As filed with the Securities and Exchange Commission on ______ __, 2002
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BAYER AKTIENGESELLSCHAFT
(Exact name of registrant as specified in its charter)
BAYER CORPORATION*
(Translation of registrant's name into English)
FEDERAL REPUBLIC OF GERMANY NOT APPLICABLE
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
BAYERWERK, GEBAUDE W1
KAISER-WILHELM-ALLEE
51368 LEVERKUSEN, GERMANY
(Address of Principal Executive Offices)
BAYER CORPORATION SHARE INCENTIVE PLAN
(Full title of the plan)
George J. Lykos
Senior Vice President, General Counsel and Secretary
Bayer Corporation
100 Bayer Road
Pittsburgh, Pennsylvania 15205-9741
(412) 777-2000
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Title of Proposed maximum Proposed maximum
Plan securities to be Amount to be offering price aggregate Amount of
registered (1), (2) registered per share (4) offering price (4) registration
fee (4)
------------------------------------------------------------------------------------------------------------------------
Bayer AG 1,000,000 Shares
Share Incentive Ordinary Shares and 10,000 $29.23 $29,230,000.00 $2,690.00
Plan of no par value Warrants
and Warrants(3)
========================================================================================================================
*Bayer Corporation is also the name of a wholly owned subsidiary of the
Registrant in the United States.
(1) American Depositary Receipts evidencing American Depositary Shares issuable
on deposit of the Bayer AG Ordinary Shares (each American Depositary Share
representing one Bayer AG Ordinary Share of no par value) have been
registered pursuant to a separate Registration Statement on Form F-6 filed
on January 9, 2002 (Registration No. 333-14266), which was declared
effective by the Securities and Exchange Commission on January 17, 2002,
and are traded on the New York Stock Exchange under the ticker symbol
"BAY."
(2) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also relates to an
indeterminate amount of the Bayer AG Ordinary Shares that may be issued,
without receipt of consideration, upon the occurrence of certain events,
including stock splits, stock dividends or similar transactions. In
addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Bayer Corporation Share Incentive Plan
described herein.
(3) Warrants to receive a variable number (0 to 100) of American Depositary
Shares, exercisable at the time one or more performance thresholds is
achieved, will be issued to participants in the Bayer Corporation Share
Incentive Plan.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act and computed in accordance
with Rule 457(c) of the Securities Act on the basis of the average of the
high and low sales prices of the American Depositary Shares on February 19,
2002, as reported by the New York Stock Exchange.
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1), promulgated under the Securities Act of
1933, as amended (the "Securities Act"), the information required by Part I of
Form S-8 will be sent or given to employees, as specified in such Rule, in the
form of a prospectus that meets the requirements of Section 10(a) of the
Securities Act. In accordance with the Note which precedes the instructions to
Part I of Form S-8, the documents containing the information specified in Part I
of Form S-8 have not been filed with the Securities and Exchange Commission
either as part of this Registration Statement or as a prospectus or prospectus
supplement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Bayer Aktiengesellschaft
(the "Registrant" or "Bayer AG") with the Securities and Exchange Commission
under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
and are incorporated by reference in this Registration Statement:
(a) The Registrant's Registration Statement on Form 20-F, File No.
001-16829, filed with the Securities and Exchange Commission
on December 20, 2001, as amended by Amendment No. 1, filed
with the Securities and Exchange Commission on January 14,
2002, and Amendment No. 2, filed with the Securities and
Exchange Commission on January 15, 2002, and declared
effective by the Securities and Exchange Commission on January
17, 2002 (the "Form 20-F");
(b) The Registrant's Reports of Foreign Private Issuer on Form
6-K, filed with the Securities and Exchange Commission on
January 31, 2002 and February 7, 2002;
(c) The description of the Registrant's Ordinary Shares and
American Depositary Shares registered pursuant to Section
12(b) of the Exchange Act, contained in "Item 9 - The
Listing," "Item 10 - Additional Information," and "Item 12 -
Description of Securities Other than Equity Securities" of the
Registrant's Form 20-F described in, and incorporated by
reference by, paragraph (a) above, including any amendment or
report filed for the purpose of updating such description; and
All documents subsequently filed by the Registrant or the Bayer
Corporation Share Incentive Plan pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part thereof from the date of filing such documents.
