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.
I-1
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.
II-1
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.
II-3
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.
II-4
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
II-5
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")
II-6
Page 8 of 17 pages.