SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
AMENDMENT NO. 2 TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CHICAGO BRIDGE & IRON COMPANY N.V.
(Exact name of registrant as specified in its charter.)
The Netherlands NONE
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
Polarisavenue 31, 2132 JH Hoofddorp, The Netherlands NONE
(Address of Principal Executive offices.) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Common Stock, par value Euro 0.01 per share New York Stock Exchange
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates:
__________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of Class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
Chicago Bridge & Iron Company N.V. ("CB&I" or the "Company") was
organized under the law of The Netherlands as a public company with
limited liability ("naamloze vennootschap") by Deed of Incorporation
dated November 22, 1996. CB&I is registered in the trade register of
Amsterdam under No. 33.286.441. Set forth below is a summary of
certain provisions, including all material provisions relating to the
shares of our common stock, par value Euro 0.01 ("common shares"),
contained in the Company's Articles of Association, as amended (our
"Articles of Association"), and the law of The Netherlands. Such
summary does not purport to be a complete statement of our Articles of
Association and the law of The Netherlands and is qualified in its
entirety by reference to our Articles of Association.
Our authorized share capital is Euro 800,000 consisting of 80,000,000
Common Shares, each with a par value of Euro 0.01. Common shares are
issued in registered form. The common shares registered in the New
York registry ("New York Shares") are listed on the New York Stock
Exchange. Shareholders may hold New York Shares directly (evidenced by
an entry/registration in the New York Registry and, if applicable,
certificates received for those Shares) or through the Depository
Trust Company (either as participant in such system or indirectly
through organizations that are participants in such system). To the
extent not registered in the New York registry, common shares will be
registered in the shareholders' register kept in Hoofddorp, The
Netherlands.
Voting Rights
Generally, each shareholder is entitled to one vote for each common
share held on every matter submitted to a vote of shareholders. Our
Articles of Association make no provision for cumulative voting and,
as a result, the holders of a majority of our voting power will have
the power, subject to the Supervisory Board's right to make binding
nominations, to elect all members of the Supervisory Board and the
Management Board who are standing for election.
Unless otherwise required by our Articles of Association or the law of
The Netherlands or as described below, resolutions of a general
meeting of shareholders occurring in The Netherlands require the
approval of a majority of the votes cast at a meeting. Our Articles of
Association require that, at a time when there are one or more holders
of more than 15% of our outstanding voting securities (each an
"affiliated holder"), certain business combination transactions,
dissolution, liquidation, stock dividend, share repurchase,
recapitalization transactions or transactions involving a person who
is or has been an affiliated holder, in so far as transactions
otherwise require a shareholder vote for approval, will require the
approval of a supermajority percentage (at least 80%) of our voting
securities outstanding. While this provision may negate the ability of
an affiliated holder to control a decision to sell the Company and
also make it more difficult to obtain shareholder approval for certain
types of business combination transactions (e.g., certain "legal
mergers" under Dutch law) requiring a shareholder vote, this
requirement would not affect the ability of an acquiror to obtain
control of the Company through a tender offer or other type of
business combination transaction not requiring such a shareholder
vote.
Resolutions of general meetings of shareholders occurring outside The
Netherlands are valid if the entire share capital is present or
represented (unless voting rights have been transferred to holders of
life interests). There are no laws currently in effect in The
Netherlands or provisions in our Articles of Association limiting the
rights of non-resident investors to hold or vote common shares.
Dividends
Pursuant to our Articles of Association, the Management Board, with
the approval of the Supervisory Board, may establish reserves out of
our annual profits. The portion of our annual profits that remains
after the establishment of reserves is at the disposal of the general
meeting of shareholders. Out of our share premium reserve and other
reserves available for shareholder distributions under the law of The
Netherlands, the general meeting of shareholders may declare
distributions upon the proposal of the Management Board (after
approval by the Supervisory Board). We may not pay dividends if the
payment would reduce shareholders' equity below the aggregate par
value of the common shares outstanding, plus the reserves statutorily
required to be maintained. Although under Dutch law, dividends are
generally paid annually, the Management Board, with the approval of
the Supervisory Board, may, subject to certain statutory provisions,
distribute one or more interim dividends or other interim
distributions before the accounts for any year have been approved and
adopted at a general meeting of shareholders in anticipation of the
final dividend or final distribution. Rights to cash dividends and
distributions that have not been collected within five years after the
date on which they became due and payable shall revert to the Company.
