As filed with the Securities and Exchange Commission on May 23, 2005.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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SCOTTISH POWER plc
(Exact name of Registrant as specified in its charter)
Scotland Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1 Atlantic Quay
Glasgow G2 8SP
Scotland
011-44-141-248-8200
(Address and telephone number of Registrant's principal executive offices)
SCOTTISHPOWER EXECUTIVE SHARE OPTION PLAN 2001
SCOTTISH POWER PLC LONG TERM INCENTIVE PLAN
DEFERRED INCENTIVE SHARE ELEMENT OF THE SCOTTISHPOWER ANNUAL INCENTIVE PLAN
(Full title of the plans)
PacificCorp.
Attention: General Counsel
825 N.E. Multnomah Street
Portland, Oregon 9732
(503) 813-5000
(Name, address and telephone number of agent for service)
Copies to:
Doreen E. Lilienfeld, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Aggregate Offering Registration
Security Price Fee
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Ordinary Shares, nominal value 9,624,680(2) $6.35(3) $61,156,232(3) $7,199
50 pence per share (1)
5,114,105(4) $7.95(5) $40,669,924(5) $4,787
Total 14,738,785 $101,826,156 $11,985
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(1) American Depositary Receipts evidencing American Depositary Shares
("ADSs") deliverable on deposit of the ordinary shares, nominal value
50 pence per share (the "Ordinary Shares"), of Scottish Power plc (the
"Company") have been registered pursuant to a separate Registration
Statement on Form F-6 (No. 333-13404) filed with the U.S. Securities
and Exchange Commission ("SEC") on April 24, 2001. Each ADS represents
four Ordinary Shares. This Registration Statement on Form S-8 shall
also cover any additional Ordinary Shares that become deliverable under
the ScottishPower Executive Share Option Plan 2001, the Scottish Power
plc Long Term Incentive Plan and the Deferred Incentive Share Element
of the ScottishPower Annual Incentive Plan (the "Plans") by reason of
any stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration that results
in an increase in the number of outstanding Ordinary Shares of the
Company.
(2) Represents an aggregate of 9,624,680 Ordinary Shares subject to awards
under the ScottishPower Executive Share Option Plan 2001.
(3) Estimated solely for the purpose of calculating the registration fee.
In accordance with Rule 457(h) under the U.S. Securities Act of
1933, as amended (the "Securities Act"), the proposed maximum offering
price per share and the proposed maximum offering price are based on
the weighted average exercise price of the share options. The proposed
maximum offering price per ADSs, $25.42, has been divided by four and
multiplied by the amount of shares to be registered to obtain the
proposed maximum aggregate offering price of $61,156,232.
(4) Represents an aggregate of 5,114,105 Ordinary Shares, of which
1,607,872 Ordinary Shares are available for issuance pursuant to the
Scottish Power plc Long Term Incentive Plan and 3,506,233 Ordinary
Shares are available for issuance pursuant to the Deferred Incentive
Share Element of the ScottishPower Annual Incentive Plan.
(5) Estimated solely for the purpose of calculating the registration fee.
In accordance with Rule 457(h)under the Securities Act, the proposed
maximum offering price per share has been calculated pursuant to Rule
457(c) under the Securities Act. The proposed maximum offering price
per security represents the average of the high and low ADS prices on
May 17, 2005 on the New York Stock Exchange. The resulting proposed
maximum offering price per ADS, $31.81, has been divided by four and
has been multiplied by the amount of shares to be registered to obtain
the proposed maximum aggregate offering price of $40,669,924.
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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* 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, and the "Note" to Part I of
Form S-8.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the SEC are incorporated by
reference as of their respective dates in this Registration Statement:
(a) the Company's Annual Report on Form 20-F for the fiscal year
ended March 31, 2004 (File No. 1-14676), filed on June 25, 2004;
(b) the description of the Company's Ordinary Shares, registered
under Section 12 of the U.S. Securities Exchange Act of 1934, as amended (the
"Exchange Act"), set forth in the Company's Requisition Statement on Form 20-F
(File No. 1-14676), filed on September 4, 1997, and any amendment or report
filed for the purpose of updating such description; and
(c) the description of the Company's ADSs contained in the form of
Deposit Agreement among the Company and Morgan Guaranty Trust Company of New
York, as Depositary and the holders from time to time of the American Depositary
Receipts issued thereunder, including the form of American Depositary Receipt
(incorporated by reference from Form F-6 (File No. 333-1304) filed with the SEC
on April 24, 2001).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and are a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed
incorporated by reference in this Registration Statement 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
which 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, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article 159 of the Company's Articles of Association provides:
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"Subject to the provisions of and so far as may be consistent with the Statutes,
but without prejudice to any indemnity to which such person may otherwise be
entitled, every Director, auditor, Secretary, other officer of employee of the
Company shall be entitled to be indemnified out of the assets of the Company
against all costs, charges, losses, expenses and liabilities incurred by him in
the actual or purported execution and/or discharge of his duties and/or the
exercise or purported exercise of his powers and/or otherwise in relation to or
in connection with his duties, powers or office including (without prejudice to
the generality of the foregoing) any liability incurred by him in defending any
proceedings, civil or criminal, which relate to anything done or omitted or
alleged to have been done or omitted by him as an officer, auditor or employee
of the Company and in which decree or judgment is given in his favour (or the
proceedings are otherwise disposed of without any finding or admission of any
material breach of duty on his part) or in which he is acquitted or in
connection with any application under any statute for relief from liability in
respect of any such act or omission in which relief is granted to him by the
Court."
