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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 14)*
FRESENIUS USA, INC.
(Name of Issuer)
Common Stock, par value $.01/share
(Title of Class of Securities)
358031 10 2
(CUSIP Number)
Ulrich Wagner, Esq.
O'Melveny & Myers
The Citicorp Center
153 East 53rd Street, 54th Floor
New York, New York 10022-4611
(212) 326-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 8, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
/ /.
Check the following box if a fee is being paid with the statement / /.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
- ----------
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("ACT") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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CUSIP NO. 358031 10 2
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
FRESENIUS AKTIENGESELLSCHAFT
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) /X/
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
GERMANY
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 18,673,325
------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
------------------------------------------------
OWNED BY
EACH REPORT- 9 SOLE DISPOSITIVE POWER
ING PERSON 18,673,325
------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
18,673,325
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
70.7%
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14 TYPE OF REPORTING PERSON
CO.
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Page 2 of ___ Pages
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CUSIP NO. 358031 10 2
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
FRESENIUS SECURITIES, INC., 68-0659754
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) /X/
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
N/A
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
-----------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 7,833,202
-----------------------------------------
EACH REPORT- 9 SOLE DISPOSITIVE POWER
ING PERSON -0-
-----------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
7,833,202
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,833,202
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.6%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO.
- --------------------------------------------------------------------------------
Page 3 of ___ Pages
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The Schedule 13D filed on September 18, 1987 by Fresenius
Aktiengesellschaft ("FRESENIUS AG") with respect to the Common Stock, par value
$0.01 per share ("COMMON STOCK"), of Fresenius USA, Inc. (formerly known as
Delmed, Inc. and referred to herein as the "COMPANY"), as amended by Amendment
No. 1, filed October 20, 1987, by Amendment No. 2, filed February 4, 1988, by
Amendment No. 3, filed February 22, 1990, by Amendment No. 4, filed September 4,
1990 by Fresenius AG and Fresenius Securities, Inc. (formerly known as Fresenius
U.S.A., Inc. and referred to herein as "FSI"), by Amendment No. 5, filed July 5,
1991, by Amendment No. 6, filed December 3, 1991, by Amendment No. 7, filed
January 3, 1992, by Amendment No. 8, filed October 15, 1992, by Amendment No. 9,
filed December 23, 1992, by Amendment No. 10, filed March 4, 1993, by Amendment
No. 11, filed May 16, 1994, by Amendment No. 12, filed July 1, 1994 and by
Amendment No. 13 filed February 8, 1996, is hereby further amended with respect
to the items set forth below. Capitalized terms used in this Amendment No. 14
without definition have the meanings set forth in Amendment No. 13.
Item 2. IDENTITY AND BACKGROUND.
Item 2 is amended by the addition of the following information:
On May 1, 1996, Mr. Hans Kroener resigned from the Supervisory Board of
Fresenius AG. Dr. Gabriele Kroener, a deputy member of the Supervisory Board,
became a member of the Supervisory Board upon Mr. Kroener's resignation. For
the past five years, Dr. Kroener has been a physician in the Department of
Cardiac, Thoracic and Vascular Surgery, University Clinic Hamburg-Eppendorf
UKE, Martinistrasse 52, 20246 Hamburg-Eppendorf, Germany. During the past five
years, Dr. Kroener not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or a party to a judicial or
administrative proceeding resulting in her becoming subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, U.S. federal or state securities laws or
finding any violation of such laws. Dr. Kroener is a citizen of Germany.
The share capital of Fresenius AG consists of ordinary shares and
non-voting preference shares, each having a nominal value DM 5 per share
("Fresenius AG Ordinary Shares" and "Fresenius AG Preference Shares,"
respectively), both of which are issued only in bearer form. Accordingly,
Fresenius AG has no way of determining who its shareholders are or how many
shares any particular shareholder owns. However, under the German Securities
Exchange Law, which became effective January 1, 1995, holders of voting
securities of a German company listed on a stock exchange within the European
Union are obligated to notify the company of the level of their holding whenever
their holding reaches or exceeds thresholds of 5%, 10%, 25%, 50% and 75%. All
persons holding 5% or more of the voting rights of a German listed stock
corporation were required to provide the corporation with an
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initial notification of the level of their holding prior to the first annual
general meeting of such company held after April 1, 1995. In addition, under the
German Stock Corporation Law, notification to a company is required upon
acquisition of 25% and 50% of the voting securities of that company.
The Else Kroener-Fresenius-Stiftung (the "Foundation") has informed
Fresenius AG that as of April 30, 1996, it owned 55.96% of the Fresenius AG
Ordinary Shares. The Foundation serves to promote medical science, primarily in
the fields of research and treatment of illnesses, including the development of
apparatuses and preparations, e.g. artificial kidneys. The Foundation may
promote only those research projects the results of which will be generally
accessible to the public. The Foundation further serves to promote the education
of physicians or of others concerned with the treatment and care of sick
persons, primarily those working in the field of dialysis, as well as to promote
the education of particularly gifted pupils and students. Effective May 1, 1996,
the administrative board of the Foundation consists of Mr. Hans Goring,
Frankfurt/Main, Professor Dr. Volker Lang, Gauting, and Mr. Hans Kroener.
