As filed with the Securities and Exchange Commission on November 25, 2002.
Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WILLBROS GROUP, INC.
(Exact name of registrant as specified in its charter)
REPUBLIC OF PANAMA 98-0160660
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
PLAZA 2000 BUILDING
50TH STREET, 8TH FLOOR
APARTADO 6307
PANAMA 5, REPUBLIC OF PANAMA
(50-7) 213-0947
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
MICHAEL F. CURRAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
WILLBROS GROUP, INC.
C/O WILLBROS USA, INC.
4400 POST OAK PARKWAY, SUITE 1000
HOUSTON, TEXAS 77027
(713) 403-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
WITH A COPY TO:
ROBERT A. CURRY
CONNER & WINTERS, P.C.
3700 FIRST PLACE TOWER
15 EAST 5TH STREET
TULSA, OKLAHOMA 74103-4344
(918) 586-5711
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
------------------------------------------------------------------------------------------------------------------------------------
Common Stock ($.05 par value)(1) 950,000 shares $6.95(2) $6,602,500(2) $608
Preferred Share Purchase Rights(1) 950,000 shares --(1) --(1) --(1)
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(1) Each share of common stock is accompanied by a preferred share purchase
right pursuant to the Rights Agreement, dated April 1, 1999, with
Mellon Investor Services LLC, as Rights Agent.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended, on
the basis of $6.95 per share, the average of the high ($7.05) and low
($6.85) sales prices of the common stock, as reported on the New York
Stock Exchange for November 18, 2002, which was 5 business days prior
to this filing.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Subject To Completion, Dated November 25, 2002
The information contained in this prospectus is not complete and may be changed.
The selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
950,000 SHARES
WILLBROS GROUP, INC.
COMMON STOCK
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Up to 950,000 presently outstanding shares of our common stock may be offered
for sale from time to time by the selling stockholders named on page 12 of this
prospectus. We will not receive any of the proceeds from the sale of these
shares.
Our common stock is traded on the New York Stock Exchange under the symbol "WG."
On November 22, 2002, the last reported sale price of our common stock on the
New York Stock Exchange was $7.61 per share.
INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS WHICH ARE DESCRIBED IN THE
SECTION ENTITLED "RISK FACTORS" BEGINNING ON PAGE 3.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS NOVEMBER __, 2002
1
TABLE OF CONTENTS
PAGE
Where You Can Find More Information.................................................................................2
Risk Factors .......................................................................................................3
About Willbros Group, Inc..........................................................................................10
Recent Development.................................................................................................10
Forward-Looking Statements.........................................................................................11
Use of Proceeds....................................................................................................12
Selling Stockholders...............................................................................................12
Description of Capital Stock.......................................................................................13
Common Stock..................................................................................................13
Class A Preferred Stock.......................................................................................13
Stockholder Rights Plan.......................................................................................14
Anti-Takeover Effects of Provisions of Our Articles of Incorporation and By-laws..............................15
Transfer Agent and Registrar..................................................................................16
Material United States Federal and Panamanian Income Tax Consequences..............................................17
General.......................................................................................................17
United States Tax.............................................................................................17
Panamanian Tax................................................................................................20
Plan of Distribution...............................................................................................21
Legal Opinion......................................................................................................22
Experts............................................................................................................22
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YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR PROVIDED IN
THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH
DIFFERENT INFORMATION. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SHARES OF
COMMON STOCK AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SHARES OF COMMON
STOCK IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. YOU SHOULD NOT
ASSUME THAT THE INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER
THAN THE DATE ON THE COVER PAGE OF THIS PROSPECTUS.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the Securities and
Exchange Commission in connection with this offering. We also file annual,
quarterly and current reports, proxy statements and other information with the
Securities and Exchange Commission. You may read and copy the registration
statement and any other documents we have filed at the Securities and Exchange
Commission's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the Securities and Exchange Commission at 1-800-SEC-0330 for
further information on the Public Reference Room. Our Securities and Exchange
Commission filings are also available to the public at the Securities and
Exchange Commission's Internet site at http://www.sec.gov.
This prospectus is part of the registration statement and does not contain all
of the information included in the registration statement. Whenever a reference
is made in this prospectus to any of our contracts or other documents, the
reference may not be complete and, for a copy of the contract or document, you
should refer to the exhibits that are part of the registration statement.
2
The Securities and Exchange Commission allows us to "incorporate by reference"
into this prospectus the information we file with it, which means that we can
disclose important information to you by referring you to those documents.
Information incorporated by reference is part of this prospectus, except for any
information that is superseded by information included directly in this
prospectus. Later information filed with the Securities and Exchange Commission
will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made by us with the Securities and
Exchange Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until this offering is completed.
o Annual Report on Form 10-K and Amendment Number 1 on Form 10-K/A for
the year ended December 31, 2001 (SEC File No. 1-11953);
o Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2002, June 30, 2002, and September 30, 2002;
o Our Current Report on Form 8-K dated May 6, 2002;
o The description of our common stock contained in our registration
statement on Form 8-A, dated July 19, 1996 (SEC File No. 1-11953),
including any amendment or report filed before or after the date of
this prospectus for the purpose of updating the description; and
o The description of our preferred stock purchase rights contained in
our registration statement on Form 8-A, dated April 9, 1999 (SEC File
No. 1-11953), including any amendment or report filed before or after
the date of this prospectus for the purpose of updating the
description.
In addition, any filings we make with the Securities and Exchange Commission
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the date of the initial filing of the registration statement and prior to
the effectiveness of the registration statement will be incorporated by
reference in this prospectus.
You may request a copy of these filings, at no cost, by contacting us at:
Willbros USA, Inc.
4400 Post Oak Parkway
Suite 1000
Houston, Texas 77027
Attention: Investor Relations
(713) 403-8000
The reports, proxy statements and other information we file with the Securities
and Exchange Commission can also be inspected and copied at the New York Stock
Exchange, 20 Broad Street, New York, New York 10002. For more information on
obtaining copies of our public filings at the New York Stock Exchange, you
should call (212) 656-5060.
RISK FACTORS
You should carefully consider the following factors and other information in
this prospectus and the documents to which we refer you, before deciding to
invest in the shares.
3
OUR BUSINESS IS HIGHLY DEPENDENT UPON THE LEVEL OF CAPITAL EXPENDITURES BY OIL,
GAS AND POWER COMPANIES ON INFRASTRUCTURE
Our revenue and cash flows are dependent upon major construction and maintenance
projects. The availability of these types of projects is dependent upon the
overall condition of the oil, gas and power industries, and specifically, the
level of capital expenditures of oil, gas and power companies on infrastructure.
Our failure to obtain major construction and maintenance projects, the delay in
awards of major projects, the cancellation of major projects or delays in
completion of contracts are factors that could result in the under-utilization
of our resources, which would have an adverse impact on our revenue and cash
flows. There are numerous factors beyond our control that influence the level of
capital expenditures of oil, gas and power companies, including:
o current and projected oil, gas and power prices;
o the abilities of oil, gas and power companies to generate, access and
deploy capital, particularly in light of recent efforts by energy
companies to strengthen their balance sheets and maintain their credit
ratings;
o exploration, production and transportation costs;
o the discovery rate of new oil and gas reserves;
o the sale and expiration dates of oil and gas leases and concessions;
o the demand for electricity;
o regulatory restraints on the rates that power companies may charge
their customers;
o local and international political and economic conditions;
o the ability or willingness of host country government entities to fund
their budgetary commitments; and
o technological advances.
OUR SIGNIFICANT INTERNATIONAL OPERATIONS ARE SUBJECT TO POLITICAL AND ECONOMIC
RISKS OF DEVELOPING COUNTRIES
We have substantial operations and assets in developing countries in Africa, the
Middle East and South America. Approximately 45% of our contract revenues for
2001 were derived from activities in developing countries, and approximately 72%
of our long-lived assets as of December 31, 2001, were located in developing
countries. Accordingly, we are subject to risks which ordinarily would not be
expected to exist to the same extent in the United States, Canada, Japan or
Western Europe. Some of these risks include:
o Foreign currency restrictions, which may prevent us from repatriating
foreign currency received in excess of local currency requirements and
converting it into U.S. dollars or other fungible currency.
o Exchange rate fluctuations, which can reduce the purchasing power of
local currencies and cause our costs to exceed our budget, reducing
our operating margin in the affected country.
o Expropriation of assets, by either a recognized or unrecognized
foreign government, which can disrupt our business activities and
create delays and corresponding losses.
