SEC Division of Corporation Finance no-action letter: LyondellBasell Industries N.V. — SEC — US

GIBSON DUNN

Thomas J. Kim
Partner
T: +1 202.887.3550
M: +1 202.420.1282 tkim@gibsondunn.com

BY ELECTRONIC SUBMISSION

Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549

Re: LyondellBasell Industries N.V. – Request for Relief from Preliminary Proxy Filing Requirement under Exchange Act Rule 14a-6(a)

Ladies and Gentlemen:

We are writing on behalf of LyondellBasell Industries N.V. (“LYB”), a public limited liability company (naamloze vennootschap) incorporated under Dutch law and subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In accordance with Dutch law and practice, LYB submits certain ordinary and routine matters to shareholders at annual general meetings, as described below. The purpose of this letter is to confirm that the Staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (the “Commission”) will not object if LYB does not file a preliminary proxy statement pursuant to Exchange Act Rule 14a-6(a) for annual general meetings of its shareholders at which the only matters to be voted on are either already excluded under Rule 14a-6(a) or routine matters required by, or customary under, Dutch law, as described below.

I. Background

LYB is a worldwide manufacturer of chemicals and polymers, a refiner of crude oil, a producer of gasoline blending components and a developer of technologies for the production of polymers. LYB was incorporated as a public limited liability company under Dutch law by deed of incorporation dated October 15, 2009. LYB’s ordinary shares are registered under Section 12(b) of the Exchange Act and listed on the New York Stock Exchange (the “NYSE”) under the ticker symbol “LYB.” LYB is subject to the periodic reporting requirements of the Exchange Act applicable to U.S. domestic issuers, including the proxy rules contained in Regulation 14A, as LYB does not meet the requirements for “foreign private issuer” as set forth in Exchange Act Rule 3b-4(c).

Gibson, Dunn & Crutcher LLP
1700 M Street, N.W. | Washington, D.C. 20036-4504 | T: 202.955.8500 | F: 202.467.0539 | gibsondunn.com

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A. Dutch Law

LYB is subject to certain legal requirements applicable to companies organized under Dutch law, including the Dutch Civil Code (the “DCC”) and related regulations, and the principles and best practices laid down in the Dutch Corporate Governance Code (the “DCGC”). In addition to the ordinary matters outlined in Rule 14a-6(a), such as the election of directors, ratification of its independent auditor, and the say-on-pay and frequency of say-on-pay advisory votes, LYB submits the following routine proposals to its shareholders for approval at its annual general meetings, as required by, or customary under, Dutch law and its Articles of Association:

To grant discharge of liability to the members of the Board of Directors of LYB (the “Board”) for the exercise of their duties during the most recently completed fiscal year;
To adopt the Dutch statutory annual accounts of LYB for the latest fiscal year prepared in accordance with International Financial Reporting Standards (“IFRS”) and International Financial Reporting Interpretation Committee (“IFRIC”) interpretations as adopted by the European Union and the laws and regulations of the Netherlands (the “Dutch Annual Accounts”);
To authorize the Board to repurchase LYB’s outstanding shares;
To approve the cancellation of shares held in LYB’s treasury account;
To authorize the Board to issue shares and grant rights to subscribe for shares; and
To authorize the Board to limit or exclude pre-emptive rights for shares issuances of shares and grants of rights to subscribe for shares.

For the reasons set forth below, LYB does not believe that the inclusion of these proposals, which are routine matters that it has in the past and expects in the future to present for shareholder action at its annual general meetings, should result in the need to file a preliminary proxy statement under Rule 14a-6.

B. Rule 14a-6 of the Exchange Act

Under Rule 14a-6(a), issuers are required to file with the Commission a preliminary proxy statement and form of proxy at least 10 calendar days before sending definitive copies of such materials to shareholders. Rule 14a-6(a)(1)-(8) exempts registrants from filing preliminary proxy materials if the solicitation relates to any annual meeting (or special meeting in lieu of the annual meeting) of shareholders at which the only matters to be acted upon are, among other things and as relevant to LYB:

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the election of directors;
the election, approval or ratification of accountant(s);
a shareholder proposal included pursuant to Rule 14a-8;
the approval or ratification of an employee benefit plan or amendments to such a plan; and
the approval of the compensation of executives or a determination of the frequency of shareholder votes to approve the compensation of executives, or any other shareholder advisory vote on executive compensation.

