As filed with the Securities and Exchange Commission on January __, 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 EMPLOYEE SHARE PURCHASE PLAN
(Full title of the plan)
George J. Lykos
General Counsel
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 (3) offering price (3) registration
fee (3)
------------------------------------------------------------------------------------------------------------------------
Employee Share Bayer AG Ordinary 5,500,000 Shares $33.15 $182,325,000.00 $16,774.00
Purchase Plan Shares of no par
value
========================================================================================================================
*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. 333-14226), 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.
(3) 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 January 24,
2002, as reported by the New York Stock Exchange.
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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 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 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
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.
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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.
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).
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 Employee Share Purchase Plan.
23 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 Employee Share Purchase 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.
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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.
(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
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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 New York, State of New York, on January 24,
2002.
BAYER AKTIENGESELLSCHAFT
By: /s/ WERNER WENNING
-----------------------------------
Werner Wenning
Member of the Board of Management and
Chief Financial Officer
By: /s/ DR. MANFRED SCHNEIDER
-----------------------------------
Dr. Manfred Schneider
Chairman, Board of Management
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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 January 24, 2002
------------------------- (Director and Principal Executive
Dr. Manfred Schneider Officer)
/s/ WERNER WENNING Member, Board of Management, January 24, 2002
--------------------------- and Chief Financial Officer (Director,
Werner Wenning Principal Accounting Officer and
Principal Financial Officer)
/s/ DR. ATTILA MOLNAR Member, Board of Management January 24, 2002
--------------------------- (Director)
Dr. Attila Molnar
/s/ DR. FRANK MORICH Member, Board of Management January 24, 2002
--------------------------- (Director)
Dr. Frank Morich
/s/ Dr. UDO OELS Member, Board of Management January 24, 2002
-------------------------- (Director)
Dr. Udo Oels
/s/ DR. GOTTFRIED ZABY Member, Board of Management January 24, 2002
--------------------------- (Director)
Dr. Gottfried Zaby
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below on January 24, 2002, by the
undersigned as the Registrant's duly authorized representative in the United
States.
By: /s/ GEORGE J. LYKOS
-----------------------------
George J. Lykos
General Counsel of Bayer Corporation
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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 Employee Share Purchase Plan.
23 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 Employee Share Purchase 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.
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