperation agreements, secrecy or know-how agreements, non-competition or non-solicitation agreements, sales orders, the Proposals, purchase orders, subcontracts and other arrangements and commitments of the Business, whether written or oral, provided, however, that Assigned Contracts shall include Equitably Assigned Contracts only to the extent that Seller's rights and obligations thereunder may be assigned hereunder or under applicable Law; provided further, that Assigned Contracts shall not include Excluded Assigned Contracts (as defined herein) or contracts that are listed or described in Schedule 2.01(b)(iv) of the Disclosure Schedule as Excluded Assets. "Assignments of Leases" shall mean the Assignment of Lease (Weymouth) and the Assignment of Lease (Cambridge) in substantially the forms of Exhibits B-1 and B-2 hereto. "Assumed Liabilities" shall have the meaning set forth in Section 3.04. "Assumption Agreement" shall mean the Assumption Agreement in substantially the form of Exhibit C hereto. "Bill of Sale and Assignment Agreement" shall mean the Bill of Sale and Assignment Agreement in substantially the form of Exhibit A hereto. "Business" shall mean the business of Seller and its Affiliates of researching, developing, marketing and licensing of technologies to the petroleum refining and petrochemical industries, as conducted by Seller as of the date hereof, including, (i) the research and development operations conducted at the 1 Facility located in Weymouth, Massachusetts; and (ii) the licensing engineering procurement and construction management operations conducted at the Facility in Cambridge, Massachusetts in support of the Intellectual Property (Badger Technology). The Business does not include operations of any nature carried on in other of Seller's operations in any industry, including but not limited to the following: Engineering, procurement, construction, turnkey, quality, and operations and maintenance services provided by Seller's operations to the petroleum refining, petrochemical, and industrial process industries; Engineering, procurement, construction and turnkey services provided by Seller's operations in The Hague, The Netherlands; Engineering, procurement, construction and turnkey services provided by Seller's operations in Houston, Texas; Engineering, procurement, construction and turnkey services provided by Seller's operations related to oil field development; Engineering, procurement, construction and turnkey services provided by Seller's operations related to the gas processing, gas treating, gas storage, gas pipelines, gas recovery, and gas reinjection industries; and Engineering, procurement, construction, turnkey, quality, operations and maintenance, and other services of Seller located in Cambridge, Massachusetts that do not support the Business (as defined above). For the avoidance of doubt, the Business does not include technology related to the gas processing business as encompassed in the current operation of Seller's gas processing operations including the Denver office and including Stearns Catalytic technology. "Business Day" shall mean any day of the year other than (a) any Saturday or Sunday or (b) any other day on which banks located in the State of New York generally are closed for business other than the retail depository business. "Buyer" shall mean The Shaw Group Inc., a Louisiana corporation. "Cambridge Lease" means collectively that Lease Agreement dated December 18, 1998, as amended by that certain First Amendment to Lease dated as of September 17, 1999, as further amended by that certain Second Amendment to Lease dated as of July, 2000, between WGI as lessee and Massachusetts Institute of Technology as lessor for lease of space located at One Broadway, Cambridge, Massachusetts and as further amended by letter dated January 17, 2002. "Closing" and "Closing Date" shall have the meanings set forth in Section 3.01. "Closing Net Assets" shall have the meaning set forth in Section 3.03(b)(i). "Consents" means those consents of (i) any Governmental Entity described in Schedule 5.09, and (ii) any third Person described in Schedule 5.14 of the Disclosure Schedule in respect of the Assigned Contracts. "Damages" shall have the meaning set forth in Section 9.01. "Designated Assigned Contracts" shall mean those Assigned Contracts identified in Scheduled 5.14 under the following headings: Cooperation Agreements, License Agreements, Miscellaneous Intellectual Property Agreements, Project Service Agreements, Project Agreements, Purchase Orders and Oral Agreements. 130881	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Asset Purchase Agreement: SHAW GROUP – rapidly navigate through this document EXHIBIT 10.1 ASSET PURCHASE AGREEMENT by and between THE SHAW GROUP INC. as Buyer and WASHINGTON GROUP INTERNATIONAL, INC. as Seller April 17, 2003 TABLE OF Shaw Group – by and between Washington Group International, Inc., an Ohio corporation ("WGI" or "Seller") and The Shaw Group Inc., a Louisiana corporation ("Buyer"). Buyer and Seller are collectively referred to herein as the " Shaw Group – generally are closed for business other than the retail depository business. "Buyer" shall mean The Shaw Group Inc., a Louisiana corporation. "Cambridge Lease" means collectively that Lease Agreement dated December 18, 1998, Shaw Group – J. Batt Telephone: (208) 331-1000 Fax No.: (208) 331-2400 If to Buyer: The Shaw Group Inc. 4171 Essen Lane Baton Rouge, Louisiana 70809 Attention: General Counsel Telephone: (225) 932-2641 SHAW GROUP – authorized officers of the Parties hereto as of the date first written above. Buyer: THE SHAW GROUP INC., a Louisiana corporation By: /s/ N. GALLINARO Its: Pres. Process of ECM Div. Seller: dt 27162 ; Washington Group Washington Group International Inc. ( Construction ) As referenced in this Asset Purchase Agreement: WASHINGTON GROUP INTERNATIONAL, – 10.1 ASSET PURCHASE AGREEMENT by and between THE SHAW GROUP INC. as Buyer and WASHINGTON GROUP INTERNATIONAL, INC. as Seller April 17, 2003 TABLE OF CONTENTS RECITAL 1 ARTICLE IDEFINITIONS 1 Washington Group International, – AGREEMENT THIS ASSET PURCHASE AGREEMENT, dated as of April 17, 2003, is by and between Washington Group International, Inc., an Ohio corporation ("WGI" or "Seller") and The Shaw Group Inc., a Louisiana Washington Group International, – amended by letter dated March 19, 2002 from Schoefield Properties LLC to and accepted by Washington Group International, Inc. 5 ARTICLE IIPURCHASE AND SALE 2.01 Sale and Purchase of Acquired Assets. ( Washington Group International, – mailed. For purposes of notice, the addresses of the Parties shall be: If to Seller: Washington Group International, Inc. P.O. Box 73 Boise, Idaho 83729 36 Attention: General Counsel Telephone: (208) WASHINGTON GROUP INTERNATIONAL, – INC., a Louisiana corporation By: /s/ N. GALLINARO Its: Pres. Process of ECM Div. Seller: WASHINGTON GROUP INTERNATIONAL, INC., an Ohio corporation By: /s/ M. DATSOPOULOS Its: Assistant Secretary Its: 41 Exhibits: dt 36555 ;	M.I.T. Massachusetts Institute of Technology ( Universities ) As referenced in this Asset Purchase Agreement: Massachusetts Institute of Technology – certain Second Amendment to Lease dated as of July, 2000, between WGI as lessee and Massachusetts Institute of Technology as lessor for lease of space located at One Broadway, Cambridge, Massachusetts and as Massachusetts Institute of Technology – corporation ("Assignee"), maintaining an office at 4171 Essen Lane, Baton Rouge, Louisiana, 70809; and The Massachusetts Institute of Technology ("Landlord") maintaining an office at 238 Main Street, Cambridge, Massachusetts, 02142. Assignor, Assignee and Massachusetts Institute of Technology – which together will constitute one and the same instrument. *Signature Page Follows* 11 LANDLORD: The Massachusetts Institute of Technology By: Name: Its: ASSIGNOR: Washington Group International, Inc., an Ohio corporation By: Name: Its: dt 63053
Preview Full Doc	2003	Asset Purchase Agreement Asset Purchase Agreement (228K) Doc #318679: Click preview link for longer preview. ASSET PURCHASE AGREEMENT by and between THE SHAW GROUP INC. as Buyer and WASHINGTON GROUP INTERNATIONAL, INC. as Seller April 17, 2003 TABLE OF CONTENTS RECITAL 1 ARTICLE I?DEFINITIONS 1 ARTICLE II?PURCHASE AND SALE 6 2.01 Sale and Purchase of Acquired Assets 6 (a) . . . 318679	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Asset Purchase Agreement: SHAW GROUP INC – htm EX-10.1 QuickLinks -- Click here to rapidly navigate through this document EXHIBIT 10.1 ASSET PURCHASE AGREEMENT by and between THE SHAW GROUP INC . as Buyer and WASHINGTON GROUP INTERNATIONAL, INC. as Seller April 17, 2003 TABLE OF CONTENTS RECITAL 1 ARTICLE IDEFINITIONS 1 ARTICLE IIPURCHASE _____________ Shaw Group Inc – AGREEMENT, dated as of April 17, 2003, is by and between Washington Group International, Inc., an Ohio corporation ("WGI" or "Seller") and The Shaw Group Inc ., a Louisiana corporation ("Buyer"). Buyer and Seller are collectively referred to herein as the "Parties." RECITAL The Parties contemplate a transaction in _____________ Shaw Group Inc – banks located in the State of New York generally are closed for business other than the retail depository business. "Buyer" shall mean The Shaw Group Inc ., a Louisiana corporation. "Cambridge Lease" means collectively that Lease Agreement dated December 18, 1998, as amended by that certain First Amendment to _____________ Shaw Group Inc – O. Box 1308 Boise, Idaho 83701 Attention: William J. Batt Telephone: (208) 331-1000 Fax No.: (208) 331-2400 If to Buyer: The Shaw Group Inc . 4171 Essen Lane Baton Rouge, Louisiana 70809 Attention: General Counsel Telephone: (225) 932-2641 Fax No.: (225) 932-2642 with a copy ( _____________ SHAW GROUP INC – been duly executed and delivered by the duly authorized officers of the Parties hereto as of the date first written above. Buyer: THE SHAW GROUP INC ., a Louisiana corporation By: /s/ N. GALLINARO Its: Pres. Process of ECM Div. Seller: WASHINGTON GROUP INTERNATIONAL, INC., an Ohio corporation By: / _____________ dt 546885 ; Washington Group Washington Group International Inc. ( Construction ) As referenced in this Asset Purchase Agreement: WASHINGTON GROUP INTERNATIONAL, – here to rapidly navigate through this document EXHIBIT 10.1 ASSET PURCHASE AGREEMENT by and between THE SHAW GROUP INC. as Buyer and WASHINGTON GROUP INTERNATIONAL, INC. as Seller April 17, 2003 TABLE OF CONTENTS RECITAL 1 ARTICLE IDEFINITIONS 1 ARTICLE IIPURCHASE AND SALE 6 2.01 Sale _____________ Washington Group International, – 40 iii EXHIBITS AND SCHEDULES iv ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT, dated as of April 17, 2003, is by and between Washington Group International, Inc., an Ohio corporation ("WGI" or "Seller") and The Shaw Group Inc., a Louisiana corporation ("Buyer"). Buyer and Seller are collectively referred _____________ Washington Group International, – at 56 Woodrock Road, East Weymouth, Massachusetts, as amended by letter dated March 19, 2002 from Schoefield Properties LLC to and accepted by Washington Group International, Inc. 5 ARTICLE IIPURCHASE AND SALE 2.01 Sale and Purchase of Acquired Assets. (a) Acquired Assets Transferred. Upon the terms and _____________ Washington Group International, – following the date on which it is so mailed. For purposes of notice, the addresses of the Parties shall be: If to Seller: Washington Group International, Inc. P.O. Box 73 Boise, Idaho 83729 36 Attention: General Counsel Telephone: (208) 386-5199 Fax No.: (208) 386-5220 with _____________ WASHINGTON GROUP INTERNATIONAL, – date first written above. Buyer: THE SHAW GROUP INC., a Louisiana corporation By: /s/ N. GALLINARO Its: Pres. Process of ECM Div. Seller: WASHINGTON GROUP INTERNATIONAL, INC., an Ohio corporation By: /s/ M. DATSOPOULOS Its: Assistant Secretary Its: 41 Exhibits: Exhibit A-1 Bill of Sale and Assignment ( _____________ dt 605466 ;	M.I.T. Massachusetts Institute of Technology ( Universities ) As referenced in this Asset Purchase Agreement: Massachusetts Institute of Technology – September 17, 1999, as further amended by that certain Second Amendment to Lease dated as of July, 2000, between WGI as lessee and Massachusetts Institute of Technology as lessor for lease of space located at One Broadway, Cambridge, Massachusetts and as further amended by letter dated January 17, 2002. " _____________ Massachusetts Institute of Technology – Massachusetts, 02142; The Shaw Group Inc., a Louisiana corporation ("Assignee"), maintaining an office at 4171 Essen Lane, Baton Rouge, Louisiana, 70809; and The Massachusetts Institute of Technology ("Landlord") maintaining an office at 238 Main Street, Cambridge, Massachusetts, 02142. Assignor, Assignee and Landlord are referred to collectively herein as the " _____________ Massachusetts Institute of Technology – shall be deemed an original but all of which together will constitute one and the same instrument. *Signature Page Follows* 11 LANDLORD: The Massachusetts Institute of Technology By: Name: Its: ASSIGNOR: Washington Group International, Inc., an Ohio corporation By: Name: Its: The Shaw Group Inc., a Louisiana corporation ASSIGNEE: _____________ dt 640126
