Form S-8 Nielsen Holdings plc

June 7, 2019 4:14 PM

As filed with the Securities and Exchange Commission on June 7, 2019.

Registration No. 333-                

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Nielsen Holdings plc

(Exact name of registrant as specified in its charter)

 

 

 

England and Wales   98-1225347

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification Number)

 

 

 

85 Broad Street

New York, New York 10004

(646) 654-5000

 

Nielsen House

John Smith Drive

Oxford

Oxfordshire, OX4 2WB

United Kingdom

+1 (646) 654-5000

(Address, including zip code, and telephone number, including area code, of principal executive offices)

 

 

Nielsen 2019 Stock Incentive Plan

(Full Title of the Plan)

 

 

George D. Callard

Chief Legal Officer

Nielsen Holdings plc

85 Broad Street

New York, New York 10004

(646) 654-5000

(Name and address, including zip code, and telephone number, including area code, of agent for service)

 

 

With copies to:

Joseph H. Kaufman

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.   ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of securities to be

registered (1)(2)

 

Amount

to be

registered (1)

 

Proposed

maximum
offering price

per share (2)

 

Proposed

maximum

aggregate

offering price (2)

  Amount of
registration fee
Common Stock, par value €0.07 per share   7,200,000   $22.66   $163,152,000.00   $19,774.02

 

(1)

Covers 7,200,000 shares of common stock, par value €0.07 per share (the “Common Stock”) of Nielsen Holdings plc (“Nielsen” or the “Company”) to be issued under the Nielsen 2019 Stock Incentive Plan (the “Plan”). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan.

(2)

Computed pursuant to Rule 457(c) and 457(h) of the Securities Act, solely for the purpose of determining the amount of the registration fee, based upon the average of the high and low prices reported for the Company’s Common Stock on the New York Stock Exchange on June 4, 2019.

 

 

 


PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information specified in Items 1 and 2 of Part I of the Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Form S-8. The documents containing the information specified in Part I will be delivered to eligible employees as specified in Rule 428(b)(1). Such documents are not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The following documents filed with the Commission by the Company pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this Registration Statement:

 

  (a)

the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with the Commission on February 28, 2019;

 

  (b)

the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, filed with the Commission on April 30, 2019;

 

  (c)

the Company’s Current Reports on Form 8-K filed with the Commission on March 4, 2019 and May 23, 2019; and

 

  (d)

the description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A filed with the Commission on January 20, 2011 pursuant to Section 12(b) of the Securities Act, including any amendments or supplements thereto, as updated by the description of the Company’s Common Stock contained in the Company’s Current Report on Form 8-K filed with the Commission on September 1, 2015.

All other documents and reports subsequently filed by the Registrant under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except for any portions of the Registrant’s Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission) after the date of this Registration Statement and 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 will be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents with the Commission.

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 subsequently filed document which also is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement 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.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

The Company’s articles of association enable the Company to indemnify its directors and officers and to advance expenses to defend claims against directors and officers to the full extent of English law. Subject to exceptions described below, English law does not permit a company to exempt a director or certain officers from, or indemnify him or her against, liability in connection with any negligence, default, breach of duty or breach of trust by him or her in relation to the company. Indemnification is permitted for liabilities incurred in proceedings in which judgment is entered in favor of the director or officer and the director or officer is acquitted, or the director or officer is held liable, but the court finds that he or she acted honestly or reasonably and the relief should be granted.

The exceptions under the English Companies Act of 2006 allow a company to (and the Company’s articles of association provide that the Company may):

 

   

purchase and maintain director and officer insurance (the “D&O Insurance”) against any liability arising in connection with any negligence, default, breach of duty or breach of trust owed to the company. D&O Insurance generally covers costs incurred in defending allegations and compensatory damages that are awarded. D&O Insurance will not cover damages awarded in relation to criminal acts, intentional malfeasance or other forms of dishonesty, regulatory offences or excluded matters such as environmental liabilities. In relation to these matters, D&O Insurance generally only covers defense costs, subject to the obligation of the director or officer to repay the costs if an allegation of criminality, dishonesty or intentional malfeasance is subsequently admitted or found to be true;

 

   

provide a qualifying third party indemnity provision (the “QTPIP”). This permits a company to indemnify its directors and certain officers (and directors and certain officers of an associated company) in respect of proceedings brought by third parties (covering both legal costs and the amount of any adverse judgment, except for: the legal costs of an unsuccessful defense of criminal proceedings or civil proceedings brought by the company itself, fines imposed in criminal proceedings and penalties imposed by regulatory bodies). The Company can therefore indemnify directors and certain officers against such third party actions as class actions or actions following mergers and acquisitions or share issues; and

 

   

make advancements to a director or certain officers in respect of defense costs in relation to civil and criminal proceedings against him or her (even if the action is brought by the company itself). This is subject to the requirement for the director or officer to reimburse the company if the defense is unsuccessful. However, if the company has a QTPIP in place whereby the director or officer is indemnified in respect of legal costs in civil proceedings brought by third parties, then the director or officer will not be required to reimburse the company as the cost of the loan can be paid under the QTPIP.