We have declared and paid in the past, and currently intend to declare
and pay, regular quarterly cash dividends or distributions; however,
there can be no assurance that any such dividends or distributions
will be declared or paid. The payment of dividends or distributions in
the future will be subject to the discretion of the our shareholders
(in the case of annual dividends), our Management Board and our
Supervisory Board and will depend upon general business conditions,
legal restrictions on the payment of dividends or distributions and
other factors. We expect to pay any dividends or distributions in U.S.
dollars. Any cash dividends or distributions payable to holders of New
York Shares will be paid to the New York Transfer Agent and Registrar.
Shareholder Meetings
Each shareholder has the right to attend general meetings of
shareholders, either in person or represented by a person holding a
written proxy, to address shareholder meetings, and to exercise voting
rights, subject to the provisions of our Articles of Association. Our
ordinary general meetings of shareholders are held in The Netherlands
at least annually, within six months after the close of each financial
year. Extraordinary general meetings of shareholders may be held as
often as the Management Board or the Supervisory Board deem necessary,
or as otherwise provided for pursuant to the law of The Netherlands.
Shareholders representing 10% of our issued shares may request that
the Management Board convene an extraordinary general meeting and the
subjects to be discussed.
We provide notice by mail to registered holders of common shares of
each general meeting of shareholders. Such notice will be given no
later than the fifteenth day prior to the day of the meeting and will
include a statement of the
business to be considered. The New York Transfer Agent and Registrar
will provide notice of general meetings of shareholders to, and
compile voting instructions from, holders of New York Shares.
Registered shareholders must notify the Management Board in writing of
their intention to attend a shareholder meeting.
Election and Tenure of Managing Directors and Supervisory Directors
The Management Board is entrusted with the management of the Company.
The Supervisory Board supervises the Management Board. The Management
Board may have one or more members and the Supervisory Board may have
at least six and no more than 12 members. Supervisory Board and
Management Board vacancies are and will be filled by a vote of
shareholders at the first general meeting after such vacancy occurs or
is created. The Supervisory Board and the Management Board members are
elected from binding nominations made by the Supervisory Board. At
least two persons must be nominated for each vacancy. Under the law of
The Netherlands and our Articles of Association, the shareholders may
deprive the nominations of their binding effect by a resolution passed
by a vote of two-thirds of the votes cast at the meeting if such
two-thirds vote constitutes more than one-half of our issued share
capital.
The general meeting of shareholders may suspend or dismiss a member of
the Management Board at any time. However, if the Supervisory Board
does not propose such suspension or dismissal, the general meeting of
shareholders must pass a resolution based on a majority of two-thirds
of the votes cast and such two-thirds vote represents more than one
half of our issued share capital. The Supervisory Board may suspend a
member of the Management Board at any time. The general meeting of
shareholders may discontinue such suspension at any time. In addition,
the Supervisory Board shall determine the remuneration and terms of
employment of every member of the Management Board.
Members of the Supervisory Board are appointed to serve three-year
terms with approximately one-third of such members' terms expiring
each year. Supervisory Directors and Managing Directors serve until
the expiration of their respective terms of office or their
resignation, death or removal, with or without cause, by the
shareholders or, in the case of Supervisory Directors, upon reaching
the mandatory retirement age of 72 (which statutory maximum age was
abolished as of April 23, 2002 pursuant to recently enacted
legislation in The Netherlands, but was retained in our Articles of
Association).
Subject to our Articles of Association, the Supervisory Board may
adopt rules and regulations governing its internal proceedings and
especially pertaining to voting, including voting on nomination of
Supervisory Directors, and provisions relating to Supervisory Board
composition and governance and to give effect to matters agreed upon
in shareholder agreements. See "Shareholder Agreement" below.
Approval of Annual Accounts and Discharge of Management Liability
Each year, the Management Board is responsible for the preparation of
annual accounts within five months after the end of our financial
year, unless the general meeting of shareholders has extended this
period due to special circumstances. The annual accounts must be
approved and signed by the Supervisory Board and then submitted to a
general meeting of shareholders for adoption.
Pursuant to a recent amendment of Dutch law, adoption of a company's
annual accounts by the general meeting of shareholders no longer
automatically discharges the members of the Management Board and the
Supervisory Board from liability in respect of the exercise of their
duties during the financial year concerned. However, we generally
expect to propose such discharge as a separate agenda item at each
annual general meeting of shareholders.