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o Civil uprisings, riots and war, which can make it impractical to
continue operations, adversely affect both budgets and schedules and
expose us to losses. In 1999, for example, local protesters looted and
vandalized our facilities in Nigeria and interfered with our
operations.
o Availability of suitable personnel and equipment, which can be
affected by government policy, or changes in policy, which limit the
importation of skilled craftsmen or specialized equipment in areas
where local resources are insufficient.
o Government instability, which can cause investment in capital projects
by our potential customers to be withdrawn or delayed, reducing or
eliminating the viability of some markets for our services.
o Legal systems of decrees, laws, regulations, interpretations and court
decisions, which are not always fully developed and which may be
retroactively applied and cause us to incur unanticipated and/or
unrecoverable costs as well as delays which may result in real or
opportunity costs. In Venezuela, for example, a new hydrocarbons law,
which went into effect on January 1, 2002, and which increases royalty
rates from approximately 17% to between 20% and 30%, is expected to
reduce investment in that country.
Our operations in developing countries may be adversely affected in the event
any governmental agencies in these countries interpret laws, regulations or
court decisions in a manner which might be considered inconsistent or
inequitable in the United States, Canada, Japan or Western Europe. We may be
subject to unanticipated taxes, including income taxes, excise duties, import
taxes, export taxes, sales taxes or other governmental assessments which could
have a material adverse effect on our results of operations for any quarter or
year.
These risks may result in a loss of business which could have a material adverse
effect on our results of operations.
WE MAY BE ADVERSELY AFFECTED BY A CONCENTRATION OF BUSINESS IN A PARTICULAR
COUNTRY
Due to a limited number of major projects worldwide, we currently have, and
expect that we will continue to have, a substantial portion of our resources
dedicated to projects located in a few countries. Therefore, our results of
operations are susceptible to adverse events beyond our control which may occur
in a particular country in which our business may be concentrated. Economic
downturns in such countries could adversely affect our operations. For the last
three years, our contract revenue was primarily generated in the following
countries or areas: United States, Nigeria, Offshore West Africa, Cameroon,
Canada, Bolivia, Venezuela, Oman and Australia.
At December 31, 2001, 28.7% of our property, plant, equipment and spare parts
was located in Nigeria, 23.3% in the United States, 15.3% in Offshore West
Africa and 13.1% in Cameroon. Our operations and assets are subject to various
risks inherent in conducting business in these countries.
OUR BUSINESS IS DEPENDENT ON A LIMITED NUMBER OF KEY CLIENTS
We operate primarily in a single operating segment in the oil, gas and power
industries, providing construction, engineering and specialty services to a
limited number of clients. Much of our success depends on developing and
maintaining relationships with our major clients and obtaining a share of
contracts from these clients. The loss of any of our major clients could have a
material adverse effect on our operations. Our 10 largest clients were
responsible for 81% of our revenue in 2001, 86% of our revenue in 2000 and 78%
of our revenue in 1999. Operating units of ExxonMobil, Centennial Pipeline,
Royal Dutch Shell, Duke Energy and Trans Union Power accounted for 18%, 17%,
14%, 10% and 10%, respectively, of our total revenue in 2001.
5
OUR DEPENDENCE UPON FIXED PRICE CONTRACTS COULD ADVERSELY AFFECT OUR OPERATING
RESULTS
A substantial portion of our projects are currently performed on a fixed-price
basis. Under a fixed-price contract, we agree on the price that we will receive
for the entire project, based upon specific assumptions and project criteria. If
our estimates of our own costs to complete the project are below the actual
costs that we may incur, our margins will decrease, and we may incur a loss. The
revenue, cost and gross profit realized on a fixed-price contract will often
vary from the estimated amounts because of unforeseen conditions or changes in
job conditions and variations in labor and equipment productivity over the term
of the contract. If we are unsuccessful in mitigating these risks, we may
realize gross profits that are different from those originally estimated and
reduced profitability or losses on projects. Depending on the size of a project,
these variations from estimated contract performance could have a significant
effect on our operating results for any quarter or year. In general, turnkey
contracts to be performed on a fixed-price basis involve an increased risk of
significant variations. This is a result of the long-term nature of these
contracts and the inherent difficulties in estimating costs and of the
interrelationship of the integrated services to be provided under these
contracts whereby unanticipated costs or delays in performing part of the
contract can have compounding effects by increasing costs of performing other
parts of the contract.
PERCENTAGE-OF-COMPLETION METHOD OF ACCOUNTING FOR CONTRACT REVENUE MAY RESULT IN
MATERIAL ADJUSTMENTS ADVERSELY AFFECTING OUR OPERATING RESULTS
We recognize contract revenue using the percentage-of-completion method. Under
this method, estimated contract revenue is accrued based generally on the
percentage that costs to date bear to total estimated costs, taking into
consideration physical completion. Estimated contract losses are recognized in
full when determined. Accordingly, contract revenue and total cost estimates are
reviewed and revised periodically as the work progresses and as change orders
are approved, and adjustments based upon the percentage of completion are
reflected in contract revenue in the period when these estimates are revised.
These estimates are based on management's reasonable assumptions and our
historical experience, and are only estimates. Variation of actual results from
these assumptions or our historical experience could be material. To the extent
that these adjustments result in an increase, a reduction or an elimination of
previously reported contract revenue, we would recognize a credit or a charge
against current earnings, which could be material.
TERRORIST ATTACKS, SUCH AS THE ATTACKS THAT OCCURRED ON SEPTEMBER 11, 2001, AND
FUTURE WAR OR RISK OF WAR MAY ADVERSELY AFFECT OUR RESULTS OF OPERATIONS, OUR
ABILITY TO RAISE CAPITAL OR SECURE INSURANCE OR OUR FUTURE GROWTH
The impact that the terrorist attacks of September 11, 2001, may have on the
energy industry in general, and on us in particular, is not known at this time.
Uncertainty surrounding retaliatory military strikes or a sustained military
campaign may affect our operations in unpredictable ways, including changes in
the insurance markets, disruptions of fuel supplies and markets, particularly
oil, and the possibility that infrastructure facilities, including pipelines,
production facilities, refineries, electric generation, transmission and
distribution facilities, could be direct targets of, or indirect casualties of,
an act of terror. War or risk of war may also have an adverse effect on the
economy. The terrorist attacks on September 11, 2001, and the changes in the
insurance markets attributable to the terrorist attacks, have resulted in
increased insurance premiums and have made it difficult for us to obtain certain
types of insurance coverage. We may be unable to secure the levels and types of
insurance we would otherwise have secured prior to September 11, 2001. A lower
level of economic activity could also result in a decline in energy consumption
which could adversely affect the oil, gas and power industries and restrict
their future growth. Instability in the financial markets as a result of
terrorism or war could also affect both our ability to raise capital and the
ability of our customers to raise capital.
6
OUR OPERATIONS ARE SUBJECT TO A NUMBER OF OPERATIONAL RISKS
Our business operations include pipeline construction, dredging, pipeline
rehabilitation services, marine support services and the operation of vessels
and heavy equipment. These operations involve a high degree of operational risk.
Natural disasters, adverse weather conditions, collisions and operator or
navigational error could cause personal injury or loss of life, severe damage to
and destruction of property, equipment and the environment and suspension of
operations. In locations where we perform work with equipment that is owned by
others, our continued use of the equipment can be subject to unexpected or
arbitrary interruption or termination. The occurrence of any of these events
could result in work stoppage, loss of revenue, casualty loss, increased costs
and significant liability to third parties.
The insurance protection we maintain may not be sufficient or effective under
all circumstances or against all hazards to which we may be subject. An
enforceable claim for which we are not fully insured could have a material
adverse effect on our financial condition and results of operations. Moreover,
we may not be able to maintain adequate insurance in the future at rates that we
consider reasonable.
WE MAY BECOME LIABLE FOR THE OBLIGATIONS OF OUR JOINT VENTURERS
Some of our projects are performed through joint ventures with other parties. In
addition to the usual liability of contractors for the completion of contracts
and the warranty of our work, where work is performed through a joint venture,
we also have potential liability for the work performed by our joint venturers.
In these projects, even if we satisfactorily complete our project
responsibilities within budget, we may incur additional unforeseen costs due to
the failure of our joint venturers to perform or complete work in accordance
with contract specifications.
