SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
Pursuant to Rule 13a-16 or 15d-16 of the
Securities Exchange Act of 1934
For the month of August 2005
FRESENIUS MEDICAL CARE CORPORATION
-----------------------------------------------
(Translation of registrant's name into English)
Else-Kroner Strasse 1
61346 Bad Homburg
Germany
----------------------------------------
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F.
Form 20-F [X] Form 40-F [ ]
Indicate by check mark if the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(1): ____
Indicate by check mark if the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(7): ____
Indicate by check mark whether the registrant by furnishing the
information contained in this Form is also thereby furnishing the information to
the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.
Yes [ ] No [X]
If "Yes" is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82
This Report on Form 6-K shall be incorporated by reference in the
prospectus, dated July 20, 2005 (the "Prospectus"), of Fresenius Medical Care AG
(the "Company") included in the Company's Registration Statement (Registration
No. 333-124759) on Form F-4 and shall be part thereof from the date on which
this report is filed, to the extent not superseded by documents or reports
subsequently filed or furnished by the Company with the U.S. Securities and
Exchange Commission.
The Company has received certain counter proposals to the proposals of
the management board and the supervisory board. All counter proposals received
by the Company during the period ended two weeks before the meeting date have
been posted on our web site, www.fmc-ag.com. (By furnishing the Company's web
site address in this report, the Company does not intend to incorporate any
information on its web site into this report or into the Prospectus referred to
above, and readers of this report should not consider any information on the
Company's web site to be part of this report or the Prospectus). The following
sets forth certain information relating to such counterproposals:
Counter Proposals to the Proposed Conversion of Preference Shares into Ordinary
-------------------------------------------------------------------------------
Shares (Agenda Item 1 of the Extraordinary General Meeting; Sole Agenda Item of
-------------------------------------------------------------------------------
the Separate Meeting of Preference Shareholders)
------------------------------------------------
On August 12, 2005, the Company received a counterproposal from Citadel
Equity Fund, Ltd., London. The counterproposal relates to both paragraph b) of
the first resolution proposed for adoption at the extraordinary general meeting
to be held August 30, 2005 and the sole resolution proposed for adoption at the
separate meeting of preference shareholders. If approved, the counterproposal
would reduce the conversion premium payable by holders of preference shares who
elect to convert their shares into ordinary shares to (euro)9.75 per share. The
text of the English translation of the counterproposal is as follows:
b) Only preferred bearer shares without voting rights shall be
converted into ordinary bearer shares with voting rights, which have
been submitted to the Company in due time and in compliance with the
conditions for the purpose of conversion together with the conversion
declaration of the respective shareholder and a conversion premium in
the amount of (euro)9.75 per preferred bearer share.
Citadel Equity Fund Ltd., London has provided the following statement
in support of its counterproposal:
Grounds
-------
The counter-motion is aimed at a reduction of the conversion premium to
be paid by the holders of preferential shares upon acceptance of the
exchange offer from (euro)12.25 to (euro)9.75.
The conversion premium in the amount of (euro)12.25 initially proposed
by the executive board and the supervisory board corresponds to 66% of
the price difference of the stock prices of ordinary shares and of
preferred shares and thus to a discount of approximately 10% on the
stock price of the ordinary shares (in each case on the basis of the
weighted average stock prices of both share classes of shares during
the three-month-reference period prior to the ad hoc announcement). In
our view, the amount of the proposed conversion premium of (euro)12.25
does not properly reflect the relative value of both classes of shares
after the transformation of the legal form proposed as item 4 on the
agenda and is, therefore, not appropriate, as the holders of preferred
shares receive common shares in a partnership limited by shares (KGaA),
and not in a stock corporation without a controlling main shareholder.
2
A reduction of the conversion premium to (euro)9.75 addresses our
concerns. The proposed premium of (euro)9.75 increases the likelihood
of success of the exchange offer. The reduction is in the interest of
the Company, because it will greatly increase the chance of success of
the preferred shares voting to approve the Conversion and will lead to
greater acceptance by the holders of preferred shares in the
Conversion. This will achieve the Company's stated goal of increasing
liquidity of the common shares and improving DAX weighting. According,
we believe that it is in the interest of both common and preferred
shareholders and the Company that this counter proposal be approved.
Two other counter proposals recommend that the conversion be effected
without payment of any conversion premium.
