As filed with the Securities and Exchange Commission on March 7, 2005
Registration No. 333-119949
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1*
ON
FORM S-8
TO
FORM F-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WPP GROUP PLC
(Exact name of registrant as specified in its charter)
ENGLAND AND WALES 98-0110868
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
27 FARM STREET
LONDON W1J 5RJ ENGLAND
011-44-20-7408-2204
(Address of registrant's principal executive offices)
GREY ADVERTISING INC. 1994 STOCK INCENTIVE PLAN
GREY ADVERTISING INC. 1998 SENIOR MANAGEMENT INCENTIVE PLAN
GREY GLOBAL GROUP INC. 2003 SENIOR MANAGEMENT INCENTIVE PLAN
(Full title of the plans)
DAVID CALOW, ESQ.
GROUP CHIEF COUNSEL
27 FARM STREET
LONDON W1J 5RJ ENGLAND
(Name and address of agent for service)
011-44-20-7408-2204
(Telephone number, including area code, of agent for service)
Copy to:
CURT C. MYERS, ESQ.
DAVIS & GILBERT LLP
1740 BROADWAY
NEW YORK, N.Y. 10019
(212) 468-4800
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount maximum maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered per share offering price fee
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Ordinary Shares, nominal value 10p 12,598,872(2) (3) (3) (3)
each (1)
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(1) American Depositary Shares of the Registrant ("ADS") evidenced by American
Depositary Receipts issuable upon deposit of the ordinary shares, nominal
value 10p each, of the Registrant ("Ordinary Shares") have been registered
under a separate registration statement on Form F-6 (File No. 333-5906).
Each ADS represents five Ordinary Shares.
(2) Includes an indeterminate amount of additional Ordinary Shares that may be
necessary to adjust the number of Ordinary Shares subject to issuance
pursuant to the Plans set forth above, as a result of any future stock
split, stock dividend or similar transaction with respect to Ordinary
Shares.
(3) Not applicable. The filing fee payable in connection with the registration
of the Ordinary Shares subject to this Post-Effective Amendment was
previously paid in connection with the filing of the Registrant's
Registration Statement on Form F-4 (File No. 333-119949) on October 25,
2004.
(*) Filed as a Post-Effective Amendment on Form S-8 to such
Registration Statement on Form F-4 pursuant to the procedure described
herein in the section captioned "Explanatory Note."
EXPLANATORY NOTE
References to the "Company" and the "Registrant" mean WPP Group plc, an English
public limited company. References to "Grey" mean Grey Global Group Inc., a
Delaware corporation.
Under an Agreement and Plan of Merger, dated as of September 11, 2004, by and
among the Registrant, Abbey Merger Corporation, a wholly-owned subsidiary of WPP
("Abbey Merger") and Grey, as amended (the "Agreement and Plan of Merger"): (1)
Grey will merge with and into Abbey Merger (the "Merger"), with Abbey Merger
surviving as a wholly-owned subsidiary of the Registrant and (2) each share of
common stock, par value $.01 per share, of Grey ("Grey Common Stock") and
Limited Duration Class B common stock, par value $.01 per share, of Grey
outstanding will, subject to the election, allocation, proration and adjustment
procedures set out in the Agreement and Plan of Merger, be canceled in exchange
for the right to receive either $1,005 in cash or 21.746 American Depositary
Shares of the Registrant (each an "ADS"). Each ADS represents five ordinary
shares, nominal value 10p each, of the Registrant ("Ordinary Shares"). Grey
stockholders will have the right to elect to receive the Ordinary Shares
represented by all or a portion of the ADSs such stockholders are otherwise
entitled to receive. It is expected that the Merger will be effective on or
about March 7, 2005 (the "Effective Time").
At the Effective Time, all options to purchase shares of Grey Common Stock
("Grey Options") that are then outstanding and unexercised will cease to
represent a right to acquire Grey Common Stock and (x) Grey Options held by a
person whose primary residence or employment with Grey or any of its
subsidiaries is in Europe will become options to acquire Ordinary Shares and (y)
all other Grey Options will become options to acquire ADSs. At the Effective
Time, each share of Grey Common Stock included in a participant's account under
the Grey Advertising Inc. 1998 Senior Management Incentive Plan ("1998 Plan")
and Grey Global Group Inc. 2003 Senior Management Incentive Plan (together with
the 1998 Plan, the "Grey SMIP Plans") will be converted into Ordinary Shares (if
the participant's primary place of residence or employment with Grey is in
Europe) or into ADSs.
