Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
FRESENIUS USA, INC.
(Exact name of registrant as specified in its charter)
Massachusetts 04-2550576
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2637 Shadelands Drive
Walnut Creek, California 94598
(Address, of principal executive offices, including zip code)
1987 Stock Option Plan
(Full title of the plan)
_________________________
Ben J. Lipps
Fresenius USA, Inc.
2637 Shadelands Drive
Walnut Creek, California 94598
(510) 295-0200
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
__________________
Please send copies of all communications to:
Winthrop G. Minot, ESQUIRE
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
CALCULATION OF REGISTRATION FEE
Title of each Amount to Proposed Proposed Amount of
class be maximum maximum registration
securities to registered offering aggregate fee
be registered price per offering
share<F1> price<F1>
Common Stock - 1,500,000 $8.13 $12,195,000.00 $4,335.00
$.01 Par Value
<F>
<F1> Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 on the basis of the average of the high and low prices of Fresenius
USA, Inc., Common Stock, par value $0.01, reported on the American Stock
Exchange on June 5, 1995.
Exhibit Index on page 8;
Page 1 of 17 pages.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information on the 1987
Stock Option Plan required by Item 1 of the Form S-8 and the statement of
availability of registrant information, and other information required by Item
2 of this Form will be sent or given to employees as specified by Rule 428. In
accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission
("Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. The Registrant shall maintain
a file of such documents in accordance with the provisions of Rule 428. Upon
request, the Registrant shall furnish to the Commission or its staff a copy of
all of the documents included in such file.
Pursuant to Rule 429, this Registration Statement and the
Prospectus contained herein also relate to Common Stock of Fresenius USA, Inc.
to be sold under the Plan covered by Registration Statements No. 33-25522 and
33-38435.
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Page 2 of 17 pages.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Fresenius USA, Inc. (the "Registrant" or the "Company") hereby incorporates
the following documents herein by reference:
(a) The Company's annual report on Form 10-K for the fiscal year ended
December 31, 1994, as amended, filed pursuant to Section 13(a) or
15(d) of the Exchange Act, as amended (the "Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
registrant document referred to in (a) above.
(c) The description of the Company's Common Stock, $0.01 par value per
share, contained in the Company's Registration Statement on Form 8-A
(Commission File Number 1-8350), filed pursuant to Section 12(g) of
the Exchange Act including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Section
13(a), Section 13(c), Section 14 and Section 15(d) of the Exchange Act prior to
the filing of a post-effective amendment to this registration statement that
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed incorporated herein by
reference from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Page 3 of 17 pages.
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides that indemnification of directors, officers, employees
and other agents of a corporation may be provided by a corporation to whatever
extent authorized by (i) the articles of organization, or (ii) a by-law adopted
by the stockholders or (iii) a vote adopted by the holders of a majority of the
shares of stock entitled to vote on the election of directors. Section 9 of
the Registrant's by-laws requires the Registrant, to the extent legally
permissible, to indemnify directors and officers (including persons who serve
at its request as directors, officers or trustees of another organization in
which it has any interest, as a shareholder, creditor or otherwise) against all
liabilities and expenses including amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, and counsel fees, reasonably incurred
by him or her in connection with the defense or disposition of any action, suit
or other proceeding, whether civil or criminal, in which he or she may be
involved or with which he or her may be threatened, while in office or
thereafter, by reason of his or her being or having been such a director,
officer or trustee, except with respect to any matter as to which he or she
shall have been adjudicated in any proceeding not to have acted in good faith
in the reasonable belief that his or her action was in the best interests of
the Registrant; provided, however, that as to any matter disposed of by a
compromise payment by such director or officer pursuant to a consent decree or
otherwise, no indemnification either for said payment or for any other expenses
shall be provided unless such compromise shall be approved as in the best
interests of the Registrant: (a) by a disinterested majority of the directors
then in office, or (b) by a majority of the disinterested directors then in
office, provided that there has been obtained an opinion in writing of
independent legal counsel to the effect that such director or officer appears
to have acted in good faith in the reasonable belief that this action was in
the best interests of the Registrant; or (c) by the holders of a majority of
the outstanding stock at the time entitled to vote for directors, voting as a
single class, exclusive of any stock owned by any interested director or
officer.
Pursuant to an agreement amended and restated as of October 2, 1987 between
Fresenius A.G., the beneficial owner of 71.8% of the Company's Common Stock and
100% of the Company s Series F Preferred Stock, and Ulrich Wagner, a director
of the Company, Fresenius A.G. has agreed to indemnify Mr. Wagner for any and
all costs or expenses incurred by Mr. Wagner in his capacity as a director of
the Company.
