SC TO-I/A
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule TO
Tender Offer Statement under Section 14(d)(1) or
13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 2)
Fresenius Medical Care AG
(Name of Subject Company (issuer))
Fresenius Medical Care AG (issuer)
Fresenius Medical Care AG & Co KGaA (issuer)
(Names of Filing Persons (identifying status as offeror,
issuer or other person))
Preference Shares without par value
(Title of Class of Securities)
358029 20 5
(CUSIP Number of Class of Securities)
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Dr. Ben J. Lipps
Fresenius Medical Care Holdings, Inc.
95 Hayden Avenue
Lexington, MA 02420
781-402-9000 |
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With a copy to:
Charles F. Niemeth, Esq.
Baker & McKenzie LLP
1114 Avenue of the Americas
New York NY 10036
212 626-4100 |
(Name, address, and telephone numbers of person authorized
to receive notices and communications on behalf of filing
persons)
Calculation of Filing Fee
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| Transaction valuation* |
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Amount of filing fee | |
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An original Transaction valuation of $624,289,485.94 (estimated
solely for the purpose of computing the amount of the filing fee
pursuant to Rule 0-11 under the Exchange Act) for the
acquisition of up to 6,954,322 preference shares in the offer
was based on the sum of (i) a price of
€65.45 per
preference share of Fresenius Medical Care AG sought in the
offer, plus (ii) the conversion premium of
€9.75 per
preference share payable by tendering shareholders. The price
per preference share is based on a market value of
€65.45 per
preference share, calculated pursuant to Rule 0-11(a)(4) by
taking the average of the high and low prices of the preference
shares as reported on the Frankfurt Stock Exchange on
October 4, 2005. The price per preference share was
converted into U.S. dollars based on an exchange rate of
€1.00 equals
U.S.$1.1938, the Noon Buying Rate on October 4, 2005. A
filing fee of $73,478.87 reflecting such transaction valuation
was paid on October 7, 2005. On December 23, 2005, the
number of preference shares to be sought in the offer was
increased by 350,000 shares and an additional filing fee of
$3,775.05 was paid, based on a price of
€85.31 per
preference share (including the
€9.75 per
share conversion premium) and an exchange rate of
€1.00=$1.1816.
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$77,253.92 |
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*Set forth the amount on which the filing fee is calculated and
state how it was determined.
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Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the
offsetting fee was previously paid. Identify the previous filing
by registration statement number, or the Form or Schedule and
the date of its filing. |
Amount Previously Paid: $73,478.87 on October 7, 2005;
$3,775.05 on December 23, 2005
Form or Registration No.:
333-128899
Filing Parties: Fresenius Medical Care AG; Fresenius Medical
Care KGaA
Date Filed: October 7, 2005 and December 23, 2005
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer. |
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Check the appropriate boxes below to designate any transactions
to which the statement relates: |
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third-party tender offer subject to
Rule 14d-1.
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issuer tender offer subject to
Rule 13e-4.
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going-private transaction subject to
Rule 13e-3.
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amendment to Schedule 13D under
Rule 13d-2.
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Preliminary Note: This Schedule TO relates to the
offer (the “Conversion Offer”) by Fresenius Medical
Care AG (“FMC AG”) to U.S. holders of its
non-voting preference shares (including preference shares
represented by American Depositary Shares) to convert their
shares into ordinary shares. Upon completion of the Conversion
Offer and registration by the Commercial Register in Hof an der
Saale, Germany, of the conversion of FMC AG’s preference
shares into ordinary shares, FMC AG will undergo a
transformation of legal form under German law from a German
stock corporation into a German partnership limited by shares,
to be called Fresenius Medical Care AG & Co. KGaA
(“FMC KGaA”). The information required by
Schedule TO is incorporated by reference from the final
prospectus dated January 4, 2006 constituting a part of the Registration
Statement on
Form F-4
(Registration
No. 333-128899)
filed by FMC AG and FMC KGaA and declared effective on
January 4, 2006, including the periodic reports of FMC AG
incorporated into the prospectus, as more fully set forth below, as
supplemented by the prospectus supplement dated January 26, 2006
(as so supplemented, the “Prospectus”).