Preview Full Doc	2002	Asset Purchase Agreement Asset Purchase Agreement (195K) Doc #382507: Click preview link for longer preview. ASSET PURCHASE AGREEMENT BY AND AMONG THE IT GROUP, INC. CERTAIN SUBSIDIARIES OF THE IT GROUP, INC. AND THE SHAW GROUP INC. DATED AS OF JANUARY 23, 2002 {PAGE} LIST OF SCHEDULES AND EXHIBITS I. Schedules to be delivered by Sellers Schedule 2.01(a)..................................................Real Property Schedule 2.01(b)..............................................Personal Property Schedule 2.0l(g)........................................Intellectual Properties Schedule 2.01(i)....................................................Investments Schedule 3.02(b)......................Requisite Approvals, Consents and Filings Schedule 3.05...................................Legal and Regulatory Compliance Schedule 3.06......................................Interim Financial Statements Schedule 3.09.......................................Subsidiaries and Affiliates Schedule 3.13.............................................Environmental Matters Schedule 3.13(f)......................................Underground Storage Tanks Schedule 3.17................................................Sellers' Contracts Schedule 3.19................................................Sellers' Employees Schedule 3.20................................Sellers' Benefit Plans Disclosures Schedule 3.21........................................Litigation and Proceedings Schedule 3.31............................................Government Contracting Schedule 3.32...............................................Accounts Receivable II. Schedules to be delivered by Buyer Schedule 1.01...............................................Assumed Liabilities Schedule 2.02(i)......................................Included Subsidiary Stock Schedule 2.02(b)............................................Completed Contracts Schedule 2.02(d)................................................Excluded Assets Schedule 3.12(b)...........................Permitted Real Property Encumbrances Schedule 4.08...........................................Actions and Proceedings Schedule 5.04...................................................Hired Employees Schedule 5.15(b).............................................Excluded Contracts III. Exhibits Exhibit A.................Form of Buyer Protection and Bidding Procedures Order Exhibit B....................................................Form of Sale Order Exhibit C....................................Form of Sellers' Counsel's Opinion Exhibit D.................................Form of Registration Rights Agreement {PAGE} TABLE OF CONTENTS {Table} {Caption} Page ---- {S} {C} 1. DEFINITIONS AND REFERENCES..............................................2 1.01. Definitions....................................................2 1.02. Certain References............................................12 2. SALE OF ASSETS AND RELATED MATTERS.....................................12 2.01. Sale of Assets................................................12 2.02. Excluded Assets...............................................14 2.03. Assumed Liabilities...........................................15 2.04. Excluded Liabilities..........................................15 2.05. Purchase Price................................................16 2.06. Purchase Price Adjustment.....................................17 2.08. Addition of Sellers; Delivery of Schedules....................18 3. REPRESENTATIONS AND WARRANTIES OF SELLERS..............................18 3.01. Organization..................................................18 3.02. Powers; Consents; Absence of Conflict, Etc....................19 3.03. Binding Agreement.............................................19 3.04. Subsidiaries, Investments and Third Party Rights..............19 3.05. Legal and Regulatory Compliance...............................20 3.06. Financial Statements..........................................20 3.07. Undisclosed Liabilities.......................................20 3.08. Recent Activities.............................................20 3.09. Subsidiaries; Assets..........................................21 3.10. Equipment.....................................................21 3.11. Title to Personal Property....................................21 3.12. Real Property.................................................21 3.13. Environmental Matters.........................................22 3.14. Intellectual Properties, Computer Software, etc...............23 3.15. Insurance.....................................................23 3.16. Permits and Licenses..........................................23 3.17. Agreements and Commitments....................................24 3.18. Contracts.....................................................25 3.19. Employees and Employee Relations..............................26 3.20. Employee Benefit Plans........................................26 3.21. Litigation and Proceedings....................................28 3.22. Taxes.........................................................28 3.23. Brokers and Finders...........................................29 3.24. Payments......................................................29 3.25. Intentionally Deleted.........................................29 3.26. Customer List.................................................29 3.27. Backlog...................................................... 29 3.28. Investment Experience and Intent; No Registration.............29 {/Table} i {PAGE} {Table} {S} {C} 3.29. Accredited Investor Status....................................29 3.30. Rule 144......................................................29 3.31. Government Contracting........................................30 3.32. Accounts Receivable...........................................30 3.33. Related Party Transactions....................................31 4. REPRESENTATIONS AND WARRANTIES OF BUYER................................31 4.01. Organization..................................................31 4.02. Corporate Powers; Consents; Absence of Conflicts, Etc.........31 4.03. Binding Agreement.............................................31 4.04. Issuance of Share Consideration...............................31 4.05. Brokers and Finders...........................................32 4.06. Payments......................................................32 4.07. SEC Documents and Other Reports...............................32 4.08. Actions and Proceedings.......................................32 4.09. Capital Structure.............................................33 4.10. Absence of Certain Changes or Events..........................33 4.11. Financing.....................................................33 5. COVENANTS AND AGREEMENTS OF THE PARTIES................................33 5.01. Filing of Sale Motion; Entry of Buyer Protection and Bidding Procedures Order; Additional Sellers............................................33 5.02. Operations....................................................34 5.03. Certain Actions...............................................34 5.04. Employee Matters..............................................35 5.05. Access to and Provision of Additional Information.............36 5.06. Post-Closing Maintenance of and Access to Information.........37 5.07. Governmental Authority Approvals: Consents to Assignment......38 5.08. Use of Names..................................................39 5.09. Allocation of Purchase Price for Tax Purposes; Type of Consideration Paid............................................40 5.10. Further Acts and Assurances...................................40 5.11. Costs and Expenses............................................40 5.12. Insurance Ratings.............................................41 5.13. Fulfillment of Conditions.....................................41 5.14. Release of Encumbrances.......................................41 5.15. Assumed Contracts; Excluded Contracts.........................41 5.16. Bankruptcy Court Approval.....................................42 5.17. Transfer Taxes................................................43 5.18. Listing Application...........................................44 5.19. Bankruptcy Filings............................................44 5.20. Non-Solicitation..............................................44 5.21. Tail Insurance................................................44 5.22. Cooperation with Audited Financial Statements.................45 5.23. Exception.....................................................45 5.24. Use of Office Space and Equipment.............................45 {/Table} ii {PAGE} {Table} {S} {C} 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS.........................45 6.01. Representations and Warranties; Covenants.....................46 6.02. Adverse Actions or Proceedings................................46 6.03. Pre-Closing Confirmations.....................................46 6.05. No Buyer Material Adverse Change..............................46 6.06. Deliveries at Closing.........................................46 6.07. Sale Order....................................................46 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER...........................46 7.01. Sale Order; Representations and Warranties; Covenants.........46 7.02. Adverse Actions or Proceedings................................47 7.03. Opinion of Sellers' Counsel...................................47 7.04. Deliveries at Closing.........................................48 8. CLOSING; TERMINATION OF AGREEMENT......................................48 8.01. Closing; Buyer Designees; Post-Closing Transfers..............48 8.02. Action of Sellers at Closing..................................49 8.03. Action of Buyer at Closing....................................49 8.04. Termination Prior to Closing; Break-Up Fee and Expense Reimbursement; Other Compensation.............................50 9. GENERAL................................................................52 9.01. Schedules.....................................................52 9.02. Tax Effect....................................................52 9.03. Time of Essence...............................................52 9.04. Consents, Approvals and Discretion............................53 9.05. Choice of Law; Submission to Jurisdiction.....................53 9.06. Benefit...................................................... 53 9.07. No Third Party Beneficiary....................................53 9.08. Waiver of Breach, Right or Remedy.............................53 9.09. Notices.......................................................53 9.10. Misdirected Payments; Offset Rights...........................54 9.11. Severability..................................................55 9.12. Entire Agreement; Counterparts; Amendment.....................55 9.13. Drafting......................................................55 9.14. Confidentiality...............................................55 9.16. Publicity.....................................................55 9.17. Assignment....................................................55 {/Table} iii {PAGE} ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as of the 23rd day of January, 2002, by and among THE SHAW GROUP INC., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC., a Delaware corporation ("ITG") and the Subsidiaries (as defined) of ITG which are or become signatories to this Agreement in accordance with the terms hereof (together with ITG, "Sellers"). RECITALS WHEREAS, pursuant to the Letter of Intent dated January 15, 2002 (the "Letter of Intent") by and between ITG and Buyer, Buyer and ITG set forth their non-binding intent to, among other things, negotiate and enter into a definitive agreement for the sale and purchase of the Assets (as defined) and the assumption of the Assumed Contracts (as defined) and the Assumed Liabilities (as defined) of Sellers, as more fully described and defined in this Agreement; WHEREAS, the Assets are owned by ITG and certain of its direct and indirect Subsidiaries, and this Agreement is being executed initially by ITG and Buyer with the agreement of ITG as is set forth herein to cause any of its Subsidiaries that have any right, title or interest in or to the Assets, to become a Party to, and one of the Sellers under, this Agreement by an amendment hereto; WHEREAS, in order to facilitate the Transaction (as defined), ITG has filed and has caused or intends to cause certain of the other Sellers to file, cases under chapter 11 of the Bankruptcy Code (as defined); WHEREAS, pursuant to this Agreement and in furtherance of the Transaction, Sellers will covenant pursuant to this Agreement to seek the Buyer Protection and Bidding Procedures Order (as defined), the Executory Contract Assumption and Assignment Order (as defined) and the Sale Order (as defined) from the Bankruptcy Court (as defined); WHEREAS, the Parties intend to consummate the sale and purchase of the Assets owned by the Foreign Sellers (as defined) outside of the Bankruptcy Cases and in compliance with the Legal Requirements (as defined) of such foreign jurisdictions governing the sale and purchase of such Assets; and WHEREAS, Sellers desire to sell the Assets to Buyer, and Buyer desires to purchase the Assets from Sellers, on the terms and subject to the conditions set forth in this Agreement. AGREEMENT NOW, THEREFORE, for and in consideration of the foregoing premises, and the agreements, covenants, representations and warranties hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged and accepted, the Parties, intending to be legally bound, hereby agree as follows: 1 {PAGE} 1. DEFINITIONS AND REFERENCES 1.01. Definitions. As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings given: Accounts Receivable: all accounts receivable of any Seller, of whatever kind or nature, including all current or deferred rights to payment for projects completed or commenced or services rendered on or prior to the Closing Date, whether or not such services have been billed by Sellers as of the Closing Date; Accredited Investor: as defined in Rule 501 of Regulation D promulgated under the Securities Act; Affiliate: any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with another Person, including the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of securities, election or appointment of directors, by contract or otherwise; Affiliated Group: any affiliated group within the meaning of Code section 1504 or any similar group defined under a similar provision of state, local or foreign law; Agreement: this Asset Purchase Agreement and all exhibits and schedules attached hereto, as amended, consolidated, supplemented, novated or replaced by the Parties from time to time; Assets: all assets, real, personal and mixed, tangible and intangible, owned by Sellers or leased by Sellers pursuant to capital leases, including the assets described in Section 2.01 hereof, but excluding in any event the Excluded Assets; for avoidance of doubt, the term "Assets" means all assets of ITG and Subsidiaries, other than the Excluded Assets; Assumed Contracts: all Contracts of Sellers other than the Excluded Contracts and the Completed Contracts; Assumed Liabilities: (i) all of Sellers' post-Closing liabilities under the Assumed Contracts which relate to performance thereunder by Buyer, but, subject to Buyer's obligation to pay pre-petition cure costs relating to Assumed Contracts pursuant to clause (ii) of this definition, excluding all post-Closing obligations under the Assumed Contracts which relate to pre-Closing performance undertaken by Sellers, (ii) pre-petition and post-petition cure costs and letters of credit related to the Assumed Contracts, (iii) any amounts owing under the Credit Agreement (or any Loan Document as defined therein) at Closing, (iv) fifty percent (50%) of ITG's liability, if any, under the WARN Act related to a lay-off of employees of the business of Beneco, up to a maximum of fifty percent (50%) of the amount of sixty (60) days' wages for employees of Beneco; provided, however, that Buyer shall not assume such WARN Act liability if Sellers are unable to sell to Buyer, free and clear of all Encumbrances, the assets of Beneco that have not been designated by Buyer as Excluded Assets, (v) any other liabilities specifically designated by Buyer, on or prior to the Closing Date, as Assumed Liabilities on Schedule 1.01, and (vi) any Taxes with respect to the ownership of the Assets or the operation of the Business after the Closing Date and excluding specifically any Taxes, other than Taxes described in clause 2 {PAGE} (vii), that were accrued or should have been accrued on Sellers' financial statements, in accordance with GAAP, as of the Closing Date and also excluding specifically any Taxes attributable to this Transaction, and (vii) property and similar Taxes to the extent Buyer is liable for such Taxes pursuant to Section 5.17; Audited Financial Statements: the audited consolidated balance sheet of ITG as of December 29, 2000 and the audited consolidated statements of operations and consolidated income and cash flows for the three (3) fiscal years then ended, together with the notes thereto and the report thereon of Ernst & Young, LLP independent certified public