Liquidation Rights
In the event of the dissolution and liquidation of the Company, the
assets remaining after payment of all debts and liquidation expenses
will be distributed among holders of common shares on a pro rata
basis.
Issue of Shares; Preemptive Rights
Under the law of The Netherlands and our Articles of Association, the
Supervisory Board may issue common shares when the Supervisory Board
is so empowered by the general meeting of shareholders. Under the law
of The Netherlands, such authorization can be granted for a maximum
period of five years, subject to extension(s). Under the law of The
Netherlands and our Articles of Association, each holder of common
shares generally has a preemptive right to subscribe with regard to
any issue of common shares pro rata to the aggregate nominal value of
shareholder's existing holdings of common shares, except for certain
issuances to employees, issuances for non-cash consideration,
issuances to persons who exercise a previously acquired right to
subscribe for common shares, and issuances limited or excluded from
such requirement by the Supervisory Board when the Supervisory Board
is so empowered by the general meeting of shareholders. Under the law
of The Netherlands, such authorization to limit or exclude preemptive
rights can be granted for a maximum period of five years, subject to
extension(s).
Repurchase of Common Shares
The shareholders may delegate to the Management Board the authority,
subject to certain restrictions contained in the law of The
Netherlands and our Articles of Association, to cause the Company to
acquire its own fully paid common shares for consideration in an
amount not to exceed 10% of the issued shares at any time. Such
authorization may not be granted for more than 18 months.
Capital Reduction
Upon proposal by the Management Board (after approval by the
Supervisory Board), the general meeting of shareholders may reduce the
issued share capital by cancellation of common shares held by the
Company, subject to certain statutory provisions.
Amendment of our Articles of Association
Our Articles of Association may be amended by a majority of the votes
cast at a general meeting of shareholders if the proposal is stated in
the convocation notice for the general meeting and a complete copy of
the proposed amendment is filed at our office so that it may be
inspected prior to the meeting. Proposals to amend our Articles of
Association, to legally merge the Company, or to dissolve the
Company require prior approval by the Supervisory Board.
Notwithstanding the foregoing, no amendment of our Articles of
Association shall become effective until approved by the Ministry of
Justice of The Netherlands.
Shareholder Agreement
We are party to a Shareholder Agreement among First Reserve Fund VIII,
L.P. ("First Reserve"), the Company and certain of our shareholders,
which, among other things, subjects First Reserve to (i) certain
"standstill" restrictions relating to the purchase of additional
common shares or the undertaking of certain acquisition-related
activities, (ii) certain restrictions on voting rights relating to
matters presented to our shareholders for vote or approval, and (iii)
certain restrictions on the transfer of its common shares. Pursuant to
the Shareholder Agreement, First Reserve has the right to designate up
to two Supervisory Directors so long as it maintains certain common
share ownership thresholds.
Dutch Taxation for Non-Resident Shareholders
The following discussion of certain Dutch tax consequences to an owner
of our common shares who is not, or is not deemed to be, a resident of
The Netherlands for purposes of the relevant tax codes is included for
general information purposes only and does not address every potential
tax consequence of an investment in the Common Shares under the laws
of The Netherlands. It does not discuss every aspect of taxation that
may be relevant to a particular taxpayer under special circumstances
or who is subject to special treatment under applicable law, nor does
it address the income taxes imposed by any political subdivision of
The Netherlands or any tax imposed by any other jurisdiction. The laws
upon which such discussion is based are subject to change, perhaps
with retroactive effect. EACH SHAREHOLDER AND PROSPECTIVE INVESTOR
SHOULD CONSULT HIS OR HER OWN TAX ADVISOR WITH RESPECT TO THE TAX
CONSEQUENCES OF ACQUIRING, OWNING AND DISPOSING OF COMMON SHARES.