GOVERNMENTAL REGULATIONS COULD ADVERSELY AFFECT OUR BUSINESS
Many aspects of our operations are subject to governmental regulations in the
countries in which we operate, including those relating to currency conversion
and repatriation, taxation of our earnings and earnings of our personnel, and
our use of local employees and suppliers. In addition, we depend on the demand
for our services from the oil, gas and power industries, and, therefore, our
business is affected by changing taxes, price controls and laws and regulations
relating to the oil, gas and power industries generally. The adoption of laws
and regulations by the countries or the states in which we operate for the
purpose of curtailing exploration and development drilling for oil and gas or
the development of power generation facilities for economic and other policy
reasons, could adversely affect our operations by limiting demand for our
services.
Our operations are also subject to the risk of changes in international and U.S.
laws and policies which may impose restrictions on our business, including trade
restrictions, which could have a material adverse effect on our operations.
Other types of government regulation which could, if enacted or implemented,
adversely affect our operations include:
o expropriation or nationalization decrees;
o confiscatory tax systems;
o primary or secondary boycotts directed at specific countries or
companies;
o embargoes;
o extensive import restrictions or other trade barriers;
o mandatory sourcing rules;
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o oil, gas or power price regulation; and
o unrealistically high labor rate and fuel price regulation.
Our future operations and earnings may be adversely affected by new legislation,
new regulations or changes in, or new interpretations of, existing regulations,
and the impact of these changes could be material.
OUR OPERATIONS EXPOSE US TO POTENTIAL ENVIRONMENTAL LIABILITIES
Our United States and Canadian operations are subject to numerous environmental
protection laws and regulations which are complex and stringent. We regularly
perform work in and around sensitive environmental areas such as rivers, lakes
and wetlands. Significant fines and penalties may be imposed for non-compliance
with environmental laws and regulations, and some environmental laws provide for
joint and several strict liability for remediation of releases of hazardous
substances, rendering a person liable for environmental damage, without regard
to negligence or fault on the part of such person. In addition to potential
liabilities that may be incurred in satisfying these requirements, we may be
subject to claims alleging personal injury or property damage as a result of
alleged exposure to hazardous substances. These laws and regulations may expose
us to liability arising out of the conduct of operations or conditions caused by
others, or for the acts of ours which were in compliance with all applicable
laws at the time these acts were performed.
We own and operate several properties in the United States that have been used
for a number of years for the storage and maintenance of equipment and upon
which hydrocarbons or other wastes may have been disposed or released. Any
release of substances by us or by third parties who previously operated on these
properties may be subject to the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA), the Resource Compensation and Recovery
Act (RCRA), and analogous state laws. CERCLA imposes joint and several
liability, without regard to fault or the legality of the original conduct, on
certain classes of persons who are considered to be responsible for the release
of "hazardous substances" into the environment, while RCRA governs the
generation, storage, transfer, and disposal of hazardous wastes. Under such
laws, we could be required to remove or remediate previously disposed wastes and
clean up contaminated property.
Our operations outside of the United States are potentially subject to similar
governmental controls and restrictions relating to the environment.
HIGHLY COMPETITIVE INDUSTRY COULD IMPEDE OUR GROWTH
We operate in a highly competitive environment. A substantial number of the
major projects that we pursue are awarded based on bid proposals. We compete for
these projects against government-owned or supported companies and other
companies that have substantially greater financial and other resources than we
do. Our growth may be impacted to the extent that we are unable to successfully
bid against these companies.
OUR OPERATING RESULTS COULD BE ADVERSELY AFFECTED IF OUR NON-U.S. OPERATIONS
BECAME TAXABLE IN THE UNITED STATES
If any income earned, currently or historically, by Willbros Group, Inc. or its
non-U.S. subsidiaries from operations outside the United States constituted
income effectively connected to a United States trade or business, and as a
result became taxable in the United States, we could be subject to U.S. taxes on
a basis significantly more adverse than generally would apply to these business
operations. In this event, our consolidated operating results could be
materially and adversely affected.
8
WE ARE DEPENDENT UPON THE SERVICES OF OUR EXECUTIVE MANAGEMENT
Our success depends heavily on the continued services of our executive
management. We do not have an employment agreement with any of these
individuals. Accordingly, we may not be able to retain any of these individuals
in their capacity for any particular period of time. In addition, we do not
maintain key man life insurance for these individuals. The loss or interruption
of services provided by one or more of our senior officers could adversely
affect our results of operations. Furthermore, we may not be able to continue to
attract and retain sufficient qualified personnel.
OUR STOCKHOLDER RIGHTS PLAN, ARTICLES OF INCORPORATION AND BY-LAWS MAY INHIBIT A
TAKEOVER, WHICH MAY ADVERSELY AFFECT THE PERFORMANCE OF OUR STOCK
Our stockholder rights plan and provisions of our articles of incorporation and
by-laws may discourage unsolicited takeover proposals or make it more difficult
for a third party to acquire us, which may adversely affect the price that
investors might be willing to pay for our common stock. For example, our
articles of incorporation and by-laws:
o provide for restrictions on the transfer of any shares of common stock
to prevent us from becoming a "controlled foreign corporation" under
United States tax law;
o provide for a classified board of directors, which allows only
one-third of our directors to be elected each year;
o restrict the ability of stockholders to take action by written
consent;
o establish advance notice requirements for nominations for election to
our board of directors; and
o authorize our board of directors to designate the terms of and issue
new series of preferred stock.
We also have a stockholder rights plan which gives holders of our common stock
the right to purchase additional shares of our capital stock if a potential
acquirer purchases or announces a tender or exchange offer to purchase 15% or
more of our outstanding common stock. The rights issued under the stockholder
rights plan would cause substantial dilution to a person or group that attempts
to acquire us on terms not approved in advance by our board of directors.
IT MAY BE DIFFICULT TO ENFORCE JUDGMENTS WHICH ARE PREDICATED ON THE FEDERAL
SECURITIES LAWS OF THE UNITED STATES AGAINST US AND SOME OF OUR BOARD MEMBERS
WHO ARE NON-U.S. RESIDENTS
We are a corporation organized under the laws of the Republic of Panama. In
addition, two of our current board members are residents of countries other than
the United States. Accordingly:
o it may not be possible to effect service of process on non-resident
directors in the United States and to enforce judgments against them
predicated on the civil liability provisions of the federal securities
laws of the United States;
o because a substantial amount of our assets are located outside the
United States, any judgment obtained against us in the United States
may not be fully collectible in the United States; and
o we have been advised that courts in the Republic of Panama will not
enforce liabilities in original actions predicated solely on the
United States federal securities laws.
9
These factors mean that it may be more costly and difficult for you to recover
fully any alleged damages that you may suffer for any violation of federal
securities laws by us or our management than it would otherwise be in the case
of a United States corporation whose directors are all United States residents.
OUR STOCK PRICE IS VOLATILE
Our common stock has experienced significant price volatility, and such
volatility may continue in the future. The price of our common stock could
fluctuate widely in response to a range of factors, including variations in our
quarterly results and changing conditions in the economy in general or in our
industry in particular. In addition, stock markets generally experience
significant price and volume volatility from time to time which may affect the
market price of our common stock unrelated to our performance.
ABOUT WILLBROS GROUP, INC.
We are one of the leading independent contractors providing construction,
engineering and specialty services to the oil, gas and power industries and
government entities worldwide. We place particular emphasis on projects in
countries where we believe our experience gives us a competitive advantage,
including several developing countries. Our construction services include the
building and replacement of major pipelines and gathering systems, flow, pump
and gas compressor stations, gas processing facilities, oil and gas production
facilities and related infrastructure. Our engineering services include
feasibility studies, conceptual and detailed design, field services, material
procurement and overall project management. Our specialty services include
oilfield transportation services, dredging, maintenance, specialty fabrication
and facility operations.
We are incorporated in the Republic of Panama and maintain our headquarters at
the Plaza 2000 Building, 50th Street, 8th Floor, Apartado 6307, Panama 5,
Republic of Panama, and our telephone number is (50-7) 213-0947. Administrative
services are provided to us by our subsidiary, Willbros USA, Inc., whose
administrative headquarters are located at 4400 Post Oak Parkway, Suite 1000,
Houston, Texas 77027, and whose telephone number is (713) 403-8000. Information
contained on our website, http://www.willbros.com, is not part of this
prospectus.