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superceded for purposes of this
Registration Statement to the extent that a statement contained herein
3
or in any other subsequently filed document which is or is deemed to be
incorporated by reference herein modifies or supercedes such statement. Any such
statement so modified or superceded shall not be deemed, except as so modified
or superceded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Ordinary Shares are registered pursuant to Section 12(b) of the
Exchange Act and, therefore, the description of the Ordinary Shares is omitted.
The Warrants to receive American Depositary Shares that will be issued
to participants in the Bayer Corporation Share Incentive Plan (the "Plan") are
not registered pursuant to Section 12 of the Exchange Act; accordingly, a
description of the Warrants is set forth below.
Each Warrant represents the right to receive a variable number (0 to
100) of American Depositary Shares issuable on deposit of the Registrant's
Ordinary Shares. Participants in the Plan will receive one Warrant for every
twenty American Depositary Shares deposited under the Plan as of the
commencement date of the applicable award cycle. The initial award cycle
commences on May 15, 2002. No Warrants are currently outstanding.
The Warrants are exercisable for a two-year period following a holding
period of three years, during which neither the Warrants nor the underlying
deposited American Depositary Shares may be withdrawn from participants'
accounts under the Plan. For participants in the initial award cycle, the
exercise period commences on May 15, 2005 and terminates on May 14, 2007. Except
during blackout periods prescribed by the Registrant's insider trading policies,
the Warrants may be exercised during the applicable exercise period as long as
one of two minimum performance thresholds is met at the time of exercise. If
neither performance measure is achieved during the exercise period, the Warrants
may not be exercised. Participants must exercise a minimum of five Warrants at a
time. Participants who hold less than five Warrants may exercise all of their
Warrants at one time. Only participants in the Plan may exercise Warrants,
except that in the event of a participant's death, the participant's beneficiary
may exercise Warrants held by the participant during the applicable exercise
period.
At the end of the applicable exercise period, unexercised Warrants
expire and participants lose all rights to them. Participants in the Plan will
forfeit Warrants granted to them if they voluntarily leave the employment of
Bayer Corporation or a participating employer for reasons other than death,
disability or retirement and their departure occurs during the applicable
holding period of an award cycle. Participants whose employment is terminated by
Bayer Corporation or a participating employer for reasons determined by Bayer
Corporation not to be business related or not for cause will lose all rights to
their Warrants if their termination occurs during the applicable holding period
of an award cycle. Warrants of participants whose employment is terminated for
cause by Bayer Corporation or a participating employer will be forfeited.
The number of American Depositary Shares that may be received upon the
exercise of a Warrant will be based upon the performance of the Registrant's
Ordinary Shares during the three-year holding period and continuing until the
date of exercise. The two performance measures are absolute performance and
relative performance. The absolute performance measure awards one American
Depositary Share per Warrant for each 3% of the performance of the Registrant's
Ordinary Shares at the time of exercise, subject to a minimum performance level
of 30%. The relative performance measure awards one American Depositary Share
per Warrant for each one percentage point that the performance of the
Registrant's Ordinary Shares exceeds the performance of the Composite Index of
the Dow Jones EURO STOXX 50(SM) at the time of exercise. A maximum of fifty
American Depositary Shares per Warrant
4
may be awarded under each performance measure, for a maximum total of one
hundred American Depositary Shares per Warrant. At least one of the two
performance measures must be achieved at the time of exercise. The administrator
of the Plan may determine, in consultation with the Registrant, to settle
exercised Warrants by cash payment. If no American Depositary Shares remain
available for distribution upon termination of the Plan, exercised Warrants may
also be settled by cash payment. In either case, a cash payment shall be
determined by multiplying the number of American Depositary Shares that would
have been awarded upon exercise of a participant's Warrants by the closing
trading price of American Depositary Shares as reported on the New York Stock
Exchange on the date of exercise. German law requires the Registrant to obtain
stockholder approval for the acquisition of the Registrant's securities for
distribution pursuant to the Plan, and such stockholder approval is valid for
only eighteen months.
