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REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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R.P. SCHERER CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-3523163
(State of Incorporation) (I.R.S. Employer Identification Number)
2075 WEST BIG BEAVER ROAD, TROY, MICHIGAN 48084
(Address of principal executive offices) (Zip code)
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STOCK OPTION PLAN OF R.P. SCHERER CORPORATION AND SUBSIDIARIES
STOCK OPTION AGREEMENTS FOR OUTSIDE DIRECTORS
(Full Title of Plans)
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THOMAS J. STUART
VICE PRESIDENT AND CONTROLLER
R.P. SCHERER CORPORATION
2075 WEST BIG BEAVER ROAD
TROY, MICHIGAN 48084
(810) 649-0900
(Name, address, and telephone number, including area code, of agent for
service)
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TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED PRICE PER SHARE (1) AGGREGATE OFFERING PRICE REGISTRATION FEE
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Common Stock, par value
$.01 per share 1,836,000 shares $35.49 $65,154,283 $22,467.15
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(1) In accordance with Rule 457(h), calculated based upon the weighted
average exercise price of the options previously granted under the Plans,
plus the average of the high and low prices for the Common Stock on the
New York Stock Exchange Composite tape on January 31, 1995 for options
which have not yet been granted.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission by
R.P. Scherer Corporation, a Delaware corporation (the "Company"), are
incorporated by reference in the registration statement:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended March
31, 1994;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended June
30, 1994 and September 30, 1994;
(c) all other reports filed by the Company pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 ("Exchange Act") since the end of
the fiscal year covered by the Annual Report on Form 10-K referred to in
(a) above;
(d) The Company's definitive proxy statement dated August 26, 1994;
(e) the description of the Company's Common Stock contained in the Company's
Registration Statement on Form S-3 (Registration No. 33-56502) dated
December 5, 1994.
All reports and other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the General Corporation Law of the State of Delaware ("Delaware
Law") empowers a Delaware corporation to indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided that such officer
or director acted in good faith and in a manner he reasonably believed to be in
or not opposed to the corporation's best interests, and, for criminal
proceedings, had no reasonable cause to believe that his conduct was illegal.
A Delaware corporation may indemnify officers and directors in an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation in the performance of his
duty. Where an officer or director is
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successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against expenses which such officer
or director actually and reasonably incurred.
In accordance with Delaware Law, the Restated Certificate of Incorporation of
the Company contains a provision to limit the personal liability of the
directors of the Company for violations of their fiduciary duty. Such
provision states that except as otherwise provided by the Delaware Law, as it
exists or may subsequently be amended, no director of the Company will be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director. The provision also states that any
repeal or modification by the stockholders of the Company of such section will
not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
Article Seventh of the Restated Certificate of Incorporation of the Company and
Article IV of the By-Laws of the Company provide indemnification of the
officers and directors of the Company to the fullest extent permitted by
applicable law.
Pursuant to the merger agreement executed in connection with the acquisition of
R.P. Scherer International Corporation ("Scherer International") in 1989,
Scherer International is required to maintain in effect, if available, for a
period of six years following the acquisition, directors' and officers'
liability insurance covering those persons who were covered by Scherer
International's and its subsidiaries' directors and officers' liability
insurance policies at the time of the execution of such merger agreement, on
terms not significantly less favorable than the terms of the then current
insurance coverage in terms of coverage and amounts, subject to certain premium
costs limitation. Scherer International currently carries such policies.
Directors of the Company who are employees of Lehman Brothers Holdings, Inc.
("Lehman") are entitled to indemnification in respect of periods in which
Lehman had been a shareholder of the Company under the certificate of
incorporation and by-laws of Lehman to the fullest extent permitted by
applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1 R.P. Scherer Corporation Management Incentive Compensation Plan, Amended
and Restated July, 1993. Incorporated by reference to Exhibit A.2 filed
with the Company's Proxy Statement dated August 24, 1993.
4.2 Stock Option Plan of R.P. Scherer Corporation and Subsidiaries, Amended
and Restated July, 1993. Incorporated by reference to Exhibit B.2 filed with
the Company's Proxy Statement dated August 24, 1993.