Paragraph numbers referred to in each Item below refer to the
paragraph numbers of the provisions of Regulation M-A
referenced in such Items.
The
Conversion Offer expired on February 3, 2006. The Company received and has accepted tenders of a total of 26,629,422 preference shares (including 2,099,847
preference shares represented by ADSs) for conversion into ordinary shares pursuant to the Conversion Offer.
This
Amendment No. 2 constitutes The Company's report of the results
of the Conversion Offer pursuant to Rule 13-4(c)(4).
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| Item 1. |
Summary Term Sheet |
Not applicable. Information will be disclosed to security
holders pursuant to a prospectus meeting the requirements of
Rule 421 under the Securities Act of 1933, as amended.
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| Item 2. |
Subject Company Information |
(a) Incorporated by reference to the information set forth
under the caption “Summary — The Company” in
the Prospectus.
(b) Incorporated by reference to the information set forth
in the Prospectus under the caption “Description of the
Shares of the Company.”
(c) Incorporated by reference to the information set forth
in Item 9 in the amended Annual Report on
Form 20-F/A of FMC
AG for the year ended December 31. 2004 (the “FMC
AG 2004 20-F/A”).
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| Item 3. |
Identity and Background of Filing Person |
The filing person is the subject company. The additional
information required by Instruction C to Schedule TO
is incorporated by reference to the information set forth in
Items 6A and 7A in the FMC AG 2004
20-F/A. The business
address and telephone number of each of the persons identified
in such Items is c/o Fresenius Medical Care AG,
Else-Kröner Strasse 1, 61352 Bad Homburg v.d.H.,
Germany.
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| Item 4. |
Terms of the Transaction |
(a) Incorporated by reference to the information set forth
under the caption “The U.S. Offer” in the
Prospectus.
(b) There are no arrangements for the purchase of any
preference shares from any officer, director or affiliate of FMC
AG. Such persons may participate in the Conversion Offer on the
same terms as other holders of Preference Shares.
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| Item 5. |
Past Contacts, Transactions, Negotiations and
Agreements |
(e) Incorporated by reference to the information set forth
under the caption “Description of the Proposed Pooling
Arrangements” in the Prospectus.
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| Item 6. |
Purposes of the Transaction and Plans or Proposals |
(a) Incorporated by reference to the information in the
Prospectus set forth under the caption “The Conversion and
Transformation; Effects.”
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(b) Not applicable
(c) Incorporated by reference to the information in the
Prospectus set forth under the caption “The Conversion and
Transformation; Effects.”
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| Item 7. |
Source and Amount of Funds or Other Consideration |
(a) Not applicable
(b) Not applicable
(c) Incorporated by reference to the information in the
Prospectus set forth under the caption “The Conversion and
Transformation; Effects — Accounting
Treatment — Transformation of Legal Form.”
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| Item 8. |
Interest in Securities of the Subject Company |
(a) Incorporated by reference to the information set forth
in the Prospectus under the caption “Interest of Certain
Persons in the Conversion and Transformation —
Interest of Fresenius AG” and in Item 7E of the FMC
AG 2004 20-F/A.
(b) Neither FMC AG nor FMC KGaA has effected any
transactions in the preference shares during the 60 days
preceding commencement of the Conversion Offer other than, in the
case of FMC AG, issuance of preference shares upon the exercise
of employee stock options and issuance of options to purchase
preference shares. The information in the Prospectus
under the caption “Interest of Certain Persons in the
Conversion and Transformation: Recent Transactions in our
Preference Shares” and in the Prospectus supplement dated
January 26, 2006 is incorporated herein by reference.