Participants in the Plan have no voting rights with respect to the
Warrants. Neither German law nor the Articles of Association (Satzung) of the
Registrant impose any limitations on the rights of U.S. residents or
nonresidents of Germany to hold Warrants.
Under German tax law, the Registrant is required to withhold tax on
dividends payable to holders of American Depositary Shares issuable on deposit
of the Registrant's Ordinary Shares in an amount equal to 20% of the gross
amount paid to resident and nonresident stockholders plus the solidarity
surcharge of 5.5% thereon (equal to 1.1% of the gross amount). The German
withholding tax is partially refunded under the Convention between the United
States of America and the Federal Republic of Germany for the Avoidance of
Double Taxation and the Prevention of Fiscal Evasion With Respect to Taxes on
Income and Capital and to Certain Other Taxes to reduce the withholding tax to
15% of the gross amount of the dividend.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
German law does not provide for the indemnification of controlling
persons, directors or officers of the Registrant. The Articles of Association
(Satzung) of the Registrant provide that the Registrant may purchase liability
insurance for members of the Supervisory Board to cover their legal liability
arising from their activities as members of the Supervisory Board. The Articles
of Association (Satzung) of the Registrant do not provide for any arrangement
pursuant to which any member of the Board of Management or any officer of the
Registrant is indemnified or insured in any manner against liability which he
may incur in his capacity as such. The Registrant maintains, at its own expense,
liability insurance for members of the Supervisory Board and the Board of
Management and officers of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Association (Satzung) of the Registrant as amended to date
(in English translation) (incorporated by reference to Exhibit 1.1 to
Amendment No. 2 to the Registrant's Registration Statement on Form
20-F, filed with the Securities and Exchange Commission on January 15,
2002).
5
4.2 Form of Deposit Agreement dated as of November 28, 1994, as amended and
restated as of May 31, 1996, as amended and restated as of July 10,
1997, and as further amended and restated as of January 17, 2002, among
Bayer Aktiengesellschaft, The Bank of New York as Depositary, and all
Owners and holders from time to time of American Depositary Receipts
issued thereunder (incorporated by reference to Exhibit A to the
Registration Statement on Form F-6, filed by The Bank of New York as
Depositary with the Securities and Exchange Commission on January 9,
2002).
4.3 The Bayer Corporation Share Incentive Plan.
5 Opinion of Dr. Armin Buchmeier of the Bayer Aktiengesellschaft Legal
Department as to the validity of the Warrants to be issued under the
Bayer Corporation Share Incentive Plan.
23.1 Consent of Dr. Armin Buchmeier of the Bayer Aktiengesellschaft Legal
Department (contained in Exhibit 5 hereto).
23.2 Consent of PwC Deutsche Revision Aktiengesellschaft
Wirtschaftsprufungsgesellschaft, Essen, Germany, authorized public
accountants.
24 Power of Attorney (included on signature page of this Registration
Statement).
The Ordinary Shares being registered hereby are not original issuance
securities. Pursuant to Form S-8, Part II, Item 8(a), an opinion of counsel as
to the legality of the Ordinary Shares is accordingly not required. Pursuant to
Form S-8, Part II, Item 8(b), the Bayer Corporation Share Incentive Plan is not
subject to the requirements of ERISA, and no action will be taken to qualify
said plan under Section 401 of the Internal Revenue Code of 1986, as amended.
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;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or 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 this Registration
Statement or any material change to such
information in the Registration Statement;
Provided, however, That the undertakings set forth in
paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Securities and Exchange
Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
6
(2) That, for the purpose of determining any liability
under the Securities Act, 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, each filing of the
Registrant's annual report on Form 20-F pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in this
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.
***
(h) Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities 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 Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Leverkusen, the Federal Republic of Germany, on
February 20, 2002.