Item 7. Exemption From Registration Claimed.
Not Applicable.
II-2
Page 4 of 17 pages.
Item 8. Exhibits.
Exhibit Number
4 1987 Stock Option Plan.
5 Opinion of Ropes & Gray.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Ropes & Gray (contained in the opinion filed as
Exhibit 5 to this Registration Statement)
24 Powers of Attorney (included on page 7 of this
Registration Statement under the caption "Power of
Attorney").
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; 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) shall not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or
Section 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.
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Page 5 of 17 pages.
(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 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 Securities and Exchange
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.
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Page 6 of 17 pages.
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Walnut Creek, State of California, on the 31st
day of May, 1995.
FRESENIUS USA, INC.
By: /s/ Ben Lipps
Ben Lipps
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes and constitutes Ben Lipps and Heinz Schmidt, and each
of them singly, his true and lawful attorneys with full power to them, and each
of them singly, to sign for him and in his name in the capacities indicated
below any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with exhibits thereto, and other
documents in connection therewith, and he hereby ratifies and confirms his
signature as it may be signed by said attorneys, or any of them, to any and all
such amendments.
Signature Capacity in Which Signed Date
/s/ Ben Lipps Chief Executive Officer, President, 5/31/95
Ben Lipps Chief Operating Officer and Director
(principal executive officer)
/s/ Heinz Schmidt Vice President-Finance and Treasurer 5/31/95
Heinz Schmidt (principal financial officer and
principal accounting officer)
/s/ Gerd Krick Chairman of the Board 5/31/95
Gerd Krick and Director
/s/ Francis Baker Director 5/31/95
Francis Baker
/s/ Robert Ehrlich Director 5/31/95
Robert Ehrlich
/s/ James Marten Director 5/31/95
James Marten
/s/ Mathias Klingler Director 5/31/95
Mathias Klingler
/s/ Ulrich Wagner Director 5/31/95
Ulrich Wagner
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Page 7 of 17 pages.
EXHIBIT INDEX
Number Title of Exhibit Page
4 1987 Stock Option Plan 9
5 Opinion of Ropes & Gray 16
23.1 Consent of KPMG Peat Marwick LLP 17
23.2 Consent of Ropes & Gray (contained in
the opinion filed as Exhibit 5 to
this Registration Statement)
24 Powers of Attorney (included on pages
of this Registration Statement under
the caption "Power of Attorney")
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Page 8 of 17 pages.
Exhibit 4
FRESENIUS USA, INC.
1987 STOCK OPTION PLAN
1. Purpose
The purpose of this 1987 Stock Plan (the "Plan") is to advance the
interests of Fresenius USA, Inc. (the "Company") by enhancing the ability of
the Company (a) to attract and retain employees who are in a position to make
significant contributions to the success of the Company; (b) to reward
employees for such contributions; and (c) to encourage employees to take into
account the long-term interests of the Company through ownership of shares of
the Company's Common Stock (the "Stock").
Options granted pursuant to the Plan may be incentive stock options as
defined in section 422A of the Internal Revenue Code of 1986 (as it may from
time to time be amended) (the "Code") (any option that is intended so to
qualify as an incentive stock option being referred to herein as an "incentive
option"), or options that are not incentive options, or both.
2. Administrative
The Plan shall be administered by the Board of Directors of the Company
(the "Board").
The Board may, in its discretion, delegate its powers with respect to the
Plan to a committee (the "Committee"), in which event all references herein to
the Board shall be deemed to be references to the Committee. The Committee
shall consist of at least three Directors. A majority of the members of the
Committee shall constitute a quorum, and all determinations of the Committee
shall be made by a majority of its members. Any determination of the Committee
under the Plan may be made without notice or meeting of the Committee by a
writing signed by a majority of the Committee members. All members of the
Committee shall be disinterested persons within the meaning of Rule 16b-3 under
the Act.
The Board shall have authority, not inconsistent with the express
provisions of the Plan, (a) to grant options to such eligible employees as the
Board may select; (b) to determine the time or times when options shall be
granted and the number of shares of Stock subject to each option; (c) to
determine which options are, and which options are not, incentive options; (d)
to determine the terms and conditions of each option; (e) to prescribe the form
or forms of instruments evidencing options and any other instruments required
under the Plan and to change such forms from time to time; (f) to adopt, amend
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Page 9 of 17 pages.
and rescind rules and regulations for the administration of the Plan; and (g)
to interpret the Plan and to decide any questions and settle all controversies
and disputes that may arise in connection with the Plan. Subject to Section 8
the Board shall also have the authority, both generally and in particular
instances, to waive compliance by an employee with any obligation to be
performed by him under an option and to waive any condition or provision of an
option, except that the Board may not take any action with respect to an
outstanding award that would adversly affect the rights of a participant under
such award without such participants consent. Nothing in the preceding
sentence shall be construed as limiting the power of the Board to make
adjustments required by Section 4(c) and Section 6(j).
