IPlI HLl C VEI{SION I

IN TIlE MATT E I{ OF C IIICAGO IlRlIlG E & IRO N COM PANY N.V., ct al.

1l0C KE T NO . 9300

Federal T ra de Com mission

Applica tion for Approval of Divestiture

Clifford H. Aronson

SKADDEN, ARI'S, SLATE.

MEAGIIER & FLOM LLP

Four Times Squa re

New York. New York 10036

(2 12) 735-2 644

Counsel to Chicago Bridge & Iron

Company N.V. and Chicago

Bridge & Iron Company
T ABLE OF CONTENTS

INTROD UCTION 1

I. CB&I, WITII TIIE PROFESS IONAL ASS ISTANCE OF UBS,

EXTENSIVELY MARKETED TIIE TO-BE-D IVESTED ASSETS 3

II. MATRIX IS A WELL-QUALI FIED PURCIIASER AND IS READY,

WILLING AND ABL E TO FULLY COMPETE IN TIl E CRYOGEN IC

TAN K BUSINESS 5

A. Proposed Acquircrs Name and Address 5

B. Proposed Acquircr's Officers 5

C. Description of Proposed Acquircr's Business 6

D. Matrix lias Developed a Comprehensive Business Plan To Compete

Aggressively in the Relevant Prod ucts 7

III. TIlE ASSETS AND OTIIER CAPABILITIES BEING DIVESTED

ARE CONSISTENT WITII Ti lE TERMS AND PURPOSES OF TIIE ORDER ........8

A. Property and Equipme nt To Be Divested to Matrix 9

B. Personnel To Be Transferred to Matrix 9

C. Work under Contracts To Be Assigned to Matrix 10

D. Techno logy To Be Transferred to Matrix 10

E. Transition Services To Be Provided to Matrix 11

F. The Proposed Divestiture Will Position Matrix as a Viable

Alternative to CB&I in the Design and Construction ofthe

Relevant Products 11

G. The Proposed Divestiture Will Achieve the Remedial Purposes

of the Order. 12

CONCLUSION 13
Exhibit A

Exhibit B

Exhibit C

Exhibit lJ

Exhibit E

Exhibit F

Exhibit G

INDEX OF EXII IIIITS

Asset Purchase Agreement. dated I I (Confidential)

Fonn of Technology Transfer Agreement (Co nfidential)

Form ofTra nsition Services Agreement (Confidential)

Indicative Tcnn Sheet and Relat ed Agrccmcnt-in-Principlc (Confidential}

Materials presented to FTC on I I (Confidential)

Matrix Service Company, Form 1O- K. for the fiscal year ended May 31. 2008

Matrix Service Company, 200? Annual Report

II
Application for Approval of Divestiture

INTRODUCT ION

Chicago Bridge & Iron Company N.V. and Chicago Bridge & Iron Company

(collectively "CB&)"') respect fully submit this application for approval of divestiture in

connection with the matter entitled In the Maller ofChicugo Bridge & Iron Company N. et ul..

F.T.C. Docket No. 9300. arising out of CB& l's acquisition of Pitt-Des Moines. Inc. ("PDM") in

2001. CB&I seeks approval for the proposed divestiture of certain cryogenic tank business

operations (collectively "Divestiture Assets") to Matrix Service Company ("Matrix") as reflected

in the following agreements (hereinafter referred to as "Matrix Agreements"): (i) an Asset

Purchase Agreem ent. dated I J. attached hereto as Confide ntial Exhibit A: {ii} a

Technology Transfer Agreement. to be dated as of and entered into on the Closing Date. the

agreed upon fonn of which is attached hereto as Conlidential Exhibit B: and (iii) a Tra nsition

Services Agreem ent. to be dated as of and entered into on the Closing Date. the agreed upon

fonn of which is attached hereto as Confidential Exhibit C. Also attached hereto as Confidential

Exhib it D is the Indicative Term Sheet and Related Agreement-in -Principle

_I. which was provided 10 FTC Staff that same day,'

Although the December 2 1. 2004 Commission order entered in connection with In

the Maller ofChicuso Bridge & Iron Company N. et ul., F.T.C. Docket No. 9300 ("Order"). is

Pursuant to Sections 6(0 and 21(c) ofthe Federal Trade Commission Act (codified as amended at 15 U.s. c.