4.3 Form of R.P. Scherer Corporation 1990 Nonqualified Stock Option Plan, 1990
Nonqualified Performance Stock Option Plan A, and 1990 Nonqualified
Performance Stock Option Plan B. Incorporated by reference to Exhibits
10.6 through 10.8 filed with the Company's Post-Effective Amendment No.
2 to Form S-1 dated February 11, 1991.
4.4 Amended and Restated $175,000,000 Credit Agreement, dated as of March 30,
1994, among R.P. Scherer International Corporation, certain of its
subsidiaries, Comerica Bank, NBD Bank, N.A., Societe Generale, The Bank
of Nova Scotia, and ABN AMRO Bank N.V.. Incorporate by reference to
Exhibit 10.1 filed with R.P. Scherer International Corporation's Annual
Report on Form 10-K for the year ended March 31, 1994.
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EXHIBIT
NUMBER DESCRIPTION
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4.5 First Amendment to Stock Option Plan of R.P. Scherer Corporation and
Subsidiaries, dated July 28, 1994. Incorporated by reference to Exhibit A
filed with the Company's Proxy Statement dated August 26, 1994.
4.6 Amendments to 1990 Nonqualified Stock Option Plans, dated February 18,
1994, and September 1, 1994. Incorporated by reference to Exhibit B
filed with the Company's Proxy Statement dated August 26, 1994.
4.7 Form of Outside Director Stock Option Agreements. Filed herewith.
23.1 Consent of Arthur Andersen LLP. Filed herewith.
24 Power of Attorney. Included on signature page.
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ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) That, for purposes of determining any liability under the Securities Act
of 1933, as amended (the "Securities Act"), each post-effective amendment
that contains a form of prospectus 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.
(b) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(1) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(2) 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;
(3) 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 paragraph (b)(1) and (b)(2) 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
15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(c) 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 Plan.
(d) That, for purposes of determining any liability under the Securities Act,
each filing of the Company's annual report pursuant to Section 13(a) or
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.
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(e) Insofar as the indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person in
connection with the securities being registered, the Company will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the questions
whether such indemnification by it is against public policy as expressed
in the Securities Act, and will be governed by the final adjudication of
such issue.
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EXHIBIT 4.7
FORM OF OUTSIDE DIRECTOR STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement"), between R.P.
Scherer Corporation, a Delaware corporation (the "Company") and _______________
(the "Optionee").
WHEREAS, the Company believes that it is in the best interests
of the Company to encourage stock ownership by those members of its Board of
Directors (the "Board of Directors"), such as the Optionee, who are not
officers, employees or employees of affiliates of the Company, and in
consideration for the continuing service of the Optionee as a member of the
Board of Directors, the Company and the Optionee agree as follows:
1. Option to Purchase Shares.
1. Grant of Option. Subject to the terms and conditions of
this Agreement, the Company hereby irrevocably grants to the Optionee an option
(such option and all options issued in exchange or substitution for all or part
of this option are collectively referred to herein as the "Option") to purchase
from the Company up to 12,000 shares (the "Shares") of the Company's Common
Stock, $0.01 par value (the "Common Stock"), for a price of $_____ per Share
(the "Exercise Price"). The Option is intended to be a nonqualified option,
and is not subject to the provisions of Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"). The date of grant of this Option
is_______________.
2. Exercise of Option. (a) The Option shall be exercisable
at any time on or after ________________ [three years from the date of grant],
in whole or in part, until the Option Termination Date (as hereinafter
defined); provided, however, that this Option may not be exercised at any one
time to purchase fewer than 100 Shares.
(b) If the Optionee wishes to exercise the Option in
whole or in part, the Optionee shall send a written notice in the form of
Exhibit A hereto (the "Notice of Exercise") to the Company, stating that the
Option or a portion thereof is thereby exercised.
(c) Subject to Section 6.1, the Company shall deliver to the
Optionee a certificate or certificates evidencing the Shares to be purchased
upon exercise of the Option, or any portion thereof, as soon as practicable
after receipt of the Notice of Exercise, the Purchase Price (as hereinafter
defined) and Withholding Taxes (as hereinafter defined).
