Item 6.
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Indemnification of Directors and Officers.
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The Registrant is currently a public
limited company incorporated in England and Wales or under English law. Chapter 7 of Part 10 of the U.K. Companies Act 2006 contains provisions relating to directors liability. All statutory references in this Item 20 are to the U.K.
Companies Act 2006.
Section 232(1) makes void any provision that purports to exempt a director of a company from any liability that
would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company.
Section 232(2) makes void any provision by which a company directly or indirectly provides an indemnity for a director of the company
against any liability attaching to him or her in connection with any negligence, default, breach of duty or breach of trust in relation to the company, except if permitted as:
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(a)
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liability insurance within Section 233;
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(b)
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qualifying third-party indemnity provisions falling within Section 234; or
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(c)
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qualifying pension scheme indemnity provision under Section 235.
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Section 233
permits liability insurance, commonly known as directors and officers liability insurance, purchased and maintained by a company against liability for negligence, default, breach of duty or breach of trust in relation to the company.
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Section 234 allows the Registrant to provide an indemnity against liability incurred by a
director to someone other than the Registrant or an associated company of the Registrant. Such an indemnity does not permit indemnification against liability to pay criminal fines or civil penalties to a regulatory authority or the costs of an
unsuccessful defense of criminal or civil proceedings or application for relief under Sections 661 (power of court to grant relief in case of acquisition of shares by innocent nominee) or 1157 (general power of court to grant relief in case of
honest and reasonable conduct) of the U.K. Companies Act 2006.
Section 235 allows the Registrant to provide indemnification to a
director that is a trustee of an occupational pension scheme if joint liability incurred in connection with the companys activities as trustee of the scheme. Such provision does not permit indemnification against liability to pay criminal
fines or civil penalties to a regulatory authority or the costs of an unsuccessful defense of criminal proceedings.
Any indemnity
provided under Section 234 or Section 235 must be disclosed in the companys annual report in accordance with Section 236 and copies of such indemnification provisions made available for inspection in accordance with
Section 237 (and every member has a right to inspect and request such copies under Section 238).
Conduct of a director
amounting to negligence, default, breach of duty or breach of trust in relation to the company can be ratified, in accordance with Section 239, by a resolution of the members of the company, disregarding the votes of the director (if a member)
and any connected member.
The articles of association of the Registrant provide that, subject to the U.K. Companies Act 2006, the
Registrant may indemnify (i) any person who is or was a director of the Registrant or any associated company against any loss, cost, charge or liability incurred by him as a director in the actual or purported execution and/or discharge of his
duties or in relation to them whether in connection with any negligence, default, breach of duty or breach of trust by him or otherwise; and (ii) any person who is or was a director of an associated company that is a trustee of an occupational
pension scheme, against any loss, cost, charge or liability incurred by him as a director in connection with the companys activities as trustee of an occupational pension scheme.
The articles of association of the Registrant also provide that, subject to the U.K. Companies Act 2006, the Registrant may purchase and
maintain insurance for or for the benefit of any person who is or was a director, officer or employee of the Registrant, or any corporate entity which is or was the holding company or subsidiary undertaking of the Registrant, or in which the
Registrant or such holding company or subsidiary undertaking has or had any interest or with which the Registrant or such holding company or subsidiary undertaking is or was in any way allied or associated. This includes, without limitation,
insurance against any loss or liability or any expenditure such director, officer or employee may incur, whether in connection with any proven or alleged act or omission in the actual or purported execution or discharge of his or her duties or in
the exercise or purported exercise of his or her powers or otherwise in relation to his or her duties, powers or offices, whether comprising negligence, default, breach of duty, breach of trust or otherwise, in relation to the Registrant or the
relevant body.
The Business Combination Agreement provides that, to the extent permitted by applicable law, for a period of six years
from and after completion of the Mergers, the Registrant will indemnify and hold harmless and provide advancement of expenses to each past and present (as of completion of the Mergers) director, officer, and employee of FMCTI, Technip or any of
their subsidiaries against all costs or expenses (including reasonable attorneys fees and disbursements), judgments, inquiries, fines, losses, claims, damages or liabilities incurred by such individual in connection with any civil, criminal,
administrative or investigative proceeding arising out of or pertaining to any act or omission of such director, officer or employee (i) in each case, to the same extent as such person is indemnified or has the right to advancement of expenses
as of May 18, 2016 by FMCTI, Technip or their subsidiaries, as applicable, pursuant to the organizational documents and indemnification agreements thereof and (ii) with respect to directors and officers, to the fullest extent permitted by
applicable law, in each case for acts or omissions occurring at or prior to the completion of the Mergers.
The Business Combination
Agreement further provides that, for a period of not less than six years after completion of the Mergers, the organizational documents of the Registrant (and any successor thereto) will contain provisions providing for the elimination of liability
of directors, indemnification of officers and directors and advancement of expenses to the fullest extent permitted by applicable law. Additionally, for the benefit of Technips and FMCTIs directors and officers, the Registrant will cause
to be maintained for a period of six years after
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completion of the Mergers the current policies of directors and officers liability insurance and fiduciary liability insurance maintained by Technip and FMCTI (provided that the
Registrant (or its successor) may substitute another policy with at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured) with respect to claims arising from facts or
events that occurred on or before completion of the Mergers; provided, however, that the Registrant is not required to spend more than 200% of the annual premiums currently paid by Technip or FMCTI, as applicable, for such insurance annually.
Alternatively, the Registrant may purchase a six year tail prepaid policy; provided that the aggregate amount paid by the Registrant will not exceed 1200% of the annual premiums paid by Technip or FMCTI as of the date of the Business
Combination Agreement, as applicable, for their current policies of directors and officers liability insurance and fiduciary liability insurance annually.
(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;
(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 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement;
(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) shall not apply if the information required to be included on a
post-effective amendment by those paragraphs is contained in periodic reports filed by or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) 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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(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, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, 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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