Item 6.
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Indemnification of Directors and Officers.
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Noble-UKs
articles of association provides the following (all statutory references in this Item 6
are to Chapter 4 and Chapter 7 of Part 10 of the UK Companies Act of 2006 (the Companies Act), with the relevant Companies Act sections outlined below):
Article 208.1 of
Noble-UKs
articles of association provides that subject to the Companies Act,
Noble-UK
may indemnify any director or other officer of
Noble-UK
or of any associated company against all losses and liabilities which he may sustain or incur in the execution
of the duties of his office or otherwise in relation thereto; provided that the provisions under Article 208.1 are not void under Sections 232 or 234 of the Companies Act.
Article 208.2 of
Noble-UKs
articles of association provides that
Noble-UK
may also indemnify any director or other officer of either
Noble-UK
or any associated company where
Noble-UK
or such
associated company acts as trustee of a pension scheme, against liability incurred by him in connection with the relevant companys activities as trustee of such scheme, provided that the provisions under Article 208.2 are not void under
Sections 232 or 235 of the Companies Act.
Article 208.3 of
Noble-UKs
articles of
association provides that subject to Sections 205(2) to (4) of the Companies Act,
Noble-UK
may provide a director or officer with funds to meet an expenditure incurred or to be incurred by him in
defending (or seeking relief in respect of) any civil or criminal proceedings brought or threatened against him in connection with any alleged negligence, default, breach of duty or breach of trust by him in relation to the company or an associated
company, and
Noble-UK
shall be permitted to take or omit to take any action or enter into any arrangement which would otherwise be prohibited under Sections 197 to 203 of the Companies Act to enable a director
or officer to avoid incurring such expenditure.
Article 208.4 of
Noble-UKs
articles of
association provides that subject to Section 206 of the Companies Act,
Noble-UK
may also provide a director or officer with funds to meet expenditure incurred or to be incurred by him in defending himself
in an investigation by a regulatory authority or against action proposed to be taken by a regulatory authority in connection with any alleged negligence, default, breach of duty or breach of trust by him in relation to
Noble-UK
or any associated company and
Noble-UK
shall be permitted to take or omit to take any action or enter into any arrangement which would otherwise be prohibited
under Section 197 of the Companies Act to enable a director or officer to avoid incurring such expenditure.
The Companies Act
provides as follows:
Sections
197-202
prohibit a company from making a loan or quasi-loan to a
director of the company or its holding company or giving a guarantee or providing security in connection with a loan or a quasi-loan to such a director or to enter into a credit transaction as creditor for the benefit of a director of the company or
of its holding company or give a guarantee or provide security in connection with a credit transaction for the benefit of such a director unless the transaction has been approved by a resolution of the members of the company and if applicable, the
holding company. A company must also obtain approval if the loan, quasi-loan or credit transaction involves a person connected with a director of the company or its holding company.
Section 203 requires a company to obtain approval by a resolution of the members of the company and if applicable, its holding company,
before it takes part in an arrangement under which another person enters into a transaction that, if it had been entered into by the company, would have required approval under Section 197, 198, 200 or 201, and that person, in pursuance of the
arrangement, obtains a benefit from the company or a body corporate associated with it or it arranges for the assignment to it, or the assumption by it, of any rights, obligations or liabilities under a transaction, that if it had been entered into
by the company, would have required such approval.
Section 205 permits a company to make a loan, or quasi-loan to a director or
enter into a credit transaction with a director of the company or of its holding company, without obtaining member approval under Sections
197-202,
to meet expenditure incurred or to be incurred by the
director in defending any criminal or civil proceedings in connection with any alleged negligence, default, breach of duty or breach of trust by him in relation to the company or an associated company, or in connection with an application for relief
or to enable such director to avoid incurring such expenditure, provided that the loan is to be repaid, or the liability of the company discharged, in the event of an unsuccessful defense of criminal or civil proceedings or refusal of relief. Such
repayment or discharge must be made no later than the date when the conviction,
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judgment or refusal of relief becomes final. Pursuant to Section 205(3), a conviction, judgment or refusal for relief becomes final: a) if not appealed against, at the end of the period for
bringing an appeal or b) if appealed against, when the appeal (or further appeal) is disposed of.
Section 205(4) states that an
appeal is disposed of if it is determined and the period for bringing any further appeal has ended, or if it is abandoned or otherwise ceases to have effect.
Section 205(5) provides that the reference to an application for relief in Section 205 is to an application for relief under
Section 661(3) or (4) (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).
Section 206 permits a company to make a loan, or quasi-loan to a director or enter into a credit transaction with a director of the
company or of its holding company, without obtaining member approval under Sections
197-202,
to meet expenditure incurred or to be incurred by the director in defending himself in an investigation by a
regulatory authority, or against action proposed to be taken by a regulatory authority, in connection with any alleged negligence, default, breach of duty or breach of trust by him in relation to the company or an associated company, or to enable
any such director to avoid incurring such expenditure.
Section 232(1) makes void any provision that purports to exempt a director of
a company (to any extent) 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) also voids any provision by which a company directly or indirectly provides an indemnity (to any extent) for a director of
a company, or of an associated company, against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company, except as permitted by:
(i) Section 233 (provision of insurance),
(ii) Section 234 (qualifying third party indemnity provision), and
(iii) Section 235 (qualifying pension scheme indemnity provision).
Section 233 permits a company to purchase and maintain insurance for a director of the company, or of an associated company, against 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 234 permits a company to provide indemnity against liability incurred by the director to a person other than the company or an
associated company; provided that indemnification is not against any liability of the director to pay a fine imposed in criminal proceedings or a sum payable to a regulatory authority by way of a penalty in respect of
non-compliance
with any requirement of a regulatory nature or any liability incurred by the director in defending criminal proceedings in which he is convicted, in defending civil proceedings brought by the
company or an associated company in which judgment is given against him or in connection with an application for relief in which the court refuses to grant him relief.
Section 235 permits a company to indemnify a director of a company that is a trustee of an occupational pension scheme against liability
incurred in connection with the companys activities as trustee of the scheme; provided that indemnification is not provided against liability to pay a fine imposed in criminal proceedings or a sum payable to a regulatory authority by way of a
penalty in respect of
non-compliance
with any requirement of a regulatory nature or any liability incurred by the director in defending criminal proceedings in which he is convicted.
Noble-UK
has entered into and, in the future, will enter into indemnity agreements with each of its
directors and officers to supplement the indemnification protection available under
Noble-UKs
articles of association referred to above. These indemnity agreements generally provide that
Noble-UK
will indemnify the parties thereto to the fullest extent permitted by law.
Noble-UK
will also maintain insurance to protect itself and its directors, officers, employees and agents against expenses, liabilities and losses incurred by such persons in connection with their services in the
foregoing capacities.
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(a)
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The undersigned Registrant hereby undertakes:
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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 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. 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; and
(iii) 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 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 the Registration Statement.
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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.
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 (and, where applicable, each filing of an employee benefit plans annual report pursuant
to Section 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 the Registrant is against public policy as
expressed in the Securities Act and agrees to be governed by the final adjudication of such issue.
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