(d) The Option shall terminate on ______________ [ten years
from the date of grant] (the "Option Termination Date") unless it terminates
earlier as provided herein.
EXHIBIT 4.7 PAGE 1
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2. Payments.
(a) Purchase Price. Any Notice of Exercise shall be
accompanied by payment of an amount equal to the Exercise Price multiplied by
the number of Shares being purchased (the "Purchase Price"), the payment of
which shall take one of the following forms: (i) full payment in cash or by
check payable to the order of the Company; (ii) through the delivery of Shares
issuable upon exercise of the Option having an aggregate "Fair Market Value"
(as defined below) on the date of exercise equal to the Purchase Price; or
(iii) a combination of the consideration provided in the foregoing clauses (i)
and (ii). "Fair Market Value" of a share of Common Stock as of a given date
shall be: (A) the closing price of a share of Common Stock on the principal
exchange on which shares of Common Stock are then trading, if any, on the
previous day, or, if shares were not traded on such previous day, then on the
next preceding trading day during which a sale occurred; (B) if the Common
Stock is not traded on an exchange but is quoted on National Association of
Securities Dealers, Inc. ("NASD") Automated Quotation System ("NASDAQ") or a
successor quotation system, (x) the last sales price (if the Common Stock is
then listed as a National Market Issue under the NASD National Market System)
or (y) the mean between the closing representative bid and asked prices (in all
other cases) for the Common Stock on the previous day as reported by NASDAQ or
such successor quotation system; (C) if the Common Stock is not publicly traded
on an exchange and not quoted on NASDAQ or a successor quotation system, the
mean between the closing bid and asked prices for the Common Stock, on the
previous day, as determined in good faith by the Board of Directors; or (D) if
the Common Stock is not publicly traded, the fair market value established by
the Board of Directors acting in good faith.
(b) Withholding Taxes. Any Notice of Exercise shall also be
accompanied by full payment to the Company of all amounts which, under federal,
state or local tax law, it is required to withhold upon exercise of the Option
("Withholding Taxes"); the payment of which shall take one of the following
forms: (i) full payment in cash or by check payable to the order of the
Company or (ii) through the delivery of Shares issuable upon exercise of the
Option having an aggregate Fair Market Value on the date of exercise equal to
the Withholding Taxes; or (iii) a combination of the consideration provided in
the foregoing clauses (i) and (ii).
3. Representations and Warranties of the Company. The
Company represents and warrants to Optionee that:
(a) Due Authorization. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
(including the exercise of the Option) have been duly and validly authorized by
the Board of Directors, and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms.
(b) Shares. All Shares, upon issuance pursuant hereto,
shall be duly authorized, validly issued, fully paid and nonassessable, with no
personal liability attached to the ownership thereof, shall be delivered free
and clear of all claims, liens, encumbrances, security interests and charges of
any nature whatsoever and shall not be subject to any preemptive right of any
stockholder of the Company.
(c) Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to execute and
deliver this Agreement.
EXHIBIT 4.7 PAGE 2
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4. Termination of Service or Death or Disability.
1. Termination of Option. Except to the extent provided in
Section 3.3, the Option, if not exercisable at the time the Optionee ceases to
be a member of the Board of Directors for any reason, shall terminate at such
time.
2. Exercise of Option. If the Optionee ceases to be a member
of the Board of Directors for any reason other than death or "permanent
disability" (as such term is defined in Section 22(e)(3) of the Code), the
Option, if exercisable at that time, must be exercised (to the extent not
previously exercised) within the _____________ [ranging from 30 to 120 day] day
period following termination of such directorship and prior to the Option
Termination Date. Following the end of such _____ day period, the Option shall
terminate.
3. Acceleration Upon Death or Permanent Disability. If the
Optionee ceases to be a member of the Board of Directors by reason of the death
or permanent disability of the Optionee (each an "Acceleration Event"), the
Option may be exercised in full (to the extent not previously exercised) within
180 days of the Acceleration Event and prior to the Option Termination Date,
(i) after the Optionee's death by the administrators or executors of the
Optionee's estate or by the person or persons to whom the Optionee's rights
under the Option shall have passed by will or by the applicable laws of descent
or distribution; or (ii) after the Optionee's permanent disability by such
Optionee or by the Optionee's guardian or legal representative.