The Commission has increased the scope of the enumerated exclusions over time: the first three exclusions above were adopted in 1987,¹ the fourth exclusion was adopted in 1993,² and the fifth exclusion was adopted in 2010³ and 2011.⁴ In each case, the Commission explained that the purpose of the exclusions is to relieve registrants and the Commission of unnecessary administrative burdens and processing costs associated with the filing and processing of proxy materials that deal with routine matters.

The list of exceptions in Rule 14a-6(a) identifies routine matters for registrants incorporated under the laws of a state of the U.S. In recognition of this limitation, the Staff has, on many occasions, provided no-action relief with respect to routine matters for issuers incorporated under the laws of foreign jurisdictions but ineligible for treatment as a foreign private issuer, and therefore subject to the Commission’s proxy rules.⁵

II. Discussion and Analysis

On behalf of LYB, we hereby request that the Staff confirm that it will not object if LYB does not file a preliminary proxy statement under Rule 14a-6(a) for annual general meetings at which the items to be acted upon by shareholders include only (1) those already exempted from such filing requirements under Rule 14a-6 or (2) ordinary and routine matters required or

¹ Release No. 34-25217 (Dec. 21, 1987).
² Release No. 34-33371 (Dec. 23, 1993).
³ Release No. 34-61335 (Jan. 12, 2010).
⁴ Release No. 34-63768 (Jan. 25, 2011).
⁵ See, e.g., Schlumberger Ltd. (avail. Jan. 31, 2014); Aon plc (avail. Mar. 31, 2014); Garmin Ltd. (avail. Sept. 30, 2014); Avago Technologies (avail. Nov. 7, 2014); Ingersoll-Rand plc (avail. Mar. 13, 2015); Ensco plc (avail. Dec. 3, 2015); Rowan Companies plc (avail. Mar. 2, 2017); Teva Pharmaceutical Industries Limited (avail. Oct. 25, 2018); Pacific Drilling SA (avail. Apr. 6, 2020); and Transocean Ltd. (avail. Mar. 3, 2021).

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customary to be submitted to shareholders under Dutch law and LYB’s Articles of Association, as more fully discussed below.

In the interest of easing administrative costs and burdens on both issuers and the Commission and its Staff, LYB believes that the requirement to file preliminary proxy statements should not apply to the ordinary and routine proposals of Dutch companies as described herein. As with electing directors or ratifying the appointment of auditors, the matters discussed below are routine matters, required or customary under Dutch law to be voted upon at a Dutch company’s general meeting of shareholders on an annual basis. Accordingly, under Dutch law and the U.S. federal proxy rules, these matters are required to be included in proxy statements of Dutch issuers subject to Regulation 14A. Since one purpose of preliminary proxy filing exclusions is to relieve the Staff of unnecessary review of proxy materials that deal exclusively with ordinary and routine matters, excluding resolutions that will regularly recur in proxy materials will allow the Staff greater time to review preliminary proxy statements containing unique, novel or non-routine issues. Importantly, each of the routine matters outlined below that are required or are customary under Dutch law has been given no-action relief by the Staff to registrants incorporated in other foreign jurisdictions.

A. Granting of discharge of liability to the directors of LYB for the exercise of their duties during the most recently completed fiscal year

Granting of discharge from liability to directors for the exercise of their duties is a longstanding business practice for Dutch companies. Under article 2:9 of the DCC, a Dutch company may claim damages from a director when the company suffers damages as a result of the director’s improper performance of duties.⁶ Dutch company law allows a company to renounce any actual or potential claims against a director by granting a discharge from liability by means of a resolution of the general meeting of shareholders. Although not required by Dutch law, it is a customary practice for Dutch companies to include at the annual meeting in which the annual accounts for a financial year are adopted a recurring agenda item to discharge the directors from liability in connection with their exercise of duties during the most recently completed fiscal year. The discharge applies only in the context of directors’ internal liability to the company (i.e., not to directors’ external liability to third parties) and only with respect to “known” matters that can be traced from the financial statements as presented to the general shareholders’ meeting or actions

⁶ See art. 2.9 DCC, which provides (translated in relevant part): 1. Each Director is responsible towards the legal person for a proper performance of the tasks assigned to him. All duties of Directors that have not been assigned by or pursuant to law or the articles of incorporation to one or more other Directors, shall belong to the duties (tasks) of a Director. 2. Each Director is responsible for the general conduct of affairs. He is liable for the full consequences of an improper performance of duties, unless, also in regard of the tasks assigned to the other Directors, he is not gravely to blame for it and he neither has been negligent in taking measures to avert the consequences of that improper performance of duties.