accountants, and any audited restatements thereof; Average Price: as defined in Section 2.05(a); Bankruptcy Cases: the cases under chapter 11 of the Bankruptcy Code filed by each of the Sellers (other than the Foreign Sellers) in the Bankruptcy Court, or any Person who hereafter becomes a Seller and files a case under chapter 11 of the Bankruptcy Code pursuant to Section 5.01, which cases Sellers shall seek to administratively consolidate; Bankruptcy Code: 11 U.S.C. 101 et. seq., and applicable federal rules of bankruptcy procedure thereunder; Bankruptcy Court: (a) the United States District Court for the District of Delaware, (b) the United States District Court for the District of Utah, to the extent the involuntary bankruptcy case of Beneco is not transferred to the United States District Court for the District of Delaware, (c) to the extent of any reference under Section 157 of Title 28 of the United States Code, the unit of either such District Court constituted under Section 151, Title 28 of the United States Code or (d) such other Court to which the Bankruptcy Cases may be transferred; Beneco: Beneco Enterprises, Inc., a Subsidiary of ITG, and one of the Sellers; Bid: means any quotation, bid or proposal by any Seller which, if accepted or awarded, would lead to a contract with a Government Authority, or a prime contractor or a higher-tier subcontractor to a Government Authority, for the sale of goods or the provision of services by any Seller or a contracting team of which any Seller is a member. Bid Deadline: the date established in the Buyer Protection and Bidding Procedures Order as the deadline for submissions of Qualified Bids; Break-Up Fee and Expense Reimbursement: an amount equal to Six Million Dollars ($6,000,000); Business: any and all businesses owned, leased, managed or otherwise 382507	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Asset Purchase Agreement: SHAW GROUP INC – txt {DESCRIPTION}COMPOSITE ASSET PURCHASE AGREEMENT {TEXT} {PAGE} EXHIBIT 2.1 ASSET PURCHASE AGREEMENT BY AND AMONG THE IT GROUP, INC. CERTAIN SUBSIDIARIES OF THE IT GROUP, INC. AND THE SHAW GROUP INC . DATED AS OF JANUARY 23, 2002 {PAGE} LIST OF SCHEDULES AND EXHIBITS I. Schedules to be delivered by Sellers Schedule 2.01(a)..................................................Real Property Schedule 2.01(b).............................................. _____________ SHAW GROUP INC – Assignment....................................................55 {/Table} iii {PAGE} ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as of the 23rd day of January, 2002, by and among THE SHAW GROUP INC ., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC., a Delaware corporation ("ITG") and the Subsidiaries (as defined) of ITG which are _____________ Shaw Group Inc – date received by facsimile or other electronic means, or (c) one (1) day after the date tendered for delivery by nationally recognized overnight courier: 53 {PAGE} If to Buyer: The Shaw Group Inc . 8545 United Plaza Boulevard, Suite 200 Baton Rouge, Louisiana 70809 Attn: General Counsel Facsimile: (225) 932-2642 with a copy to: Gibson, Dunn & Crutcher LLP 2100 McKinney Avenue, Suite _____________ SHAW GROUP INC – IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in multiple originals by their duly authorized officers as of the Effective Date. THE IT GROUP, INC. THE SHAW GROUP INC . By: /s/ Harry J. Soose By: /s/ Gary P. Graphia ---------------------------- ------------------------------- Name: Harry J. Soose Name: Gary P. Graphia Title: Chief Financial Officer Title: Corporate Secretary and General Counsel 56 {/ _____________ dt 1419191 ; IT Group IT Group, Inc. ( Waste Management Services ) As referenced in this Asset Purchase Agreement: IT GROUP, INC. – {DOCUMENT} {TYPE}EX-2.1 {SEQUENCE}3 {FILENAME}d96958ex2-1.txt {DESCRIPTION}COMPOSITE ASSET PURCHASE AGREEMENT {TEXT} {PAGE} EXHIBIT 2.1 ASSET PURCHASE AGREEMENT BY AND AMONG THE IT GROUP, INC. CERTAIN SUBSIDIARIES OF THE IT GROUP, INC. AND THE SHAW GROUP INC. DATED AS OF JANUARY 23, 2002 {PAGE} LIST OF SCHEDULES AND EXHIBITS I. Schedules to be delivered _____________ IT GROUP, INC. – SEQUENCE}3 {FILENAME}d96958ex2-1.txt {DESCRIPTION}COMPOSITE ASSET PURCHASE AGREEMENT {TEXT} {PAGE} EXHIBIT 2.1 ASSET PURCHASE AGREEMENT BY AND AMONG THE IT GROUP, INC. CERTAIN SUBSIDIARIES OF THE IT GROUP, INC. AND THE SHAW GROUP INC. DATED AS OF JANUARY 23, 2002 {PAGE} LIST OF SCHEDULES AND EXHIBITS I. Schedules to be delivered by Sellers Schedule 2.01(a)..................................................Real _____________ IT GROUP, INC. – entered into as of the 23rd day of January, 2002, by and among THE SHAW GROUP INC., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC. , a Delaware corporation ("ITG") and the Subsidiaries (as defined) of ITG which are or become signatories to this Agreement in accordance with the terms hereof (together with ITG, "Sellers"). _____________ IT Group, Inc. – 2642 with a copy to: Gibson, Dunn & Crutcher LLP 2100 McKinney Avenue, Suite 1100 Dallas, Texas 75201 Attn: Michael A. Rosenthal, Esq. Facsimile: (214) 698-3400 If to Seller: The IT Group, Inc. 2790 Mosside Boulevard Monroeville, PA 15143-3356 Attn: Chief Executive Officer Facsimile: (412) 858-3311 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square P. _____________ IT GROUP, INC. – Page Follows] 55 {PAGE} IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in multiple originals by their duly authorized officers as of the Effective Date. THE IT GROUP, INC. THE SHAW GROUP INC. By: /s/ Harry J. Soose By: /s/ Gary P. Graphia ---------------------------- ------------------------------- Name: Harry J. Soose Name: Gary P. Graphia Title: Chief Financial Officer Title: Corporate Secretary _____________ dt 1470022 ;	Gibson Dunn Gibson, Dunn & Crutcher ( Legal ) As referenced in this Asset Purchase Agreement: Gibson, Dunn – the sale and purchase of the Assets and the Business and the other transactions contemplated by and described in this Agreement (the "Closing") shall take place at the offices of Gibson, Dunn & Crutcher LLP, 2100 McKinney Avenue, Suite 1100, Dallas, Texas at 10:00 a.m. on the first business day following satisfaction or waiver of the conditions set forth in _____________ Gibson, Dunn – 53 {PAGE} If to Buyer: The Shaw Group Inc. 8545 United Plaza Boulevard, Suite 200 Baton Rouge, Louisiana 70809 Attn: General Counsel Facsimile: (225) 932-2642 with a copy to: Gibson, Dunn & Crutcher LLP 2100 McKinney Avenue, Suite 1100 Dallas, Texas 75201 Attn: Michael A. Rosenthal, Esq. Facsimile: (214) 698-3400 If to Seller: The IT Group, Inc. 2790 Mosside Boulevard _____________ dt 1483536 ; Skadden Skadden, Arps, Slate, Meagher & Flom LLP ( Legal ) As referenced in this Asset Purchase Agreement: Skadden, Arps – Facsimile: (214) 698-3400 If to Seller: The IT Group, Inc. 2790 Mosside Boulevard Monroeville, PA 15143-3356 Attn: Chief Executive Officer Facsimile: (412) 858-3311 with a copy to: Skadden, Arps , Slate, Meagher & Flom LLP One Rodney Square P. O. Box 636 Wilmington, DE 19899-0636 Attn: Gregg M. Galardi, Esq. Facsimile: (302) 651-3001 or to such other address _____________ dt 1430924
Preview Full Doc	2002	The Asset Purchase Agreement [Amendment No. 3] The Asset Purchase Agreement [Amendment No. 3] (33K) Doc #382508: Click preview link for longer preview. AMENDMENT NO. 3 TO THE ASSET PURCHASE AGREEMENT AMENDMENT NO. 3, dated May 2, 2002 (this "Amendment") to the ASSET PURCHASE AGREEMENT (the "Original Agreement"), dated as of January 23, 2002, as amended, by and among THE SHAW GROUP INC., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC., a Delaware corporation ("ITG") and the Subsidiaries (as defined in the Agreement) of ITG which are or become signatories to the Agreement (together with ITG, "Sellers"). RECITALS WHEREAS, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement; WHEREAS, the Parties previously amended the Original Agreement on January 24, 2002, pursuant to Amendment No. 1 to the Asset Purchase Agreement (the "First Amendment"); WHEREAS, the Parties further amended the Original Agreement on January 29, 2002, pursuant to Amendment No. 2 to the Asset Purchase Agreement (the "Second Amendment"); WHEREAS, the Parties further amended the Original Agreement pursuant to a letter agreement dated April 30, 2002 (the Original Agreement, as amended by the First Amendment, the Second Amendment and the letter agreement, the "Agreement"); WHEREAS, the Parties have determined that it is advisable to further amend the Agreement to document various understandings, agreements and Court-ordered modifications to the Agreement; and WHEREAS, Section 9.12 of the Agreement provides that the Agreement may be amended by execution of a written instrument executed by the Parties thereto. AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises, and the agreements, covenants, representations and warranties contained in the Agreement and herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged and accepted, the Parties, intending to be legally bound, hereby agree as follows: 1. The definition of "Beneco" set forth in Section 1.01 of the Agreement is hereby amended and restated in its entirety to read as follows: Beneco: Beneco Enterprises, Inc., a Utah corporation and Subsidiary of ITG, but not a Seller hereunder. 1 {PAGE} 2. The definition of "Break-Up Fee and Expense Reimbursement" set forth in Section 1.01 of the Agreement is hereby amended and restated in its entirety to read as follows: Break-Up Fee and Expense Reimbursement: an amount equal to Four Million Eight Hundred Thousand Dollars ($4,800,000); 3. Section 1.01 of the Agreement is amended to add thereto the following defined terms: Accrued Expense Budget: as defined in Section 5.26. Accrued Expenses: as defined in Section 5.26; Basket: as defined in Section 2.06(c); Budgets: the budgets approved by Lender under the terms of the Credit Agreement; Fringe Benefits: benefits for employees of ITG and its Subsidiaries that are incurred or accrued and unpaid as of the Closing Date, including without limitation travel expenses and other employee expense reimbursements and amounts payable under or in respect of the continuing benefit plans referred to in Section I.A. of Schedule 5.15(b); Fringe Benefits Amount: as defined in Section 2.05(c); Professional Fees Cap: as defined in Section 5.26(b)(iv); Retention Amount: as defined in Section 5.26(b)(iv); Termination Fee: an amount equal to the sum of (i) the reasonable fees and expenses incurred by Buyer in connection with the Transaction plus (ii) One Million Dollars ($1,000,000); 4. The following is added to the end of Section 2.02: Notwithstanding the foregoing, Buyer shall not designate the Share Consideration, the Cash Consideration, the Employee Payments or any other cash paid to Sellers by Buyer pursuant to the provisions of this Agreement as Assets. In addition, to the extent claims or causes of action of Sellers against Sellers' pre-petition secured lenders are not avoidance actions referred to in Section 2.02(d), Buyer and Sellers agree that such claims or causes of action shall constitute Excluded Assets. 5. Section 2.05(c) of the Agreement is amended and restated in its entirety and shall read as follows: 2 {PAGE} (c) an amount of cash (the "Employee Payments") equal to the sum of (i) the Payroll Payments, (ii) the Retention Plan Payments, (iii) an amount equal to one (1) week's vacation pay for all of Sellers' employees as of the Closing Date and (iv) Seven Million Dollars ($7,000,000) to be used first for Fringe Benefits and, once the Fringe Benefits are paid, for the Sellers' estates (the "Fringe Benefit Amount"); provided, however, that (A) in no event shall the total amount of the Employee Payments exceed Twenty-Nine Million Five Hundred Thousand Dollars ($29,500,000), and (B) in the event an employee of any Seller leaves voluntarily prior to the Closing Date, Buyer shall nevertheless pay to ITG fifty percent (50%) of the sum of (x) the amount such employee would have received under the Retention Plan plus (y) one (1) week's vacation pay for such employee. 6. Section 2.06(c) of the Agreement is amended and restated in its entirety and shall read as follows: (c) The Cash Consideration shall be further reduced, on a dollar-for-dollar basis, to the extent that any use of cash by any Seller not in accordance with the Budgets exceeds $500,000 in the aggregate (the "Basket"), and in such event such reduction shall be equal to the amount by which such cash used not in accordance with the Budgets exceeds the Basket. The reduction in Cash Consideration described in this Section 2.06(c) is separate from, and in addition to, any other remedy which may be available to Lender under the terms of the Credit Agreement. 7. Section 2.08(a) of the Agreement is amended and restated in its entirety and shall read as follows: (a) ITG agrees that, prior to the Closing Date, it will cause this Agreement to be amended to add as Sellers hereunder any of its Subsidiaries that have any right, title or interest in or to any of the Assets. ITG and Buyer agree that any references herein to Sellers shall mean and include ITG and all such Subsidiaries, and the representations and warranties of ITG in this Agreement shall be made with respect to all Sellers as if all Sellers had been Parties to this Agreement on the date hereof. 8. Section 2.08(b) of the Agreement is amended and restated in its entirety and shall read as follows: (b) Sellers shall deliver the Seller Schedules to Buyer no later than March 11, 2002. 9. Section 2.08(c) of the Agreement is amended and restated in its entirety and shall read as follows: (c) Buyer shall deliver the Buyer Schedules other than 382508	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this The Asset Purchase Agreement [Amendment No. 3]: SHAW GROUP INC – AGREEMENT AMENDMENT NO. 3, dated May 2, 2002 (this "Amendment") to the ASSET PURCHASE AGREEMENT (the "Original Agreement"), dated as of January 23, 2002, as amended, by and among THE SHAW GROUP INC ., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC., a Delaware corporation ("ITG") and the Subsidiaries (as defined in the Agreement) of _____________ SHAW GROUP INC – executed this Amendment and caused the same to be duly delivered on their behalf on the day and year first written above. {Table} {S} {C} THE IT GROUP, INC. THE SHAW GROUP INC . By: /s/ HARRY J. SOOSE By: /s/ GARY P. GRAPHIA -------------------------------- -------------------------------------------- Name: Harry J. Soose Name: Gary P. Graphia Title: Chief Financial Officer Title: Corporate Secretary and General Counsel {/Table} _____________ dt 1419192 ;	IT Group IT Group, Inc. ( Waste Management Services ) As referenced in this The Asset Purchase Agreement [Amendment No. 3]: IT GROUP, INC. – Original Agreement"), dated as of January 23, 2002, as amended, by and among THE SHAW GROUP INC., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC. , a Delaware corporation ("ITG") and the Subsidiaries (as defined in the Agreement) of ITG which are or become signatories to the Agreement (together with ITG, "Sellers"). RECITALS WHEREAS, capitalized _____________ IT GROUP, INC. – WHEREOF, the Parties have executed this Amendment and caused the same to be duly delivered on their behalf on the day and year first written above. {Table} {S} {C} THE IT GROUP, INC. THE SHAW GROUP INC. By: /s/ HARRY J. SOOSE By: /s/ GARY P. GRAPHIA -------------------------------- -------------------------------------------- Name: Harry J. Soose Name: Gary P. Graphia Title: Chief Financial Officer Title: Corporate Secretary _____________ dt 1470023