3. Effective Date and Term of Plan
The Plan shall become effective on the date on which the Plan is approved
by the shareholders of the Company. Grants of options under the Plan may be
made prior to that date (but after adoption of the Plan by the Board of
Directors), subject to approval of the Plan by such shareholders.
No option shall be granted under the Plan after the completion of ten
years from the date on which the Plan was adopted by the Board of Directors,
but options previously granted may extend beyond that date.
4. Shares Subject to the Plan
(a) Number of Shares. Subject to adjustment as provided in Section 4(c),
the maximum aggregate number of shares of Stock that may be delivered upon the
exercise of options granted under the Plan shall be 2,000,000. If any option
granted under the Plan terminates without having been exercised in full, the
number of shares of Stock as to which such option was not exercised shall be
available for future grants within the limits set forth in this Section 4(a).
(b) Shares to be Delivered. Shares delivered under the Plan shall be
authorized but unissued Stock or, if the Board so decides in its sole
discretion, previously issued Stock acquired by the Company and held in
treasury. No fractional shares of Stock shall be delivered under the Plan.
(c) Changes in Stock. In the event of a stock dividend, stock split or
combination of shares, recapitalization or other change in the company s
capital stock, the number and kind of shares of stock or securities of the
Company subject to options then outstanding or subsequently granted under the
Plan, the maximum number of shares or securities that may be delivered under
the Plan, the exercise price, and other relevant provisions shall be
approximately adjusted by the Board, whose determination shall be binding on
all persons.
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Page 10 of 17 pages.
The Board may also adjust the number of shares subject to outstanding
options, the exercise price of outstanding options and the terms of outstanding
options, to take into consideration material changes in accounting practices or
principles, consolidations or mergers (except those described in Section 6(j)),
acquisitions or dispositions of stock or property or any other event if it is
determined by the Board that such adjustment is appropriate to avoid distortion
in the operation of the Plan, provided that no such adjustment shall be made in
the case of an incentive option, without the consent of the participant, if it
would constitute a modification, extension or renewal of the option within the
meaning of section 424(h) of the Code.
(d) Replacement Options. The Board may grant options under the Plan in
substitution for options held by employees of another corporation who
concurrently become employees of the Company or a subsidiary as the result of a
merger or consolidation of the employing corporation with the Company or a
subsidiary or the acquisition by the Company or a subsidiary of property or
stock of the employing corporation. The Board may direct that the replacement
options be granted on such terms and conditions as the Board considers
appropriate in the circumstances.
5. Eligibility For Options
Employees eligible to receive options under the Plan shall be those
employees of the Company and its subsidiaries who, in the opinion of the Board,
are in a position to make a significant contribution to the success of the
Company or such subsidiaries. A subsidiary for the purpose of the Plan shall
be a corporation in which the Company owns, directly or indirectly, stock
possessing 50% or more of the total combined voting power of all classes of
stock.
Directors who are not employees shall not be eligible to participate in
the Plan. Incentive options shall be granted only to "employees" as defined in
the provisions of the code or regulations thereunder applicable to incentive
stock options. Receipt of options under the Plan or of awards under any other
employee benefit plan of the Company or any of its subsidiaries shall not
preclude an employee from receiving options or additional options under the
Plan.
6. Terms and Conditions of Options
(a) Exercise Price. The exercise price of each option shall be
determined by the Board but in the case of an incentive option shall not be
less than 100% (110%, in the case of an incentive option granted to a ten-
percent shareholder) of the fair market value per share of the Stock at the
time the incentive option is granted; nor shall the exercise price of any
option be less, in the case of an original issue of authorized stock, than par
value per share. For this purpose, Fair market value in the case of
incentive options shall have the same meaning as it does in the provisions of
the Code and the regulations thereunder applicable to incentive options: and
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Page 11 of 17 pages.
"ten-percent shareholder" shall mean any employee who at the time of grant owns
directly, or is deemed to own by reason of the attribution rules set forth in
section 424(d) of the Code, stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or of any of its
parent or subsidiary corporations.
(b) Duration of Options. In no case shall an option be exercisable more
than ten years (five years, in the case of an incentive option granted to a
"ten-percent shareholder" as defined in (b) above) from the date the option was
granted.