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that otherwise were disclosed to the general shareholders’ meeting prior to shareholders’ decision to grant discharge.

Pursuant to Dutch practice, the DCGC⁷ and LYB’s Articles of Association,⁸ LYB’s general meeting of shareholders will annually consider a proposal regarding the discharge from liability to members of the Board for the exercise of their duties in the last financial year. Approval of this proposal to grant discharge of liability is ordinary and routine.⁹ Because the text of LYB’s resolution to grant discharge of liability to its directors is substantially identical every year, LYB believes that the only effect of requiring the filing of a preliminary proxy statement because of this proposal would be to unnecessarily increase administrative burden and processing cost imposed on the Commission and LYB, placing LYB on unequal footing with U.S. domestic issuers. In particular, we note that the Staff has issued no-action letters to Pacific Drilling SA (avail. Apr. 6, 2020) and Garmin Ltd. (avail. Sept. 30, 2014), granting relief with respect to substantially similar proposals to grant directors discharge of liability to issuers organized under the laws of Luxembourg and Switzerland, respectively.

B. Adoption of the Dutch Annual Accounts

Pursuant to Dutch law¹⁰ and LYB’s Articles of Association,¹¹ LYB is required to submit its Dutch Annual Accounts to shareholders for approval each year at the annual general meeting.

⁷ See art. 4.1.3(vi) DCGC, which provides (translated in relevant part): “The agenda of the general meeting should list which items are up for discussion and which items are to be voted on. The following items should be dealt with as separate agenda items... v. resolutions to approve the management conducted by the management board (discharge of management board members from liability).”

⁸ See art. 17.1.b.of LYB’s Articles of Association, which states in relevant part: “Annually a general meeting of shareholders will be held, at which inter alia the following items will be considered: b. the proposal regarding the discharge from liability to members of the Board for their management in the last financial year...”

⁹ The proposal to grant discharge of liability was approved by approximately 99.73% and 99.55% of the votes cast by LYB’s shareholders at its 2024 and 2023 annual general meetings, respectively.

¹⁰ See art. 2:101 DCC, which provides (translated in relevant part): “1. Annually, within five months after the end of the accounting year of the company, except when this period has been extended with at the most six months by the General Meeting in view of particular circumstances, the Board of Directors draws up the annual accounts, and deposits these documents at the office of the company for inspection by its shareholders. If shares or other transferable securities, issued by the company, are admitted to a regulated market as meant in the Financial Supervision Act, this period is four months after the end of the accounting year of the company... This period cannot be extended. 3. The annual accounts are adopted by the General Meeting. An adoption of the annual accounts does not implicate a discharge of liability for the Directors or Supervisory Directors.” See also art. 2:105 DCC, which provides: “Profits are distributed after the annual accounts, which shows that such a distribution is permitted, have been adopted.”

¹¹ See art.17.1.a. of LYB’s Articles of Association, which states in relevant part: “Annually a general meeting of shareholders will be held, at which inter alia the following items will be considered: a. the adoption of the Annual Accounts...”

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The Dutch Annual Accounts are annual filings required of Dutch companies under the DCC,¹² containing audited financial statements prepared in accordance with IFRS and IFRIC interpretations as adopted by the European Union and the laws and regulations of the Netherlands. Approval of the Dutch Annual Accounts is ordinary and routine.¹³ Because the text of LYB’s resolution to adopt its Dutch Annual Accounts is substantially identical every year, LYB believes that the only effect of filing a preliminary proxy statement because of this proposal would be to increase the administrative burden and processing cost imposed on the Commission and LYB, placing LYB on unequal footing with other similarly situated companies. In particular, we note that the Staff has issued no-action letters to Pacific Drilling SA (avail. Apr. 6, 2020), Garmin Ltd. (avail. Sept. 30, 2014), Aon plc (avail. Mar. 31, 2014), and Schlumberger N.V. (avail. Jan. 31, 2014), granting relief with respect to substantially similar proposals to adopt or receive statutory annual accounts to issuers organized under the laws of Luxembourg, Switzerland, England and Wales, and Curacao, respectively.

adoption of the Annual Accounts...” and art. 20.4 of LYB Articles of Association which states in relevant part: “The general meeting of shareholders adopts the Annual Accounts.” See also art.21.2 and 4 of LYB’s Articles of Association, which states in relevant part: “After the allocation to the reserves in accordance with the preceding paragraph, the general meeting of shareholders shall determine the allocation of the remaining profits... Distributions will be made after adoption of the Annual Accounts evidencing these to be permissible.”