Preview Full Doc	2002	Asset Purchase Agreement Asset Purchase Agreement (195K) Doc #382511: Click preview link for longer preview. ASSET PURCHASE AGREEMENT BY AND AMONG THE IT GROUP, INC. CERTAIN SUBSIDIARIES OF THE IT GROUP, INC. AND THE SHAW GROUP INC. DATED AS OF JANUARY 23, 2002 {PAGE} LIST OF SCHEDULES AND EXHIBITS I. Schedules to be delivered by Sellers {Table} {S} {C} Schedule 2.01(a)....................................................Real Property Schedule 2.01(b)................................................Personal Property Schedule 2.0l(g)..........................................Intellectual Properties Schedule 2.01(i)......................................................Investments Schedule 3.02(b)........................Requisite Approvals, Consents and Filings Schedule 3.05.....................................Legal and Regulatory Compliance Schedule 3.06........................................Interim Financial Statements Schedule 3.09.........................................Subsidiaries and Affiliates Schedule 3.13...............................................Environmental Matters Schedule 3.13(f)........................................Underground Storage Tanks Schedule 3.17..................................................Sellers' Contracts Schedule 3.19..................................................Sellers' Employees Schedule 3.20..................................Sellers' Benefit Plans Disclosures Schedule 3.21..........................................Litigation and Proceedings Schedule 3.31..............................................Government Contracting Schedule 3.32.................................................Accounts Receivable II. Schedules to be delivered by Buyer Schedule 1.01.................................................Assumed Liabilities Schedule 2.02(i)........................................Included Subsidiary Stock Schedule 2.02(b)..............................................Completed Contracts Schedule 2.02(d)..................................................Excluded Assets Schedule 3.12(b).............................Permitted Real Property Encumbrances Schedule 4.08.............................................Actions and Proceedings Schedule 5.04.....................................................Hired Employees Schedule 5.15(b)...............................................Excluded Contracts III. Exhibits Exhibit A...................Form of Buyer Protection and Bidding Procedures Order Exhibit B......................................................Form of Sale Order Exhibit C......................................Form of Sellers' Counsel's Opinion Exhibit D...................................Form of Registration Rights Agreement {/Table} {PAGE} TABLE OF CONTENTS {Table} {Caption} Page ---- {S} {C} 1. DEFINITIONS AND REFERENCES................................................2 1.01. Definitions......................................................2 1.02. Certain References..............................................12 2. SALE OF ASSETS AND RELATED MATTERS.......................................12 2.01. Sale of Assets..................................................12 2.02. Excluded Assets.................................................14 2.03. Assumed Liabilities.............................................15 2.04. Excluded Liabilities............................................15 2.05. Purchase Price..................................................16 2.06. Purchase Price Adjustment.......................................17 2.08. Addition of Sellers; Delivery of Schedules......................18 3. REPRESENTATIONS AND WARRANTIES OF SELLERS................................18 3.01. Organization....................................................18 3.02. Powers; Consents; Absence of Conflict, Etc......................19 3.03. Binding Agreement...............................................19 3.04. Subsidiaries, Investments and Third Party Rights................19 3.05. Legal and Regulatory Compliance.................................20 3.06. Financial Statements............................................20 3.07. Undisclosed Liabilities.........................................20 3.08. Recent Activities...............................................20 3.09. Subsidiaries; Assets............................................21 3.10. Equipment.......................................................21 3.11. Title to Personal Property......................................21 3.12. Real Property...................................................21 3.13. Environmental Matters...........................................22 3.14. Intellectual Properties, Computer Software, etc.................23 3.15. Insurance.......................................................23 3.16. Permits and Licenses............................................23 3.17. Agreements and Commitments......................................24 3.18. Contracts.......................................................25 3.19. Employees and Employee Relations................................25 3.20. Employee Benefit Plans..........................................26 3.21. Litigation and Proceedings......................................28 3.22. Taxes...........................................................28 3.23. Brokers and Finders.............................................29 3.24. Payments........................................................29 3.25. Intentionally Deleted...........................................29 3.26. Customer List...................................................29 3.27. Backlog.........................................................29 3.28. Investment Experience and Intent; No Registration...............29 {/Table} i {PAGE} {Table} {S} {C} 3.29. Accredited Investor Status......................................29 3.30. Rule 144........................................................29 3.31. Government Contracting..........................................30 3.32. Accounts Receivable.............................................30 3.33. Related Party Transactions......................................31 4. REPRESENTATIONS AND WARRANTIES OF BUYER..................................31 4.01. Organization....................................................31 4.02. Corporate Powers; Consents; Absence of Conflicts, Etc...........31 4.03. Binding Agreement...............................................31 4.04. Issuance of Share Consideration.................................31 4.05. Brokers and Finders.............................................32 4.06. Payments........................................................32 4.07. SEC Documents and Other Reports.................................32 4.08. Actions and Proceedings.........................................32 4.09. Capital Structure...............................................33 4.10. Absence of Certain Changes or Events............................33 4.11. Financing.......................................................33 5. COVENANTS AND AGREEMENTS OF THE PARTIES..................................33 5.01. Filing of Sale Motion; Entry of Buyer Protection and Bidding Procedures Order; Additional Sellers............................33 5.02. Operations......................................................34 5.03. Certain Actions.................................................34 5.04. Employee Matters................................................35 5.05. Access to and Provision of Additional Information...............37 5.06. Post-Closing Maintenance of and Access to Information...........37 5.07. Governmental Authority Approvals: Consents to Assignment........38 5.08. Use of Names....................................................39 5.09. Allocation of Purchase Price for Tax Purposes; Type of Consideration Paid..............................................40 5.10. Further Acts and Assurances.....................................40 5.11. Costs and Expenses..............................................40 5.12. Insurance Ratings...............................................41 5.13. Fulfillment of Conditions.......................................41 5.14. Release of Encumbrances.........................................41 5.15. Assumed Contracts; Excluded Contracts...........................41 5.16. Bankruptcy Court Approval.......................................42 5.17. Transfer Taxes..................................................43 5.18. Listing Application.............................................44 5.19. Bankruptcy Filings..............................................44 5.20. Non-Solicitation................................................44 5.21. Tail Insurance..................................................44 5.22. Cooperation with Audited Financial Statements...................45 5.23. Exception.......................................................45 5.24. Use of Office Space and Equipment...............................45 {/Table} {PAGE} {Table} {S} {C} 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS...........................45 6.01. Representations and Warranties; Covenants.......................46 6.02. Adverse Actions or Proceedings..................................46 6.03. Pre-Closing Confirmations.......................................46 6.05. No Buyer Material Adverse Change................................46 6.06. Deliveries at Closing...........................................46 6.07. Sale Order......................................................46 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.............................46 7.01. Sale Order; Representations and Warranties; Covenants...........46 7.02. Adverse Actions or Proceedings..................................47 7.03. Opinion of Sellers' Counsel.....................................47 7.04. Deliveries at Closing...........................................48 8. CLOSING; TERMINATION OF AGREEMENT........................................48 8.01. Closing; Buyer Designees; Post-Closing Transfers................48 8.02. Action of Sellers at Closing....................................49 8.03. Action of Buyer at Closing......................................49 8.04. Termination Prior to Closing; Break-Up Fee and Expense Reimbursement; Other Compensation...............................50 9. GENERAL..................................................................52 9.01. Schedules.......................................................52 9.02. Tax Effect......................................................52 9.03. Time of Essence.................................................52 9.04. Consents, Approvals and Discretion..............................53 9.05. Choice of Law; Submission to Jurisdiction.......................53 9.06. Benefit.........................................................53 9.07. No Third Party Beneficiary......................................53 9.08. Waiver of Breach, Right or Remedy...............................53 9.09. Notices.........................................................53 9.10. Misdirected Payments; Offset Rights.............................54 9.11. Severability....................................................55 9.12. Entire Agreement; Counterparts; Amendment.......................55 9.13. Drafting........................................................55 9.14. Confidentiality.................................................55 9.16. Publicity.......................................................55 9.17. Assignment......................................................55 {/Table} iii {PAGE} ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as of the 23rd day of January, 2002, by and among THE SHAW GROUP INC., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC., a Delaware corporation ("ITG") and the Subsidiaries (as defined) of ITG which are or become signatories to this Agreement in accordance with the terms hereof (together with ITG, "Sellers"). RECITALS WHEREAS, pursuant to the Letter of Intent dated January 15, 2002 (the "Letter of Intent") by and between ITG and Buyer, Buyer and ITG set forth their non-binding intent to, among other things, negotiate and enter into a definitive agreement for the sale and purchase of the Assets (as defined) and the assumption of the Assumed Contracts (as defined) and the Assumed Liabilities (as defined) of Sellers, as more fully described and defined in this Agreement; WHEREAS, the Assets are owned by ITG and certain of its direct and indirect Subsidiaries, and this Agreement is being executed initially by ITG and Buyer with the agreement of ITG as is set forth herein to cause any of its Subsidiaries that have any right, title or interest in or to the Assets, to become a Party to, and one of the Sellers under, this Agreement by an amendment hereto; WHEREAS, in order to facilitate the Transaction (as defined), ITG has filed and has caused or intends to cause certain of the other Sellers to file, cases under chapter 11 of the Bankruptcy Code (as defined); WHEREAS, pursuant to this Agreement and in furtherance of the Transaction, Sellers will covenant pursuant to this Agreement to seek the Buyer Protection and Bidding Procedures Order (as defined), the Executory Contract Assumption and Assignment Order (as defined) and the Sale Order (as defined) from the Bankruptcy Court (as defined); WHEREAS, the Parties intend to consummate the sale and purchase of the Assets owned by the Foreign Sellers (as defined) outside of the Bankruptcy Cases and in compliance with the Legal Requirements (as defined) of such foreign jurisdictions governing the sale and purchase of such Assets; and WHEREAS, Sellers desire to sell the Assets to Buyer, and Buyer desires to purchase the Assets from Sellers, on the terms and subject to the conditions set forth in this Agreement. AGREEMENT NOW, THEREFORE, for and in consideration of the foregoing premises, and the agreements, covenants, representations and warranties hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged and accepted, the Parties, intending to be legally bound, hereby agree as follows: 1 {PAGE} 1. DEFINITIONS AND REFERENCES 1.01. Definitions. As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings given: Accounts Receivable: all accounts receivable of any Seller, of whatever kind or nature, including all current or deferred rights to payment for projects completed or commenced or services rendered on or prior to the Closing Date, whether or not such services have been billed by Sellers as of the Closing Date; Accredited Investor: as defined in Rule 501 of Regulation D promulgated under the Securities Act; Affiliate: any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with another Person, including the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of securities, election or appointment of directors, by contract or otherwise; Affiliated Group: any affiliated group within the meaning of Code section 1504 or any similar group defined under a similar provision of state, local or foreign law; Agreement: this Asset Purchase