RECENT DEVELOPMENT
On October 23, 2002, we completed the acquisition of Mt. West Fabrication Plants
and Stations, Inc. and Pacific Industrial Electric, Inc., both of which are
Colorado corporations. The acquisitions were accomplished by merging two of our
newly formed, wholly-owned subsidiaries with and into Mt. West and Pacific
Industrial, respectively, with Mt. West and Pacific Industrial surviving as our
wholly-owned subsidiaries. In the merger, we issued to Mt. West and Pacific
Industrial stockholders 950,000 shares of our common stock.
At the same time we acquired two related companies, Process Engineering Design,
Inc. and Process Electric and Control, Inc., for cash in the aggregate amount of
approximately $4.4 million. Collectively, these four companies provide
engineer-procure-construct (EPC) contract services to the domestic oil, gas and
power industries, including such services in oil and gas related applications
such as compressor stations, dehydration, metering, acid gas treating, power
generation, pipeline, gas storage and complete electrical and instrumentation.
The purchase price for the four acquired companies will be adjusted by an
earn-out amount equal to 25 percent of the combined net income of the four
acquired companies for the 24-month period following the date of acquisition.
Any earn-out amounts due shall be payable in cash upon the completion of the
earn-out period.
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FORWARD-LOOKING STATEMENTS
Some of the information in this prospectus and the documents to which we refer
you contains forward-looking statements within the meaning of the federal
securities laws.
These forward-looking statements include, among others, the following:
o the amount and nature of future capital expenditures;
o oil, gas and power prices;
o demand for our services;
o the amount and nature of future investments by governments;
o expansion and other development trends of the oil, gas and power
industries;
o business strategy; and
o expansion and growth of our business and operations.
These statements may be found in this prospectus and the documents to which we
refer you under "Risk Factors," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business." Forward-looking
statements typically are identified by use of terms such as "may," "will,"
"expect," "anticipate," "estimate" and similar words, although some
forward-looking statements are expressed differently. You should be aware that
our actual results could differ materially from those contained in the
forward-looking statements due to a number of factors, including:
o the timely award of one or more projects;
o cancellation of projects;
o inclement weather;
o project cost overruns and unforeseen schedule delays;
o the realization of cost recoveries from projects completed or in
progress after completion of the relevant project;
o the acquisition of additional companies or operations;
o obtaining adequate financing;
o reductions in the demand for energy;
o curtailment of capital expenditures in the oil, gas and power
industries;
o political circumstances impeding the progress of work;
o future acts of terrorism or war;
o downturns in general economic, market or business conditions in our
target markets; and
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o changes in laws or regulations.
You should also carefully consider the statements under "Risk Factors" and other
sections of this prospectus and the documents to which we refer you, which
address additional factors that could cause our actual results to differ from
those set forth in the forward-looking statements.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares of common stock
offered by this prospectus.
SELLING STOCKHOLDERS
The following table sets forth information with respect to the selling
stockholders and the shares of our common stock that they may offer under this
prospectus. Except for the transaction described below, neither of the selling
stockholders has had a material relationship with us or any of our subsidiaries
within the past three years. The selling stockholders may from time to time
offer and sell any or all of their shares offered by this prospectus. Because
the selling stockholders are not obligated to sell their shares, and because the
selling stockholders may acquire additional shares of our common stock in the
public market, we cannot estimate the number of shares that will be beneficially
owned by them after completion of this offering. The table sets forth, to our
knowledge, information about the selling stockholders as of the date of this
prospectus.
Number of Shares Percentage of Shares of
Beneficially Owned Prior Common Stock Owned Number of Shares that
Name of Selling Stockholder to the Offering Prior to the Offering May be Offered
--------------------------- ------------------------ ----------------------- ---------------------
G. Mack Roberts 822,428 3.83% 822,428
Roger K. Joslin 127,572 0.06% 127,572
On October 23, 2002, we completed the acquisition of Mt. West Fabrication Plants
and Stations, Inc., and Pacific Industrial Electric, Inc., both of which are
Colorado corporations. The acquisition was accomplished by merging two newly
formed, wholly-owned subsidiaries of Willbros with and into Mt. West and Pacific
Industrial, respectively, with Mt. West and Pacific Industrial surviving as
wholly-owned subsidiaries of Willbros. In the merger, we issued to Mt. West and
Pacific Industrial stockholders 950,000 shares of our common stock.
In connection with our acquisition of Mt. West and Pacific Industrial, we and
the selling stockholders entered into a shelf registration agreement. Under the
shelf registration agreement, we agreed to prepare and file a registration
statement with the Securities and Exchange Commission covering the resale of the
950,000 shares. We also agreed to use all reasonable efforts to cause the
registration statement to become effective and to generally keep the
registration statement continuously effective for a period of two years from
October 23, 2002, or, if earlier, until all of the shares are sold under the
registration statement. In connection with a transfer of the shares covered by
the shelf registration agreement, the selling stockholders may assign their
rights under the agreement to sell the shares under this prospectus.
This prospectus constitutes a part of the registration statement filed by us as
required by the shelf registration agreement.
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DESCRIPTION OF CAPITAL STOCK
We have 36,000,000 authorized shares of capital stock, consisting of 35,000,000
shares of common stock, par value $.05 per share, and 1,000,000 shares of Class
A preferred stock, par value $.01 per share.
COMMON STOCK
As of September 30, 2002, 19,608,654 shares of our common stock were
outstanding. All of the outstanding shares of our common stock are fully paid
and nonassessable. The holders of our common stock are entitled to one vote for
each share of common stock held on all matters voted upon by stockholders,
including the election of directors. Holders of our common stock have no right
to cumulate their votes in the election of directors. Subject to the rights of
any then-outstanding shares of our preferred stock, the holders of our common
stock are entitled to receive dividends as may be declared in the discretion of
the board of directors out of funds legally available for the payment of
dividends. We are subject to restrictions on the payment of dividends under the
provisions of our bank credit agreement.
The holders of our common stock are entitled to share equally and ratably in our
net assets upon a liquidation or dissolution after we pay or provide for all
liabilities, subject to any preferential liquidation rights of any preferred
stock that at the time may be outstanding. The holders of our common stock have
no preemptive, subscription, conversion or redemption rights. There are no
governmental laws or regulations in the Republic of Panama affecting the
remittance of dividends, interest and other payments to our nonresident
stockholders so long as we continue not to engage in business in the Republic of
Panama.
Our articles of incorporation contain restrictions, subject to the determination
by the board of directors in good faith and in its sole discretion, on the
transfer of any shares of our common stock in order to prevent us from becoming
a "controlled foreign corporation" under United States tax law. See
"-Anti-Takeover Effects of Provisions of Our Articles of Incorporation and
By-laws."
CLASS A PREFERRED STOCK
As of the date of this prospectus, there were no outstanding shares of our Class
A preferred stock; however, the board of directors has reserved for issuance
pursuant to our Stockholder Rights Plan described below 35,000 shares of Series
A junior participating preferred stock. Class A preferred stock may be issued
from time to time in one or more series, and the board of directors, without
further approval of the stockholders, is authorized to fix the dividend rates
and terms, conversion rights, voting rights, redemption rights and terms,
liquidation preferences, sinking fund and any other rights, preferences,
privileges and restrictions applicable to each series of Class A preferred
stock.
The specific matters that the board of directors may determine include the
following:
o the designation of each series;
o the number of shares of each series;
o the rate of any dividends;
o whether any dividends will be cumulative or non-cumulative;
o the terms of any redemption;
o the amount payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of our company;
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o rights and terms of any conversion or exchange;
o restrictions on the issuance of shares of the same series or any other
series; and
o any voting rights.
The purpose of authorizing the board of directors to determine these rights,
preferences, privileges and restrictions is to eliminate delays associated with
a stockholder vote on specific issuances. The issuance of Class A preferred
stock, while providing flexibility in connection with possible acquisitions and
other corporate purposes, could:
o decrease the amount of earnings and assets available for distribution
to holders of common stock;
o adversely affect the rights and powers, including voting rights, of
holders of common stock; and
o have the effect of delaying, deferring or preventing a change in
control.