¹² See art. 2:361 DCC, which provides (translated in relevant part): 1. ‘Annual accounts’ mean the singular annual accounts consisting of the balance sheet and profit and loss account with explanatory notes thereto, and the consolidated annual accounts if the legal person prepares consolidated annual accounts... 3. The provisions of the present Title 2.9 shall apply to annual accounts and their components, both in the form in which they are prepared by the Board of Directors and in the form in which they are adopted by the competent body of the legal person. See also art. 2:394(1) DCC, which provides: The legal person is obliged to publish the annual accounts within eight days after adoption. Publication is made by depositing a full copy of the annual accounts, drawn up in the Dutch language or, if such accounts have not been drawn up, in French, German or English, at the office of the commercial register kept by the Chamber of Commerce.

¹³ The proposal to adopt the Dutch Annual Accounts was approved by approximately 99.91% and 99.90% of the votes cast by LYB’s shareholders at its 2024 and 2023 annual general meetings, respectively.

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C. Granting of Authorization to the Board to repurchase LYB’s outstanding shares

Pursuant to Dutch law¹⁴ and LYB’s Articles of Association,¹⁵ shareholder approval is necessary to authorize LYB’s Board to repurchase its outstanding shares. The DCC and LYB’s Articles of Association require that this approval be obtained at a general meeting of shareholders, and any such authorization, once obtained, will be valid for no more than eighteen months. These statutory provisions effectively require yearly renewal of such share repurchase mandate at the annual general meeting. As a result, annually including a proposal to authorize the board of directors to repurchase shares is a routine matter of corporate governance for Dutch listed companies.¹⁶

The authority of a U.S. domestic issuer to repurchase outstanding shares is not addressed in Rule 14a-6 because a domestic issuer is generally permitted to repurchase shares at any time, without shareholder approval, subject to compliance with applicable state laws relating to adequate capitalization of the corporation. Requiring a preliminary proxy statement filing for this proposal effectively imposes a perpetual early filing requirement on LYB, placing it on unequal footing with similarly situated companies subject to Regulation 14A but not subject to the DCC. Because the text of LYB’s resolution to grant the Board authorization to repurchase outstanding shares is substantially identical every year, LYB believes that the only effect of the requirement to file a preliminary proxy statement in respect of this proposal is to increase the administrative burden and processing cost imposed on the Commission and LYB. In particular, we note that the Staff has issued a no-action letter to Avago Technologies (avail. Nov. 7, 2014), granting relief with respect

¹⁴ See art. 2:98(4) DCC, which provides (translated in relevant part): “An acquisition of own shares other than on a gratuitous basis is permitted only if and insofar as the General Meeting has authorized the Board of Directors to make such an acquisition. This authorization is valid for a maximum of five years. In derogation from the previous sentence, such an authorization shall only be valid for at the most eighteen months in the event that the shares of the company are admitted to a regulated market or multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act, or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not an EU Member State. The General Meeting specifies in its authorization how many own shares the company may acquire, the way in which they may be acquired and the limits between which the acquisition price must stay.”

¹⁵ See art. 7.2 of LYB’s Articles of Association, which states in relevant part: “Other than for no consideration, the Company may only acquire shares in case the general meeting of shareholders will have authorised the Board for that purpose. Said authorisation will only be valid for a period not exceeding eighteen (18) months. In the authorisation, the general meeting of shareholders shall determine how many shares thereof may be acquired, the manner in which they may be acquired and between what limits the price shall be.”

¹⁶ The proposal to grant authorization to the Board to repurchase LYB’s outstanding shares was approved by approximately 99.88% and 99.57% of the votes cast by LYB’s shareholders at its 2024 and 2023 annual general meetings, respectively.

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to a substantially similar proposal to authorize the board of directors to repurchase the company’s outstanding shares in the context of issuers organized under the laws of the Republic of Singapore.