Agreement and all exhibits and schedules attached hereto, as amended, consolidated, supplemented, novated or replaced by the Parties from time to time; Assets: all assets, real, personal and mixed, tangible and intangible, owned by Sellers or leased by Sellers pursuant to capital leases, including the assets described in Section 2.01 hereof, but excluding in any event the Excluded Assets; for avoidance of doubt, the term "Assets" means all assets of ITG and Subsidiaries, other than the Excluded Assets; Assumed Contracts: all Contracts of Sellers other than the Excluded Contracts and the Completed Contracts; Assumed Liabilities: (i) all of Sellers' post-Closing liabilities under the Assumed Contracts which relate to performance thereunder by Buyer, but, subject to Buyer's obligation to pay pre-petition cure costs relating to Assumed Contracts pursuant to clause (ii) of this definition, excluding all post-Closing obligations under the Assumed Contracts which relate to pre-Closing performance undertaken by Sellers, (ii) pre-petition and post-petition cure costs and letters of credit related to the Assumed Contracts, (iii) any amounts owing under the Credit Agreement (or any Loan Document as defined therein) at Closing, (iv) fifty percent (50%) of ITG's liability, if any, under the WARN Act related to a lay-off of employees of the business of Beneco, up to a maximum of fifty percent (50%) of the amount of sixty (60) days' wages for employees of Beneco; provided, however, that Buyer shall not assume such WARN Act liability if Sellers are unable to sell to Buyer, free and clear of all Encumbrances, the assets of Beneco that have not been designated by Buyer as Excluded Assets, (v) any other liabilities specifically designated by Buyer, on or prior to the Closing Date, as Assumed Liabilities on Schedule 1.01, and (vi) any Taxes with respect to the ownership of the Assets or the operation of the Business after the Closing Date and excluding specifically any Taxes, other than Taxes described in clause 2 {PAGE} (vii), that were accrued or should have been accrued on Sellers' financial statements, in accordance with GAAP, as of the Closing Date and also excluding specifically any Taxes attributable to this Transaction, and (vii) property and similar Taxes to the extent Buyer is liable for such Taxes pursuant to Section 5.17; Audited Financial Statements: the audited consolidated balance sheet of ITG as of December 29, 2000 and the audited consolidated statements of operations and consolidated income and cash flows for the three (3) fiscal years then ended, together with the notes thereto and the report thereon of Ernst & Young, LLP independent certified public accountants, and any audited restatements thereof; Average Price: as defined in Section 2.05(a); Bankruptcy Cases: the cases under chapter 11 of the Bankruptcy Code filed by each of the Sellers (other than the Foreign Sellers) in the Bankruptcy Court, or any Person who hereafter becomes a Seller and files a case under chapter 11 of the Bankruptcy Code pursuant to Section 5.01, which cases Sellers shall seek to administratively consolidate; Bankruptcy Code: 11 U.S.C. 101 et. seq., and applicable federal rules of bankruptcy procedure thereunder; Bankruptcy Court: (a) the United States District Court for the District of Delaware, (b) the United States District Court for the District of Utah, to the extent the involuntary bankruptcy case of Beneco is not transferred to the United States District Court for the District of Delaware, (c) to the extent of any reference under Section 157 of Title 28 of the United States Code, the unit of either such District Court constituted under Section 151, Title 28 of the United States Code or (d) such other Court to which the Bankruptcy Cases may be transferred; Beneco: Beneco Enterprises, Inc., a Subsidiary of ITG, and one of the Sellers; Bid: means any quotation, bid or proposal by any Seller which, if accepted or awarded, would lead to a contract with a Government Authority, or a prime contractor or a higher-tier subcontractor to a Government Authority, for the sale of goods or the provision of services by any Seller or a contracting team of which any Seller is a member. Bid Deadline: the date established in the Buyer Protection and Bidding Procedures Order as the deadline for submissions of Qualified Bids; Break-Up Fee and Expense Reimbursement: an amount equal to Six Million Dollars ($6,000,000); Business: any and all businesses owned, leased, managed or otherwise 382511	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Asset Purchase Agreement: SHAW GROUP INC – 1.txt {DESCRIPTION}ASSET PURCHASE AGREEMENT {TEXT} {PAGE} EXHIBIT 2.1 ASSET PURCHASE AGREEMENT BY AND AMONG THE IT GROUP, INC. CERTAIN SUBSIDIARIES OF THE IT GROUP, INC. AND THE SHAW GROUP INC . DATED AS OF JANUARY 23, 2002 {PAGE} LIST OF SCHEDULES AND EXHIBITS I. Schedules to be delivered by Sellers {Table} {S} {C} Schedule 2.01(a)....................................................Real Property Schedule _____________ SHAW GROUP INC – Assignment......................................................55 {/Table} iii {PAGE} ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as of the 23rd day of January, 2002, by and among THE SHAW GROUP INC ., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC., a Delaware corporation ("ITG") and the Subsidiaries (as defined) of ITG which are _____________ Shaw Group Inc – date received by facsimile or other electronic means, or (c) one (1) day after the date tendered for delivery by nationally recognized overnight courier: 53 {PAGE} If to Buyer: The Shaw Group Inc . 8545 United Plaza Boulevard, Suite 200 Baton Rouge, Louisiana 70809 Attn: General Counsel Facsimile: (225) 932-2642 with a copy to: Gibson, Dunn & Crutcher LLP 2100 McKinney Avenue, Suite _____________ SHAW GROUP INC – IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in multiple originals by their duly authorized officers as of the Effective Date. THE IT GROUP, INC. THE SHAW GROUP INC . By: /s/ Harry J. Soose By: /s/ Gary P. Graphia --------------------------------- ---------------------------------- Name: Harry J. Soose Name: Gary P. Graphia Title: Chief Financial Officer Title: Corporate Secretary and General Counsel 56 {/ _____________ dt 1419193 ; IT Group IT Group, Inc. ( Waste Management Services ) As referenced in this Asset Purchase Agreement: IT GROUP, INC. – {DOCUMENT} {TYPE}EX-2.1 {SEQUENCE}3 {FILENAME}d96045ex2-1.txt {DESCRIPTION}ASSET PURCHASE AGREEMENT {TEXT} {PAGE} EXHIBIT 2.1 ASSET PURCHASE AGREEMENT BY AND AMONG THE IT GROUP, INC. CERTAIN SUBSIDIARIES OF THE IT GROUP, INC. AND THE SHAW GROUP INC. DATED AS OF JANUARY 23, 2002 {PAGE} LIST OF SCHEDULES AND EXHIBITS I. Schedules to be delivered _____________ IT GROUP, INC. – 1 {SEQUENCE}3 {FILENAME}d96045ex2-1.txt {DESCRIPTION}ASSET PURCHASE AGREEMENT {TEXT} {PAGE} EXHIBIT 2.1 ASSET PURCHASE AGREEMENT BY AND AMONG THE IT GROUP, INC. CERTAIN SUBSIDIARIES OF THE IT GROUP, INC. AND THE SHAW GROUP INC. DATED AS OF JANUARY 23, 2002 {PAGE} LIST OF SCHEDULES AND EXHIBITS I. Schedules to be delivered by Sellers {Table} {S} {C} Schedule 2. _____________ IT GROUP, INC. – entered into as of the 23rd day of January, 2002, by and among THE SHAW GROUP INC., a Louisiana corporation (together with its Designee(s), if any, "Buyer"), and THE IT GROUP, INC. , a Delaware corporation ("ITG") and the Subsidiaries (as defined) of ITG which are or become signatories to this Agreement in accordance with the terms hereof (together with ITG, "Sellers"). _____________ IT Group, Inc. – 2642 with a copy to: Gibson, Dunn & Crutcher LLP 2100 McKinney Avenue, Suite 1100 Dallas, Texas 75201 Attn: Michael A. Rosenthal, Esq. Facsimile: (214) 698-3400 If to Seller: The IT Group, Inc. 2790 Mosside Boulevard Monroeville, PA 15143-3356 Attn: Chief Executive Officer Facsimile: (412) 858-3311 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square P. _____________ IT GROUP, INC. – Page Follows] 55 {PAGE} IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in multiple originals by their duly authorized officers as of the Effective Date. THE IT GROUP, INC. THE SHAW GROUP INC. By: /s/ Harry J. Soose By: /s/ Gary P. Graphia --------------------------------- ---------------------------------- Name: Harry J. Soose Name: Gary P. Graphia Title: Chief Financial Officer Title: Corporate Secretary _____________ dt 1470024 ;	Gibson Dunn Gibson, Dunn & Crutcher ( Legal ) As referenced in this Asset Purchase Agreement: Gibson, Dunn – the sale and purchase of the Assets and the Business and the other transactions contemplated by and described in this Agreement (the "Closing") shall take place at the offices of Gibson, Dunn & Crutcher LLP, 2100 McKinney Avenue, Suite 1100, Dallas, Texas at 10:00 a.m. on the first business day following satisfaction or waiver of the conditions set forth in _____________ Gibson, Dunn – 53 {PAGE} If to Buyer: The Shaw Group Inc. 8545 United Plaza Boulevard, Suite 200 Baton Rouge, Louisiana 70809 Attn: General Counsel Facsimile: (225) 932-2642 with a copy to: Gibson, Dunn & Crutcher LLP 2100 McKinney Avenue, Suite 1100 Dallas, Texas 75201 Attn: Michael A. Rosenthal, Esq. Facsimile: (214) 698-3400 If to Seller: The IT Group, Inc. 2790 Mosside Boulevard _____________ dt 1483537 ; Skadden Skadden, Arps, Slate, Meagher & Flom LLP ( Legal ) As referenced in this Asset Purchase Agreement: Skadden, Arps – Facsimile: (214) 698-3400 If to Seller: The IT Group, Inc. 2790 Mosside Boulevard Monroeville, PA 15143-3356 Attn: Chief Executive Officer Facsimile: (412) 858-3311 with a copy to: Skadden, Arps , Slate, Meagher & Flom LLP One Rodney Square P. O. Box 636 Wilmington, DE 19899-0636 Attn: Gregg M. Galardi, Esq. Facsimile: (302) 651-3001 or to such other address _____________ dt 1430925
Preview Full Doc	2000	Asset Purchase Agreement Asset Purchase Agreement (253K) Doc #382570: Click preview link for longer preview. ASSET PURCHASE AGREEMENT BY AND AMONG STONE & WEBSTER, INCORPORATED, CERTAIN SUBSIDIARIES OF STONE & WEBSTER, INCORPORATED AND THE SHAW GROUP INC. DATED AS OF JULY 14, 2000 {PAGE} 2 LIST OF SCHEDULES AND EXHIBITS {TABLE} {S} {C} Schedule 2.01(a).................................................................................List of Real Property Schedule 2.01(e).............................................................................List of Assumed Contracts Schedule 2.01(f)...............................................................List of Licenses, Permits and Approvals Schedule 2.01(g).......................................................................List of Intellectual Properties Schedule 2.01(i)...................................................................................List of Investments Schedule 2.02(b)...................................................................................Completed Contracts Schedule 2.02(d).......................................................................................Excluded Assets Schedule 2.03......................................................................................Assumed Liabilities Schedule 2.02(e)................................................................................Special Project Claims Schedule 2.05(c)...............................................................Schedule of Cold Storage Selling Prices Schedule 3.02(b).............................................................Requisite Approvals, Consents and Filings Schedule 3.02(c).........................................................................Breaches of Assumed Contracts Schedule 3.04............................................................Agreements, Contracts, Commitments and Rights Schedule 3.05..........................................................................Legal and Regulatory Compliance Schedule 3.06...................................................Financial Statements and Quarterly Report on Form 10-Q Schedule 3.07..................................................................................Undisclosed Liabilities Schedule 3.08........................................................................................Recent Activities Schedule 3.09...................................Subsidiaries and Affiliates; Direct, Indirect and Beneficial Interests Schedule 3.11...............................................................................Title to Personal Property Schedule 3.12(a)............................................................................Real Property Encumbrances Schedule 3.12(b)..................................................................Permitted Real Property Encumbrances Schedule 3.13(b)..................................................................................Environmental Claims Schedule 3.13(c)............................................................................Contamination and Releases Schedule 3.13(d).......................................................................Reports, Audits and Assessments Schedule 3.13(f)......................................Materials of Environmental Concern and Underground Storage Tanks Schedule 3.14.........................................................Intellectual Properties, Computer Software, Etc. Schedule 3.15................................................................................................Insurance Schedule 3.16.....................................................................................Permits and Licenses Schedule 3.17........................................................................................List of Contracts Schedule 3.18.....................................................................................Contract Disclosures Schedule 3.19(b)......................................................................Employees and Employee Relations Schedule 3.20(a)................................................................................Employee Benefit Plans Schedule 3.20(b).......................................................Employee Benefit Plan Audits and Adverse Events Schedule 3.20(e)...............................................................................Prohibited Transactions Schedule 3.20(f)....................................................................Terminations and Reportable Events Schedule 3.20(g)............................................................................Multi-Employer Plans, Etc. Schedule 3.21...............................................................................Litigation and Proceedings Schedule 3.22....................................................................................................Taxes Schedule 3.32......................................................................................Accounts Receivable Schedule 3.33...............................................................................Related Party Transactions Schedule 4.08..................................................................................Actions and Proceedings Schedule 5.01...........................................................................................Retention Plan {/TABLE} {PAGE} 3 {TABLE} {S} {C} Schedule 5.03...........................................................................Certain Actions: D&O Insurance Schedule 