Withholding Tax. Dividends distributed by CB&I generally are subject
to a withholding tax imposed by The Netherlands at a rate of 25%. The
expression "dividends distributed by CB&I" as used herein includes,
but is not limited to: (i) distributions in cash or in kind, deemed
and constructive distributions and repayments of paid-in capital not
recognized for Netherlands dividend withholding tax purposes; (ii)
liquidation proceeds, proceeds from the redemption of common shares
or, as a rule, consideration for the repurchase of common shares by
CB&I in excess of the average paid-in capital recognized for
Netherlands dividend withholding tax purposes; (iii) the par value of
shares issued to a holder of common shares or an increase of the par
value of common shares, as the case may be, to the extent that it does
not appear that a contribution, recognized for Netherlands dividend
withholding tax purposes, has been made or will be made; and (iv)
partial repayment of paid-in capital, recognized for Netherlands
dividend withholding tax purposes, if and to the extent that there are
net profits ("zuivere winst"), unless the general meeting of
shareholders of CB&I has resolved in advance to make such repayment
and provided that the par value of the common shares concerned has
been reduced by an equal amount by way of an amendment to our Articles
of Association.
If a holder of common shares is resident in a country other than The
Netherlands and if a taxation convention is in effect between The
Netherlands and such
country, such holder of common shares may, depending on the terms of
such double taxation convention, be eligible for a full or partial
exemption from, or refund of, Netherlands dividend withholding tax.
Under the double taxation convention in effect between The Netherlands
and the United States (the "Treaty"), dividends paid by CB&I to a
resident of the United States (other than an exempt organization or
exempt pension organization) are generally eligible for a reduction of
the 25% Netherlands withholding tax to 15%, or in the case of certain
U.S. corporate shareholders owning at least 10% of the voting power of
CB&I, 5%, unless the common shares held by such resident are
attributable to a business or part of a business that is, in whole or
in part, carried on through a permanent establishment or a permanent
representative in The Netherlands. The Treaty provides for a complete
exemption for dividends received by exempt pension organizations and
exempt organizations, as defined therein. Except in the case of exempt
organizations, the reduced dividend withholding rate can be applied at
source upon payment of the dividends, provided that the proper forms
have been filed in advance of the payment. Qualifying U.S. exempt
organizations must seek a full refund of the tax withheld by filing
the proper forms. A holder of common shares other than an individual
will not be eligible for the benefits of the Treaty if such holder of
common shares does not satisfy one or more of the tests set forth in
the limitation on benefits provisions of Article 26 of the Treaty.
According to a recently enacted proposal regarding anti-dividend
stripping that will have retroactive effect to April 27, 2001, no
exemption from, or refund of Netherlands withholding tax will be
granted if the ultimate recipient of a dividend paid by the Company is
not considered to be the beneficial owner of such dividend. Such
recipient is not considered to be the beneficial owner if such
recipient paid a consideration (in cash or in kind) in connection with
the dividend and such payment forms part of a sequence of
transactions, and further it is likely that (i) an individual or a
company (other than the holder of the dividend coupon) benefited, in
whole or in part, directly or indirectly, from the dividend and such
individual or company would be to a lesser extent entitled to an
exemption from, or refund of, Netherlands withholding tax than the
recipient of the dividend, and (ii) such individual or company,
directly or indirectly, retains or acquires a position in the shares
that is comparable with his/her or its position in similar shares that
he/she or it had before the sequence of transactions began. The term
"sequence of transactions" as used herein includes the sole
acquisition of one or more dividend coupons and the establishment of
short-term rights of enjoyment on shares, while the transferor retains
the ownership of the shares. The Treaty provides for a divergent
definition of the beneficial owner that generally will overrule the
proposed definition of the beneficial owner under the laws of The
Netherlands.
Under certain circumstances, a transfer of the full amount of
withholding tax withheld to The Netherlands tax authorities will not
be required with respect to dividend distributions out of dividends
received from CB&I's foreign affiliates. The amount not transferred
cannot exceed 3% of the gross amount of any cash dividend paid on the
common shares but will not exceed 3% of the gross dividends received
from CB&I's qualifying foreign affiliates during the calendar year
until the withholding date and the two previous calendar years to the
extent that these distributions have not been taken into account in
respect of the determination of a previous reduction of withholding
tax to be transferred. This
reduction is not paid out to holders of Common Shares, but remains
with the Company instead.
In the period from January 1, 2001 up to and including December 31,
2005, CB&I will be subject to a temporary special distribution tax at
a rate of 20% on certain dividends that are qualified as "excessive".