We have entered into indemnification agreements with the members of the board of directors and may enter into indemnification agreements with certain of our officers. We also purchased directors’ and officers’ liability insurance for the members of the board of directors and certain of our officers.

 

Item 7.

Exemption from Registration Claimed.

Not applicable.

 

Item 8.

Exhibits.

Reference is made to the Exhibit Index immediately preceding the signature pages hereto, which is incorporated by reference herein.

 

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;


  (ii)

To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

 

  (iii)

To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 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.

 

  (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 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 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 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.

EXHIBIT INDEX

 

Exhibit
Number
   Description of Document
4.1    Articles of Association of Nielsen Holdings plc (incorporated herein by reference to Exhibit 3.1 to the Current Report on Form 8-K file by the registrant on August 31, 2015)
4.2    Nielsen 2019 Stock Incentive Plan (incorporated by referenced to Exhibit 10.1 to the Current Report on Form 8-K filed by the registrant on May 23, 2019)
5.1    Opinion of Clifford Chance LLP
23.1    Consent of Ernst & Young LLP, an Independent Registered Public Accounting Firm
23.2    Consent of Clifford Chance LLP (included in Exhibit 5.1)
24.1    Power of Attorney (included on the signature pages to this Registration Statement)

 


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 the City of New York, State of New York on June 7, 2019.

 

NIELSEN HOLDINGS PLC
By:  

/s/ George D. Callard

 

Name: George D. Callard

Title: Chief Legal Officer

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints George D. Callard and Emily Epstein, and each of them, any of whom may act without joinder of the other, the individual’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the person and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement and any and all amendments or supplements to the Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes, may lawfully do or cause to be done by virtue hereof.


Pursuant the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

  

Date

/s/ David Kenny

   Chief Executive Officer and Director
(principal executive officer)
   June 7, 2019
     David Kenny

/s/ David J. Anderson

   Chief Financial Officer and Chief Operating Officer    June 7, 2019
     David J. Anderson    (principal financial officer and principal accounting officer)

/s/ James A. Attwood, Jr.

   Executive Chairman    June 7, 2019
     James A. Attwood, Jr.

/s/ Guerrino De Luca

   Director    June 7, 2019
     Guerrino De Luca

/s/ Karen M. Hoguet

   Director    June 7, 2019
     Karen M. Hoguet

/s/ Harish Manwani

   Director    June 7, 2019
     Harish Manwani

/s/ Robert C. Pozen

   Director    June 7, 2019
     Robert C. Pozen

/s/ David Rawlinson

   Director    June 7, 2019
     David Rawlinson

/s/ Javier G. Teruel

   Director    June 7, 2019
     Javier G. Teruel

/s/ Lauren Zalaznick

   Director    June 7, 2019
     Lauren Zalaznick

/s/ Emily Epstein

   Registrant’s Authorized Representative in the United States    June 7, 2019
     Emily Epstein

Exhibit 5.1

 

  

CLIFFORD CHANCE LLP

 

10 UPPER BANK STREET

LONDON

E14 5JJ

 

TEL +44 20 7006 1000

FAX +44 20 7006 5555

DX 149120 CANARY WHARF 3

 

www.cliffordchance.com

Our ref: 70-40610899

7 June 2019

Nielsen Holdings plc

John Smith Drive

Oxford

Oxfordshire

OX4 2WB

United Kingdom

Dear Sirs

Nielsen Holdings plc: Registration under the Securities Act

 

1.

We are acting on the instructions of Nielsen Holdings plc (the “Company”) in connection with the registration under the US Securities Act of 1933 (the “Securities Act”) on a registration statement on Form S-8 (the “Form S-8”) of 7,200,000 ordinary shares each in the Company with a nominal value of EUR 0.07 per share (the “Shares”) to be issued under the Nielsen 2019 Stock Incentive Plan (the “Plan”).

 

2.

For the purposes of issuing this letter, we have reviewed only the documents referred to in the Appendix to this letter (the “Documents”).

English law

 

3.

The opinions set out in this letter (which are strictly limited to the matters stated herein and are not to be read as extended, by implication or otherwise, to any other matters) relate only to English law as applied by the English courts as at today’s date. This letter expresses no opinion on the laws of any other jurisdiction and is governed by English law.

Opinion

 

4.

On the basis of our understanding of the Documents and the assumptions and subject to the reservations set out below, we are of the opinion that:


   CLIFFORD CHANCE LLP

 

  (a)

the Company is a public company limited by shares and has been duly incorporated under English law; and

 

  (b)

subject to and upon the Shares being duly allotted and issued by the Company to participants in the Plan, the Shares will be duly and validly authorised and issued, fully paid and no further contributions in respect of such Shares will be required to be made to the Company by the holders thereof in respect of the issue of such Shares by reason solely of their being such holders.

Assumptions

 

5.