5.04......................................................................................Employee Agreements Schedule 5.15.............................................................................................Encumbrances Schedule 5.16(b)............................................................................List of Rejected Contracts Schedule 7.02(c)................................................................................Consents to Assignment Exhibit A..............................................................................Form of Buyer's Counsel Opinion Exhibit B.............................................................................Form of Sellers' Counsel Opinion {/TABLE} {PAGE} 4 TABLE OF CONTENTS {TABLE} {CAPTION} Page ---- {S} {C} {C} 1. DEFINITIONS AND REFERENCES..............................................................................1 1.01. Definitions....................................................................................1 1.02. Certain References............................................................................14 2. SALE OF ASSETS AND RELATED MATTERS.....................................................................14 2.01. Sale of Assets................................................................................14 2.02. Excluded Assets...............................................................................16 2.03. Assumed Liabilities...........................................................................17 2.04. Excluded Liabilities..........................................................................17 2.05. Equity Purchase Price; Indemnity Deposit, LC Deposit and Litigation Deposit; Delivery of Consideration; Equity Purchase Price Adjustments; Allocation of Equity Purchase Price................................................................................18 2.06. Registration Rights...........................................................................20 2.07. Addition of Sellers; Schedules................................................................21 3. REPRESENTATIONS AND WARRANTIES OF S & W................................................................21 3.01. Organization..................................................................................21 3.02. Powers; Consents; Absence of Conflicts, Etc...................................................21 3.03. Binding Agreement.............................................................................22 3.04. Subsidiaries, Investments and Third Party Rights..............................................22 3.05. Legal and Regulatory Compliance...............................................................22 3.06. Financial Statements..........................................................................22 3.07. Undisclosed Liabilities.......................................................................22 3.08. Recent Activities.............................................................................22 3.09. Subsidiaries and Affiliates; Assets...........................................................23 3.10. Equipment.....................................................................................23 3.11. Title to Personal Property....................................................................23 3.12. Real Property.................................................................................24 3.13. Environmental Matters.........................................................................24 3.14. Intellectual Properties, Computer Software, etc...............................................25 3.15. Insurance.....................................................................................25 3.16. Permits and Licenses..........................................................................26 3.17. Agreements and Commitments....................................................................26 3.18. The Contracts.................................................................................27 3.19. Employees and Employee Relations..............................................................28 3.20. Employee Benefit Plans........................................................................28 3.21. Litigation and Proceedings....................................................................30 3.22. Taxes.........................................................................................30 3.23. Brokers and Finders...........................................................................30 3.24. Payments......................................................................................31 3.25. Operation of the Business.....................................................................31 3.26. Customer List.................................................................................31 3.27. Backlog.......................................................................................31 3.28. Investment Experience and Intent; No Registration.............................................31 {/TABLE} i {PAGE} 5 {TABLE} {S} {C} {C} 3.29. Accredited Investor Status....................................................................31 3.30. Rule 144......................................................................................31 3.31. Government Contracting........................................................................32 3.32. Accounts Receivable...........................................................................32 3.33. Related Party Transactions....................................................................33 4. REPRESENTATIONS AND WARRANTIES OF BUYER................................................................33 4.01. Organization..................................................................................33 4.02. Corporate Powers; Consents; Absence of Conflicts, Etc.........................................33 4.03. Binding Agreement.............................................................................34 4.04. Issuance of Share Consideration...............................................................34 4.05. Brokers and Finders...........................................................................34 4.06. Payments 34 4.07. SEC Documents and other Reports...............................................................34 4.08. Actions and Proceedings.......................................................................35 4.09. Capital Structure.............................................................................35 4.10. Absence of Certain Changes or Events..........................................................35 5. COVENANTS AND AGREEMENTS OF THE PARTIES................................................................35 5.01. Bankruptcy Cases and Sale Motion; Entry of Sale Order; Additional Sellers.....................35 5.02. Operations....................................................................................35 5.03. Certain Actions...............................................................................36 5.04. Employee Matters..............................................................................37 5.05. Access to and Provision of Additional Information.............................................38 5.06. Post-Closing Maintenance of and Access to Information.........................................39 5.07. Governmental Authority Approvals: Consents to Assignment......................................40 5.08. Noncompetition................................................................................41 5.09. Use of Names..................................................................................42 5.10. Allocation of Equity Purchase Price for Tax Purposes..........................................42 5.11. Further Acts and Assurances...................................................................42 5.12. Costs and Expenses............................................................................42 5.13. Insurance Ratings.............................................................................43 5.14. Fulfillment of Conditions.....................................................................43 5.15. Release of Encumbrances.......................................................................43 5.16. Assumed and Assigned Contracts; Rejected Contracts............................................43 5.17. Bankruptcy Court Approval.....................................................................44 5.18. Transfer Taxes................................................................................45 5.19. Listing Application...........................................................................45 5.20. Bankruptcy Filings............................................................................45 5.21. Non-Solicitation..............................................................................46 5.22. Tail Insurance................................................................................46 5.23. Other Agreements..............................................................................46 5.24. Temporary Space...............................................................................46 5.25. Schenectady Lease.............................................................................46 5.26. Representation, Warranties and Covenants of Certain Subsidiaries..............................46 5.27. Jacobs Credit Agreement.......................................................................48 {/TABLE} ii {PAGE} 6 {TABLE} {S} {C} {C} 5.28. Canadian Transfer.............................................................................48 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS.........................................................49 6.01. Representations and Warranties; Covenants.....................................................49 6.02. Adverse Actions or Proceedings................................................................49 6.03. Pre-Closing Confirmations.....................................................................49 6.04. Approval, Execution and Delivery of Additional Agreements.....................................49 6.05. Opinion of Buyer's Counsel....................................................................49 6.06. No Buyer Material Adverse Change..............................................................49 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER...........................................................49 7.01. Representations and Warranties; Covenants.....................................................50 7.02. Pre-Closing Confirmations and Contractual Consents............................................50 7.03. Adverse Actions or Proceedings................................................................50 7.04. Operations; No Material Adverse Effect........................................................50 7.05. Title Insurance Policies and Surveys..........................................................50 7.06. Opinion of Sellers' Counsel...................................................................51 7.07. Deliveries at Closing.........................................................................51 7.08. Lien Searches.................................................................................51 7.09. Approval, Execution and Delivery of Additional Agreements.....................................51 8. CLOSING; TERMINATION OF AGREEMENT......................................................................51 8.01. Closing.......................................................................................51 8.02. Action of Sellers at Closing..................................................................52 8.03. Action of Buyer at Closing....................................................................53 8.04. Termination Prior to Closing..................................................................53 9. INDEMNIFICATION........................................................................................54 9.01. Indemnification by Sellers....................................................................54 9.02. Sellers' Limitations..........................................................................55 9.03. Indemnification by Buyer......................................................................55 9.04. Buyer's Limitations...........................................................................55 9.05. Notice and Procedure..........................................................................56 9.06. Survival of Representations; Indemnity Periods................................................58 9.07. Limitations of Liability......................................................................59 10. GENERAL................................................................................................59 10.01. Schedules.....................................................................................59 10.02. Tax Effect....................................................................................59 10.03. Reproduction of Documents.....................................................................60 10.04. Time of Essence...............................................................................60 10.05. Consents, Approvals and Discretion............................................................60 10.06. Choice of Law; Submission to Jurisdiction.....................................................60 10.07. Benefit; Assignment...........................................................................60 10.08. No Third Party Beneficiary....................................................................60 10.09. Waiver of Breach, Right or Remedy.............................................................61 10.10. Notices.......................................................................................61 10.11. Misdirected Payments; Offset Rights...........................................................62 {/TABLE} iii {PAGE} 7 {TABLE} {S} {C} {C} 10.12. Severability..................................................................................62 10.13. Entire Agreement; Counterparts; Amendment.....................................................63 10.14. Drafting .....................................................................................63 10.15. Confidentiality...............................................................................63 10.16. Publicity.....................................................................................63 {/TABLE} iv {PAGE} 8 ASSET PURCHASE AGREEMENT This Asset Purchase Agreement ("Agreement") is made and entered into as of the 14th day of July, 2000, by and among THE SHAW GROUP INC., a Louisiana corporation (together with its assignees, if any, "Buyer"), and STONE & WEBSTER, INCORPORATED, a Delaware corporation ("S & W"), and the Subsidiaries (as defined) of S & W that become signatories to this Agreement in accordance with the terms hereof (together with S & W, "Sellers"). WITNESSETH WHEREAS, Buyer and Sellers desire to enter into a definitive agreement for the sale and purchase of the Assets (as defined) and the assumption of the Assumed Contracts (as defined) and the Assumed Liabilities (as defined) of Sellers, as more fully described and defined