The Company expects that the counterproposal submitted by Citadel
Equity Fund Ltd., London will be voted upon at the extraordinary general meeting
and, if approved, will be voted upon at the separate meeting of preference
shareholders, prior to submission of the agenda items set forth in the
respective invitations to the meetings. On August 15, 2005, the Company issued a
press release announcing that Fresenius AG, the owner of approximately 50.76% of
the Company's ordinary shares, had informed the Company that it intends to vote
its shares in favor of the counterproposal submitted by Citadel Equity Fund
Ltd., London. A copy of the Company's press release is being filed as an exhibit
to this report. If the counterproposal submitted by Citadel Equity Fund Ltd.,
London is approved, the original conversion proposal with a conversion premium
of (euro)12.25 will not be considered at the meetings.
Counter Proposal Relating to the Transformation of Legal Form (Agenda Item 4 of
-------------------------------------------------------------------------------
the Extraordinary General Meeting)
----------------------------------
On August 16, 2005, the Company received a counter proposal from the
Deutsche Schutzvereinigung fur Wertpapierbesitz (German Association for Private
Investors - "DSW"). The full text of the English translation of the counter
proposal is set forth below:
The DSW (Deutsche Schutzvereinigung fur Wertpapierbesitz - German
Association for Private Investors) will oppose the proposal of the
Management Board and the Supervisory Board on the resolution on agenda
item 4 b (Resolution on the transformation of Fresenius Medical Care AG
into Fresenius Medical Care AG & Co. KGaA). With the voting rights that
it is representing, the DSW will vote against the transformation of the
legal form of the company into a Kommanditgesellschaft auf Aktien
(Partnership Limited by Shares).
DSW London has provided the following statement in support of its
counterproposal:
Reason:
-------
The DSW explicitly appreciates the proposed conversion of non-voting
preference shares into bearer ordinary shares on agenda item 1. The
consolidation of both share classes will lead to an increased free
float and, presumably, to an improved trading liquidity of the
simplified share class of "Ordinary Shares." Furthermore the position
in the stock index can be ensured.
However, DSW explicitly disapproves the notion of a link between the
merging of the two share classes and the proposed transformation of the
legal form as per agenda item 4 b:
From the perspective of the DSW, the legal form of an AG & Co. KGaA is
only suitable to a limited extent for a listed public company. On the
one hand the complicated corporate law requires explanation, especially
for foreign investors. On the other hand and from the perspective of
3
the free float shareholders, this legal form has some controlling
deficiencies that are not in the vested interest of good corporate
governance. The Management Board of the KGaA is incumbent to a
personally liable partner that in the case of Fresenius Medical Care is
in turn another publicly traded stock corporation. In this case, the
personally liable partner is FMC Management AG, which is a wholly-owned
subsidiary of the parent company Fresenius AG. Among the Management
Board of Fresenius AG and the Management Board of FMC Management AG,
there are some members that serve on both boards. For the free float
ordinary shareholders of Fresenius Medical Care this means that the
Supervisory Board, which was elected by the free float ordinary
shareholders, will not have rights regarding the competency of members
of the Management Board of the managing FMC Management AG. With the
proposed structure, the right to appoint and recall members of the
Management Board according to the German Stock Corporation Act would
then not be within the right of the Supervisory Board of the publicly
listed company, but rather the right of the Supervisory Board of the
management company, which is controlled by the parent company.
This would result in a situation whereas the advantages that can be
attributed to the conversion of the preference shares into ordinary
shares for raising equity in the capital market and presumably the
development of share value would in turn be disadvantaged by the legal
form of a KGaA. It is notable, that the parent company is the only
party that could compensate the controlling deficiencies related to the
legal form of the KGaA as it controls the management company, whereas
the free float shareholders and the Supervisory Board that has been
duly elected thereof would thus have to accept less voting rights.
This is the reason why the DSW will vote against the transformation of
Fresenius Medical Care AG into an AG & Co. KGaA and requests other
ordinary shareholders to follow this vote.
EXHIBITS
Exhibit 99. Press release issued August 15, 2005
4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DATE: August 18, 2005
FRESENIUS MEDICAL CARE
AKTIENGESELLSCHAFT
By: /s/ BEN LIPPS
---------------------------------------
Name: Dr. Ben Lipps
Title: Chief Executive Officer and
Chairman of the Management Board
By: /s/ LAWRENCE A. ROSEN
---------------------------------------
Name: Lawrence A. Rosen
Title: Chief Financial Officer