The Registrant hereby amends its Registration Statement on Form F-4 (File No.
333-119949) (the "Form F-4") by filing this Post-Effective Amendment No. 1 on
Form S-8 relating to up to 12,598,872 Ordinary Shares, subject to adjustment,
issuable upon the exercise of options granted pursuant to the terms of the Grey
Advertising Inc. 1994 Stock Incentive Plan ("1994 Plan") or pursuant to awards
under the Grey SMIP Plans.
All such Ordinary Shares were previously registered on the Form F-4 but will be
subject to issuance pursuant to this Post-Effective Amendment on Form S-8.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of the Form S-8 of the
Securities and Exchange Commission (the "Commission") will be sent or given to
participants in the Grey Plans as required by Rule 428(b)(1) under the
Securities Act of 1933. These documents are not required to be filed with the
Commission but (along with the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II hereof) constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the Registrant
are incorporated by reference in this Registration Statement:
o Annual Report on Form 20-F for the year ended December 31, 2003.*
o Reports on Form 6-K and 6-K/A filed on July 2, 2004, September 23,
2004, October 1, 2004, December 20, 2004, and January 25, 2005.
o The Sections entitled "Description of WPP Ordinary Shares" and
"Description of WPP American Depositary Shares" contained in the Proxy
Statement/Prospectus, dated January 31, 2005, included in Amendment
No. 3, filed on February 1, 2005, to the Form F-4.
*Excluding the financial statements contained in pages F-1 through F-36 thereof,
which are superseded by the financial statements contained in the Form 6-K/A
filed on January 25, 2005.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 after the date of this
Post-Effective Amendment and prior to the filing of a post-effective amendment
to this Registration Statement that indicates that all securities offered hereby
have been sold or that deregisters all securities 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
in a 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 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
The validity under English law of the WPP Ordinary Shares offered hereby has
been passed upon by Allen & Overy LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 136 of the Registrant's Articles of Association provides:
"Subject to the Statutes, every director or other officer (excluding an auditor)
of the Company shall be indemnified out of the assets of the Company against all
liabilities incurred by him in actual or purported execution or discharge of his
duty or the exercise or purported exercise of his powers or otherwise in
relation to or in connection with his duties, powers or offices but:
(a) this indemnity shall not apply to any liability to the extent that it
is recovered from any other person; and
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(b) the indemnity is subject to such officer taking all reasonable steps
to effect such recovery, to the intent that the indemnity shall not
apply where an alternative right of recovery is available and capable
of being enforced."
Section 310 of the U.K. Companies Act 1985 (as amended) provides as
follows:
"310. PROVISIONS EXEMPTING OFFICERS AND AUDITORS FROM LIABILITY
(1) This section applies to any provision, 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
(i) in defending any proceedings (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 U.K. Companies Act 1985 (as amended) provides as
follows:
"727. POWER OF COURT TO GRANT RELIEF IN CERTAIN CASES:
(1) If in 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 that officer or person is or may be liable in
respect to 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 Registrant maintains directors' and officers' insurance coverage that,
subject to policy terms and limitations,
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will include coverage to reimburse the Registrant for amounts that it may be
required or permitted by law to pay directors or officers of Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
Exhibit No. Description
4.1 Memorandum and Articles of Association of WPP Group plc
(incorporated herein by reference to Exhibit 1.1 of the
Registrant's Annual Report on Form 20-F for the fiscal year ended
December 31, 2000 filed with the Securities and Exchange
Commission on July 2, 2001 (File No. 000-16350)).
4.2 Amended and Restated Deposit Agreement, dated as of October 24,
1995, among WPP Group plc, Citibank, N.A., as Depositary, and all
holders and beneficial owners from time to time of American
Depositary Receipts issued thereunder (incorporated herein by
reference to Exhibit (a) of the Registrant's Registration
Statement on Form F-6 filed with the Securities and Exchange
Commission on October 31, 1996 (File No. 333-5906)).
4.3 Amendment No. 1 to Amended and Restated Deposit Agreement, dated
as of November 9, 1999, by and among WPP Group plc, Citibank,
N.A., as Depositary, and all holders and beneficial owners from
time to time of American Depositary Receipts issued thereunder
(incorporated herein by reference to Exhibit (a)(i) of Amendment
No. 1 to the Registration Statement on Form F-6 filed with the
Securities and Exchange Commission on November 9, 1999 (File No.
333-5906)).