The opinions set out in paragraph 4 are based upon the following assumptions (made without investigation):

 

  (a)

that all copy Documents supplied to us are complete, up-to-date, authentic and accurate and conform to the originals which themselves are genuine and that all signatures, stamps and seals thereon are genuine;

 

  (b)

that each party to the Documents has the capacity, power and authority to enter into and to exercise its rights and to perform its obligations under such Documents;

 

  (c)

that the rules of the Plan which we have examined are in force, were validly adopted by the Company and have been and will be operated in accordance with their terms;

 

  (d)

that the Shares will, before allotment or issue, have been fully paid up in accordance with the Companies Act 2006;

 

  (e)

that the Shares have been and will be issued or transferred in accordance with the rules of the Plan;

 

  (f)

that any representation, warranty or statement of fact or law, other than as to the laws of England, made in any of the Documents is true, accurate and complete;

 

  (g)

that all resolutions of the board of directors and/or of the committees required to approve or operate the Plan (including in respect of the allotment and issue of Shares) were duly passed at properly convened meetings of duly appointed directors or, as the case may be, duly appointed committees of directors and/or properly convened meetings of the relevant trustee (or in the case of written resolutions, were duly adopted) and that such resolutions have not been amended or rescinded and are and will remain in full force and effect;

 

-2-


   CLIFFORD CHANCE LLP

 

  (h)

that all resolutions of the shareholders of the Company required to authorise the allotment of the Shares or approve the Plan were duly passed and at properly convened meetings of the shareholders of the Company and have not been amended or rescinded and are and will remain in full force and effect;

 

  (i)

that there has been no alteration in the status or condition of the Company since a search carried out at the Companies House of England and Wales on 7 June 2019 at 10:00 a.m. and an enquiry by telephone in respect of the Company at the Central Index of Winding Up Petitions on 7 June 2019 at 10:20 a.m.. However, it is our experience that such searches may be unreliable. In particular, they are not conclusively capable of disclosing whether or not insolvency proceedings have been commenced in England nor do they indicate whether or not insolvency proceedings have been commenced elsewhere;

 

  (j)

that each director of the Company has disclosed any interests which he may have in the Plan in accordance with the provisions of the Companies Act 2006 and the articles of association of the Company;

 

  (k)

that each director of the Company (and each member of any relevant committee) discharged his fiduciary duty owed to the Company and acted honestly and that each relevant trustee discharged its fiduciary duties and acted honestly;

 

  (l)

that the offering or award of Shares under the Plan has been duly authorised by, and has and will be made in accordance with, the relevant Documents;

 

  (m)

that there have been no amendments to the articles of association of the Company referred to in the Appendix; and

 

  (n)

that save for the Documents, there is no other document or arrangement which modifies or supersedes any of the Documents.

 

6.

We express no opinion as to any agreement, instrument, document or matter other than as specified in this letter. We have not been responsible for investigation or verification of statements of fact (including statements as to foreign law).

 

7.

This letter is given solely for the purposes of the Company filing the Form S-8 and for the information of the persons to whom it is addressed and may not be relied upon for any other purpose or disclosed to or relied upon by any other person without our prior written consent. Furthermore this letter is given on the basis that any limitation on the liability of any other person to the persons to whom this letter is addressed, whether or not we are aware of that limitation, will not adversely affect our position in any circumstances.

 

-3-


   CLIFFORD CHANCE LLP

 

Benefit of opinion

 

8.

We hereby consent to the filing of this opinion with the U.S. Securities and Exchange Commission (the “Commission”) as an exhibit to the Form S-8 relating to the Shares. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Save as aforesaid, this opinion is addressed to the Company on the understanding that it may not be transmitted to any person for any purpose or quoted or referred to in any other public document or filed with any other government agency or other person without our prior consent.

Yours faithfully

/s/ Clifford Chance LLP

Clifford Chance LLP

 

-4-


   CLIFFORD CHANCE LLP

 

Appendix

Documents Reviewed

The Documents referred to in Paragraph 2 of this letter are copies of the following which have been provided to us by the Company with the exception of the documents referred to in (2) and (6) below which have been obtained from the United Kingdom’s Companies House and the Central Index of Winding Up Petitions as the case may be on 7 June 2019.

 

(1)

The draft Form S-8

 

(2)

The current articles of association of the Company

 

(3)

A certificate signed by the Company Secretary attesting that the Plan was approved by the board of the Company at its meeting on 21 February 2019

 

(4)

The public announcement that the shareholder resolution approving the Plan was passed at the annual general meeting held on 21 May 2019

 

(5)

The rules of the Plan

 

(6)

The searches referred to in paragraph 5(i) of this Legal Opinion

 

-5-

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement (Form S-8), pertaining to the Nielsen 2019 Stock Incentive Plan, our reports dated February 28, 2019, with respect to the consolidated financial statements and schedules of Nielsen Holdings plc, and the effectiveness of internal control over financial reporting of Nielsen holdings plc, included in its Annual Report (Form 10-K) for the year ended December 31, 2018, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP
New York, New York
June 7, 2019

Categories

SEC Filings