sv8
As filed with the Securities and Exchange Commission on November 24, 2010
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
LYONDELLBASELL INDUSTRIES N.V.
(Exact name of Registrant as specified in its charter)
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The Netherlands
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98-0646235 |
(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification Number) |
Weena 737
3103AM Rotterdam
The Netherlands
31 10 275 5500
(Address, including zip code, and telephone number, including area code of Registrants principal executive offices)
LYONDELLBASELL INDUSTRIES N.V. 2010 LONG-TERM INCENTIVE PLAN
(Full titles of the Plans)
Craig B. Glidden
Weena 737
3103AM Rotterdam
The Netherlands
31 10 275 5500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer þ
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Smaller reporting company o |
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed |
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maximum |
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Proposed maximum |
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Amount of |
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Title of securities |
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Amount to be |
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offering price per |
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aggregate offering |
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registration |
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to be registered |
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registered |
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share |
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price |
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fee |
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Class A ordinary shares, par value 0.04 per share |
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9,913,643 (1) |
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$29.03(2) |
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$287,793,057(3) |
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$20,520 (3) |
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(1) |
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This Registration Statement also covers an indeterminate amount of additional shares
issuable to prevent dilution in the event of stock splits, stock dividends or similar
adjustments of the outstanding Class A ordinary shares, as provided in the Plan. |
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(2) |
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Represents the average of the high and low prices of the Class A ordinary shares as reported
on the New York Stock Exchange on November 23, 2010. |
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(3) |
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Computed in accordance with Rules 457(c) and (h) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the total registration fee. The aggregate
offering price and amount of registration fee have been computed based on the average of the
high and low prices of Class A ordinary shares as reported on the New York Stock Exchange on
November 23, 2010. |
TABLE OF CONTENTS
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
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* |
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Information required by Part I to be contained in the Section 10(a) prospectus is omitted from
this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as
amended, and the Note to Part I of Form S-8. |
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the Commission)
by the Registrant are hereby incorporated by reference into this Registration Statement:
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(a) |
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Registration Statement on Form 10, as amended; |
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(b) |
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Quarterly Report on Form 10-Q for the quarter ended September 30, 2010; |
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(c) |
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Current Reports on Form 8-K dated November 12, 2010 and November 17, 2010 and
Form 8-K/A dated November 24, 2010; and |
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(b) |
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The description of the Registrants Class A ordinary shares contained in the
Registrants Registration Statement on Form 10 filed with the Commission pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the Exchange Act), on
April 28, 2010, as amended. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment
which indicates that all of the securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such documents. Any
statement contained herein or in any document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be deemed to constitute a
part of this Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
The class of securities to be offered under this Registration Statement is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Registrant assumed certain indemnification obligations for any person who served as a
director or officer of its predecessor, LyondellBasell AF S.C.A., and its subsidiaries that were
debtors under the joint bankruptcy proceeding under chapter 11 of the U.S. Bankruptcy Code during
the period beginning January 6, 2009 (the Bankruptcy Cases), subject to certain exceptions. All
of the Registrants current executive officers and most of its officers will be indemnified
pursuant to this assumption under the Plan of Reorganization. Furthermore, pursuant to the Plan of
Reorganization, to the extent that indemnification claims relate to acts or omissions prior to the
commencement of the Bankruptcy Cases, any individual covered by the assumed indemnification
obligations must first demonstrate that he or she has taken all reasonable actions to obtain
payment under any applicable insurance policies, and that the insurers under the policies have
disclaimed coverage or have informed such individual that the available limits of liability under
the applicable policies have been exhausted. The Registrant will only be required to make a payment
under the assumed indemnification obligations after the insurance policy has been exhausted or is
not otherwise available. With respect to acts or omissions after the commencement of the Bankruptcy
Cases and prior to the
II-1
Companys emergence from chapter 11 proceedings on April 30, 2010, an insurance policy took
effect on December 20, 2007 which covers such acts or omissions.
Article 26 of Chapter XI of the Registrants Articles of Association contains mandatory
indemnification provisions for the Registrants current and former directors and officers as
described generally below.
The Registrant is obligated to indemnify and hold harmless, to the fullest extent permitted by
applicable law, any person who was or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he (or a person or entity for whom he) is or was a member
of the Management Board or a member of the Supervisory Board of the Registrant or is or was serving
at the registrants request as a director, officer, employee or agent of another company or a
partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans. The Registrants indemnification obligation applies to all liability and
loss suffered and expenses (including attorneys fees) reasonably incurred, except that our
indemnification does not apply in respect of any claim, issue or matter as to which the person is
adjudged to be liable for gross negligence or willful misconduct in the performance of his duty to
us, unless and only to the extent that the court in which such action suit or proceeding was
brought or any other court having appropriate jurisdiction determines otherwise.