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| Item 9. |
Persons/ Assets, Retained, Employed, Compensated or
Used |
(a) Incorporated by reference to the information set forth
in the Prospectus under the caption “The
U.S. Offer — Fees and Expenses”
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| Item 10. |
Financial Statements |
(a) Incorporated by reference to the information set forth
in Item 18 of the FMC AG 2004
20-F/A and Part I,
Item 1 of FMC AG’s Report on
Form 6-K furnished
to the SEC on November 3, 2005.
(b) Not applicable.
(c) Incorporated by reference to the information set forth
in the Prospectus under the caption “Summary —
Summary Consolidated Financial Information.”
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| Item 11. |
Additional Information |
(a)(1) Incorporated by reference to the information set forth in
the Prospectus under the caption “Interest of Certain
Persons in the Conversion and Transformation.”
(a)(2) Incorporated by reference to the information set forth in
the Prospectus under the captions “The
U.S. Offer — Conditions to the
U.S. Offer” and “Stock Exchange Listing and
Trading.”
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) Incorporated by reference to the information set forth in
the Prospectus under the caption “The Conversion and
Transformation; Effects — Settlement of the
Proceedings to Set Aside the Resolutions of the Extraordinary
General Meeting of August 30, 2005.”
(a)(1) Form of letter of transmittal (previously filed)
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(a)(4)(i) Prospectus dated January 4, 2006 (incorporated
by reference to the final prospectus dated January 4, 2006
of FMC AG and FMC KGaA (Registration No.
333-128899) filed
January 6, 2006).
(a)(4)(ii) Prospectus supplement dated January 26, 2006 (incorporated
by reference to the Prospectus supplement dated January 26, 2006
of FMC AG and FMC KGaA (Registration No. 333-128899) filed
January 26, 2006).
(b) Not applicable
(d) Form of Pooling Agreement to be entered into among
Fresenius AG, Fresenius Medical Care AG, Fresenius Medical Care
Management AG (for itself and as general partner of Fresenius
Medical Care AG & Co. KGaA), and the independent
directors of Fresenius Medical Care AG & Co. KGaA.
(Incorporated by reference to Exhibit 4.3 to Amendment
No. 2 to the Registration Statement on
Form F-4 of
Fresenius Medical Care AG, Registration
No. 333-124759,
filed July 1, 2005).
(g) Not applicable
(h)(1)Tax Opinion of Nörr Stiefenhofer Lutz dated
January 4, 2006 (incorporated by reference to
Exhibit 8.1 to Amendment No. 3 to the Registration
Statement on Form F-4 (Registration No. 128899) filed
January 4, 2006).
(h)(2)Tax Opinion of O’Melveny & Myers LLP dated
January 4, 2006 (incorporated by reference to
Exhibit 8.2 to Amendment No. 3 to the Registration
Statement on Form F-4 (Registration No. 128899) filed
January 4, 2006).
99.1 Press release issued February 8, 2006 (Incorporated by
reference to Exhibit 99.1 to the Form 6-K furnished by Fresenius
Medical Care AG to the Commission on February 8, 2006.
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| Item 13. |
Information Required by Schedule 13E-3 |
Not Applicable
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SIGNATURES
After due 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.
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FRESENIUS MEDICAL CARE AG |
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Dr. Ben J. Lipps |
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Chairman of the Management Board |
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Chief Executive Officer |
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Name: Mats
Wahlstrom |
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Title: Co-Chief
Executive Officer, |
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Fresenius
Medical Care North |
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America,
President “Medical |
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Services”
and Member of the |
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Management
Board |
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Dated: February 9, 2006 |
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FRESENIUS MEDICAL CARE MANAGEMENT AG, as general partner
of Fresenius Medical Care AG & Co. KGaA, a partnership
limited by shares to be created upon the transformation of legal
form of Fresenius Medical Care AG |
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Lawrence Rosen |
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Member of the Management Board |
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Dated: February 9, 2006 |
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