BAYER AKTIENGESELLSCHAFT
By: /s/ WERNER WENNING
---------------------------------
Werner Wenning
Member of the Board of Management
and Chief Financial Officer
By: /s/ ROLAND HARTWIG
--------------------------------
Dr. Roland Hartwig
General Counsel
7
POWER OF ATTORNEY. Pursuant to the requirements of the
Securities Act, this Registration Statement has been signed by the following
persons in the capacities and on the date indicated. In addition, each of the
undersigned hereby constitutes and appoints Werner Wenning and Dr. Roland
Hartwig, jointly and severally his attorneys-in-fact, each with the power of
substitution, in his name and in the capacity indicated below, to sign any and
all further amendments (including post-effective amendments) to this
Registration Statement and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitutes, may do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ DR. MANFRED SCHNEIDER Chairman, Board of Management February 20, 2002
------------------------- (Director and Principal Executive
Dr. Manfred Schneider Officer)
/s/ WERNER WENNING Member, Board of Management, February 20, 2002
------------------ and Chief Financial Officer (Director,
Werner Wenning Principal Accounting Officer and
Principal Financial Officer)
/s/ DR. ATTILA MOLNAR Member, Board of Management February 20, 2002
--------------------- (Director)
Dr. Attila Molnar
/s/ DR. FRANK MORICH Member, Board of Management February 20, 2002
-------------------- (Director)
Dr. Frank Morich
/s/ Dr. UDO OELS Member, Board of Management February 20, 2002
--------------- (Director)
Dr. Udo Oels
/s/ WERNER SPINNER Member, Board of Management February 20, 2002
----------------- (Director)
Werner Spinner
/s/ DR. GOTTFRIED ZABY Member, Board of Management February 20, 2002
---------------------- (Director)
Dr. Gottfried Zaby
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below on February 20, 2002, by the
undersigned as the Registrant's duly authorized representative in the United
States.
By: /s/ GEORGE J. LYKOS
----------------------------------
George J. Lykos
Senior Vice President, General
Counsel and Secretary of
Bayer Corporation
8
THE BAYER CORPORATION SHARE INCENTIVE PLAN. Pursuant to the
requirements of the Securities Act, the trustee (or other persons who administer
the Bayer Corporation Share Incentive Plan) have duly caused this Registration
Statement to be signed on behalf by the undersigned, thereunto duly authorized,
in the City of Pittsburgh, Commonwealth of Pennsylvania, on February 20, 2002.
BAYER CORPORATION
SHARE INCENTIVE PLAN
By: /s/ GEORGE J. LYKOS
----------------------------------
George J. Lykos
Senior Vice President, General
Counsel and Secretary of
Bayer Corporation
9
BAYER AKTIENGESELLSCHAFT
EXHIBIT INDEX
Exhibit
Number Description of Document
------- -----------------------
4.1 Articles of Association (Satzung) of the Registrant as amended to
date (in English translation) (incorporated by reference to
Exhibit 1.1 to Amendment No. 2 to the Registrant's Registration
Statement on Form 20-F, filed with the Securities and Exchange
Commission on January 15, 2002).
4.2 Form of Deposit Agreement dated as of November 28, 1994, as
amended and restated as of May 31, 1996, as amended and restated
as of July 10, 1997, and as further amended and restated as of
January 17, 2002, among Bayer Aktiengesellschaft, The Bank of New
York as Depositary, and all Owners and holders from time to time
of American Depositary Receipts issued thereunder (incorporated
by reference to Exhibit A to the Registration Statement on Form
F-6, filed by The Bank of New York as Depositary with the
Securities and Exchange Commission on January 9, 2002).
4.3 The Bayer Corporation Share Incentive Plan.
5 Opinion of Dr. Armin Buchmeier of the Bayer Aktiengesellschaft
Legal Department as to the validity of the Warrants to be issued
under the Bayer Corporation Share Incentive Plan.
23.1 Consent of Dr. Armin Buchmeier of the Bayer Aktiengesellschaft
Legal Department (contained in Exhibit 5 hereto).
23.2 Consent of PwC Deutsche Revision Aktiengesellschaft
Wirtschaftsprufungsgesellschaft, Essen, Germany, authorized
public accountants.
24 Power of Attorney (included on signature page of this
Registration Statement).
The Ordinary Shares being registered hereby are not original issuance
securities. Pursuant to Form S-8, Part II, Item 8(a), an opinion of counsel as
to the legality of the Ordinary Shares is accordingly not required. Pursuant to
Form S-8, Part II, Item 8(b), the Bayer Corporation Share Incentive Plan is not
subject to the requirements of ERISA, and no action will be taken to qualify
said plan under Section 401 of the Internal Revenue Code of 1986, as amended.
10