(c) Exercise of Options.
(1) Each option shall be made exercisable at such time or times,
whether or not in installments, as the Board shall prescribe at the time
an option is granted. In the case of an option not immediately
exercisable in full, the Board may at any time accelerate the time at
which all or any part of the option may be exercised.
(2) The award forms or other instruments evidencing incentive
options shall contain such provisions relating to exercise and other
matters as are required of incentive options under the applicable
provisions of the Code and the regulations thereunder, as from time to
time in effect.
(3) Any exercise of an option shall be in writing, signed by the
proper person and delivered or mailed to the Company, accompanied by (a)
the option certificate and any other documents required by the Board and
(b) payment in full for the number of shares for which the option is
exercised.
(4) In the case of an option that is not an incentive option, the
Board shall have the right to require that the individual exercising the
option remit to the Company an amount sufficient to satisfy any federal,
state, or local withholding tax requirements (or make other arrangements
satisfactory to the Company with regard to such taxes) prior to the
delivery of any Stock pursuant to the exercise of the option. In the case
of an incentive option, if at the time the option is exercised the Board
determines that under applicable law and regulations the company could be
liable for the withholding of any federal or state tax with respect to a
disposition of the Stock received upon exercise, the Board may require as
a condition of exercise that the individual exercising the option agree
(i) to inform the company promptly of any disposition (within the meaning
of section 424(c) of the Code and the regulations thereunder) of Stock
received upon exercise, and (ii) to give such security as the Board deems
adequate to meet the potential liability of the Company for the
withholding of tax, and to augment such security from time to time in any
amount reasonably deemed necessary by the Committee to preserve the
adequacy of such security.
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Page 12 of 17 pages.
(5) If an option is exercised by the executor or administrator of a
deceased employee, or by the person or persons to whom the option has been
transferred by the employee s will or the applicable laws of descent and
distribution, the Company shall be under no obligation to deliver Stock
pursuant to such exercise until the Company is satisfied as to the
authority of the person or persons exercising the option.
(d) Payment for and Delivery of Stock. Stock purchased under the Plan
shall be paid for as follows: (i) in cash or by certified check, bank draft or
money order payable to the order of the Company or (ii) if so permitted by the
terms of the option, (A) through the delivery of shares of Stock having a fair
market value on the last business day preceding the date of exercise equal to
the purchase price or (B) by a combination of cash and Stock as provided in
clauses (i) and (ii)(A) above or (iii) if so permitted by the terms of the
option, by delivery of a promissory note of the employee containing such terms
and conditions, including without limitation interest rate and maturity, as the
Board may specify in the option (except that the option may provide that the
rate of interest on the note will be such rate as is sufficient at all times to
avoid the imputation of any interest under the applicable provisions of the
Code), or by a combination of cash (or cash and Stock) and such a promissory
note; provided, that if the Stock delivered upon exercise of the option is an
original issue of authorized Stock, at least so much of the exercise price as
represents the par value of such Stock shall be paid in cash or by a
combination of cash and Stock.
An option holder shall not have the rights of a shareholder with regard to
awards under the Plan except as to Stock actually received by him under the
Plan.
The Company shall not be obligated to deliver any shares of Stock (a)
until, in the opinion of the Company's counsel, all applicable federal and
state laws and regulations have been complied with, and (b) if the outstanding
Stock is at the time listed on any stock exchange, until the shares to be
delivered have been listed or authorized to be listed on such exchange upon
official notice of issuance, and (c) until all other legal matters in
connection with the issuance and delivery of such shares have been approved by
the Company's counsel. If the sale of Stock has not been registered under the
Securities Act of 1933, as amended, the Company may require, as a condition to
exercise of the option, such representations or agreements as counsel for the
Company may consider appropriate to avoid violation of such Act and may require
that the certificates evidencing such Stock bear an appropriate legend
restricting transfer.
(e) Nontransferability of Options. No option may be transferred other
than by will or by the laws of descent and distribution, and during an
employee s lifetime an option may be exercised only by him.
(f) Death. If an employee's employment with the Company and its
subsidiaries terminates for any reason other than death, all options held by
the employee that are not then exercisable shall terminate. Options that are
exercisable on the date of termination shall continue to be exercisable for a
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Page 13 of 17 pages.
period of three months (subject to Section 6(b)) unless the employee was
discharged for cause which in the opinion of the Board casts such discredit on
him as to justify termination of his options. After completion of that three-
month period such options shall terminate to the extent not considered
terminated (i) in the case of sick leave or other bona fide leave of absence
approved for purposes of the Plan by the Board, so long as the employee s right
to reemployment is guaranteed either by statute or by contract, or (ii) in the
case of a transfer of employment between the Company and a subsidiary or
between subsidiaries, or to the employment of a corporation (or a parent or
subsidiary corporation of such corporation) issuing or assuming an option in a
transaction to which section 424(a) of the Code applies.
