As filed with the Securities and Exchange Commission on May 28, 2003
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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THE BOC GROUP, plc
(Exact name of registrant as specified in its charter)
England & Wales Not Applicable
(State or other jurisdiction of I.R.S. Employer
incorporation or organization) Identification No.)
Chertsey Road, Windlesham
Surrey GU20 6HJ, England
01276 477222
(Address and phone number of principal executive offices, including zip code)
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THE BOC GROUP EXECUTIVE SHARE OPTION SCHEME 2003
THE BOC GROUP LONG TERM INCENTIVE PLAN
(Full title of the plan)
James P. Blake
Vice President and General Counsel
The BOC Group, Inc.
575 Mountain Avenue
Murray Hill, New Jersey 07974-2082
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount
Title of Securities Amount to be Offering Price Aggregate of
to be Registered (1) Registered (2) Per Share(3) Offering Price(3) Registration Fee
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Ordinary Shares, par 9,455,215 U.S. $12.41(4) U.S. $117,339,219(4) U.S. $9,492.75
value 25 pence per share 544,785 U.S. $12.74(5) U.S. $6,940,561(5) U.S. $561.50
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10,000,000 U.S. $124,279,780 U.S. $10,054.25
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(1) The ordinary shares, par value 25 pence per share (the "Ordinary Shares"),
of The BOC Group, plc (the "Registrant") may be represented by American
Depository Receipts, each of which represents two Ordinary Shares and are
traded on the New York Stock Exchange (the "NYSE"). A registration
statement on Form F-6 (Registration No. 333-5468) has been filed for the
American Depository Shares evidenced by American Depositary Receipts
issuable upon deposit of the Ordinary Shares.
(2) This amount includes 8,500,000 Ordinary Shares available for issuance
under the Registrant's Executive Share Option Scheme 2003 (the "Option
Scheme") and 1,500,000 Ordinary Shares available for issuance under the
Registrant's Long Term Incentive Plan (the "LTIP" and together with the
Option Scheme, the "Plans"). In addition, this registration statement on
Form S-8 (this "Registration Statement") shall also cover any additional
Ordinary Shares which become issuable under the Plans by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results in
an increase in the number of the Registrant's outstanding Ordinary Shares.
(3) The Proposed Maximum Offering Price Per Share and the Proposed Maximum
Aggregate Offering Price are calculated using an exchange rate of $1.6415
to 1 (pound), the noon buying rate in New York City for cable transfers
payable in pounds sterling as certified for customs purposes by the
Federal Reserve Bank of New York on May 21, 2003.
(4) Pursuant to Rules 457(c), (h) and (k) under the Securities Act of 1933, as
amended (the "Securities Act"), the Proposed Maximum Offering Price Per
Share and the Proposed Maximum Aggregate Offering Price for the 9,455,215
Ordinary Shares available under the Plans are estimated solely for the
purpose of calculating the registration fee, and are based on the average
of the high and low prices of the Ordinary Shares on the London Stock
Exchange on May 21, 2003.
(5) Pursuant to Rules 457(h) under the Securities Act, the Proposed Maximum
Offering Price Per Share and the Proposed Maximum Aggregate Offering Price
for the 544,785 Ordinary Shares available under the Option Scheme subject
to the currently outstanding options are based on the per share weighted
average exercise price of the options.
Page 1 of 9
Exhibit Index Appears on Page 9.
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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 which have been filed with or
furnished to the Securities and Exchange Commission (the "Commission") by the
Registrant are incorporated herein by reference and made part of this
Registration Statement:
(a) the Registrant's Annual Report on Form 20-F (Commission File
No. 0-10906) for the fiscal year ended September 30, 2002
filed on December 12, 2002;
(b) the Registrant's Annual Report on Form 20-F/A (Commission File
No. 0-10906) for the fiscal year ended September 30, 2002
filed on May 19, 2003;
(c) the Registrant's Reports on Form 6-K dated December 12, 2002,
January 2, 2003, February 3, 2003, February 4, 2003, March 3,
2003, April 1, 2003, May 1, 2003 and May 16, 2003; and
(d) the description of the Registrant's Ordinary Shares and
American Depositary Shares contained in the Registrant's
registration statement on Form 8-A/A (Commission File No.
1-14448), filed with the Commission on September 12, 1996.
In addition, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold, or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and are a part hereof from the date of filing of such documents.