D. Approval of the cancellation of shares held in LYB’s treasury account

Pursuant to Dutch law¹⁷ and LYB’s Articles of Association,¹⁸ shareholder approval is necessary to cancel ordinary shares that are held in treasury by LYB as a result of share repurchases. In addition, under Dutch law,¹⁹ the number of shares held in treasury by LYB, or its subsidiaries, may not exceed 50% of its issued share capital at any time. These statutory provisions effectively require yearly renewal of such share cancellation mandate at the annual general meeting. As a result, LYB includes a proposal at its annual general meeting each year that shareholders approve the cancellation of all or any portion of shares held in its treasury account or that may be repurchased pursuant to the authority granted by shareholders as described in the preceding section. Approval of this proposal allows LYB to cancel treasury shares in one or more tranches without calling a special meeting of shareholders, if and as determined by its Board during the following year.

The authority of a U.S. domestic issuer to cancel shares held in treasury is not addressed in Rule 14a-6 because a domestic issuer is generally permitted to cancel treasury shares at any time, without shareholder approval, subject to compliance with applicable U.S. laws. Requiring a preliminary proxy statement filing for this proposal effectively imposes a perpetual early filing requirement on LYB, placing it on unequal footing with similarly situated companies subject to Regulation 14A but not subject to the DCC. The approval of the cancellation of shares held in

¹⁷ See art. 2:99 DCC, which provides (translated in relevant part): “1. The General Meeting may resolve to reduce the issued share capital by cancelling shares or by a reduction of the nominal value of the shares by means of an amendment of the articles of association. Such a resolution must specify the shares to which it relates and the way in which the resolution is to be implemented. 2. A resolution to cancel shares may only concern shares held by the company itself or for which it holds the depository receipts.”

¹⁸ See art. 8.1 of LYB’s Articles of Association, which states in relevant part: “The general meeting of shareholders may pass a resolution for the reduction of the issued capital, however, exclusively on proposal of the Board: a. by the cancellation of shares; or b. by reducing the amount of the shares in an amendment of the articles of association, provided that as a result thereof the issued capital or the paid part thereof will not fall below the amount prescribed in section 2:67 DCC. In said resolution, the shares to which the resolution relates shall be designated and the implementation of the resolution shall be arranged.”

¹⁹ See art. 2:98(2) DCC, which provides (translated in relevant part): “...if the shares of the company are admitted to a regulated market or multilateral trading facility as meant in Article 1:1 of the Financial Supervision Act, or to a system comparable with such regulated markets or multilateral trading facilities in a State that is not a EU Member State, then the nominal value of the own shares which the company shall acquire, holds, or on which it has already obtained a pledge or which are held by a subsidiary shall not exceed one-half of its issued share capital.”

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treasury is a routine matter under Dutch law.²⁰ Because the text of LYB’s proposal on the cancellation of these shares is substantially identical every year, LYB believes that the only effect of filing a preliminary proxy statement because of this proposal would be to increase the administrative burden and processing cost imposed on the Commission and LYB. In particular, we note that the Staff has issued a no-action letter to Garmin Ltd. (avail. Sept. 30, 2014), granting relief with respect to a substantially similar proposal to approve the cancellation of shares held by the company with respect to issuers organized under the laws of Switzerland.

E. Granting of authorization to the Board to issue shares and grant rights to subscribe for shares

Pursuant to Dutch law²¹ and LYB’s Articles of Association,²² ordinary shares may be issued, or rights to subscribe for ordinary shares may be granted, only with shareholder approval or, alternatively, by the Board only if so authorized by the general meeting of shareholders for a period of up to five years and for a set number of shares. Absent such authorization, shareholder approval must be obtained each time LYB issues shares or grants a right to acquire shares, even though such shares are already authorized by shareholders pursuant to LYB’s Articles of Association. Many transactions requiring the issuance of shares arise under circumstances requiring prompt action and do not allow the necessary time to seek shareholder approval to authorize the issuance of additional ordinary shares. As a result, requesting authorization of the board to issue ordinary shares or grant rights to subscribe for such shares is a customary practice for U.S.-listed companies incorporated under Dutch law, and is generally a recurring agenda item. Approval of this proposal would allow LYB to issue authorized shares and grant rights to subscribe for shares, if and as determined by its Board, without calling a special meeting of shareholders.

²⁰ The proposal to approve cancellation of shares was approved by approximately 99.90% and 99.87% of the votes cast by LYB’s shareholders at its 2024 and 2023 annual general meetings, respectively.