(g) Other Termination of Employment. If an employee's employment with
the Company and its subsidiaries terminates for any reason other than death,
all options held by the employee that are not then exercisable shall terminate.
Options that are exercisable on the date of termination shall continue to be
exercisable for a period of three months (subject to Section 6(b) unless the
employee was discharged for cause which in the opinion of the Board casts such
discredit on him as to justify termination of his options. After completion of
that three-month period such options shall terminate to the extent not
previously exercised, expired or terminated. For purposes of this Section
6(g), employment shall not be considered terminated (i) in the case of sick
leave or other bona fide leave of absence approved for purposes of the Plan by
the Board, so long as the employee's right to reemployment is guaranteed either
by statute or by contract, or (ii) in the case of a transfer of employment
between the Company and a subsidiary or between subsidiaries, or to the
employment of a corporation (or a parent or subsidiary corporation of such
corporation) issuing or assuming an option in a transaction to which Section
424(a) of the Code applies.
7. Employment Rights
Neither the adoption of the Plan nor the grant of options shall confer
upon any employee any right to continued employment with the Company or any
parent or subsidiary or affect in any way the right of the company or parent or
subsidiary to terminate the employment of an employee at any time. Except as
specifically provided by the Board in any particular case, the loss of existing
or potential profit in options granted under this Plan shall not constitute an
element of damages in the event of termination of the employment of an employee
even if the termination is in violation of an obligation of the Company to the
employee by contract or otherwise.
8. Effects of Discontinuance, Cancellation, Amendment and Termination
Neither adoption of the Plan nor the grant of options to an employee shall
affect the Company s right to grant to such employee options that are not
subject to the Plan, to issue to such employees Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock may be issued to
employees.
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Pge 14 of 17 pages.
The Board may at time discontinue granting options under the Plan. With
the consent of the employee, the Board may at any time cancel an existing
option in whole or in part and gant the employee another option for such number
of shares as the Board specifies. The Board may at any time or times amend the
Plan for the purpose of satisfying the requirements of section 422(a) of the
Code or of any changes in applicable laws or regulations and the Board of
Directors may amend the Plan for any other purpose which may at the time be
permitted bylaw or may at any time terminate the Plan as to any further
grants of options, provided that (except to the extent expressly required or
permitted herein above) no such amendment shall, without the approval of the
shareholders of the Company, (a) increase the maximum number of shares available
under the Plan, (b) change the group of employees eligible to receive options
under the Plan, (c) reduce the price at which incentive options may be
granted, (d) extend the time within which options may be granted, (e) alter the
Plan in such a way that incentive options already granted hereunder would not be
considered incentive stock options under section 422A of the Code, or (f) amend
the provisions of this Section 8, and no such amendment shall adversely affect
the rights of any employee (without his consent) under an option previously
granted.
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Page 15 of 17 pages.
ROPES & GRAY
One International Place
Boston, Massachusetts 02110
Telephone: (617) 951-7000
Telecopier: (617) 951-7050
June 6, 1995
Fresenius USA, Inc.
2637 Shadelands Drive
Walnut Creek, California 94598
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement
on Form S-8 (the "Registration Statement"), filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 1,500,000 shares of Class A Common Stock,
$0.01 par value (the "Shares"), of Fresenius USA, Inc. (the "Company").
We have acted as counsel to the Company and are familiar with the actions
taken by the Company in connection with the Company's 1987 Stock Option Plan
(the "Plan"). For purposes of this opinion we have examined the Plan and such
other documents as we deemed appropriate.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and when the Shares have been issued and sold and consideration
received therefor by the Company in accordance with the terms of the Plan, they
will be validly issued, fully paid and nonassessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
3051156.01
Page 16 of 17 pages.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Fresenius USA, Inc.
We consent to incorporation by reference in the registration statement Form S-
8 herein of our report dated February 3, 1995, related to the consolidated
balance sheets of Fresenius USA, Inc. and subsidiaries as of December 31, 1993
and 1994, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1994, which report appears in the December 31, 1994 annual report
on Form 10-K of Fresenius USA, Inc.
/s/ KPMG Peat Marwick LLP
San Francisco, California
June 2, 1995
Page 17 of 17 pages.