§§ -16(0. 571>-2(c». as well as applicable provisions of the Freedom of Information Act (codified as amended at 5

U.S.C. § 552). CB&I req uests thai this confidential Application and the exhibits attached hereto that are marked

"confidential" be treated by the Commission as strictly confidential and nor be made available to the public. These

materials contain confidential and sensitive commercial and financial information that neither CB&I nor Matrix

disclose in the ordinary course of business. The disclosure of such confidential information could cause harm 10

CB&I. Matrix. and/or the Divestiture Assets.
still under appeal and thus not linal,2 CB&I has in good faith engaged in a process to divest itself

of the assets contemplated by the Order and by the Commission opinion issued with the Order

(,·Opinion··). As a result of that divestiture process. which started I I and

involved the outside services of the international investment banking finn UBS and the

marketing of the to-be-divested assets to more than 20 companies. CB&I has entered into the

Matrix Agreements with Matrix. a well-established and reputable engineering and construction

linn. headquartered in Tulsa. Oklahoma. Throughout this process. CB&I has kept the Monitor

Trustee and FTC Stall' fully informed of the details of the asset package being shopped, the

process by which it was being marketed. the firms who expressed an interest in the assets, and

the basis of the negotiations leading up to the Matrix Agreements.

The proposed divestiture to Matrix would accomplish the Order's objec tives by

"restor[ing] the competition lost as a result of the Acqui sition {andJ cnsurjing ] the continued

operation of the Relevant Business ... in the same manner in which such business was operated

at the time of the anno uncement o f the Acquisition." (Order IV.II.) Speci fically, by divesting

the assets and other capabilities contemplated by the Matrix Agreements. the marketplace will

have the bcnelit of another significant competitor fully capable of and engaged in the design,

engineering and construction of the Relevant Products.]

On December 21, 2004 , the Commission issued its Final Order in In the stoner ofChimgo Bridge & Iron

('o mpuny N.r . a ul., F.T.e. Docket No. 9300, 2()()..1 WL 3 142892 (F.T.e. Dec. 21. 20(4) ('·Order"). which was

modified by two subsequent orders issued on August 30. 2005. The divesuture provisions of the Order are not

currently in effect due to the automatic stay imposed by operation of 15 U.s.e. § 45(g)(4) (Section 5(g)(4) of the

FTC Act).

"Relevant Products" is defined in the Order as "those products identified and described in the

accompanying Opinion as (I) thermal vacuum chambers 1·'TVCs" ]. (2) liquefied natural gas " 'LNG") tanks. (3)

liquid petroleum gas ," I.PG") tanks. and (4) liquid nitrogen, liquid oxygen. and liquid argon I"UN/LOX" ) tanks,"

(Order loR.)

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As explained in greater detail below, Matrix is a particularly suitable purchaser

for the Divestiture Assets. It is not only an experienced construction and engineering finn. but is

also one of the largest cryogenic tank builders in the United States. with significant design.

fabrication and construction capabilities. For example. Matrix just completed construction of

three LNG tanks for the Sabine Pass LNG project in Texas and is currently engaged in ongoing

LPG and LIN/LOX projects. The net result of the proposed divestiture is that competition in the

Relevant Products (i.c., LNG storage tanks. LPG storage tanks. LIN/LOX storage tanks. and

TVCs). will increase with the addition of the to-be-divested assets and other capabilities to

Matrix's already significant expertise and market reputation.

