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)
1993 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(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 Proposed maximum Proposed maximum Amount of
class securities to be offering price aggregate offering registration
to be registered registered per share <F1> price <F1> fee
Common Stock -- 500,000 $9.69 $4,845,000.00 $1,671.00
$.01 Par Value
<F>
(1) 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 July 26, 1995.
</F>
Exhibit Index on page 8;
Page 1 of 16 pages.
Page 1
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information on the Stock Option
Agreements required by Item 1 of this 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 eligible 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 documents included in such file.
PAGE 2
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.
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
Page 3
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 in connection with the defense or disposition
of any action, suit or other proceeding, whether civil or criminal, in which he
may be involved or with which he may be threatened, while in office or
thereafter, by reason of his being or having been such a director, officer or
trustee, except with respect to any matter as to which he shall have been
adjudicated in any proceeding not to have acted in good faith in the reasonable
belief that his action was in the best interests of the corporation; 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.
Item 8. Exhibits.
Exhibit Number
4 1993 Stock Option Plan for Non-Employee Directors.
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).
Page 4
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.
(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
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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.
Page 6
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
28th day of July, 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
Ben Lipps Chief Executive Officer, July 28, 1995
President, Chief Operating
Officer and Director
(principal executive officer)
/s/ Heinz Schmidt
Heinz Schmidt Vice President-Finance and July 28, 1995
Treasurer (principal
financial officer and
principal accounting officer)
/s/ Gerd Krick
Gerd Krick Chairman of the Board July 28, 1995
and Director
/s/ Francis Baker
Francis Baker Director July 28, 1995
/s/ Robert Ehrlich
Robert Ehrlich Director July 28, 1995
/s/ James Marten
James Marten Director July 28, 1995
/s/ Mathias Klingler
Mathias Klingler Director July 28, 1995
/s/ Ulrich Wagner
Ulrich Wagner Director July 28, 1995
Page 7
EXHIBIT INDEX
Number Title of Exhibit Page
4 1993 Stock Option Plan for Non- 9
Employee Directors
5 Opinion of Ropes & Gray 15
23.1 Consent of KPMG Peat Marwick LLP 16
23.2 Consent of Ropes & Gray (contained in 15
the opinion filed as Exhibit 5 to
this Registration Statement)
24 Powers of Attorney (included on page 7
7 of this Registration Statement
under the caption "Power of
Attorney")
Page 8
EXHIBIT 4
FRESENIUS USA, INC.
1993 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1. PURPOSE
The purpose of this 1993 Stock Option Plan for Non-Employee Directors (the
"Plan") is to advance the interests of Fresenius USA, Inc. (the "Company") by
enhancing the ability of the Company to attract and retain directors who are in
a position to make significant contributions to the success of the Company and
to reward such directors for such contributions through ownership of shares of
the Company's common stock (the "Stock").
2. ADMINISTRATION
The Plan shall be administered by a committee (the "Committee") of the
Board of Directors (the "Board") of the Company from time to time appointed by
the Board to administer the Plan in accordance with the express provisions of
the Plan, (a) 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; (b) to adopt, amend and rescind rules and regulations for the
administration of the Plan; and (c) to interpret the Plan and to decide any
questions and settle all controversies and disputes that may arise in
connection with the Plan. Such determinations of the Committee shall be
conclusive and shall bind all parties. Subject to Section 7 of this Plan and
to Rule 16b-3 under the Securities Exchange Act of 1934, as from time to time
in effect ("Rule 16b-3"), the Committee shall also have the authority, both
generally and in particular instances, to waive compliance by a non-employee
director with any obligation to be performed by him under an option and to
waive any condition or provision of an option.
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. No option shall be granted under the Plan
after the expiration of ten years from the date on which the Plan was adopted
by the Board, but options previously granted may extend beyond that date.