At a meeting on 6 May 2005 the directors of the Company agreed to grant
indemnities, by way of individual deed, to the directors and officers of the
Company. The proposed deeds repeat the terms of the indemnity contained in the
Articles of Association, but gives it the status of a direct obligation of the
Company to the named individual. In addition, the deeds require the Company to
use reasonable endeavours to maintain directors and officers cover throughout
the individual's period of office and thereafter for a further six years (either
through renewal or provision of a discovery period), so long as such a policy
can be obtained at reasonable commercial rates. Specifically the deed provides
that the Company should not change the terms of the policy for its own benefit,
or for the benefit of the continuing directors, to the detriment of an
individual who has retired. Nor should the Company differentiate between
continuing directors, or between directors who retired at the same time, in
terms of the cover provided. As at the date of filing this Registration
Statement, the deeds of indemnity have not been executed.
Section 310 of the Companies Act (as amended by Section 137 of the UK Companies
Act 1989) provides as follows:
310. Provisions exempting officers and auditors from liability
(1) This section applies to any provisions, whether contained in a company's
articles or in any contract with the company or otherwise, for exempting any
officer of the company or any person (whether an officer or not) employed by the
company as auditor from, or indemnifying him against, any liability which by
virtue of any rule of law would otherwise attach to him in respect of any
negligence, default, breach of duty or breach of trust of which he may be guilty
in relation to the company.
(2) Except as provided by the following subsection, any such provision is void.
(3) This section does not prevent a company -
(a) from purchasing and maintaining for any such officer or auditor
insurance against any such liability; or
(b) from indemnifying any such officer or auditor against any liability
incurred by him -
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(i) in defending any proceeding (whether civil or criminal) in
which judgment is given in his favour or he is acquitted, or
(ii) in connection with any application under Section 144(3)
or (4) (acquisition of shares by innocent nominee) or Section
727 (general power to grant relief in case of honest and
reasonable conduct) in which relief is granted to him by the
court.
Section 727 of the Companies Act provides as follows:
727. Power of court to grant relief in certain cases:
(1) If any proceedings for negligence, default, breach of duty or breach of
trust against an officer of a company or a person employed by a company as
auditor (whether he is or is not an officer of the company) it appears to the
court hearing the case that the officer or person is or may be liable in respect
of the negligence, default, breach of duty or breach of trust, but that he has
acted honestly and reasonably, and that having regard to all the circumstances
of the case (including those connected with his appointment) he ought fairly to
be excused for the negligence, default, breach of duty or breach of trust, that
court may relieve him, either wholly or partly, from his liability on such terms
as it thinks fit.
(2) If any such officer or person as above-mentioned has reason to apprehend
that any claim will or might be made against him in respect of any negligence,
default, breach of duty or breach of trust, he may apply to the court for
relief; and the court on the application has the same power to relieve him as
under this section it would have had if it had been a court before which
proceedings against that person for negligence, default, breach of duty or
breach of trust had been brought.
(3) Where a case to which subsection (1) applies is being tried by a judge with
a jury, the judge, after hearing the evidence, may, if he is satisfied that the
defendant or defender ought in pursuance of that subsection to be relieved
either in whole or in part from the liability sought to be enforced against him,
withdraw the case in whole or in part from the jury and forthwith direct
judgment to be entered for the defendant or defender on such terms as to costs
or otherwise as the judge may think proper.
The Company has obtained insurance policies which provide for the
indemnification of its directors and officers in the event they are found liable
for "Wrongful Acts".
A "Wrongful Act" is defined in the insurance policies as:
"Any actual or alleged breach of duty, breach of trust, neglect, error,
misstatement, misleading statement, omission, breach of warranty of authority or
other act by the directors, officers or employees in their respective capacities
as a director, officer or employee of the company or as a director or officer of
any outside entity or any matter claimed against them solely because of their
status as a director, officer or employee of the company. The term wrongful act
shall include any employment practice violation.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of securities registered hereby, a post-effective amendment to
this Registration Statement 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;
(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; and
(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 further undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Company's 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 Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the SEC 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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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SIGNATURES
Pursuant to the requirements of the U.S. Securities Act of 1933, as
amended, the Company, Scottish Power plc, a corporation organized and existing
under the laws of Scotland, certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Glasgow on the 23rd day of May, 2005.