²¹ See art. 2:96 DCC, which provides (translated in relevant part): “1. An Open Corporation (naamloze vennootschap) may, after its formation, only issue shares pursuant to a resolution of the General Meeting or of another body of the company designated for this purpose by a resolution of the General Meeting or in the articles of incorporation, always for a period not exceeding five years. When such a designation is made, the number of shares which may be issued by the designated body must be specified as well. The designation may be extended, each time for not more than five years. It is not possible to withdraw (revoke) a designation, unless the contrary has been provided when the designation was made.”

²² See art. 4.1 and 4.2 of LYB’s Articles of Association, which state: “4.1. Shares are issued pursuant to a resolution of the Board if the Board has been authorised to do so by resolution of the general meeting of shareholders for a specific period with due observance of applicable statutory provisions. This resolution of the general meeting of shareholders must state how many shares may be issued. The authorisation may be extended for specific consecutive periods with due observance of applicable statutory provisions. Unless otherwise stipulated at its grant, the authorisation may not be withdrawn. 4.2. If and insofar as the Board is not authorised as referred to in article 4.1, the general meeting of shareholders may resolve to issue shares on a proposal of the Board.”

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LYB has in the past requested shareholder authorization for the issuance of shares in connection with approval of its long-term incentive plan.²³

The authority of the board of a U.S. domestic issuer to issue shares is not addressed in Rule 14a-6 because the board of a domestic issuer is generally permitted to issue shares of its capital stock and to grant rights to acquire its capital at any time, without shareholder approval, up to a maximum number of shares specified in the corporation’s certificate of incorporation, which has no expiration date. Requiring a preliminary proxy statement filing for this proposal effectively imposes an early filing requirement on LYB, placing it on unequal footing with similarly situated companies subject to Regulation 14A but not subject to the DCC. Requesting authorization of the Board to issue shares and grant rights to subscribe for shares is a routine matter under Dutch law. Because LYB intends to use substantially identical language in its proposal on the issuance of shares each time such a proposal is included at its annual general meeting, LYB believes that the only effect of filing a preliminary proxy statement because of this proposal would be to increase the administrative burden and processing cost imposed on the Commission and LYB. In particular, we note that the Staff has issued no-action letters to Transocean Ltd. (avail. Mar. 3, 2021), Ensco plc (avail. Dec. 3, 2015), Ingersoll-Rand plc (avail. Mar. 13, 2015), and Avago Technologies (avail. Nov. 7, 2014), granting relief with respect to substantially similar proposals to authorize the board of directors to issue shares with respect to issuers organized under the laws of Switzerland, England and Wales, Ireland, and Singapore, respectively.

²³ The proposal to grant the Board authority to issue shares or grant rights to subscribe for shares for a period of 18 months was approved by approximately 97.21% of the votes cast by LYB’s shareholders at its 2015 annual general meeting. The proposal to amend LYB’s LTIP, which included granting authority to the Board to issue the shares authorized for issuance under the LTIP and to exclude pre-emptive rights of shareholders for such shares, both for a period of five years from the date of the 2021 annual general meeting, was approved by approximately 88.08% of the votes cast by LYB’s shareholders at its 2021 annual general meeting.

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F. Granting of authorization to the Board to limit or exclude pre-emptive rights for issuances of shares and grants of rights to subscribe for shares

Pursuant to Dutch law²⁴ and LYB’s Articles of Association,²⁵ holders of ordinary shares have a pro rata preemptive right to subscribe for any shares issued for cash and participate in any grant of the right to acquire shares for cash (including options to subscribe for shares). Shareholder approval is required to restrict or exclude the pre-emptive rights of shareholders, or to authorize the board of directors to restrict or exclude pre-emptive rights, for a period not exceeding five years. Absent such board authorization, shareholder approval to exclude pre-emptive rights must be obtained before certain share issuances or grants of rights to acquire shares. As a result, requesting authorization of the board to limit or exclude pre-emptive rights with certain limitations is a customary practice for U.S.-listed companies incorporated under Dutch law, and is generally a recurring agenda item accompanying the share issuance proposal described in the preceding section. Approval of this proposal allows LYB to issue authorized shares and grant rights to subscribe for shares free of pre-emptive rights, if and as determined by its Board, without calling a special meeting of shareholders.