4. Adjustments Upon Changes in Capitalization. In the event
that the outstanding shares of Common Stock are hereafter changed into or
exchanged for a different number or kind of shares of capital stock or other
securities of the Company, or of another corporation, by reason of
reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, stock dividend, combination of shares or otherwise, then in
relation to the Common Stock that is affected by one or more of the above
events, the numbers, rights and privileges of the shares of Common Stock then
included in the Option shall be increased, decreased or changed in like manner
as if they had been issued and outstanding, fully paid and nonassessable at the
time of such occurrence; provided, however, the Company shall not be required
to issue a fractional share of Common Stock and any adjustment made pursuant to
this Section 4 shall be limited by deleting any fractional share.
5. Nonassignability. No right granted to the Optionee under
this Agreement shall be assignable or transferable, except by will or by the
applicable laws of descent and distribution. Any person or persons to whom the
Optionee's rights under the Option have passed in accordance with the preceding
sentence shall be subject to all terms and conditions of this Agreement.
During the life of the Optionee, all rights granted to the Optionee under this
Agreement shall be exercisable only by the Optionee or by the Optionee's
guardian or legal representative.
5. Miscellaneous.
1. Restrictions. If a Registration Statement under
the Securities Act of 1933, as amended, is not in effect with respect to the
Shares issuable upon the exercise of the Option, or any part thereof, then the
certificates representing such Shares shall bear the following legend:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act") and, accordingly, may not
be offered, sold or otherwise pledged, hypothecated or transferred
unless (A) pursuant to an effective registration statement under
EXHIBIT 4.7 PAGE 3
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the Act or (B) an applicable exemption from the registration
requirements of the Act is available."
2. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, written and oral,
between the parties with respect to the subject matter hereof.
3. Amendments. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
4. Notices. All Notices to Exercise or other
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given (and shall be deemed to have been duly received
if so given) by hand delivery, telegram, telex or telecopy, or by mail
(registered or certified mail, postage prepaid, return receipt requested) or by
any courier service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to the Company: R.P. Scherer Corporation
2075 W. Big Beaver Road
Troy, Michigan 48007
Attention: Secretary
If to the Optionee: At the address given below the Optionee's signature
on the signature page hereof; or to such other address as the person to whom
notice is given may have previously furnished to the others in writing in the
manner set forth above.
5. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
6. No Rights as a Stockholder. Neither the Optionee nor any
other person exercising this Option pursuant to Section 5 shall have any of the
rights of a stockholder of the Company with respect to the Shares subject to
the Option until the issuance of a stock certificate to him or her for such
Shares. Except as provided in Section 4, no adjustment shall be made for
dividends, distributions or other rights (whether ordinary or extraordinary,
and whether in cash, securities or other property) for which the record date is
prior to the date such stock certificate is issued.
7. Definition. The term "Shares" as used herein, shall also
mean, to the extent applicable, any other securities or properties receivable
upon exercise of the Option.
8. Stockholder Approval. Notwithstanding anything in this
Agreement to the contrary, this Option shall not be exercisable until such time
as the stockholders of the Company shall have ratified and approved this
Agreement in accordance with the Company's Restated Certificate of
Incorporation, as amended, the Company's By-Laws and the Securities Exchange
Act of 1934, as amended and the rules and regulations promulgated hereunder and
the rules and regulations of any national securities exchange on which the
Common Stock is listed or if the Common Stock is not listed on an exchange but
is quoted on NASDAQ, the rules and regulations of NASDAQ.
EXHIBIT 4.7 PAGE 4
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IN WITNESS WHEREOF, the Company and the Optionee have caused
this Agreement to be duly executed as of the day and year first above written.
R.P. SCHERER CORPORATION
By:
Name:
Title:
[Name of Optionee]
Address of the Optionee:
__________________________________
__________________________________
__________________________________
EXHIBIT 4.7 PAGE 5
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement (Registration File No. pending) of
our report dated April 26, 1994 included in R.P. Scherer Corporation's Form
10-K for the year ended March 31, 1994, and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Detroit, Michigan,
February 1, 1995.