Any statement contained herein or in any 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 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 to constitute a part of this Registration Statement, except as so
modified or superseded.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Companies Act of 1985 of the United Kingdom (the
"Companies Act"), as amended, provides generally that any provision the
Registrant's articles or in any contract with the Registrant which exempts or
indemnifies any officer of the Registrant, from or 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 Registrant, shall be void. The Companies Act does not prevent
a company from purchasing insurance against any such liability for such an
officer or auditor, or from indemnifying such an officer or auditor against
liability incurred by him in defending any proceedings in which judgment is
given in his favor, or he is acquitted, or where the court has granted him
relief where he has acted as an innocent nominee for the acquisition of shares
or where his conduct has been honest and reasonable.
Article 145 of the Registrant's Articles of Association
provides that, where permitted by the Companies Act, the Registrant may
indemnify any director or other officer against any liability. The Registrant
will indemnify each director and other officer against any losses suffered as a
director or officer when defending any legal proceedings in which judgment is
given in his or her favor or in which he or she is acquitted. The Registrant
will also indemnify a director or officer for any losses relating to any
statutory application in which he or she is granted relief by the court. In
addition, pursuant to Article 145, the Registrant may purchase insurance for
directors or officers.
The Registrant does not otherwise have in force any
contractual or other arrangements under which a director or officer of the
Registrant is insured or indemnified against liability which he may incur in his
capacity as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
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:
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(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(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 the Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above 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
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(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 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 that is incorporated by reference in this 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 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 Securities Act, 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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Murray Hill, New Jersey on this 28th day of May, 2003.
The BOC Group, plc
By: /s/ James P. Blake
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James P. Blake
Vice President and General Counsel,
The BOC Group, Inc.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints James P. Blake, individually,
as his true and lawful attorney-in-fact and agent of the undersigned, with full
power of substitution and resubstitution, for and in the name, place and stead
of the undersigned, in any and all capacities, to sign any and all amendments to
this Registration Statement, including post-effective amendments and
supplements, and to file same, with all exhibits thereto, and any and all
documents in connection therewith, with the Commission and hereby grants unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 28, 2003.
Name and Signature Title
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/s/ Robert Margetts Director and Chairman
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Robert Margetts
/s/ Tony Isaac Chief Executive Officer and Director
- ------------------------------- (Principal Executive Officer)
Tony Isaac
/s/ Rene Medori Group Financial Director and Director
- ------------------------------- (Principal Financial Officer)
Rene Medori
/s/ John Bevan Chief Executive, Process Gas Solutions
- ------------------------------- and Director
John Bevan
/s/ Dr. 'Raj' Rajagopal Chief Executive, BOC Edwards and
- ------------------------------- Director
Dr. 'Raj' Rajagopal
/s/ John Walsh Chief Executive, Industrial and Special
- ------------------------------- Projects and Director
John Walsh
/s/ Fabiola Arredondo Director
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Fabiola Arredondo
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Name and Signature Title
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/s/ Julie Baddeley Director
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Julie Baddeley
/s/ Robert G. Mendoza Director
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Robert G. Mendoza
/s/ Matthew Miau Director
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Matthew Miau
/s/ Chris O'Donnell Director
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Chris O'Donnell
Authorized Representative in the United States:
/s/ James P. Blake
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James P. Blake
Vice President and General Counsel, The BOC Group, Inc.
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EXHIBIT INDEX
Exhibit No. Description of Document
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*4.1 Rules of the BOC Group Executive Share Option Scheme 2003.
*4.2 Rules of the BOC Group Long Term Incentive Plan.
4.3 The Memorandum and Articles of Association of the Registrant,
as amended January 18, 2002 (incorporated by reference to the
Registrant's Annual Report on Form 20-F for the fiscal year
ended September 30, 2002 (Commission File No. 0-10906), filed
with the Commission on December 12, 2002.
4.4 Form of Deposit Agreement among the Registrant, Morgan
Guaranty Trust Company of New York, as depositary, and the
holders of American Depositary Receipts issued thereunder
(including the form of American Depositary Receipt
evidencing American Depositary Shares) (incorporated by
reference to Registrant's registration statement on Form
8-A/A (Commission File No. 1-14448), filed with the
Commission on September 12, 1996).
*5 Opinion of Shearman & Sterling as to the legality of the
Ordinary Shares being registered.
*23.1 Consent of PricewaterhouseCoopers LLP.
*23.2 Consent of Shearman & Sterling (included in Exhibit 5).
*24 Powers of Attorney (included on signature page to this
Registration Statement).
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*Filed herewith.
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