Scottish Power plc
(Registrant)
By: /s/ David Nish
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Name: David Nish
Title: Finance Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below severally constitutes and appoints each Director listed below
(with full power to each of them to act alone), 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 do any and all things and execute any and all instruments that
such attorney may deem necessary or advisable under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and any rules, regulations and
requirements of the U.S. Securities and Exchange Commission (the "SEC") in
connection with the registration under the Securities Act of the securities and
any securities or Blue Sky laws of any of the states of the United States of
America in order to effect the registration or qualification (or exemption
therefrom) of the said securities for issue, offer, sale or trade under the Blue
Sky or other securities laws of any of such states and in connection therewith
to execute, acknowledge, verify, deliver, file and cause to be published
applications, reports, consents to service of process, appointments of attorneys
to receive service of process and other papers and sign his name in his capacity
as an Officer, Director or Authorized Representative in the United States or in
any other capacity with respect to this Registration Statement (the
"Registration Statement") and/or such other form or forms as may be appropriate
to be filed with the SEC or under or in connection with any Blue Sky laws or
other securities, and with respect to any and all amendments, including
post-effective amendments, to this Registration Statement and to any and all
instruments and documents filed as part of or in connection with this
Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on May 23, 2005.
Signature Title
--------- -----
--------------------------------------- Chairman
Charles Miller Smith
/s/ Ian Russell
--------------------------------------- Chief Executive
Ian Russell
/s/ David Nish
--------------------------------------- Finance Director
David Nish (Chief Accounting Officer)
--------------------------------------- Director
Vicky Bailey
/s/ Euan Baird
--------------------------------------- Director
Euan Baird
/s/ Charles Berry
--------------------------------------- Director
Charles Berry
Signature Title
--------- -----
/s/ Donald Brydon
--------------------------------------- Director
Donald Brydon
/s/ Philip Carroll
--------------------------------------- Director
Philip Carroll
/s/ Judi Johansen
--------------------------------------- Director
Judi Johansen
/s/ Nolan Karras
--------------------------------------- Director
Nolan Karras
/s/ Simon Lowth
--------------------------------------- Director
Simon Lowth
/s/ Nick Rose
--------------------------------------- Director
Nick Rose
/s/ Nancy Wilgenbusch
--------------------------------------- Director
Nancy Wilgenbusch
/s/ Donald Puglisi
--------------------------------------- Authorized US Representative
Puglisi & Associates
EXHIBIT INDEX
Exhibit No. Description of Document
4.1 Memorandum of Association of the Company (incorporated by
reference from Exhibit 1.1 to the Company's Annual Report on
Form 20-F (File No. 1-14676) filed with the SEC on August 28,
2002).
4.2 Amended Articles of Association of the Company (incorporated by
reference from Exhibit 1.2 to the Company's Annual Report on
Form 20-F (File No. 1-14676) filed with the SEC on August 28,
2002).
4.3 Summary of Memorandum and Articles of Association (incorporated
by reference from Exhibit 10.1 to the Company's Annual Report
on Form 20-F (File No. 1-14676) filed with the SEC on
August 28, 2002).
4.4 Deposit Agreement among the Company and Morgan Guaranty
Trust Company of New York, as Depositary and the holders
from time to time of the American Depositary Receipts
issued thereunder, including the form of American
Depositary Receipt (incorporated by reference from Form
F-6 (File No. 333-1304) filed with the SEC on April 24,
2001).
4.5 ScottishPower Executive Share Option Plan 2001 (incorporated by
reference from Exhibit 12.7 to the Company's Annual Report on
Form 20-F (File No. 1-14676) filed with the SEC on June 27,
2003).
4.6 Scottish Power plc Long Term Incentive Plan (incorporated by
reference from Exhibit 12.6 to the Company's Annual Report on
Form 20-F (File No. 1-14676) filed with the SEC on June 27,
2003).
*4.7 Deferred Incentive Share Element of the ScottishPower Annual
Incentive Plan.
*5.1 Opinion of Shepherd + Wedderburn WS, as to the validity of the
shares to be issued pursuant to the ScottishPower Executive
Share Option Plan 2001 and the Scottish Power plc Long Term
Incentive Plan.**
*23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
*23.2 Consent of Shepherd & Wedderburn WS (included in Exhibit 5.1).
*24 Power of Attorney (included on signature page).
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* Filed herewith.
** An opinion of counsel is not required with respect to shares to be
issued pursuant to the Deferred Incentive Share Element of the
ScottishPower Annual Incentive Plan, as such shares are not original
issuance securities.