4. SHARES SUBJECT TO PLAN
a. Number of Shares. Subject to adjustment as provided in Section 4(c)
of this Plan, the aggregate number of shares of Stock that may be delivered
upon the exercise of options
Page 9
granted under the Plan shall be 500,000. 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
appropriately adjusted by the Committee, whose determination shall be binding
on all persons.
5. ELIGIBILITY FOR OPTIONS
Directors eligible to receive options under the Plan ("Eligible
Directors") shall be any director who is not an employee of the Company.
6. TERMS AND CONDITIONS OF OPTIONS
a. Number of Options.
i. Initial Grant. Eligible Directors who are directors on the date
of shareholder approval of the Plan shall be awarded options covering
30,000 shares of Stock on that date, and the date of the initial grant of
such options shall be deemed to be December 31, 1993 for all purposes of
this Plan. Following shareholder approval of the Plan, each newly elected
Eligible Director shall be awarded options covering 30,000 shares of Stock
on the date of his or her first election. All options granted in this
manner are "Initial Options".
ii. Elective Grants. Eligible Directors may elect in any calendar
year to receive their compensation for services rendered as a director of
the Company ("Directors' Fees") in the form of options to purchase shares
of Stock instead of cash (such options being known as "Elective
Options"). With respect to each Directors' Fee payable in Elective
Options, an Eligible Director will receive an option for a number of
shares of Stock in accordance with the following formula:
Total Amount of Directors' Fee Payable in Cash
60% of the exercise price of the Elective Option
Page 10
where the exercise price of the Elective Option is the closing price of
the Stock on the American Stock Exchange on the date the Directors' Fee
would otherwise be paid.
b. Election of Options in Lieu of Directors' Fees
i. Initial Election. Eligible Directors who are directors on the
date of shareholder approval of the amendment to the Plan may elect to
receive their Directors' Fees for the balance of 1995 in the form of
options. Following shareholder approval of the amendment to the Plan,
newly elected Eligible Directors will be able to elect to receive their
Directors' Fees for the balance of the calendar year in which they are
elected in the form of options. In the absence of a valid election of
options in lieu of Directors' Fees, an Eligible Director will be deemed to
have elected to receive all Directors' Fees in cash.
ii. Changes in Election. An Eligible director may change his or her
election with respect to the Directors' Fees of any given calendar year
by notifying the Committee in writing on or before June 30 of the
preceding calendar year. Notwithstanding the foregoing, no change in an
Eligible Director's election may be made prior to the time the Company is
subject to amended Rule 16b-3 under the Securities and Exchange Act of
1934, as amended.
c. Exercise Price. The exercise price of each option shall be 100% of
the fair market value per share of the Stock at the time the option is granted,
but not less, in the case of an original issue of authorized stock, than par
value per share. For this purpose, "fair market value" shall mean the closing
price of the Stock as reported on the American Stock Exchange (or other
exchange or market system if no longer listed on such exchange) on the date of
the grant (based on The Wall Street Journal report of composite transactions).
d. Duration of Options. The latest date on which an option may be
exercised (the "Final Exercise Date") shall be the date which is ten years from
the date the option was granted.
e. Exercise of Options.
i. Each Initial Option shall become exercisable in accordance with
the following formula:
(1) One year after the date of the grant, the option shall
become exercisable to the extent of one-third of the shares
covered thereby, and
Page 11
(2) On each of the second and third anniversaries of the date
of the grant, the option shall become exercisable as to an
additional one-third of the shares covered thereby.
ii. Each Elective Option shall be 100% exercisable on the date of
grant.
iii. 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 Committee and
(b) payment in full for the number of shares for which the option is exercised.
iv. If an option is exercised by the executor or administrator of a
deceased director, or by the person or persons to whom the option has been
transferred by the director'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.
f. 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 of
money order payable to the order of the Company, (ii) 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 (iii) by a combination of
cash and Stock as provided in clauses (i) and (ii) above.