I. CIl&I, WITII TilE I' IW FESSIONAL ASSISTAJ\CE OF UIlS, EXTEJ\SIVELY

IA KETEIJ rut TO-IlE-IJIVESTEIJ ASSETS

I. shortly before oral argument In the appellate proceedings.

CB&I met with the F"TC Stall and the Monitor Trustee to discuss a proposed divestiture package

to resolve the matter. (Materials presented to FTC on I I. attached hereto as

Confidential Exhibit E). Although the statutory stay of the Order' s divestiture provisions was

(and still is) in place. CB&I explained to the FTC Staff that the company was interested in

moving forward to resolve the matter to the satisfaction of the FTC by divesting a package of

assets suflicient to create a sustainable business which will be able to effectively compete in all

of the Relevant Products and which would meet the goals of the Order. CB&I referred to this

package of assets as "PDM Plus" because the assets CB&I intended to market to potential

purchasers consisted of essentially assets which were part of PDM at the time of the acquisition

as well as other capabilities not possessed by PDM. but which CB&I felt would enhance the

divestiture package.

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After meeting with Staff and receiving feedback, CR&I retained UBS to set up

and run a process to sell the assets. utilizing its years of experience in runnin g similar sales

processes in this and other similar industries. CB&I and UHS prepa red a "teaser" letter,

confidentiality agreement and other materials in connection with the shop process. UBS then

contacted approximately 20 potential buyers regarding the opportunity to purchase PDM Plus.

These contacts were made at the decision-maker levels with the various potenti al suitors as

dete rmined by the very experienced (and linancially motivated) lJBS team.

4 FTC Staff and the

Monitor Trustee were kept apprised of these effo rts on a regular basis.

I submitted indicative

offers. After discussions with the Monitor Trustee. UBS and CB&I decided not to pursue I.

IS In addition to cont inuing discussions with Matrix.

CB&I also rece ived an expression I

Alter reporting to the Monitor Trustee and FTC Staff the status of its search for a

buyer in the meeting with the FTC Staff in I I, CB& I and UIlS pursued ,_

I. Matrix entered into an indicative

s

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tenn sheet with CB&I, a copy of which was submitted to the Ff'C Staff on the same date.e

Beginning even earlier, CR&I provided Matrix with extensive due diligence, lasting 1_

_ I. Concurrently. C8 &1 and Matrix engaged in lengthy negotiations, also lasting I. _ I,culminating in the Matrix Agreements.

Throughout the process leading up to the Matrix Agn...cements. Fl'C Staff and the

Monitor Trustee have been kept informed of the process and have had discussions with Matrix

and/or its counsel.

II. AT IS A WELL-QUAUFIEII I'URCIIASER ANII IS REAllY. WILLING

ANII AIILE TO FULLY O~IPE IN THE CRYOGENIC TA NK IIUSI NESS

A. Proposed Acguirer's Name and Address

Matrix Service Company

5100 E. Skelly Drive. Suite 700

Tulsa. Okla homa 74 I35

(9 I8) 838-8822

B. Proposed Acquirer's Oflicers

According to publicly available information. the following individuals serve as

Matrix' s ollicers:

• Michael J. Bradley, President and Chief Executive Officer

• Joseph F. Montalbano, Vice President and Chief Operating Officer

• Thomas E. Long, Vice President and Chief Financial Officer

• Kevin Cavanah, Vice President, Account ing and Financial Reporting

• John S. Newmeister. Vice President of Marketing and Business Development

• Nancy E. Austin, Vice President, Iluman Resources

•

.....I_ !III--------

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• Lansing G. Smith. Vice President. Fabrication. Engineering. and Procurement

See http://w"\\w.matrixscryice.com/lnyestorOtlicers.asp.

Furthe r. Matrix reports that the following individuals serve as its directors:

• Michael J. Ila11 . Cha irman of the Board

• Michael J. Bradley

• I. Edgar Ilendri x

• Paul K. Lackey

• Tom E. Maxwell

• David J. Tippeconnic

..See http://www.matrixservice.com/Investor130<1 rd.asp.