The authority of the board of a U.S. domestic issuer to limit or exclude pre-emptive rights for issuances of shares and grant of rights to subscribe for shares is not addressed in Rule 14a-6 because domestic issuers can generally waive or limit statutory pre-emptive rights in their articles of incorporation, subject to compliance with applicable state laws. Requiring a preliminary proxy

²⁴ See art. 2:96a DCC, which provides (translated in relevant part): “1. Subject to the following two paragraphs, each shareholder has a pre-emptive subscription right with regard to the issuance of new shares, and this in proportion to the total nominal amount of his shares... 6. Pre-emptive subscription rights may be limited or excluded by a resolution of the General Meeting. In the proposal for such a resolution, the reasons for the proposal and the selection of the proposed issue price must be explained in writing. Pre-emptive subscription rights may be limited or excluded also by a body of the corporation designated under Article 2:96, paragraph 1, if a resolution of the General Meeting or the articles of incorporation have designated and empowered this body for a specific period of time, not exceeding five years, to limit or exclude pre-emptive subscription rights. The designation may be extended, each time for not more than five years. It is not possible to withdraw (revoke) a designation, unless the contrary has been provided when the designation was made.”

²⁵ See art. 5.1, 5.2, and 5.3 of LYB’s Articles of Association, which state in relevant part: “5.1. In case of shares being issued, every holder of shares will hold a pre-emptive right in the proportion that the aggregate amount of his shares bears to the total amount of shares outstanding... 5.2. The pre-emptive right may be restricted or excluded by a resolution of the Board if and insofar as the Board has been authorised to do so by the general meeting of shareholders for a specific period with due observance of applicable statutory provisions. This designation may be extended for specific consecutive periods with due observance of applicable statutory provisions. Unless otherwise stipulated at its grant, the authorisation may not be withdrawn. 5.3. If and insofar as the Board is not authorised as referred to in article 5.2, pre-emptive rights may be restricted or excluded by a resolution of the general meeting of shareholders on a proposal of the Board.”

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statement filing for this proposal effectively imposes a perpetual early filing requirement on LYB, placing it on unequal footing with similarly situated companies subject to Regulation 14A but not subject to the DCC. Requesting the authorization of the Board to limit or exclude pre-emptive rights for share issuances and grants of rights is a routine matter under Dutch law.²⁶ Because LYB intends to use substantially identical language in its proposal on the issuance of shares each time such a proposal is included at its annual general meeting, LYB believes that the only effect of filing a preliminary proxy statement because of this proposal would be to increase the administrative burden and processing cost imposed on the Commission and LYB. In particular, we note that the Staff has issued no-action letters to Ensco plc (avail. Dec. 3, 2015) and Ingersoll-Rand plc (avail. Mar. 13, 2015), granting relief with respect to substantially similar proposals to authorize the board of directors to issue shares free of pre-emptive rights with respect to issuers organized under the laws of England and Wales and Ireland, respectively.

III. Conclusion

The Dutch proposals described above are ordinary and routine matters required to be submitted to shareholders under Dutch law or are matters ordinarily and routinely submitted to shareholders under the practices of Dutch companies similarly situated to LYB.

Based on the foregoing analysis, we respectfully request your confirmation that the Staff will not object if LYB does not file a preliminary proxy statement under Rule 14a-6(a) for annual general meetings of its shareholders at which the items to be acted upon by shareholders include only those otherwise excluded from such filing requirements under Rule 14a-6 and the customary and routine matters discussed above.

In the event the Staff disagrees with any conclusion expressed herein, or should any information in support or explanation of LYB’s position be required, we will appreciate an opportunity to confer with the Staff. If the Staff has any questions regarding this request or requires additional information, please contact Thomas J. Kim at (202) 887-3550.

²⁶ The proposal to grant the Board authority to issue shares or grant rights to subscribe for shares free of pre-emptive rights for a period of 18 months was approved by approximately 97.21% of the votes cast by LYB’s shareholders at its 2015 annual general meeting. The proposal to amend LYB’s LTIP, which included granting authority to the Board to issue the shares authorized for issuance under the LTIP and to exclude pre-emptive rights of shareholders for such shares, both for a period of five years from the date of the 2021 annual general meeting, was approved by approximately 88.08% of the votes cast by LYB’s shareholders at its 2021 annual general meeting.

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Sincerely,

GIBSON, DUNN & CRUTCHER LLP

[Signature]

Thomas J. Kim

TJK/KMR

cc: Charity Kohl, LyondellBasell Industries N.V., Deputy General Counsel, Corporate and Corporate Secretary

Amy Chen, LyondellBasell Industries, N.V., Corporate Counsel

108095323.3