For example, the board of directors, with its broad power to establish the
rights and preferences of authorized but unissued Class A preferred stock, could
issue one or more series of Class A preferred stock entitling holders to vote
separately as a class on any proposed merger or consolidation, to convert Class
A preferred stock into a larger number of shares of common stock or other
securities, to demand redemption at a specified price under prescribed
circumstances related to a change in control, or to exercise other rights
designed to impede a takeover.
STOCKHOLDER RIGHTS PLAN
On April 1, 1999, our board of directors approved a rights agreement with Mellon
Investor Services LLC, as rights agent, and declared a distribution of one
preferred share purchase right ("Right") for each outstanding share of common
stock. Each Right, when it becomes exercisable, entitles its registered holder
to purchase one one-thousandth of a share of Series A junior participating
preferred stock ("Series A preferred stock") at a price of $30 per one
one-thousandth of a share.
The Rights are attached to and trade with shares of our common stock. Currently,
the Rights are not exercisable and there are no separate certificates
representing the Rights. If the Rights become exercisable, we will distribute
separate Rights certificates. Until that time and as long as the Rights are
outstanding, any transfer of shares of our common stock will also constitute the
transfer of the Rights associated with those common shares. The Rights will
expire on April 15, 2009, unless we redeem or exchange the Rights before that
date.
The Rights will become exercisable upon the earlier to occur of:
o the public announcement that a person or group of persons has acquired
15% or more of our common stock, except in connection with an offer
approved by our board of directors; or
o 10 days, or a later date determined by our board of directors, after
the commencement of, or announcement of an intention to commence, a
tender or exchange offer that would result in a person or group of
persons acquiring 15% or more of our common stock.
If any person or group of persons acquire 15% or more of our common stock,
except in connection with an offer approved by our board of directors, each
holder of a Right, except the acquiring person or group, will have the right,
upon exercise of the Right, to receive that number of shares of our common stock
or Series A preferred stock having a value equal to two times the exercise price
of the Right.
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In the event that any person or group acquires 15% or more of our common stock
and either (a) we are acquired in a merger or other business combination in
which the holders of all of our common stock immediately prior to the
transaction are not the holders of all of the surviving corporation's voting
power or (b) more than 50% of our assets or earning power is sold or
transferred, then each holder of a Right, except the acquiring person or group,
will have the right, upon exercise of the Right, to receive common shares of the
acquiring company having a value equal to two times the exercise price of the
Right.
The Rights are redeemable in whole, but not in part, by action of the board of
directors at a price of $.005 per Right prior to the earlier to occur of a
person or group acquiring 15% of our common stock or the expiration of the
Rights. Following the public announcement that a person or group has acquired
15% of our common stock, the Rights are redeemable in whole, but not in part, by
action of the board of directors at a price of $.005 per Right, provided the
redemption is in connection with a merger or other business combination
involving our company in which all the holders of our common stock are treated
alike and which does not involve the acquiring person or its affiliates.
In the event shares of Series A preferred stock are issued upon the exercise of
the Rights, holders of the Series A preferred stock will be entitled to receive,
in preference to holders of common stock, a quarterly dividend payment in an
amount per share equal to the greater of (a) $10 or (b) 1,000 times the dividend
declared per share of common stock. The Series A preferred stock dividends are
cumulative but do not bear interest. Shares of Series A preferred stock are not
redeemable. In the event of liquidation, the holders of the Series A preferred
stock will be entitled to a minimum preferential liquidation payment of $1,000
per share; thereafter, and after the holders of the common stock receive a
liquidation payment of $1.00 per share, the holders of the Series A preferred
stock and the holders of the common stock will share the remaining assets in the
ratio of 1,000 to 1 (as adjusted) for each share of Series A preferred stock and
common stock so held, respectively. In the event of any merger, consolidation or
other transaction in which the shares of common stock are exchanged, each share
of Series A preferred stock will be entitled to receive 1,000 times the amount
received per share of common stock. These rights are protected by antidilution
provisions.
Each share of Series A preferred stock will have 1,000 votes, voting together
with the common stock. In the event that the amount of accrued and unpaid
dividends on the Series A preferred stock is equivalent to six full quarterly
dividends or more, the holders of the Series A preferred stock shall have the
right, voting as a class, to elect two directors in addition to the directors
elected by the holders of the common stock until all cumulative dividends on the
Series A preferred stock have been paid through the last quarterly dividend
payment date or until non-cumulative dividends have been paid regularly for at
least one year.
The stockholder rights plan is designed to deter coercive takeover tactics that
attempt to gain control of our company without paying all stockholders a fair
price. The plan discourages hostile takeovers by effectively allowing our
stockholders to acquire shares of our capital stock at a discount following a
hostile acquisition of a large block of our outstanding common stock and by
increasing the value of consideration to be received by stockholders in
specified transactions following an acquisition.
ANTI-TAKEOVER EFFECTS OF PROVISIONS OF OUR ARTICLES OF INCORPORATION AND BY-LAWS
Our articles of incorporation, as amended and restated, and our restated by-laws
contain provisions that might be characterized as anti-takeover provisions.
These provisions may deter or render more difficult proposals to acquire control
of our company, including proposals a stockholder might consider to be in his or
her best interest, impede or lengthen a change in membership of the board of
directors and make removal of our management more difficult.
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Classified Board of Directors; Removal of Directors; Advance Notice
Provisions for Stockholder Nominations
Our articles of incorporation provide for the board of directors to be divided
into three classes of directors serving staggered three-year terms, with the
numbers of directors in the three classes to be as nearly equal as possible. Any
director may be removed from office but only for cause and only by the
affirmative vote of a majority of the then outstanding shares of stock entitled
to vote on the matter. Any stockholder wishing to submit a nomination to the
board of directors must follow the procedures outlined in our articles of
incorporation. Any proposal to amend or repeal the provisions of our articles of
incorporation relating to the matters contained above in this paragraph requires
the affirmative vote of the holders of 75% or more of the outstanding shares of
stock entitled to vote on the matter.
Unanimous Consent of Stockholders Required for Action by Written Consent
Under our restated by-laws, stockholder action may be taken without a meeting
only by unanimous written consent of all of our stockholders.
Issuance of Preferred Stock
As described above, our articles of incorporation authorize a class of
undesignated Class A preferred stock consisting of 1,000,000 shares. Class A
preferred stock may be issued from time to time in one or more series, and the
board of directors, without further approval of the stockholders, is authorized
to fix the rights, preferences, privileges and restrictions applicable to each
series of Class A preferred stock. The purpose of authorizing the board of
directors to determine these rights, preferences, privileges and restrictions is
to eliminate delays associated with a stockholder vote on specific issuances.
The issuance of Class A preferred stock, while providing flexibility in
connection with possible acquisitions and other corporate purposes, could, among
other things, adversely affect the voting power of the holders of our common
stock and, under certain circumstances, make it more difficult for a third party
to gain control of us.
Restrictions on Transfer of Common Stock
Our articles of incorporation provide for restrictions on the transfer of any
shares of our common stock to prevent us from becoming a "controlled foreign
corporation" under United States tax law. Any purported transfer, including a
sale, gift, assignment, devise or other disposition of common stock, which would
result in a person or persons becoming the beneficial owner of 10% or more of
the issued and outstanding shares of our common stock, is subject to a
determination by our board of directors in good faith, in its sole discretion,
that the transfer would not in any way, directly or indirectly, affect our
status as a non-controlled foreign corporation. The transferee or transferor to
be involved in a proposed transfer must give written notice to our Secretary not
less than 30 days prior to the proposed transfer. In the event of an attempted
transfer in violation of the provisions of our articles of incorporation
relating to the matters contained in this paragraph, the purported transferee
will acquire no rights whatsoever in the transferred shares of common stock.
Nothing in this provision, however, precludes the settlement of any transactions
entered into through the facilities of the New York Stock Exchange. If the board
of directors determines that a transfer has taken place in violation of these
restrictions, the board of directors may take any action it deems advisable to
refuse to give effect to or to prevent the transfer, including instituting
judicial proceedings to enjoin the transfer.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock, as well as the rights
agent under our rights agreement, is Mellon Investor Services LLC.
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MATERIAL UNITED STATES FEDERAL AND PANAMANIAN
INCOME TAX CONSEQUENCES
GENERAL
The following discussion under "- United States Tax" summarizes the material
United States federal income tax consequences with respect to the acquisition,
ownership and disposition of shares of our common stock. The following
discussion under "- Panamanian Tax" summarizes the material Panamanian income
tax consequences applicable to us and a holder of shares of our common stock.