C. Description of Proposed Aeguirer' s Business

Matrix was fou nded in 1984 as a privatel y held company to provide storage tank

repair and maintenance services. By 1989 Matrix expanded to also provide re finery turna round

and maintenance services. and became a publicl y traded company. It also has since expanded its

original tank and bulk storage capabi lities to include engineering. proc ureme nt. fabrication and

construction C'EPFC"") of aboveground storage tanks and turnk ey terminal construction,

primarily to the energy and energy related industries. Today. Matrix is a full service industrial

co ntractor. headquartered in Tulsa, Oklahoma. with regional oflicc s throughout the United States

and Canada. Matrix is licensed to operate in all fifty states and as of May 31, 2008. it had more

than 3.200 empl oyees and yearly revenues of approximately $731 milli on. repre senting year-onyear growt h of 14.2%.

Matrix's business is orga nized into two segments: the Construction Services

segment and the Repair and Maintenance Serv ices segment. Its Construction Servic es segment.

which reported revenues of $455.887.000 for the fisca l year ended May 31. 2008. provides

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turnkey and specialty EPFC services to many industries. with specializa tion in aboveground

storage tanks for the bulk storage/terminal industry. capital construction for the down stream

petroleum industry. specialty construction. and electrical and instrumentation services for various

industries.

Matrix's EPFC services include LNG/industrial gas projects, power projects.

specialty tanks and vessels and fabrications. precisely the type of work PDM performed before it

was acquired by CB&1. Matrix today already has the capabilities to engineer, fabricate and

construct re frigerated and cryogenic liquefied gas storage tanks for the storage of ammonia.

butane, carbon dioxide. ethane. methane. argon. nitrogen. oxygen. propane and other products.

Matrix has designed and/or built tanks in each of the Relevant Products that were the subjec t of

the Commission's Opinion and Order.

Further information about Matrix is available on the company's website.

www.matrixscrvicc .com, and Matrix's most recent Fonn IO-K and annual report to shareholders

arc attached hereto as Exhibits F and G.

CB&I docs not have any current business relationship with Matrix and is not

aware of any sales or other transactions between it or any of its affiliates and Matrix anytime in

the past.

D. Matrix lias Developed a Comprehensive Business Plan To Compete Aggressivelv in the

Relevant Products

Matrix has spent considerable effort in connection with its decision to enter into

the Matrix Agreemen ts. having made the determination that it sees an excellent business

opportunity in the Relevant Products. Matrix has developed a business plan setting forth in

detail how it plans to compete aggressively on a going-forward basis. consistent with the

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Commission's desire to create a competitor on par with CB&L That plan is being submitted to

FTC Stall' under separate cover by Matrix' s counsel.

III. TIlE ASSETS AND (HilER CAI'ABILlT IES BEING IlI VEST ED ARE

CONSISTENT WIT II TIlE TERMS AND PURPOSES OF THE ORDER

In the Commission's Opinion, it states that the remedy is intended to "ensure that

meaningful and effective competition is restored to the market: ' (Opinion, at 92). The

Commission ordered that CB&I divest assets "fully, equally, and independently engaged in all

aspects of the Relevant Business" (Order j liLA.) unless the Acquircr, with the concurrence of

the Monitor Trustee, determines that acquiring certain assets (which are not Relevant Product

assets) arc not necessary to achieve the purposes of the Order. (Id. ' I IV.A .) As outlined below,

the terms of the Matrix Agreements will position Matrix as a finn with all of the capabilities

necessary to be an "effective competitor" against CB&I in the design. engineering and

construction of cryogenic tanks in the United States.

Pursuant to the Matrix Agreements, CB&I will he transferring employees and

backlog and selling assets, technologies, support services, and capabilities to Matrix so as to put

Matrix on a par with CB&I in the design, engineering and construction of cryogenic tanks in the

United States. Specifically, C13&1 is conveying engineering, construction, and fabrication

(means, methods and techniques) capabilities. technologies. know-how, office space, equipment,

and employees to Matrix as well as work under contracts with customers to further enhance

Matrix' s capabiliti es and reputation in cryogenic tank design and EPFC services. Because

Matrix already has significant fabrication capabilities with available capacity, it did not want any

8
of the PDM fabrication facilities as part of the asset package.' In addition to the conveyance of

assets, employees and work under contracts, CB&I has also agreed to transfer technology, knowhow, proprietary and third-party software, and business materials (including design, engineering,

fabrication , and construction standards, practices and procedure programs, specifications, and

manuals, standard operating procedure documents and marketin g and sales planning and

execution documents relating to future business opportunities), enabling Matrix to exploit

CH&I's current design. engineering. fabrication, and construction capabilities throughout not just

the U.S., but elsewhere as well.