Pursuant to the terms of the will of the late Mrs. Else Kroener, under which the
Foundation acquired most of its shares, Mrs. Kroener's executors exercise voting
and dispositive power over the shares held by the Foundation. The executors
under Mrs. Kroener's will are Mr. Kroener and Dr. Alfred Stiefenhofer. Mr.
Kroener's address is Dipl. Volkswirt Hans Kroener, Postfach 1852, 61288 Bad
Homburg v.d.H., Germany. Dr. Stiefenhofer's address is Noerr, Stiefenhofer &
Lutz, Brienner Strasse 28, 80333 Munich, Germany. Dr. Stiefenhofer is Chairman
of the Fresenius AG Supervisory Board. (For additional information with respect
to Mr. Kroener and Dr. Stiefenhofer, see Schedule A to Amendment No. 13 to this
Schedule 13D.) In addition, on March 28, 1995, AGAB Pharma Beteiligungs-GmbH
("AGAB") informed Fresenius AG that it owns 9% of the Fresenius AG Ordinary
Shares and 15% of the Fresenius AG Preference Shares, and on May 4, 1995,
H.O.F.-Beteiligungs-GmbH ("HOF") informed Fresenius AG that it owns 22.4% of the
Fresenius AG Ordinary Shares, According to published reports, HOF is 50% -owned
by Dresdner Bank AG and 50%-owned by the Foundation. Pursuant to a pooling
agreement relating to the shares held by the Foundation, AGAB and HOF, the
Foundation has voting power over the shares held by AGAB and HOF. Accordingly,
through (i) their dispositive power over the shares of Fresenius AG held by the
Foundation and (ii) their power to direct the vote of the shares held by the
Foundation (including the shares subject to the Pooling Agreement), Dr.
Stiefenhofer and Mr. Kroener may be deemed, under the rules of the Commission,
to beneficially own 87.36% of the voting shares of Fresenius AG.
Item 4. PURPOSE OF TRANSACTION.
Item 4 is amended as follows:
On May 8, 1996, Fresenius AG and the Company jointly announced that an
agreement had been reached between Fresenius AG and a committee of independent
directors of the Company (the
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"Independent Committee") on the terms on which the public stockholders of the
Company will participate in the Reorganization and the Company Merger. The
Reorganization and the Company Merger were approved by the Board of Directors of
the Company on May 8, 1996.
Under the terms of the agreement with the Independent Committee, the
public shareholders of the Company will receive approximately 1.112 American
Depositary Shares ("ADSs") of Fresenius Medical Care AG for each share of
Company Common Stock. Each ADS will evidence one-third of an ordinary share of
Fresenius Medical Care AG. This exchange ratio is based on the current intent
that 70,000,000 ordinary shares of Fresenius Medical Care AG will be
outstanding. The agreement with the Independent Committee also assumes that the
Company will reacquire outstanding stock options or other equity securities,
such that Fresenius AG's fully diluted interest in Fresenius Medical Care AG
will not be reduced below 50.3%. Accordingly, the public stockholders of the
Company, on a fully diluted basis, will receive 4.9% of Fresenius Medical Care
AG shares outstanding after the closing of the Reorganization.
For a description of certain agreements entered into by Fresenius AG
and the Company in connection with the approval of the Reorganization and the
Company Merger by the Company's Board of Directors, see "Agreements with Respect
to Securities of the Issuer," below.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
The information previously set forth in this Item 5 with respect to
beneficial ownership of Company Common Stock by the directors and officers of
FSI is amended and restated as follows:
At the date of this Amendment No. 14, the following officers of FSI
(each of whom is also on officer of the Company and each of whom acquired
beneficial ownership of his shares in connection with his employment by the
Company) also beneficially own shares of Company Common Stock as follows:
<TABLE>
<CAPTION>
BENEFICIAL OWNER NO. OF SHARES NATURE OF BENEFICIAL OWNERSHIP
- ---------------- ------------- ------------------------------
<S> <C> <C>
Dr. Ben J. Lipps 725,000 80,000 shares owned beneficially and of record, 195,000 shares subject to presently
exercisable options and 450,000 subject to options granted subject to stockholder
approval.
Heinz Schmidt 46,000 46,000 shares owned beneficially and of record.
</TABLE>
6
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<TABLE>
<S> <C> <C>
Scott Walker 43,500 500 shares owned beneficially and of record; 43,000 shares subject to presently
exercisable options.
</TABLE>
Fresenius AG disclaims any beneficial interest in any of the shares
beneficially owned by the persons named in the foregoing table.
