SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 3 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, nominal 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") is
incorporated 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, nominal 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 nominal value of Euro 0.01. Shares are
issued in registered form only. The 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, 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 such transactions otherwise require a shareholder
vote for adoption, will require the approval of a supermajority
percentage (at least 80%) of our voting securities issued and
outstanding. While this provision may limit the ability of an
affiliated holder to control or influence a decision to effect a change
of control of the Company and also make it more difficult to consummate
certain types of business combination transactions requiring a
shareholder vote (e.g., certain "legal mergers" under Dutch law), this
requirement does not affect 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. 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 determine that an amount shall
be reserved out of our annual profits. The portion of our annual
profits that remains after such reservation 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 nominal 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 will pay any cash 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 (and holders of a life interest to whom voting rights have
been granted) 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 15th
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 must represent 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 as provided in our Articles of Association.
Subject to our Articles of Association, the Supervisory Board may adopt
rules and regulations governing its internal proceedings, such as
voting, including voting on nomination of Supervisory Directors,
Supervisory Board composition and governance, and effectuation of
matters agreed upon in shareholder agreements.
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 all members of the Supervisory Board and the Management Board
and then submitted to a general meeting of shareholders for adoption.
The adoption of a company's annual accounts by the general meeting of
shareholders does not automatically discharge 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. 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 such 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 and during 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.
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 nominal value of shares
issued to a holder of common shares or an increase of the nominal 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 nominal 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 an anti-dividend stripping provision , no exemption from,
or refund of Netherlands dividend 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 not,
or to a lesser extent, be entitled to an exemption from, reduction of
or refund of, Netherlands dividend 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 Netherlands tax authorities have taken the position that
this beneficial ownership test can also be applied to deny relief from
Netherlands withholding tax under double tax conventions. However,
there are arguments for the view that the term "beneficial ownership"
must be interpreted in the context of the double taxation conventions
and not with reference to domestic law of a contracting state.
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 qualifying foreign affiliates. The amount not
transferred amounts to 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.
Distribution Tax. 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 ("surtax") 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 are 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.
Articles of Association, as amended, of the Registrant are incorporate
by reference to Exhibit 3 of Registrant's Form 10K/A dated May 31, 2002
amending Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001
Shareholder Agreement dated as of December 28, 2000 (as amended by an
Amendment thereto dated as of February 7, 2001) among First Reserve
Fund VIII, L.P., Registrant and certain shareholders of Registrant is
incorporated by reference to (i) Exhibit 6 of Registrant's Current
Report on Form 8-K dated January 8, 2001 and (ii) Exhibit 6 of
Registrant's Current Report on Form 8-K dated February 22, 2001
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/ Richard E. Goodrich
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Richard E. Goodrich
Managing Director
Date: January 5, 2004