A. Property and Equipment To He Divested to Matrix

PDM's enginee ring capabilities were housed In Pittsburgh, PA. Aller CB&I

acquired PDM, CI3&1 maintained and enhanced the Pittsburgh engineering facilities and

capabilities. For example, CI3&1 made available updated double (or full) containment

technology to Pittsburgh, enhancing the capability over that possessed by PDM. CB&I proposes

to divest the entire Pittsburgh engineering operation that was previously owned and operated by

PDM to Matrix. which includes offi ce space, equipment, and project tiles. In addition , CB&I

will transfer tools, equipment, and supplies to Matrix to execute the backlog work. These assets

arc currentl y being used for the design , engineering and construction of cryogenic tanks.

B. Personnel To Be Transferred to Matrix

To ensure that Matrix would have the requisite experience and know-how to

utilize the divested assets (including technology) and to restore competition for the supply of the

Relevant Products, CB&I proposes to transfer to Matrix a number of personnel with the

However. in order to ensure that Matrix has ava ilable capacity in times of increase d demand without the

burden of carrying increased fixed costs, at Closing Matrix and CB&I will enter into the Transition Serv ices

Agreement pursuant to which Matrix may request fabrication services and assistance from CB&1.

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collective experience to design. engineer and construct all of the Relevant Products. A total of

approximatel y 67 employees will be transferred to Matrix. including all of CB&l's Pittsburghbased engineering stall I I tank CTCW , and sales personnel.

and nine or ten engineering and construction agency personnel will be made available to Matrix.

C. Work under Contracts To Be Assigned to Matrix

As part of the proposed divestiture, CB&I will transfer to Matrix work under a

number ofCB&I existing contracts for Relevant Products, which comprises a substantial share of

CB&rs u.s. contracts for Relevant Products. These contracts include I I lor

design. engineering. and commissioning and tank construction; I I for design and

I for remaining design. engineering, and

comnusstomng: J LIN/LOX lank construction; and I

•

,

LIN/LOX tank construction," After the sale to Matrix. CB&I will have only one other LNG tank

construction project being performed by it remaining in its backlog in the U.S.

D. Technology To Be Transferred to Matrix

Although it is expected that the transfer of employees will enable Matrix to

effectively compete in the design, engineering and construction of cryogenic tanks in the U.S.•

CB&1 and Matrix have also entered into a Technology Transfer Agreement ("'ITA") to further

ensure that Matrix has the necessary technology. know-how, and intellectual property to be an

effective competitor for the supply of Relevant Products. Under the TfA. Matrix will have

If the I I project proceeds and the contract is aw arded to CR&1. Matrix will perform Ihe

follow-on enginee ring and commissioning and. if certain criteria pertaining 10 -rsonnel are met bv Matrix and the

then-contracted price is acceptable 10 Matrix. the LNG tank construction I I.

'm e work that Matrix will perform represents a portion of the overall scope of work for the subject projec ts.

As a result. the work will be subcontracted to Matrix because it is not practicable and in some instances nol

permissible to novate or to assign the subject contracts in their entirely.

III
access to the tools currently being used by CB&I in con nection with the engineerin g and design

of LNG and LlNILOX tanks. along with technical jo b files for completed projects. and all

technical standards. test data and research files. Under the 'IT A. CB&I will also commit to

provide Matrix with construction manuals and procedures related to the four Relevant Products.

Finally, the 'IT A specifies that CB&I provide to Matrix software used to produce designs and

detailed drawings for I.NO and LlN/l.oX tanks.