On April 16, 1996, Mr. Schmidt exercised options to acquire 34,000
shares of Common Stock. Of such 34,000 shares, 3,000 shares were acquired at an
exercise price of $3.625 per share, 3,000 shares were acquired at an exercise
price of $3.875 per share, 10,000 shares were acquired at an exercise price of
$7.125 per share and 18,000 shares were acquired at an exercise price of $7.375
per share. On May 9, 1996, Mr. Schmidt exercised options to acquire 12,000
shares of Common Stock at an exercise price of $7.375 per share. Such shares
were acquired by Mr. Schmidt with the proceeds of margin loans.
On May 6, 1996, the Compensation Committee of the Company's Board of
Directors voted to accelerate the vesting of all outstanding options held by
executive officers under the Company's 1987 Stock Option Plan. As a result of
such action, options to purchase 12,000 shares held by each of Mr. Schmidt and
Mr. Walker became exercisable (and were subsequently exercised by Mr. Schmidt on
May 9, 1996), and Mr. Schmidt and Mr. Walker may each be deemed to have acquired
beneficial ownership of the shares issuable upon the exercise of such options.
Except as stated in this Item 5, Fresenius AG (and to the best of its
knowledge, the members of the Supervisory Board and the Managing Board of
Fresenius AG) and FSI (and, to the best of its knowledge, its directors and
executive officers) do not own or have any right to acquire, directly or
indirectly, any shares of Company Common Stock or Preferred Stock and, except as
described herein, none of such persons has effected any transaction in Company
Common Stock or Preferred Stock in the last sixty days.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
At the time the Company's Board of Directors approved the
Reorganization and the Company Merger, the Company entered into two agreements.
Pursuant to a letter agreement among Fresenius AG, the Company and Grace (the
"Joinder Agreement"), the Company undertook the obligations of a party to the
Reorganization Agreement and, for itself, made directly to Grace certain
representations and warranties, including the representations and warranties in
the Reorganization Agreement with respect to the Company. Under the Joinder
Agreement, the Company's undertaking and its representations and warranties made
therein shall be null and void if, immediately prior to the effective time of
the Company Merger, the number of Company "Common Share Equivalents"
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(i.e., the aggregate number of shares of Company Common Stock (i) outstanding
and (ii) underlying options, warrants and convertible securities of the Company)
exceeds 9,253,331. The Joinder Agreement also reduced the percentage of
Fresenius Medical Care AG ordinary shares required to be held by Fresenius AG
upon consummation of the Reorganization from 51% to 50.3%.
Pursuant to a separate agreement between the Company and Fresenius AG
(the "Supplemental Agreement"), the Company and Fresenius AG agreed that $75
million in liquidated damages payable to Fresenius AG under the Reorganization
Agreement upon termination of that agreement for certain specified causes would
be payable $49.5 million to Fresenius AG and $25.5 million to the Company and
that, if the Reorganization is not consummated, Fresenius AG and the Company
will bear 66% and 34%, respectively, of their aggregate fees and expenses. The
Supplemental Agreement also confirms certain understandings of Fresenius AG and
the Company relating to the exchange ratio of Fresenius Medical Care AG ordinary
shares for Company Common Stock, including the Company's intention to repurchase
sufficient vested and unvested stock purchase options held by Company employees
and other equity securities of the Company so that, immediately prior to the
Company Merger, there shall be no more that 9,253,331 Company Common Share
Equivalents. Such sharing arrangements and understandings will also be null and
void if immediately prior to the effective time of the Company merger, the
number of Company Common Share equivalents exceeds 9,253,331.
The invalidation of the Company's obligations under the Joinder
Agreement and the Supplemental Agreement described above would not affect
Fresenius AG's obligations under the Reorganization Agreement to cause the
Company's Board of Directors to adopt, approve and ratify the Reorganization
Agreement, to submit the Company Merger to a vote of holders of Company Common
Stock and to vote its shares of Company Common Stock in favor of the Company
Merger.
The summaries of the Joinder Agreement and the Supplemental Agreement
set forth above are qualified in their entirety by reference to such agreements,
which are filed as Exhibits 17 and 18, respectively, to this Amendment No. 14.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
The following exhibits are filed with this Amendment No. 14:
Exhibit 17 Letter agreement dated May 8, 1996 among
Fresenius AG, Fresenius USA, Inc. and W. R.
Grace & Co. (Incorporated by reference to
Exhibit No. 10.23 to the Quarterly Report on
Form 10-Q of Fresenius USA, Inc. for the
quarter ended March 31, 1996.)
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Exhibit 18 Agreement dated May 8, 1996 between Fresenius
AG and Fresenius USA, Inc. (Incorporated by
reference to Exhibit No. 10.24 to the
Quarterly Report on Form 10-Q of Fresenius
USA, Inc. for the quarter ended March 31,
1996.)
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 21, 1996 FRESENIUS AKTIENGESELLSCHAFT
By: /s/ Gerd Krick
--------------------
Gerd Krick
Managing Director
By: /s/ Mathias Klingler
--------------------
Mathias Klingler
Managing Director
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 21, 1996 FRESENIUS SECURITIES, INC.
By: /s/ Ben Lipps
--------------------
Dr. Ben J. Lipps
President
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