in this Agreement; WHEREAS, the Assets are owned by S & W and certain of its direct and indirect Subsidiaries and this Agreement is being executed initially by S & W and Buyer with the agreement of S & W as is set forth herein to cause any of its Subsidiaries that has any right, title or interest in or to the Assets to become a party to, and one of the Sellers under, this Agreement by an amendment hereto; WHEREAS, in order to facilitate the Transaction (as defined), S & W has filed, and has caused certain of the other Sellers to file, cases under chapter 11 of the Bankruptcy Code (as defined); WHEREAS, in furtherance of the Transaction, Sellers have received approval of the Executory Contract Assumption and Assignment Order (as defined) and the Sale Order (as defined) from the Bankruptcy Court (as defined); WHEREAS, the Parties intend to consummate the sale and purchase of the Assets owned by the Foreign Sellers (as defined) outside of the Bankruptcy Cases and in compliance with the Legal Requirements (as defined) of such foreign jurisdictions governing the sale and purchase of such Assets; and WHEREAS, Sellers desire to sell the Assets to Buyer, and Buyer desires to purchase the Assets from Sellers, on the terms and subject to the conditions set forth in this Agreement; NOW, THEREFORE, for and in consideration of the foregoing premises, and the agreements, covenants, representations and warranties hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are forever acknowledged and accepted, the parties, intending to be legally bound, hereby agree as follows: 1. DEFINITIONS AND REFERENCES 1.01. Definitions. As used in this Agreement, the following terms have the meanings given: Accounting Arbitrator: as defined in Section 2.05(c)(i)(C); 1 {PAGE} 9 Accounts Receivable: all accounts receivable of any Seller, of whatever kind or nature, including all current or deferred rights to payment for projects completed or commenced or services rendered on or prior to the Closing Date, whether or not such services have been billed by Sellers as of the Closing Date; Accredited Investor: as defined in Rule 501 of Regulation D promulgated under the Securities Act; Adjustment Amount: as defined in Section 2.05(c)(i)(A); Adjustment Assets: as defined in Section 2.05(c)(i)(A); Adjustment Liabilities: as defined in Section 2.05(c)(i)(A); Affiliate: any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with another Person, including the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of securities, election or appointment of directors, by contract or otherwise; Affiliated Group: any affiliated group within the meaning of Code Sec. 1504 or any similar group defined under a similar provision of state, local or foreign law; Aggregate Consideration: as defined in Section 2.05(a); Agreement: this Asset Purchase Agreement and all Exhibits and Schedules attached hereto, as amended, consolidated, supplemented, novated or replaced by the parties from time to time; Applicable Rate: shall mean a per annum rate of interest (computed on the basis of the actual number of days elapsed (including the first but excluding the last day) over a year of 365 or 366 days, as the case may be) equal to 3% plus the Prime Rate as from time to time in effect, the Applicable Rate to change automatically from time to time effective at the beginning of each business day on which a change in the Prime Rate becomes effective; Assets: all assets, real, personal and mixed, tangible and intangible, owned by Sellers or leased by Sellers pursuant to capital leases, including the assets reflected on the March 31 Balance Sheet, in such amounts as exist on the Closing Date, but excluding in any event the Excluded Assets; Assumed Contracts: all Contracts of Sellers (including the Employee Agreements) other than the Rejected Contracts and the Completed Contracts; Assumed Liabilities: (i) all liabilities and obligations of Sellers set forth on Schedule 2.03 as of the Closing Date and (ii) with respect to such liabilities and obligations as are properly reflected on a balance sheet under GAAP, in such amounts as are incurred in the ordinary course of the Business and reflected on the Closing Balance 2 {PAGE} 10 Sheet and which are anticipated to be equal to or in excess of Four Hundred Million Dollars ($400,000,000); provided, however, that, notwithstanding anything contained in this Agreement to the contrary, Assumed Liabilities shall not include any Excluded Liability, including those listed in Section 2.04; Audited Financial Statements: the audited consolidated balance sheet of S & W as of December 31, 1999 and the audited consolidated statements of operations and comprehensive income and cash flows for the three fiscal years then ended, together with the notes thereto and the report thereon of PricewaterhouseCoopers LLP, independent certified public accountants, and any audited restatements thereof; Average Price: as defined in Section 2.05(a); Bankruptcy Cases: the cases under chapter 11 of the Bankruptcy Code filed by each of the Sellers (other than the Foreign Sellers) in the Bankruptcy Court or any Person who hereafter becomes a Seller and files a case under chapter 11 of the Bankruptcy Code pursuant to Section 5.01, which cases have been administratively consolidated; Bankruptcy Code: 11 U.S.C. 101 et. seq., and applicable federal rules of bankruptcy procedure thereunder; Bankruptcy Court: (a) the United States District Court for the District of Delaware, which has jurisdiction over the Bankruptcy Cases or (b) such other Court to which the Bankruptcy Cases may be transferred; Bid: any quotation, bid or proposal by any Seller which, if accepted or awarded, would lead to a Fixed Price Contract; Business: any and all businesses owned, leased, managed or otherwise operated or conducted by any of Sellers; Buyer: as defined in the Preamble; Buyer Material Adverse Effect: a material adverse change (or event or condition that could result in a material adverse change) in the business, condition (financial or other), operations, assets or liabilities of Buyer, whether individually or in the aggregate; Buyer SEC Documents: as defined in Section 4.07; Buyer's Indemnified Persons: Buyer and Buyer's stockholders, members, Affiliates, successors and assigns, and their respective stockholders, partners, Affiliates, directors, trustees, officers, employees, agents and representatives; Canadian Assets: Assets held by direct or indirect Canadian Subsidiaries of S & W; Canadian Consideration: cash in the amount of Three Million Dollars ($3,000,000) and 255,688 shares of Common Stock having a market value of Twelve 3 {PAGE} 11 Million One Hundred Twenty-One Thousand Two Hundred Twelve Thousand Dollars ($12,121,212), which was determined by dividing Ten Million Dollars ($10,000,000) based on the Average Price by the 82.5% rate at which Common Stock was given credit in the auction relating to the Transaction; Canadian Liabilities: Assumed Liabilities of direct or indirect Canadian Subsidiaries of S & W; Canadian Transfer: as defined in Section 5.28(b); 382570	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Asset Purchase Agreement: SHAW GROUP INC – txt {DESCRIPTION}ASSET PURCHASE AGREEMENT - JULY 14, 2000 {TEXT} {PAGE} 1 EXECUTION COPY ASSET PURCHASE AGREEMENT BY AND AMONG STONE & WEBSTER, INCORPORATED, CERTAIN SUBSIDIARIES OF STONE & WEBSTER, INCORPORATED AND THE SHAW GROUP INC . DATED AS OF JULY 14, 2000 {PAGE} 2 LIST OF SCHEDULES AND EXHIBITS {TABLE} {S} {C} Schedule 2.01(a).................................................................................List of Real Property Schedule 2.01(e).............................................................................List _____________ SHAW GROUP INC – 63 {/TABLE} iv {PAGE} 8 ASSET PURCHASE AGREEMENT This Asset Purchase Agreement ("Agreement") is made and entered into as of the 14th day of July, 2000, by and among THE SHAW GROUP INC ., a Louisiana corporation (together with its assignees, if any, "Buyer"), and STONE & WEBSTER, INCORPORATED, a Delaware corporation ("S & W"), and the Subsidiaries (as defined) of S & W that become _____________ Shaw Group Inc – the date tendered for delivery by United States mail, with postage prepaid thereon, certified or registered mail, return receipt requested, in any event addressed as follows: If to Buyer: The Shaw Group Inc . 8545 United Plaza Blvd. Baton Rouge, Louisiana 70809 Attn: Gary P. Graphia, Esq. Facsimile: (225) 932-2642 with a copy to: Fulbright & Jaworski L.L.P. 1301 McKinney, Suite _____________ SHAW GROUP INC – 71 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in multiple originals by their duly authorized officers as of the Effective Date. STONE & WEBSTER, INCORPORATED THE SHAW GROUP INC . By: By: ------------------------------ ------------------------------- Title: Title: ------------------------------ ---------------------------- 64 {PAGE} 72 DOMESTIC SUBSIDIARIES 1435 ENCLAVE PARKWAY CORPORATION By: ------------------------------- Title: ---------------------------- 245 SUMMER STREET CORPORATION By: ------------------------------- Title: ---------------------------- AEC INTERNATIONAL PROJECTS, INC. By: ------------------------------- Title: ---------------------------- ASSOCIATED ENGINEERS & _____________ dt 1419210 ; Jacobs Jacobs Engineering Group Inc. ( Construction ) As referenced in this Asset Purchase Agreement: Jacobs Engineering Group Inc – of capital stock of any corporation, interests in partnerships or limited liability companies, or other equity or debt instruments issued by any Person, and proceeds from the sale thereof; Jacobs: Jacobs Engineering Group Inc ., a Delaware corporation; Jacobs Asset Purchase Agreement: the Asset Purchase Agreement dated as of June 1, 2000, by and among Jacobs, S & W and certain subsidiaries of S & W, _____________ dt 1393969 ; Bank One Bank One, NA ( Financial ) As referenced in this Asset Purchase Agreement: Bank One, NA – the event that the Wall Street Journal ceases to report the Prime Rate, then "Prime Rate" shall mean the fluctuating interest rate per annum announced from time to time by Bank One, NA as its "prime rate" (or, if otherwise denominated, such bank's reference rate for interest rate calculations on general commercial loans), which rate is not necessarily the lowest or _____________ dt 1373978 ;	Goldman, Sachs Goldman, Sachs & Co. ( Investment Services ) As referenced in this Asset Purchase Agreement: Goldman Sachs & Co. – nor any officer, director, employee or agent thereof, has engaged any finder or broker in connection with the Transaction, except that S & W has engaged Lazard Freres & Co. LLC and Goldman Sachs & Co. to act as S & W's independent financial advisors in connection with the transactions contemplated by this Agreement. 30 {PAGE} 38 3.24. Payments. No Seller has, directly or _____________ Goldman Sachs & Co. – incurring such expense, whether or not the Transaction is consummated. Sellers shall be responsible for paying any allowed fees and expenses of Lazard Freres & Co. 42 {PAGE} 50 LLC and Goldman Sachs & Co. in connection with the transactions contemplated by this Agreement. (b) Buyer shall pay the cost of Buyer's owner's title insurance policies described in Section 7.05, and _____________ dt 1488904 ; Fulbright Fulbright & Jaworski ( Legal ) As referenced in this Asset Purchase Agreement: Fulbright & Jaworski – the sale and purchase of the Assets and the Business and the other transactions contemplated by and described in this Agreement (the "Closing") shall take place at the offices of Fulbright & Jaworski L.L.P., 1301 McKinney, Suite 5100, Houston, Texas at 10:00 a.m. on the first business day following satisfaction or waiver of the conditions set forth in Article _____________ Fulbright & Jaworski – as follows: If to Buyer: The Shaw Group Inc. 8545 United Plaza Blvd. Baton Rouge, Louisiana 70809 Attn: Gary P. Graphia, Esq. Facsimile: (225) 932-2642 with a copy to: Fulbright & Jaworski L.L.P. 1301 McKinney, Suite 5100 Houston, Texas 77010 Attn: Charles L. Strauss, Esq. and William H. Caudill, Esq. Facsimile: (713) 651-5246 61 {PAGE} 69 If to Seller: _____________ dt 1390514 ; Skadden Skadden, Arps, Slate, Meagher & Flom LLP ( Legal ) As referenced in this Asset Purchase Agreement: Skadden, Arps – Facsimile: (713) 651-5246 61 {PAGE} 69 If to Seller: Stone & Webster, Incorporated 245 Summer Street Boston, Massachusetts 02210 Attn: General Counsel Facsimile: (617) 589-2201 with a copy to: Skadden, Arps , Slate, Meagher & Flom LLP One Rodney Square Wilmington, Delaware 19801 Attn: Gregg Galardi, Esq. Facsimile: (302) 651-3001 or to such other address or number, and to the attention _____________ dt 1430927
Preview Full Doc	2000	Asset Purchase Agreement Asset Purchase Agreement (250K) Doc #1477058: Click preview link for longer preview. Asset Purchase Agreement By and Among Stone & Webster, Incorporated, certain Subsidiaries of Stone & Webster, Incorporated And The Shaw Group Inc. Dated as of July 14, 2000 LIST OF SCHEDULES AND EXHIBITS Schedule 2.01(a) List of Real Property Schedule 2.01(e) List of Assumed . . . 1477058	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Asset Purchase Agreement: Shaw Group Inc – 8-K EXHIBIT 2 <TEXT> Execution Copy 5500764.07 Asset Purchase Agreement By and Among Stone & Webster, Incorporated, certain Subsidiaries of Stone & Webster, Incorporated And The Shaw Group Inc . Dated as of July 14, 2000 LIST OF SCHEDULES AND EXHIBITS Schedule 2.01(a) List of Real Property Schedule 2.01(e) List of Assumed Contracts Schedule 2. _____________ Shaw Group Inc – 63 10.16. Publicity 63 ASSET PURCHASE AGREEMENT This Asset Purchase Agreement ("Agreement") is made and entered into as of the 14th day of July, 2000, by and among The Shaw Group Inc ., a Louisiana corporation (together with its assignees, if any, "Buyer"), and Stone & Webster, Incorporated, a Delaware corporation ("S&W"), and the Subsidiaries (as defined) of S& _____________ Shaw Group Inc – the date tendered for delivery by United States mail, with postage prepaid thereon, certified or registered mail, return receipt requested, in any event addressed as follows: If to Buyer: The Shaw Group Inc . 8545 United Plaza Blvd. Baton Rouge, Louisiana 70809 Attn: Gary P. Graphia, Esq. Facsimile: (225) 932-2642 with a copy to: Fulbright & Jaworski L.L.P. 1301 McKinney, _____________ Shaw Group Inc – In Witness Whereof, the parties have caused this Agreement to be executed in multiple originals by their duly authorized officers as of the Effective Date. Stone & Webster, Incorporated The Shaw Group Inc . By: By: Title: Title: DOMESTIC SUBSIDIARIES 1435 Enclave Parkway Corporation By: Title: 245 Summer Street Corporation By: Title: AEC International Projects, Inc. By: Title: Associated Engineers & Consultants, Inc. _____________ dt 1664976 ; Jacobs Jacobs Engineering Group Inc. ( Construction ) As referenced in this Asset Purchase Agreement: Jacobs Engineering Group Inc – of capital stock of any corporation, interests in partnerships or limited liability companies, or other equity or debt instruments issued by any Person, and proceeds from the sale thereof; Jacobs: Jacobs Engineering Group Inc ., a Delaware corporation; Jacobs Asset Purchase Agreement: the Asset Purchase Agreement dated as of June 1, 2000, by and among Jacobs, S&W and certain subsidiaries of S& _____________ dt 1654898 ; Stone & Webster Stone & Webster Inc ( Business Services ) ;	BofA Bank of America, NA ( Money Center Banks ) As referenced in this Asset Purchase Agreement: Bank of America, N.A. – previously owned or used by Sellers or (2) materially impair the value of such property. (vi) Mortgages, Deeds of Trust and assignments of rents, and associated documents, in favor of Bank of America, N.A. , as collateral agent, securing S&W's bank credit facility. (vii) Deed of Trust for S&W's Houston office made in favor of Principal Mutual Life _____________ Bank of America, N.A. – previously owned or used by Sellers or (2) materially impair the value of such property. (vi) Mortgages, Deeds of Trust and assignments of rents, and associated documents, in favor of Bank of America, N.A. , as collateral agent, securing S&W's bank credit facility. (vii) Deed of Trust for S&W's Houston office made in favor of Principal Mutual Life _____________ dt 1684043 ; Bank One Bank One, NA ( Financial ) As referenced in this Asset Purchase Agreement: Bank One, NA – the event that the Wall Street Journal ceases to report the Prime Rate, then "Prime Rate" shall mean the fluctuating interest rate per annum announced from time to time by Bank One, NA as its "prime rate" (or, if otherwise denominated, such bank's reference rate for interest rate calculations on general commercial loans), which rate is not necessarily the lowest or _____________ dt 1690599 ; Skadden Skadden, Arps, Slate, Meagher & Flom LLP ( Legal ) As referenced in this Asset Purchase Agreement: Skadden, Arps – Caudill, Esq. Facsimile: (713) 651-5246 If to Seller: Stone & Webster, Incorporated 245 Summer Street Boston, Massachusetts 02210 Attn: General Counsel Facsimile: (617) 589-2201 with a copy to: Skadden, Arps , Slate, Meagher & Flom LLP One Rodney Square Wilmington, Delaware 19801 Attn: Gregg Galardi, Esq. Facsimile: (302) 651-3001 or to such other address or number, and to the _____________ dt 1667749