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 or her 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 from time to time in effect, 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.
g. Nontransferability of Options. No option may be transferred other
than by will or by the laws of descent and distribution, and during a
director's lifetime an option may be exercised only by the director.
Page 12
h. Death. Upon the death of any Eligible Director granted options under
this Plan, all options not then exercisable shall terminate. All options held
by the director that are exercisable immediately prior to death may be
exercised by his executor or administrator, or by the person or persons to whom
the option is transferred by will or the applicable laws of descent and
distribution, at any time within the three-year period ending with the third
anniversary of the director's death (but not later than the Final Exercise
Date).
i. Other Termination of Status of Director. If a director's service with
the Company terminates for any reason other than death, all options held by the
director 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 (or until the Final Exercise Date, if earlier), but
shall terminate immediately if the director was removed or terminated for
fraud, dishonesty or intentional misrepresentation or embezzlement,
misappropriation or conversion of assets or opportunities of the Company or any
of its subsidiaries. After completion of that three-month period, such options
shall terminate to the extent not previously exercised, expired or terminated.
j. Mergers, etc. In the event of any merger or consolidation involving
the Company, any liquidation or dissolution of the Company, any sale of
substantially all of the Company's assets or any other transaction or series of
related transactions as a result of which a single person or several persons
acing in concert (other than Fresenius AG and its subsidiaries) own a majority
of the Company's then outstanding Stock (such merger, consolidation, sale or
other transaction being hereinafter referred to as a "Transaction"), all
outstanding options shall become exercisable prior to the consummation of such
Transaction, such options shall be exercisable at such time as the Committee
determines but in no event for less than a period of at least 20 days prior to
the consummation, but only to the extent the Committee determines it may so
accelerate the exercisability of such options in accordance with the applicable
requirements of Rule 16b-3. Upon consummation of the Transaction, all
outstanding options not so exercised shall terminate and cease to be
exercisable. There shall be excluded from the foregoing any Transaction as a
result of which (a) the holders of Stock prior to the Transaction retain or
acquire securities constituting a majority of the outstanding voting common
stock of the acquiring or surviving corporation or other entity and (b) no
single person owns more than half of the outstanding voting common stock of the
acquiring or surviving corporation or other entity. For purposes of this
Section, voting common stock of the acquiring or surviving corporation or other
entity that is issuable upon conversion of convertible securities or upon
exercise of warrants or options shall be considered outstanding, and all
securities that vote in the election of directors (other than solely as the
result of a default in the making of any dividend or other payment) shall be
deemed to constitute that number of shares of voting common stock which is
equivalent to the number of such votes that may be cast by the holders of such
securities.
Page 13
7. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION.
Neither adoption of the Plan nor the grant of options to a director shall
affect the Company's right to grant to such director options that are not
subject to the Plan, to issue to such directors Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock may be issued to
directors.
The Committee may at any time discontinue granting options under the Plan.
The Committee may at any time or times amend the Plan or any outstanding
options for the purpose of satisfying any changes in applicable laws or
regulations or for any other purpose which may at the time be permitted by law,
or may at any time terminate the Plan as to any further grants of options,
provided that no such amendment shall adversely affect the rights of any
director (without his or her consent) under any option previously granted. The
provisions of Section 6 of this Plan shall not be amended any more frequently
than once every six months other than to comply with changes in the Internal
Revenue Code of 1986, the Employee Retirement Income Security Act of 1974 or
the rules and regulations thereunder, all as from time to time in effect.
Page 14
July 28, 1995
Exhibit 5
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 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 1993 Stock Option Plan
For Non-Employee Directors (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
3058887.01
Page 15
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Fresenius USA, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of our report dated February 3, 1995, related to the consolidated balance
sheets of Fresenius USA, Inc. and subsidiaries as of December 31, 1994 and
1993, 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
KPMG Peat Marwick LLP
San Francisco, California
July 25, 1995
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