Dividends are considered to be "excessive", among other things, when
the total proceeds distributed during a particular calendar year
exceed the highest of (i) 4% of CB&I's market capitalization at the
beginning of the relevant calendar year, (ii) twice the amount of the
average annual dividends (exclusive of extraordinary distributions) by
reference to the three calendar years immediately preceding January 1,
2001, or (iii) CB&I's adjusted consolidated commercial result for the
preceding fiscal year. Certain exceptions exist. The qualification of
this surtax and the consequences thereof for foreign shareholders is
uncertain. To the extent dividends that are subject to this surtax are
distributed to certain qualifying shareholders, CB&I is not required
to withhold Netherlands dividend withholding tax.
Taxes on Income and Capital Gains. A holder of common shares will not
be subject to any Netherlands taxes on income or capital gains in
respect of dividends distributed by CB&I or in respect of any gain
realized on the disposal of common shares (other than the withholding
tax described above), provided that: (i) such holder is neither
resident nor deemed to be a resident nor opting to be taxed as a
resident in The Netherlands; (ii) such holder does not have an
enterprise or an interest in an enterprise that is, in whole or in
part, carried on through a permanent establishment or a permanent
representative in The Netherlands and to which enterprise or part of
an enterprise, as the case may be, the common shares are attributable;
(iii) such holder is not a taxable entity for Netherlands corporate
income tax purposes that is deemed to have a Netherlands enterprise to
which enterprise the common shares are attributable; (iv) such holder
is not an individual performing other activities in the Netherlands in
respect of the common shares, including activities which are beyond
the scope of normal investment activities; and (v) such holder does
not have a substantial interest or a deemed substantial interest in
CB&I or, if such holder does have such an interest, it forms part of
the assets of an enterprise. Generally, a holder of common shares will
not have a substantial interest if he, his partner, certain other
relatives (including foster children) or certain persons sharing his
household, do not hold, alone or together, whether directly or
indirectly, the ownership of, or certain other rights over, common
shares representing five percent or more of the total issued and
outstanding capital (or the issued and outstanding capital of any
class of shares) of CB&I, or rights to acquire shares, whether or not
already issued, that represent at any time (and from time to time)
five percent or more of the total issued and outstanding capital (or
the issued and outstanding capital of any class of shares) of CB&I, or
the ownership of certain profit participating certificates that relate
to five percent or more of the annual profit of CB&I and/or to five
percent or more of the liquidation proceeds of CB&I. A deemed
substantial interest is present if (part of) a substantial interest
has been disposed of, or is deemed to have been disposed of, on a
non-recognition basis.
Gift, Estate and Inheritance Taxes. No gift, estate and inheritance
taxes will arise in The Netherlands with respect to an acquisition of
common shares by way of a gift by, or on the death of, a holder of
common shares who is neither a resident nor deemed to be resident in
The Netherlands, unless: (i) the holder at
the time of the gift has or at the time of his death had an enterprise
or an interest in an enterprise that is or was, in whole or in part,
carried on through a permanent establishment or a permanent
representative in The Netherlands and to which enterprise or part of
an enterprise, as the case may be, the common shares are or were
attributable; or (ii) in the case of a gift of shares by an individual
who at the time of the gift was neither resident nor deemed to be
resident in The Netherlands, such individual dies within 180 days
after the date of the gift, while being resident or deemed to be
resident in The Netherlands. For purposes of Netherlands gift, estate
and inheritance tax, an individual who holds The Netherlands
nationality will be deemed to be resident in The Netherlands if he has
been resident in The Netherlands at any time during the ten years
preceding the date of the gift or his death. For purposes of
Netherlands gift tax, an individual not holding The Netherlands
nationality will be deemed to be resident in The Netherlands if he has
been resident in The Netherlands at any time during the twelve months
preceding the date of the gift.
Other Netherlands Taxes and Duties. Save for a capital tax which will
be payable by us, no registration tax, transfer tax, stamp duty or any
other similar documentary tax or duty will be payable in The
Netherlands in respect of or in connection with the subscription,
issue, placement, allotment or delivery of the common shares.
Item 2. Exhibits.
Pursuant to Instructions II to Form 8-A, all exhibits have been filed
with the New York Stock Exchange.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration to be signed on its
behalf by the undersigned, thereto duly authorized.
CHICAGO BRIDGE & IRON COMPANY N.V.
By: Chicago Bridge & Iron Company B.V.,
Managing Director
By: /s/ Gerald M. Glenn
-------------------------------------
Gerald M. Glenn
Managing Director
Date: September 24 , 2002