E. Transition Services To Be Provided to Matrix

To ensure a smooth transition of work from CB&1 to Matrix. the parties have

agreed to a Tran sition Services Agreement ("TSA" ). The parties deem this advisable because.

for instance. Matrix will be taking over work on several projects from CB&I that arc in progress

and Matrix will have to become familiar with CB&I's means, methods. and techniques in the

execution of the work . Pursuant to the TSA. CB&I will provide. at Matrix's option. various

support services to Matrix. including accounting. phone system. PDS administration. technical

support. human resources. drafting. fabrication. structural steel design. estimating training.

estimating on-ca ll support. welding technical support and engineering services.

F. The Proposed Divestiture Will Position Matrix as a Viable Alternative to CB&I in the

Design and Construction of the Relevant Products

Matrix is already a participant in the design. engmcenng and construction of

cryogenic tanks, but with the proposed dive stiture package. it will become even a stronger

competitor - on a par with CB&I. The sale o f the Divestiture Assets to Matrix will restore any

competition lost as a result of CB&I's acquisition of PDM by positioning Matrix to be a fullHedged player in the Relevant Products in the U,S. In addition. with Matrix 's already

established position in the overall tank and fabrication businesses. it will remain linancially

I I
viable both short-term and long-term. regardless of the current and future demand for Relevant

Products.

1O

With the assignment of work on signilicant LNG and LlN/l.OX projects to Matrix

as well as the transfer of significant enginee ring expe rtise, technology. know-hoc...', and

intellectual property. Matrix will have the manpower, the talent and the motivation to compete in

the design. engineering and construction of cryogenic tanks going forward. Even though CB&I

has no outstanding projects in LPG storage tanks and Ty e, Matrix is getting the design,

engineering and construction expe rtise necessary to bid on any such projects. should they

become avai lable in the future.I I

G. 'Ib e Proposed Divestiture Will Achieve the Remedial Purposes of the Order

Accordin g to the Commission Opinion issued with the Order. the divestiture

obligations in the Order were imposed in order to restore competition for the supply of the

Relevant Products to its "pre-acquisition state: ' (Opi nion. at 93.) With this same goal in mind.

the Orde r included a number of ancilla ry provisions that the Commission deemed "crucial to

estab lishing a viable entrant to replace the competition lost from CB&l' s acquisition of PDM: '

(Id)

The proposed divestiture wo uld achieve the goal of replacing the competition lost

from CB&l's acquisition of PDM by divesting to an estab lished tank engi neering and

construction business sufficient assets. includ ing technology, to create a strong competitor in all

" Therefore, Matrix has no need to acquire any CR&I assets thai involve no Relevant Products.

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of the Relevant Products. With a solid foothold in tank design. engineering and construction.

Matrix is an ideal candidate to acquire the Divestiture Assets in light ofthe purposes ofthc Order.

The Divestiture Assets will add to Matrix' s capabilities in the Relevant Products. and "ill result

in the creation of a competitor on a par with CB&I.

CB&I believes that the 'IT A and TSA provide necessary support to ensure that

Matrix will succeed in the marketplace. In its Opinion issued with the Order. the Commission

explicitly recognized that "some level of assistance may be necessary to enable the acquiring

linn to compete successfully." (Opinion. at 98; see also id. ("Dependi ng on the details of the

divestiture package. we , . . find it possible that the provision of technical assistance and

administrative services may be needed for the divestiture to be effcctivc.rj.) The ITA and TSA

arc carefully calibrated to provide the assistance Matrix needs. as it needs it; however, Matrix's

considerable existing EPFC capabilities provides the Commission additional assurances that

Matrix is well-poised to succeed in the Relevant Products.

CONC L USION

Because the proposed divestiture of the Divestiture Assets to Matrix is

procompctitivc. in the public interest and addresses the competitive concerns raised in the

Commission's Opinion. CB&I respectfully requests that the Commission approve the sale to

Matrix pursuant to the Matrix Agreements.

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Dated: September 12, 2008 Respectfully submitted,

Clifford II, Aronson

SKADDEN, ARPS, SLATE,

MEAGIIER & FLOM LLP

Four Times Square

New York, New York 10036

(2 12) 735-3000

Counsel to Chicago Bridge & Iron Company N.V.

and Chicago Bridge & Iron Company

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