Expenses (including attorneys fees) incurred in defending a proceeding may be paid by the
Registrant in advance of the final disposition of such proceeding upon a resolution of the
Management Board which will have been approved by the Supervisory Board with respect to the
specific case upon receipt of an undertaking by or on behalf of the member of the Management Board,
member of the Supervisory Board, director, officer, employee or agent to repay such amount unless
it shall ultimately be determined that he or she is entitled to be indemnified by the Registrant.
The Registrant has entered into indemnification agreements with its current directors and will
enter into similar agreements with executive officers and certain officers and employees of
LyondellBasell Industries N.V. The Registrant believes that these indemnification agreements are
necessary to attract and retain qualified persons as directors and executive officers and as
officers and employees of LyondellBasell Industries N.V. The SEC has noted, however, that in the
opinion of the SEC, such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable.
The Registrant maintains directors and officers liability insurance coverage.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
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4.1
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Amended and Restated Articles of Association (Incorporated by reference to Exhibit
3.1 to the Registrants Form 10/A filed with the Commission on July 26, 2010). |
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5.1
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Opinion of Clifford Chance LLP, regarding the legality of the ordinary shares
being registered hereunder. |
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23.1
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Consent of PricewaterhouseCoopers LLP. |
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23.2
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Consent of KPMG Audit S.à r.l. |
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23.3
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Consent of Clifford Chance LLP (Included in Exhibit 5.1) |
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24.1
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Powers of Attorney (Included on the signature page of this Registration Statement). |
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LyondellBasell Industries N.V. 2010 Long-Term Incentive Plan (Incorporated by
reference to Exhibit 10.13 to the Registrants Form 10 filed with the Commission
on April 28, 2010). |
II-2
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(1) |
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To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: |
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to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the Securities Act); |
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(ii) |
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to reflect in the prospectus any facts or events arising after the
effective date of the 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 the Registration Statement; and |
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(iii) |
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to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement. |
Provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) 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 Exchange Act that are incorporated by reference in this Registration
Statement.
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That, for the purpose of determining any liability under the Securities
Act, 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;
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To remove from registration by means of a post-effective amendment any of
the securities being registered that remain unsold at the termination of the offering. |
(b) The undersigned Registrant hereby further undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be
governed by the final adjudication of such issue.
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below constitutes and
appoints James L. Gallogly, C. Kent Potter, Craig B. Glidden, and each of them, each of whom may
act without joinder of the other, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all pre- or post-effective amendments to this Registration Statement,
including without limitation any registration statement of the type contemplated by Rule 462(b)
under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, 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, and each of them, or substitute or substitutes of any or
all of them, may lawfully do or cause to be done by virtue hereof.
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 requirements for filing on Form S-8 and has
duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned,
thereunto duly authorized, in Amsterdam, The Netherlands, on the 24th day of November 2010.
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LYONDELLBASELL INDUSTRIES N.V.
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By: |
/s/ James L. Gallogly
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James L. Gallogly |
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Managing Director |
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on
Form S-8 has been signed by the following persons in the capacities indicated on the
24th day of November 2010.
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Signature |
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Title |
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Chief Executive Officer |
James L. Gallogly
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(Principal Executive Officer) |
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/s/ C. Kent Potter
C. Kent Potter
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Executive Vice President and Chief Financial Officer (Principal
Financial Officer) |
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/s/ Wendy M. Johnson
Wendy M. Johnson
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Chief Accounting Officer (Principal
Accounting Officer) |
II-4
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/s/ Milton Carroll
Milton Carroll
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Director |
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/s/ Stephen F. Cooper
Stephen F. Cooper
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Director |
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/s/ Joshua J. Harris
Joshua J. Harris
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Director |
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Director |
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/s/ Marvin O. Schlanger
Marvin O. Schlanger
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Director and Chairman of the Board |
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Director |
Jeffrey S. Serota |
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/s/ Bruce A. Smith
Bruce A. Smith
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Director |
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/s/ Rudy M.J. van der Meer
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Director |
Rudy M.J. van der Meer |
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II-5
INDEX TO EXHIBITS
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4.1
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Amended and Restated Articles of Association (Incorporated by reference to Exhibit
3.1 to the Registrants Form 10/A filed with the Commission on July 26, 2010). |
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5.1
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Opinion of Clifford Chance LLP, regarding the legality of the ordinary shares
being registered hereunder. |
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23.1
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Consent of PricewaterhouseCoopers LLP. |
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23.2
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Consent of KPMG Audit S.à r.l. |
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23.3
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Consent of Clifford Chance LLP (Included in Exhibit 5.1) |
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24.1
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Powers of Attorney (Included on the signature page of this Registration Statement). |
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99
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LyondellBasell Industries N.V. 2010 Long-Term Incentive Plan (Incorporated by
reference to Exhibit 10.13 to the Registrants Form 10 filed with the Commission
on April 28, 2010). |