As filed with the Securities and Exchange Commission on November 7, 2008
Registration No. 333- 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549
 
 
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
 
SMITH & NEPHEW plc
(Exact Name of Registrant as Specified in Its Charter)
 

England & Wales
None
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
 
15 Adam Street, London  WC2N 6LA
United Kingdom
(Address of principal executive offices)
 
 
Smith & Nephew 2004 Performance Share Plan
(Full title of the plans)
 

CT Corporation System
1025 Vermont Avenue, NW, Washington D.C. 20005, (202) 393-1747
(Name, address and telephone number, including area code, of agent for service)
 
Copies to:
 
Paul Kumleben, Davis Polk & Wardwell
99 Gresham Street, London EC2V7NG, United Kingdom, 011 44 207 418 1300
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer
  x  
Accelerated filer
  o
Non-accelerated filer
  o (Do not check if a smaller reporting company)
Smaller reporting company
  o
 
 
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
Ordinary Shares represented by American Depositary Shares
3,175,000 Ordinary Shares represented by 635,000 ADSs (3)
$8.92
$28,321,000
$1,113.02

(1)
American Depositary Shares (each an “ADS”), each representing five Ordinary Shares, 20 US cents  par value (the “Ordinary Shares”) of Smith & Nephew plc, a public limited company incorporated under the laws of England and Wales (the “Registrant”) issuable upon deposit of the Ordinary Shares, have been registered on a separate registration statement on Form F-6, filed December 11, 2003 (Registration No. 333-111088).
 
(2)
The offering price has been estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) and 457(c) on the basis of the average of the high and low prices of Smith & Nephew plc American Depositary Shares reported on the New York Stock Exchange on November 3, 2008, which average was $44.61 per ADS and, therefore, represents $8.92 per Ordinary Share.
 
(3)
Plus such additional number of Ordinary Shares as may be issuable pursuant to the anti-dilution provisions of The Smith & Nephew 2004 Performance Share Plan, in accordance with Rule 416(a) under the Securities Act.


 
EXPLANATORY NOTE
 
This Registration Statement on Form S-8 (the “Registration Statement”), is being filed to register an additional 3,175,000 ordinary shares represented by 635,000 ADSs of Smith & Nephew plc in connection with The Smith & Nephew 2004 Performance Share Plan as an amendment to the Registration Statement on Form S-8 filed with the Securties and Exchange Commission on February 14, 2005 (Registration No. 333-122801) (the "Initial Registration Statement").
 
 
In accordance with General Instruction E to Form S-8, the contents of the Initial Registration Statement are incorporated by reference into the Registration Statement and the information required by Part II is omitted, except as supplemented by the information set forth below.
 
 
PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 6.  Indemnification of Directors and Officers.
 
English law does not permit a company to indemnify a director or an officer of the company against any liability which by virtue of any rule of law would otherwise attach to him in respect of negligence, default, breach of duty or breach of trust in relation to the company except liability incurred by such director or officer in defending any legal proceeding (whether civil or criminal) in which judgment is given in his favor or in which he is acquitted or in certain instances where, although he is liable, a court finds such director or officer acted honestly and reasonably and that having regard to all the circumstances he ought fairly to be excused and relief is granted by the court. These restrictions do not prevent a company from purchasing and maintaining insurance against any such liability for any such director or officer.
 
Article 168 of the Registrant’s Articles of Association provides:
 
“Subject to the provisions of the Acts (but so that this Article does not extend to any matter insofar as it would cause this Article or any part of it to be void under the Acts) but without prejudice to any indemnity to which the person concerned may otherwise be entitled, every person who is or was at any time a Director or other officer of the Company or any member of the Group excluding the Auditors may be indemnified out of the assets of the Company against all costs, charges, expenses, losses or liabilities (together "Liabilities") which he may sustain or incur in or about the actual or purported execution and/or discharge of the duties of his office (including those duties, powers and discretions in relation to any member of the Group or any company that is a trustee of an occupational pension scheme (as defined in section 235(6) of the 2006 Act)) and/or the exercise or purported exercise of his powers or discretions and/or otherwise in relation thereto or in connection therewith, including (without prejudice to the generality of the foregoing) any Liabilities suffered or incurred by him in disputing, defending, investigating or providing evidence in connection with any actual or threatened or alleged claims, demands, investigations, or proceedings, whether civil or criminal, or in connection with any application under section 144(3) or (4) or section 727 of the Act. The Company may also, subject to the provisions of the Acts, provide funds to any Director or other officer (excluding the Auditors) or do anything to enable a Director or other officer to avoid incurring expenditure of the nature described in section 205(1) or 206 of the 2006 Act.”
 
Item 8.  Exhibits.
 
Exhibit No.
Description
   
4.1
The Registrant’s Articles of Association which are incorporated by reference to Exhibit 1(b) to the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2007, File No. 001-14978.
   
4.2
The Smith & Nephew 2004 Performance Share Plan.*
 
 
5.1
Opinion of Ashurst LLP, counsel to the Registrant, as to the legality of the securities being registered.
   
23.1
Consent of Independent Registered Public Accounting Firm.
   
23.2
Consent of Ashurst LLP (included in 5.1).
*  Previously filed as an exhibit to the Initial Registration Statement.


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 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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

(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 (1)(i) and (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 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the 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 of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 Act and will be governed by the final adjudication of such issue.