These discussions are not tax advice nor do they purport to be a complete
analysis or listing of all the potential tax consequences of holding common
stock, nor do they purport to furnish information in the level of detail or with
attention to your specific tax circumstances that would be provided by your own
tax advisor. Accordingly, if you are considering purchasing our common stock, we
suggest that you consult with your own tax advisors as to the United States,
Panamanian or other state, local or foreign tax consequences to you of the
acquisition, ownership and disposition of our common stock.
UNITED STATES TAX
This summary of United States federal income tax consequences is based on the
Internal Revenue Code of 1986, as amended (the "Code"), judicial decisions,
administrative pronouncements, and existing, temporary and proposed Treasury
regulations as in effect on the date of this prospectus, any of which are
subject to change (possibly on a retroactive basis) and to differing
interpretations.
Taxation of Willbros Group, Inc.
A foreign corporation that is engaged in the conduct of a trade or business in
the United States is taxable at graduated rates on its income that is
"effectively connected" with such trade or business. For this purpose,
"effectively connected income" includes U.S.-source income other than certain
types of passive income and capital gains, and, if the taxpayer has an office or
other fixed place of business in the United States, certain foreign-source
dividends, interest, rents, royalties and income from the sale of property. Our
activities and the activities of our non-United States subsidiaries are carried
out in a manner that is intended not to constitute the conduct of a trade or
business in the United States. Based on the assumption that our operations and
the operations of our foreign subsidiaries will continue to be conducted in the
manner they are presently conducted, we believe that the income currently earned
by us and our non-United States subsidiaries should not be treated as
effectively connected income subject to United States federal income tax even if
such corporations were determined to be engaged in the conduct of a trade or
business in the United States. However, if any material amount of income earned,
currently or historically, by us or our non-United States subsidiaries from
operations outside the United States constituted income effectively connected to
a United States trade or business, and as a result became taxable in the United
States, we could be subject to United States tax on a basis significantly more
adverse than generally would apply to these business operations. In this event,
our consolidated operating results could be materially and adversely affected.
Our United States subsidiaries will be subject to United States federal income
tax on their worldwide income regardless of its source, subject to reduction by
allowable foreign tax credits. Moreover, it should be noted that, in the event
that any of our United States subsidiaries performs services for us or our
non-United States subsidiaries at rates that are not commensurate with the
standard rates that would be charged to an unrelated party at arm's length for
similar services, the IRS would be able, pursuant to Section 482 of the Code, to
allocate additional income to such United States subsidiaries to reflect
arm's-length charges for such services.
Distributions by our United States subsidiaries to us or to our non-United
States subsidiaries may be subject to United States withholding tax.
17
There is no income tax treaty between Panama and the United States.
Taxation of Holders of Common Stock
This summary describes the material United States federal income tax
consequences of the acquisition, ownership and disposition of shares of our
common stock, but it does not purport to be a comprehensive description of all
of the tax considerations that you may need to consider before deciding to
acquire shares of our common stock. This summary applies to you only if you hold
our common stock as a capital asset. This summary does not address all federal
income tax consequences applicable to all categories of investors, some of which
may be subject to special rules, such as broker-dealers, insurance companies,
tax-exempt organizations, financial institutions, investors who are liable for
the alternative minimum tax, investors who hold our common stock as part of a
hedging or conversion transaction, holders whose "functional currency" is not
the U.S. dollar or holders that own (directly, indirectly or through
attribution) 10% or more of our voting shares. This summary also does not
consider the tax treatment of persons who will hold our common stock through
partnerships, S corporations or other pass-through entities. This summary does
not address any aspects of United States taxation other than federal income
taxation.
If you are considering purchasing our common stock, we suggest you consult with
your own tax advisors as to the United States or other tax consequences of the
purchase, ownership and disposition of our common stock in your particular
circumstances, including the effect of any state, local or foreign tax laws.
For purposes of this summary, a "U.S. Holder" means a beneficial owner of our
common stock that is
o an individual who is a citizen or resident of the United States for
U.S. federal income tax purposes;
o a corporation, or other entity treated as a corporation, created or
organized under the laws of the United States or of any political
subdivision thereof or therein;
o an estate the income of which is includable in gross income for United
States federal income tax purposes regardless of its source;
o a trust, the administration over which a United States court can
exercise primary supervision and for which one or more United States
persons have the authority to control all substantial decisions; or
o otherwise subject to United States federal income taxation with
respect to our common stock (including a non-resident alien individual
or foreign corporation that holds, or is deemed to hold, any shares of
our common stock in connection with the conduct of a U.S. trade or
business).
A "non-U.S. Holder" is any beneficial owner of our common stock that is not a
U.S. Holder.
Controlled Foreign Corporation Rules. Under the Code, a foreign corporation will
be a controlled foreign corporation ("CFC") if "United States Shareholders" own,
on any day during the corporation's taxable year, more than 50% of either the
total combined voting power of all classes of stock entitled to vote or the
total value of such corporation's stock. A "United States Shareholder" is a U.S.
person who owns (after applying certain attribution rules) 10% or more of the
total combined voting power of all classes of stock entitled to vote. If we or
any of our non-United States subsidiaries were to become a CFC, then each person
who is a United States Shareholder would be subject to federal income taxation
on such person's share of certain types of income earned by such corporation.
Our articles of incorporation contain restrictions designed to prevent us from
becoming a CFC. See "Description of Capital Stock - Anti-Takeover Effects of
Provisions of Our Articles of Incorporation and By-laws" above. Based on the
nature of the ownership of our common stock, we believe that Willbros Group,
Inc. is not a CFC.
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Passive Foreign Investment Company Rules. In general, a foreign corporation is a
passive foreign investment company ("PFIC") if either (i) 75% or more of the
gross income of the foreign corporation for the taxable year is passive income
or (ii) the average percentage of assets held by the foreign corporation during
the taxable year which produce passive income or which are held for the
production of passive income is at least 50%. Several look-through rules are
applied to determine whether a foreign corporation meets these tests. For
example, a foreign corporation's beneficial share of the income and assets of
its 25%-or-more owned subsidiaries are consolidated with the income and assets
of the parent for purposes of these tests. If a foreign corporation is a PFIC,
then U.S. persons who own its stock will be required to pay an interest charge
when they receive distributions from the PFIC and they will realize ordinary
income, rather than capital gain, from the sale of their shares, unless they
make an election to realize income currently. Based on the nature of our income
and assets and the income and assets of our subsidiaries, we believe that
Willbros Group, Inc. is not a PFIC.
Taxation of Distributions. We do not expect to pay dividends for the foreseeable
future. Nonetheless, to the extent paid from our current or accumulated earnings
and profits as determined under United States federal income tax principles,
distributions made with respect to shares of our common stock (other than
certain distributions of our capital stock or rights to subscribe for shares of
our capital stock) will be includable in income to those of you who are U.S.
Holders as ordinary income on the date you receive the distribution. To the
extent that a distribution exceeds our earnings and profits, it will be treated
as a nontaxable return of capital to those of you who are U.S. Holders to the
extent of your tax basis in your shares of our common stock (and will reduce
your tax basis in the shares), and thereafter as a taxable capital gain. The
amount of distribution will equal the dollar value of the distribution received
by you. Assuming that we are not at any time engaged in a United States trade or
business, any distributions made with respect to our common stock from earnings
and profits generally will be treated as dividend income from sources outside
the United States. Dividends paid to those of you that are U.S. corporations
will not qualify for the "dividends received deduction" under Section 243 of the
Code.
Assuming that we are not at any time engaged in a United States trade or
business, dividends on our common stock generally should not be subject to
United States federal income tax in the hands of a non-U.S. Holder.
Taxation of Capital Gain. Gain or loss realized by those of you who are U.S.
Holders on the sale or other disposition of shares of our common stock will be
subject to United States federal income tax as capital gain or loss in an amount
equal to the difference between your tax basis in the shares disposed of and the
amount realized on the disposition. This gain will be long-term capital gain if
you have held the shares for more than one year at the time of disposition. Gain
realized by those of you who are U.S. Holders on the sale or other disposition
of shares of our common stock generally will not be treated as foreign source
income for U.S. foreign tax credit purposes, unless the gain is attributable to
an office or fixed place of business maintained by you outside the United States
or you are an individual whose tax home is outside the United States, and
certain other conditions are met. Losses realized by those of you who are U.S.