4.4 Amendment No. 2 to Amended and Restated Deposit Agreement, dated
as of October 3, 2000, among WPP Group plc, Citibank, N.A., as
Depositary, and all holders and beneficial owners from time to
time of American Depositary Receipts issued thereunder
(incorporated herein by reference to Exhibit (a)(i) of Amendment
No. 2 to the Registration Statement on Form F-6, filed with the
Securities and Exchange Commission on October 2, 2000 (File No.
333-5906)).
4.5 Amendment No. 3 to Amended and Restated Deposit Agreement, dated
as of May 17, 2002, among WPP Group plc, Citibank, N.A., as
Depositary, and all holders and beneficial owners from time to
time of American Depositary Receipts issued thereunder
(incorporated herein by reference to Exhibit (a)(i) of Amendment
No. 3 to the Registration Statement on Form F-6, filed with the
Securities and Exchange Commission on April 19, 2002 (File No.
333-5906)).
5.1 Opinion of Allen & Overy LLP regarding validity of securities
being registered (incorporated herein by reference to Exhibit 5.1
of Amendment No. 3 to the Registrant's Registration Statement on
Form F-4 filed with the Securities and Exchange Commission on
February 1, 2005 (File No. 333-119949)).
10.1 Grey Advertising Inc. 1998 Senior Management Incentive
Plan (incorporated herein by reference to Exhibit A to Grey's
Annual Meeting Proxy Statement dated July 27, 1998 (File No.
000-07898)).
10.2 Grey Global Group Inc. 2003 Senior Management Incentive
Plan (incorporated herein by reference to Exhibit A to Grey's
Annual Meeting Proxy Statement dated July 31, 2003 (File No.
000-07898)).
10.3 Grey Advertising Inc. amended and restated 1994 Stock Incentive
Plan (incorporated herein by reference to Exhibit 10.02 to Grey's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1996 (File No. 000-07898)).
23.1 Consent of Deloitte & Touche LLP.*
23.2 Consent of Allen & Overy LLP (included in the opinion filed as
Exhibit 5.1 of Amendment No. 3 to the Registrant's Registration
Statement on Form F-4 filed with the Securities and Exchange
Commission on February 1, 2005 (File No. 333-119949)).
24 Powers of Attorney (incorporated herein by reference to Exhibit
24 of Amendment No. 3 to the Registrant's Registration Statement
on Form F-4 filed with the Securities and Exchange Commission on
February 1, 2005 (File No. 333-119949)).
* Filed herewith
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ITEM 9. UNDERTAKINGS
(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 of 1933;
(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;
(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) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, 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
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
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 provisions described in Item 6 above, 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 of whether or not such indemnification 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 Securities Act of 1933, the Registrant
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 Post-Effective
Amendment No. 1 to the Registration Statement on Form F-4 (File No. 333-119949)
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of London, England, on March 7, 2005.
WPP Group plc
/s/ Paul W. G. Richardson
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By: Paul W. G. Richardson
Title: Group Financial Director
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities as of March 7, 2005.
Signature Title
/s/ Philip Lader* Chairman (non-executive) of the
- -------------------------- Board of Directors
Philip Lader
/s/ Sir Martin Sorrell* Group Chief Executive (Principal
- -------------------------- Executive Officer and Director)
Sir Martin Sorrell
/s/ Paul W. G. Richardson Group Finance Director
- -------------------------- (Principal Financial Officer and
Paul W.G. Richardson Director)
/s/ David Barker* Group Finance Controller
- -------------------------- (Controller)
David Barker
/s/ Beth Axelrod* Executive Director and
- -------------------------- Authorized Representative in the
Beth Axelrod United States
/s/ Howard Paster* Executive Director
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Howard Paster
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/s/ Esther Dyson* Non-Executive Director
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Esther Dyson
Non-Executive Director
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Orit Gadiesh
Non-Executive Director
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David Komansky
Non-Executive Director
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Christopher Mackenzie
/s/ Stanley W. Morten Non-Executive Director
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Stanley W. Morten
Non-Executive Director
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Koichiro Naganuma
/s/ John A. Quelch Non-Executive Director
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John A. Quelch
/s/ Paul Spencer Non-Executive Director
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Paul Spencer
Non-Executive Director
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Jeffrey Rosen
By: /s/ Paul W. G. Richardson
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Paul W. G. Richardson
(Attorney in Fact)
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Index to Exhibits
Exhibit No. Description
23.1 Consent of Deloitte & Touche LLP.
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