 
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  Registration Statement  to be signed on its behalf by the undersigned, thereunto duly authorized, in the state of Tennessee on November 7, 2008.
 
 
SMITH & NEPHEW plc
 
       
       
By:  /s/ Paul Chambers  
  Paul Chambers  
 
Company Secretary
 
 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
 
Signatures
 
Title
 
Date
         
/s/ John Buchanan
       
John Buchanan
 
Non-Executive Chairman
 
November 7, 2008
         
         
/s/ David J. Illingworth
       
David J. Illingworth
 
Executive Director, Chief Executive
(Principal Executive Officer)
 
November 7, 2008
         
         
/s/ Adrian Hennah
       
Adrian Hennah
 
Executive Director
(Principal Financial and Accounting Officer)
 
November 7, 2008
         
         
/s/ Dr. Rolf W. H. Stomberg
       
Dr. Rolf W. H. Stomberg
 
Non-Executive Director
 
November 7, 2008
         
         
/s/ Warren D. Knowlton
       
Warren D. Knowlton
 
Non-Executive Director
 
November 7, 2008
         
         
/s/ Richard De Schutter
       
Richard De Schutter
 
Non-Executive Director
 
November 7, 2008
         
         
/s/ Dr. Pamela J. Kirby
       
Dr. Pamela J. Kirby
 
Non-Executive Director
 
November 7, 2008
         
         
/s/ Joseph Papa
       
Joseph Papa
 
Non-Executive Director
 
November 7, 2008
         
         
/s/ Brian Larcombe
       
Brian Larcombe
 
Non-Executive Director
 
November 7, 2008
         
         
/s/ Robert A. Lucas
       
Robert A. Lucas
 
Authorized Representative in the United States
 
November 7, 2008

 
EXHIBIT INDEX
 
Exhibit No.
Description
   
4.1
The Registrant’s Articles of Association which are incorporated by reference to Exhibit 1(b) to the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2007, File No. 001-14978.
   
4.2
The Smith & Nephew 2004 Performance Share Plan.
   
  5.1*
Opinion of Ashurst LLP, counsel to the Registrant, as to the legality of the securities being registered.
   
23.1*
Consent of Independent Registered Public Accounting Firm.
   
23.2*
Consent of Ashurst LLP (included in 5.1).
* Filed herewith
 
 
Exhibit 5.1
 
 
 
Tel       +44 (0)20 7638 1111
DX  639 London/City
www.ashurst.com
 
 
London
WC2N 6LA
 
 
 
Up to 3,175,000 shares of common stock, 20 US cents par value
 
We refer to the Registration Statement on Form S-8 (the "Registration Statement" ) filed on 7 November 2008 by Smith & Nephew, a public limited company incorporated under the laws of England and Wales (the "Company" ), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act" ), relating to the registration of shares of common stock, 20 US cents par value of the Company (the "Ordinary Shares" ).

We are familiar with the proceedings to date with respect to the proposed issuance of up to an additional 3,175,000 Ordinary Shares (the "Additional Registered Shares" ) pursuant to the Smith & Nephew 2004 Performance Share Plan (the "Plan" ), which will be represented by 635,000 American Depositary Shares (the "ADSs" ), each ADS representing five Ordinary Shares.  We have examined such records, documents and questions of law, and satisfied ourselves as to such matters of fact, as we have considered relevant and necessary as a basis for this opinion.

Based on the foregoing, we are of the opinion that:

1.
The Company is duly incorporated and validly existing under the laws of England and Wales.
 
2.
Each of the Additional Registered Shares which is newly issued pursuant to the Plan will constitute a share of common stock of the Company which has been duly authorised and validly issued and is fully paid and non-assessable when (i) the Registration Statement shall have become effective under the Securities Act; (ii) the Company’s board of directors or a duly authorised committee thereof shall have duly adopted final resolutions authorising the issuance and sale of such share as contemplated by the Plan; and (iii) the name of the holder shall have been entered in the Register of Members and a certificate representing such share shall have been duly executed, countersigned and registered and duly delivered upon payment of the agreed consideration therefor (not less than the par value thereof) determined in accordance with the terms of the Plan.
 
 
 
12:45\05 November 2008\LONDON\DRK\11300128.01
7 November 2008
 
 
 
This Opinion is given by Ashurst LLP and by no other person, is limited to English law as applied by the English courts and is given on the basis that it will be governed by and construed in accordance with English law.  We consent to the filing of this opinion as an exhibit to the Registration Statement relating to such Ordinary Shares.  In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act.

Yours faithfully





ASHURST LLP

 

 
Exhibit 23.1
 
Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Smith & Nephew 2004 Performance Share Plan of our reports dated March 18, 2008, with respect to the consolidated financial statements of Smith & Nephew plc included in its combined Annual Report and Form 20-F for the year ended December 31, 2007, and the effectiveness of internal control over financial reporting of Smith & Nephew plc filed with the Securities and Exchange Commission.

 
 
/s/ Ernst & Young LLP
Ernst & Young LLP
 
London, England
 
Dated: November 7, 2008