Holders on the disposition of our common stock generally will be United States
source losses. For United States federal income tax purposes, capital losses are
subject to limitations on deductibility. As a general rule, U.S. Holders that
are corporations can use capital losses for a taxable year only to offset
capital gains in that year. If you are a corporation, you may be entitled to
carry back unused capital losses to the three preceding tax years and to carry
over losses to the following five tax years. If you are not a corporation,
capital losses in a taxable year are deductible to the extent of any capital
gains, plus up to $3,000 of ordinary income. Unused capital losses of
non-corporate U.S. Holders may be carried over indefinitely.
Gain from the sale, exchange or redemption of our common stock generally should
not be subject to United States federal income tax in the hands of a non-U.S.
Holder.
Information Reporting and Backup Withholding. Except as discussed below with
respect to backup withholding, and assuming that we are not at any time engaged
in a United States trade or business, dividends paid by us on our common stock
will not be subject to withholding of U.S. federal income tax.
19
Information reporting to the U.S. Internal Revenue Service will generally be
required with respect to payments to non-corporate U.S. Holders of dividends on,
and proceeds of sales of, our common stock. If you are a non-corporate U.S.
Holder of common stock, you may be subject to backup withholding at the rate of
30% with respect to dividends on, and proceeds of sales of, common stock paid to
you, unless you come within various exempt categories and, when required,
demonstrate this fact, or provide a taxpayer identification number, certify as
to no loss of exemption from backup withholding, and otherwise comply with
applicable requirements of the backup withholding rules. This rate is scheduled
to be reduced to 29% for payments made in 2004 and 2005, and 28% for payments
made in 2006 and thereafter. Any amounts withheld under the backup withholding
tax rules from a payment to those of you who are U.S. Holders will be allowed as
a refund or a credit against your U.S. federal income tax liability, provided
that the required information is furnished to the U.S. Internal Revenue Service.
In general, those of you who are non-U.S. Holders will not be subject to
information reporting or backup withholding with respect to payments of
dividends on our common stock or payment of proceeds from the disposition of our
common stock if you timely provide us with a Form W-8BEN (or other applicable
form) certifying under penalties of perjury that you are not a United States
person, your broker or person making such payments possesses other documentation
concerning your account on which the broker or other person is permitted to rely
under Treasury regulations to establish that you are a non-United States person,
or you otherwise establish an exemption.
If you do not establish an exemption, backup withholding and information
reporting will generally apply to payments of dividends on our common stock (not
paid to or through an account maintained outside the United States at a
financial institution) and the gross proceeds of any sale of common stock that
you make through the United States office of any broker, foreign or domestic. As
a general matter, information reporting and backup withholding will not apply to
a payment by or through a foreign office of a foreign broker of the gross
proceeds of a sale of common stock effected outside the United States. However,
unless you establish an exemption, information reporting (but not backup
withholding) will generally apply to payments of dividends on common stock paid
to or through an account maintained outside the United States at a financial
institution and the gross proceeds of any sale of common stock that you make
through a foreign office of a broker that is (i) a United States person as
defined in the Code, (ii) a foreign person that derived 50% or more of its gross
income for certain periods from the conduct of a trade or business in the United
States, (iii) a controlled foreign corporation as defined in the Code, or (iv) a
foreign partnership with certain connections to the United States.
Notwithstanding any Form W-8BEN or other documentary evidence in a broker's
possession, a broker who has actual knowledge or reason to know that you are a
United States person will be required to make backup withholdings and file
information reports with the Internal Revenue Service if the broker is a United
States person or is a foreign person that has certain connections to the United
States.
PANAMANIAN TAX
The following discussion of Panamanian tax matters is based upon the tax laws of
Panama and regulations thereunder in effect as of the date of this prospectus,
and is subject to any subsequent change in Panamanian laws and regulations which
may come into effect after such date. The material Panamanian tax consequences
of ownership of shares of our common stock are as follows.
20
General. Panama's income tax is exclusively territorial. Only income actually
derived from sources within Panama is subject to taxation. Income derived by
Panama or foreign corporations or individuals from off-shore operations is not
taxable. The territorial principle of taxation has been in force throughout the
history of the country and is supported by legislation, administrative
regulations and court decisions. We have not been in the past and do not in the
future expect to be subject to income taxes in Panama because all of our income
has arisen from activities conducted entirely outside Panama. This is the case
even though we maintain our registered office in Panama.
Taxation of Distributions and Capital Gains. There will be no Panamanian taxes
on distribution of dividends or capital gains realized by an individual or
corporation, regardless of its nationality or residency, on the sale or other
disposition of shares of common stock so long as our assets are held and
activities are conducted entirely outside of Panama.
PLAN OF DISTRIBUTION
We are registering the shares offered under this prospectus on behalf of the
selling stockholders. As used in this prospectus, the term "selling
stockholders" includes donees, pledgees, transferees or other
successors-in-interest selling shares received from a selling stockholder after
the date of this prospectus. The selling stockholders will act independently of
us in making decisions with respect to the timing, manner and size of each sale.
The selling stockholders may sell their shares from time to time in one or more
transactions (which may include block transactions) on the New York Stock
Exchange, in the over-the-counter market, in negotiated transactions, through
put or call options transactions relating to the shares, through short sales of
shares, or a combination of these methods of sale, at market prices prevailing
at the time of sale, at negotiated prices, or at varying prices determined at
the time of sale. These transactions may or may not involve brokers or dealers.
The selling stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares, nor is there an underwriter
or coordinating broker acting in connection with the proposed sale of shares by
the selling stockholders.
The selling stockholders may sell their shares directly to purchasers or to or
through broker-dealers, which may act as agents or principals. These
broker-dealers may receive compensation in the form of discounts, concessions,
or commissions from the selling stockholders and/or the purchasers of shares for
whom these broker-dealers may act as agents or to whom they sell as principal,
or both (which compensation as to a particular broker-dealer might be in excess
of customary commissions).
The selling stockholders also may resell any of their shares that qualify for
sale under Rule 144 in open market transactions pursuant to Rule 144 under the
Securities Act of 1933, rather than pursuant to this prospectus.
The selling stockholders and any broker-dealers that act in connection with the
sale of their shares might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act of 1933, and any commissions received by
these broker-dealers and any profit on the resale of the shares sold by them
while acting as principals might be deemed to be underwriting discounts or
commissions under the Securities Act of 1933. We have agreed to indemnify the
selling stockholders against certain liabilities, including liabilities arising
under the Securities Act of 1933. The selling stockholders may agree to
indemnify any agent, dealer or broker-dealer that participates in transactions
involving sales of their shares against certain liabilities, including
liabilities arising under the Securities Act of 1933.
Because the selling stockholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, the selling stockholders
will be subject to the prospectus delivery requirements of
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the Securities Act of 1933, which may include delivery through the facilities of
the New York Stock Exchange pursuant to Rule 153 under the Securities Act of
1933. We have informed the selling stockholders that the anti-manipulative
provisions of Regulation M promulgated under the Securities Exchange Act of 1934
may apply to their sales in the market.
Upon notification to us by a selling stockholder that any material arrangement
has been entered into with a broker-dealer for the sale of shares through a
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, a supplement to this prospectus will be
filed, if required, pursuant to Rule 424(b) under the Securities Act of 1933,
disclosing:
o the name of the selling stockholder and of the participating
broker-dealer(s);
o the number of shares involved;
o the price at which the shares were sold;
o the commissions paid or discounts or concessions allowed to the
broker-dealer(s), where applicable;
o that the broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
o any other facts material to the transaction.
We will pay all the costs, expenses and fees related to the registration of the
shares offered by this prospectus. The selling stockholders will be responsible
for the payment of any brokerage commissions, underwriting fees and discounts
attributable to the sale of shares offered by this prospectus and fees and
expenses of any counsel and accountants retained by the selling stockholders.
LEGAL OPINION
Arias, Fabrega & Fabrega, Panama City, Republic of Panama, as our counsel, will
issue an opinion for us regarding the validity of the shares of common stock
offered by this prospectus.