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Full Doc	2003	Certifications Certifications (4K) Doc #382469: This document is immediately available for purchase, but does not have a preview available for viewing. 382469	Shaw Group Shaw Group Inc. ( Commodities )
Full Doc	2003	Certifications Certifications (4K) Doc #382470: This document is immediately available for purchase, but does not have a preview available for viewing. 382470	Shaw Group Shaw Group Inc. ( Commodities )
Preview Full Doc	2007	Combined Financial Statements Combined Financial Statements (86K) Doc #2899166: Click preview link for longer preview. Westinghouse Group Combined Financial Statements 31 March 2006 and 2005 (audited); 30 September 2006 and 2005 (unaudited) Contents Report of independent auditors 1 Audited Combined Profit and Loss Account for years ended 31 March 2005 and 2006 and unaudited Combined Profit and Loss Account for the six-month periods ended 30 September 2005 and 2006 2 Audited Combined Statement of Total Recognised Gains and Losses for the years ended 31 March 2005 and 2006 and unaudited Combined . . . 2899166	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Combined Financial Statements: Shaw Group Inc – vi. Financing ? ? (4 ) (8 ) 8 Notes to the Combined Financial Statements 1 Basis of preparation and accounting policies a. Basis of preparation On 16 October 2006, Toshiba Corporation (?Toshiba?), The Shaw Group Inc . (?Shaw?) and Ishikawajima-Harima Heavy Industries Co., Ltd (?IHI?) acquired, through intermediate holding companies, the entire issued share capital of BNFL USA Group Inc. and Westinghouse Electric UK Limited, ( _____________ dt 1745748
Full Doc	2006	Conference Call Transcript Conference Call Transcript (76K) Doc #2591485: This document is immediately available for purchase, but does not have a preview available for viewing. 2591485	Shaw Group Shaw Group Inc. ( Commodities )
Preview Full Doc	2004	Agreement Agreement (17K) Doc #382418: Click preview link for longer preview. 382418	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Agreement: SHAW GROUP INC – AND RESTATED CREDIT AGREEMENT This AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this Agreement), dated as of October 8, 2004, is entered into by and among THE SHAW GROUP INC ., a Louisiana corporation (the Borrower), the Subsidiaries of the Borrower listed on the signature pages hereto as Guarantors (together with each other Person who subsequently becomes a Guarantor, collectively, _____________ SHAW GROUP INC – IS LOCATED. [Signature pages follow.] 1 IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have executed this Agreement as of the date first above written. THE SHAW GROUP INC . By: Robert L. Belk Executive Vice President and Chief Financial Officer 2 GUARANTORS: WHIPPANY VENTURE I, L.L.C By: Name: Title: SHAW CONSTRUCTORS, INC. By: Name: Title: EDS _____________ dt 1419174 ;	U.S. Bank, NA U.S. Bank, NA ( Financial ) As referenced in this Agreement: U.S. BANK NATIONAL ASSOCIATION, – By: Name: Title: 10 CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH, as a Lender By: Name: Title: 11 HARRIS TRUST AND SAVINGS BANK, as a Lender By: Name: Title: 12 U.S. BANK NATIONAL ASSOCIATION, as a Lender By: Name: Title: 13 UNION PLANTERS BANK, N.A. as a Lender By: Name: Title: 14 UBS AG, CAYMAN ISLANDS BRANCH as a Lender By: Name: _____________ dt 1024700
Preview Full Doc	2004	Agreement Agreement (29K) Doc #382432: Click preview link for longer preview. 382432	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Agreement: SHAW GROUP INC – AND RESTATED CREDIT AGREEMENT This AMENDMENT NO. 3 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this Agreement), dated as of January 30, 2004, is entered into by and among THE SHAW GROUP INC ., a Louisiana corporation (the Borrower), the Subsidiaries of the Borrower listed on the signature pages hereto as Guarantors (together with each other Person who subsequently becomes a Guarantor, collectively, _____________ SHAW GROUP INC – IS LOCATED. [Signature pages follow.] 9 IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have executed this Agreement as of the date first above written. THE SHAW GROUP INC . By: /s/ Robert L. Belk Robert L. Belk Executive Vice President and Chief Financial Officer GUARANTORS: WHIPPANY VENTURE I, L.L.C By: /s/ Gary Graphia Name: Title: SHAW _____________ dt 1419178 ; BNY Bank of New York ( Money Center Banks ) As referenced in this Agreement: Bank of New York, – the net cash proceeds resulting therefrom in accordance with Section 4.06 of the Indenture dated as of March 17, 2003 among the Borrower, the Subsidiaries party thereto, and The Bank of New York, as trustee. Section 1.7. Amendment to Section 6.14(l). Section 6.14(l) is amended by deleting the second proviso at the end thereof. Section 1.8. _____________ dt 1006081 ;	Barclays Bank Barclays Bank plc ( Financial ) As referenced in this Agreement: Barclays Bank PLC, – that Collateral shall not include the Escrow Account No. created pursuant to that Escrow Agreement between the Borrower and Liberty Mutual Insurance Company dated October 30, 2001, and held at Barclays Bank PLC, London England. (d) The definition of Performance Letter of Credit is hereby amended in its entirety as follows: 2 Performance Letter of Credit means a Letter of Credit qualifying _____________ dt 1028492 ; U.S. Bank, NA U.S. Bank, NA ( Financial ) As referenced in this Agreement: U.S. BANK NATIONAL ASSOCIATION – CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH, as a Lender By: /s/ Conformed Signature Name: Title: HARRIS TRUST AND SAVINGS BANK, as a Lender By: /s/ Conformed Signature Name: Title: U.S. BANK NATIONAL ASSOCIATION as a Lender By: /s/ Conformed Signature Name: Title: UNION PLANTERS BANK, N.A. as a Lender By: /s/ Conformed Signature Name: Title: UBS AG, CAYMAN ISLANDS BRANCH as _____________ dt 1024701
Preview Full Doc	2003	Credit Agreement [Amended and Restated No. 3] [Amendment No. 1] Credit Agreement [Amended and Restated No. 3] [Amendment No. 1] (28K) Doc #382464: Click preview link for longer preview. AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT This AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"), dated effective as of May 16, 2003, is entered into by and among THE SHAW GROUP INC., a Louisiana corporation (the "Borrower"), the Subsidiaries of the Borrower listed on the signature pages hereto as Guarantors (together with each other Person who subsequently becomes a Guarantor, collectively, the "Guarantors"), the banks and other financial institutions listed on the signature pages hereto under the caption "Lenders" (together with each other Person who becomes a Lender, collectively, the "Lenders"), and CREDIT LYONNAIS NEW YORK BRANCH, individually as a Lender and as administrative agent for the other Lenders (in such capacity together with any other Person who becomes the agent, the "Agent"). INTRODUCTION WHEREAS, the Borrower, the Guarantors, the Agent and the Lenders are parties to that certain Third Amended and Restated Credit Agreement dated as of March 17, 2003 ("Credit Agreement"); and WHEREAS, the Borrower has requested that the Agent and the Lenders amend certain provisions of the Credit Agreement as set forth herein. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: ARTICLE I AGREEMENT SECTION 1.1. DEFINITIONS. ALL CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED SHALL HAVE THE MEANINGS GIVEN SUCH TERMS IN THE CREDIT AGREEMENT. SECTION 1.2. AMENDMENT TO SECTION 5.25. THE FIRST SENTENCE OF SECTION 5.25 IS HEREBY DELETED IN ITS ENTIRETY AND REPLACED WITH THE FOLLOWING TWO NEW SENTENCES: "Within ninety days after the Effective Date, the Borrower shall deliver to the Agent the documents identified on Schedule 5.25, each in form and substance satisfactory to the Agent and with sufficient copies for the Lenders, where appropriate, executed by the relevant Person; provided that (a) with respect to the landlord's agreements, the Borrower shall not be required to deliver such agreements for locations that individually hold less than $500,000 of Inventory so long as the aggregate amount of Inventory held at such locations does not exceed $5,000,000 at any time, and (b) with respect to the account control agreements, the Borrower shall not be required to deliver such agreements for bank accounts that individually have a balance of less than $100,000 so long as the aggregate balance of such bank accounts does not exceed $3,000,000 at any time. Notwithstanding anything contained herein to the contrary, (i) the Borrower shall, at all times, cause the value of Inventory held at locations not covered by landlord's agreements satisfactory to the Agent to be less than $500,000 at any one location and less than $5,000,000 in the aggregate for all such locations, (ii) the Borrower shall, at all times, cause the deposits held in bank accounts not covered by bank account control agreements satisfactory to the Agent to be less than $100,000 in any one bank account and less than $3,000,000 in the aggregate for all such bank accounts, and (iii) the Borrower hereby acknowledges and agrees that neither the Agent nor any Lender waives or relinquishes any of its respective rights or interests arising under the Loan Documents, including without limitation, any security interest granted therein, by permitting the Borrower or any Subsidiary to hold Inventory at a location that is not covered by landlord's agreement or to maintain a bank account that is not covered by a bank account control agreement." SECTION 1.3. AMENDMENT TO SECTION 6.15. SECTION 6.15 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY ADDING A NEW CLAUSE (g) AS FOLLOWS: "(g) Liens granted by Stone & Webster Limited or by Shaw Group UK Limited and securing Indebtedness permitted under Section 6.11(g); provided that (i) such Liens, in the aggregate, shall not secure more than British Pounds Sterling 5,000,000 of Indebtedness, and (ii) such Liens shall encumber only plant, property and equipment of Stone & Webster Limited or Shaw Group UK Limited, as applicable." {PAGE} ARTICLE II MISCELLANEOUS; RATIFICATION SECTION 2.1. REPRESENTATIONS TRUE; NO DEFAULT. (a) THE BORROWER AND THE GUARANTORS REPRESENT AND WARRANT THAT THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED ON THEIR BEHALF AND THE CREDIT AGREEMENT AS AMENDED HEREBY, TOGETHER WITH EACH OTHER LOAN DOCUMENTS TO WHICH THE BORROWER AND EACH OF THE GUARANTORS IS A PARTY, CONSTITUTE VALID AND LEGALLY BINDING AGREEMENTS OF THE BORROWER AND THE GUARANTORS, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS, EXCEPT AS ENFORCEABILITY THEREOF MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, FRAUDULENT TRANSFER, REORGANIZATION OR MORATORIUM OR OTHER SIMILAR LAW RELATING TO CREDITORS' RIGHTS AND BY GENERAL EQUITABLE PRINCIPLES WHICH MAY LIMIT THE RIGHT TO OBTAIN EQUITABLE REMEDIES (REGARDLESS OF WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN A PROCEEDING, IN EQUITY OR AT LAW); (b) THE BORROWER REPRESENTS AND WARRANTS THAT THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER CONTAINED IN ARTICLE V OF THE CREDIT AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE HEREOF AS THOUGH 382464	Shaw Group Shaw Group Inc. ( Commodities ) As referenced in this Credit Agreement [Amended and Restated No. 3] [Amendment No. 1]: SHAW GROUP INC – RESTATED CREDIT AGREEMENT This AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"), dated effective as of May 16, 2003, is entered into by and among THE SHAW GROUP INC ., a Louisiana corporation (the "Borrower"), the Subsidiaries of the Borrower listed on the signature pages hereto as Guarantors (together with each other Person who subsequently becomes a Guarantor, collectively, _____________ SHAW GROUP INC – IS LOCATED. [SIGNATURE PAGES FOLLOW.] {PAGE} IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the Agent have executed this Agreement as of the date first above written. THE SHAW GROUP INC . By: /s/ ROBERT L. BELK ------------------------------------- Name: Robert L. Belk Title: Executive Vice President and Chief Financial Officer {PAGE} GUARANTORS: WHIPPANY VENTURE I, L.L.C. By: /s/ Conformed Signature ------------------------------------- _____________ dt 1419183 ;	U.S. Bank, NA U.S. Bank, NA ( Financial ) As referenced in this Credit Agreement [Amended and Restated No. 3] [Amendment No. 1]: U.S. BANK NATIONAL ASSOCIATION – FIRST BOSTON, CAYMAN ISLANDS BRANCH, as a Lender By: /s/ Conformed Signature ----------------------------------- Name: ----------------------------------- Title: ----------------------------------- {PAGE} HARRIS TRUST AND SAVINGS BANK, as a Lender By: /s/ Conformed Signature ----------------------------------- Name: ----------------------------------- Title: ----------------------------------- {PAGE} U.S. BANK NATIONAL ASSOCIATION as a Lender By: /s/ Conformed Signature ----------------------------------- Name: ----------------------------------- Title: ----------------------------------- {PAGE} UNION PLANTERS BANK, N.A. as a Lender By: /s/ Conformed Signature ----------------------------------- Name: ----------------------------------- Title: ----------------------------------- {PAGE} UBS AG, CAYMAN ISLANDS _____________ dt 1341938

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