EXPERTS
Our consolidated financial statements and schedule as of December 31, 2001 and
2000, and for each of the years in the three-year period ended December 31,
2001, have been incorporated by reference in this prospectus in reliance upon
the reports of KPMG LLP, independent accountants, incorporated by reference in
this prospectus, and upon the authority of said firm as experts in accounting
and auditing. The report of KPMG LLP covering our December 31, 2001,
consolidated financial statements refers to our adoption of Statement of
Accounting Standards ("SFAS") No. 141, Business Combinations, and certain
provisions of SFAS No. 142, Goodwill and Other Intangible Assets in 2001.
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
All amounts, which are payable by the Registrant, except the SEC registration
fee, are estimates.
SEC registration fee .............. $ 608
Printing and copying expenses ..... 500
Legal fees and expenses ........... 10,000
Accounting fees and expenses ...... 20,000
Miscellaneous ..................... 1,500
-------
Total ...................... $32,608
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 64 of the General Corporation Law of Panama (the "PGCL") provides that
directors shall be liable to creditors of the Registrant for authorizing a
dividend or distribution of assets with knowledge that such payments impair the
Registrant's capital or for making a false report or statement in any material
respect. In addition, Article 444 of the Panama Code of Commerce ("Article 444")
provides that directors are not personally liable for the Registrant's
obligations, except for liability to the Registrant and third parties for the
effectiveness of the payments to the Registrant made by stockholders, the
existence of dividends declared, the good management of the accounting, and in
general, for execution or deficient performance of their mandate or the
violation of laws, the Articles of Incorporation, the By-laws or resolutions of
the stockholders. Article 444 provides that the liability of directors may only
be claimed pursuant to a resolution of the stockholders.
The PGCL does not address the issue as to whether or not a corporation may
eliminate or limit a director's, officer's or agent's liability to the
corporation. Nevertheless, Arias, Fabrega & Fabrega, Panamanian counsel to the
Registrant, has advised the Registrant that, as between the Registrant and its
directors, officers and agents, such liability may be released under general
contract principles, to the extent that a director, officer or agent, in the
performance of his duties to the corporation, has not acted with gross
negligence or malfeasance. This release may be included in the Articles of
Incorporation or By-laws of the Registrant or in a contract entered into between
the Registrant and the director, officer or agent. While such a release may not
be binding with respect to a third person or stockholder claiming liability
under Article 444, in order to claim such liability, a resolution of the
stockholders would be necessary, which the Registrant believes would be
difficult to secure in the case of a publicly held company.
The PGCL does not address the extent to which a corporation may indemnify a
director, officer or agent. However, the Registrant's Panamanian counsel has
advised the Registrant that, under general agency principles, an agent, which
would include directors and officers, may be indemnified against liability to
third persons, except for a claim based on Article 64 of the PGCL or for losses
due to gross negligence or malfeasance in the performance of such agent's
duties. The Registrant's Restated Articles of Incorporation release directors
from personal liability to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director and authorize the
Registrant's board of directors to adopt By-laws or resolutions to this effect
or to cause the Registrant to enter into contracts providing for limitation of
liability and for indemnification of directors, officers, and agents. The
Registrant's Restated By-laws provide for indemnification of directors and
officers of the Registrant to the fullest extent permitted by, and in the manner
permissible under, the laws of the Republic of Panama. The Registrant has also
entered into specific agreements with its directors and officers providing for
indemnification of such persons under certain circumstances. The Registrant
carries directors' and officers' liability insurance to insure its officers and
directors against liability for certain errors and omissions and to defray
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costs of a suit or proceeding against an officer or director. The Registrant
also carries directors' and officers' liability insurance which insures its
officers and directors against liabilities they may incur in connection with the
registration, offering or sale of the securities covered by this Registration
Statement.
The preceding discussion is subject to the Registrant's Restated Articles of
Incorporation and Restated By-laws and the provisions of Article 64 of the PGCL
and Article 444 as applicable. It is not intended to be exhaustive and is
qualified in its entirety by the Registrant's Restated Articles of
Incorporation, the Registrant's Restated By-laws and Article 64 of the PGCL and
Article 444.
ITEM 16. EXHIBITS.
The following is a list of all exhibits filed as a part of this Registration
Statement on Form S-3, including those incorporated by reference herein.
4.1 Amended and Restated Articles of Incorporation (previously filed
as Exhibit 3.2 to the Registrant's quarterly report on Form 10-Q
for the quarter ended September 30, 2002, and incorporated
herein by reference).
4.2 Restated By-laws (previously filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1, Registration
No. 333-5413 (the "S-1 Registration Statement"), and
incorporated herein by reference).
4.3 Form of stock certificate for common stock, par value $.05 per
share (previously filed as Exhibit 4 to the S-1 Registration
Statement and incorporated herein by reference).
4.4 Rights Agreement, dated April 1, 1999, between the Registrant
and Mellon Investor Services LLC, as Rights Agent (previously
filed as an exhibit to the Registrant's Registration Statement
on Form 8-A, dated April 9, 1999, and incorporated herein by
reference).
4.5 Certificate of Designation of Series A Junior Participating
Preferred Stock of the Registrant (previously filed as Exhibit 3
to the Registrant's Report on Form 10-Q for the quarter ended
March 31, 1999, and incorporated herein by reference).
5** Opinion of Arias, Fabrega & Fabrega regarding the legality of
the common stock.
23.1* Consent of KPMG LLP.
23.2** Consent of Arias, Fabrega & Fabrega (included in Exhibit 5).
24* Power of Attorney (included on the signature page to this
Registration Statement).
----------
* Filed herewith.
** To be filed by amendment.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in this effective Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referred to in Item 15 of
this Registration Statement, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(i) The undersigned Registrant undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
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(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
* * *
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 25th day of November,
2002.
WILLBROS GROUP, INC.
By: /s/ Michael F. Curran
--------------------------------------
Michael F. Curran
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each individual whose signature appears below
constitutes and appoints Michael F. Curran, Warren L. Williams and John T.
Dalton, and each of them, his true and lawful attorneys-in-fact and agents with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or his or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Larry J. Bump Director and Chairman of the Board November 25, 2002
---------------------------------
Larry J. Bump
/s/ Michael F. Curran Director, Vice Chairman of the Board, November 25, 2002
--------------------------------- President and Chief Executive Officer
Michael F. Curran (Principal Executive Officer and Authorized
Representative in the United States)
/s/ Warren L. Williams Senior Vice President, Chief Financial November 25, 2002
--------------------------------- Officer and Treasurer (Principal Financial
Warren L. Williams Officer and Principal Accounting Officer)
/s/ Peter A. Leidel Director November 25, 2002
---------------------------------
Peter A. Leidel
II-5
/s/ Rodney B. Mitchell Director November 25, 2002
---------------------------------
Rodney B. Mitchell
/s/ Michael J. Pink Director November 25, 2002
---------------------------------
Michael J. Pink
/s/ James B. Taylor, Jr. Director November 25, 2002
---------------------------------
James B. Taylor, Jr.
/s/ Guy E. Waldvogel Director November 25, 2002
---------------------------------
Guy E. Waldvogel
/s/ John H. Williams Director November 25, 2002
---------------------------------
John H. Williams
II-6
INDEX TO EXHIBITS
Exhibit
Number Description
------- -----------
4.1 Amended and Restated Articles of Incorporation (previously
filed as Exhibit 3.2 to the Registrant's quarterly report on
Form 10-Q for the quarter ended September 30, 2002, and
incorporated herein by reference).
4.2 Restated By-laws (previously filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1, Registration
No. 333-5413 (the "S-1 Registration Statement"), and
incorporated herein by reference).
4.3 Form of stock certificate for common stock, par value $.05
per share (previously filed as Exhibit 4 to the S-1
Registration Statement and incorporated herein by reference).
4.4 Rights Agreement, dated April 1, 1999, between the Registrant
and Mellon Investor Services LLC, as Rights Agent (previously
filed as an exhibit to the Registrant's Registration
Statement on Form 8-A, dated April 9, 1999, and incorporated
herein by reference).
4.5 Certificate of Designation of Series A Junior Participating
Preferred Stock of the Registrant (previously filed as
Exhibit 3 to the Registrant's Report on Form 10-Q for the
quarter ended March 31, 1999, and incorporated herein by
reference).
5** Opinion of Arias, Fabrega & Fabrega regarding the legality of
the common stock.
23.1* Consent of KPMG LLP
23.2** Consent of Arias, Fabrega & Fabrega (included in Exhibit 5).
24* Power of Attorney (included on the signature page to this
Registration Statement).
----------
* Filed herewith.
** To be filed by amendment.