-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Lk7ApXyAX+WbDzQz4URCvJREsLqlPJWYsTO/Y1nEv9vdkDxeNBfndI5CoTeJWHGW /kkeDreLgU8RHWhDJ/1Sbg== 0000904440-98-000020.txt : 19980318 0000904440-98-000020.hdr.sgml : 19980318 ACCESSION NUMBER: 0000904440-98-000020 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19980317 SROS: NONE GROUP MEMBERS: KIMBERLIN FAMILY PARTNERS, L.P. GROUP MEMBERS: KIMBERLIN KEVIN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CHAD THERAPEUTICS INC CENTRAL INDEX KEY: 0000713492 STANDARD INDUSTRIAL CLASSIFICATION: ORTHOPEDIC, PROSTHETIC & SURGICAL APPLIANCES & SUPPLIES [3842] IRS NUMBER: 953792700 STATE OF INCORPORATION: CA FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-36624 FILM NUMBER: 98566903 BUSINESS ADDRESS: STREET 1: 21622 PLUMMER STREET CITY: CHATSWORTH STATE: CA ZIP: 91311 BUSINESS PHONE: 818-882-0883 MAIL ADDRESS: STREET 1: 21622 PLUMMER STREET CITY: CHATSWORTH STATE: CA ZIP: 91311 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KIMBERLIN KEVIN CENTRAL INDEX KEY: 0000904841 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: SPENCER TRASK SECURITIES INC STREET 2: 535 MADISON AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2123555565 SC 13D/A 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. 1)* NAME OF ISSUER: Chad Therapeutics, Inc. TITLE OF CLASS OF SECURITIES: Common Stock, par value $.01 per share. CUSIP NUMBER: 157228107 NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS: Kevin B. Kimberlin c/o Spencer Trask Holdings Incorporated 535 Madison Avenue New York, New York 10022 Tel: (212) 355-5565 Fax: (212) 751-3483 DATE OF EVENT WHICH REQUIRES FILING: February 2, 1998 If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this 13D, and is filing this schedule because of Rule 13d-1(e), (f) or (g), check the following box: ______ NOTE: Schedules filed in paper format should include a signed original and five copies of the Schedule, including all exhibits. See Rule 13d-7(b) 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). Page 2 CUSIP NO.: 157228107 1. NAME OF REPORTING PERSON: Kimberlin Family Partners, L.P. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) (b) 3. SEC USE ONLY 4. SOURCE OF FUNDS: WC 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e): Yes No X 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Colorado 7. SOLE VOTING POWER: 836,560 8. SHARED VOTING POWER: 0 9. SOLE DISPOSITIVE POWER: 836,560 10. SHARED DISPOSITIVE POWER: 0 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 836,560 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: Yes No x 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 8.40% 14. TYPE OF REPORTING PERSON: PN Page 3 CUSIP NO.: 157228107 1. NAME OF REPORTING PERSON: Kevin B. Kimberlin 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) (b) 3. SEC USE ONLY 4. SOURCE OF FUNDS: OO 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e): Yes No X 6. CITIZENSHIP OR PLACE OF ORGANIZATION: United States 7. SOLE VOTING POWER: 836,560 shares owned by Kimberlin Family Partners, L.P. 10,800 shares owned by the International Aids Foundation 8. SHARED VOTING POWER: 0 9. SOLE DISPOSITIVE POWER: 836,560 shares owned by Kimberlin Family Partners, L.P. 10,800 shares owned by the International Aids Foundation 10. SHARED DISPOSITIVE POWER: 0 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 836,560 shares owned by Kimberlin Family Partners, L.P. 10,800 shares owned by the International Aids Foundation 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: Yes No x 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 8.50% 14. TYPE OF REPORTING PERSON: IN Page 4 Item 1. Security and Issuer. This Amendment No. 1 corrects certain information contained in, and amends, the Schedule 13D, dated October 14, 1997, filed by Kimberlin Family Partners, L.P. (the "Partnership") relating to the common stock, $.01 par value per share (the "Common Stock"), of Chad Therapeutics, Inc., a California corporation (the "Company"), whose principal executive offices are located at 21622 Plummer Street, Chatsworth, California 91311. This Amendment No. 1 also constitutes an initial filing on Schedule 13D by Kevin B. Kimberlin. Item 2. Identity and Background. (a) This Amendment No. 1 is being filed by the Partnership, a Colorado limited partnership, and Kevin B. Kimberlin, the sole general partner of the Partnership. (b) The address of the principal business and the principal office of the Partnership and the business address of Mr. Kimberlin is c/o Mr. Kimberlin, Spencer Trask Holdings Incorporated, 535 Madison Avenue, New York, New York 10022. (c) The principal business of the Partnership is the making and holding of investments in securities. The present principal occupations of Mr. Kimberlin are Chairman of Spencer Trask Holdings Incorporated, an investment banking firm located at the business address set forth in Item 2(b) above, and private investor. (d) Neither the Partnership nor Mr. Kimberlin has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) Neither the Partnership nor Mr. Kimberlin has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Mr. Kimberlin is a United States citizen. Page 5 Item 3. Source and Amount of Funds or Other Consideration. On February 2, 1998, The International Aids Foundation, a charitable trust created by Mr. Kimberlin (the "Foundation"), sold an aggregate of 11,000 shares of Common Stock previously contributed by Mr. Kimberlin to the Foundation (over which the trustees of the Foundation, of which Mr. Kimberlin is one, have sole dispositive and voting power) in open market transactions at an average sale price of $7.13 per share, for an aggregate sales price of $78,430. On February 2, 1998, the Partnership utilized available cash to purchase an aggregate of 11,000 shares of Common Stock in open market transactions at an average purchase price of $7.13 per share, for an aggregate purchase price of $78,430. Item 4. Purpose of Transaction. The Partnership acquired and holds the shares of Common Stock described in Item 3 above solely for investment purposes. Except as set forth herein, the Partnership and Mr. Kimberlin have no plans or proposals relating to or which would result in any of the events or matters described in Items 4(a)-(j), inclusive, of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) The Partnership is the beneficial owner of 836,560 shares of Common Stock, representing, as of February 11, 1998, approximately 8.40% of the issued and outstanding shares of Common Stock. Mr. Kimberlin may be deemed a beneficial owner of the 10,800 shares of Common Stock owned by the Foundation and of the 836,560 shares of Common Stock owned by the Partnership, for an aggregate of 847,360 shares of Common Stock, representing, as of February 11, 1998, approximately 8.50% of the issued and outstanding shares of Common Stock. (see Item 5(b) below). In its Schedule 13D, dated October 14, 1997, the Partnership incorrectly stated that it beneficially owned 759,704 shares of Common Stock as of such date. In fact, the Partnership beneficially owned 825,560 shares as of such date. (b) The Partnership has the sole power to vote and to dispose of all shares of Common Stock beneficially owned by it. As sole general partner of the Partnership, Mr. Kimberlin has the authority to direct the voting and/or disposition of all shares of Common Stock owned by the Partnership. In addition, Mr. Kimberlin is a trustee of the Foundation. There are three trustees of the Foundation and determinations in Page 6 respect of the voting and disposition of securities owned by the Foundation are made by a majority vote of the trustees. As a trustee of the Foundation, Mr. Kimberlin may be deemed to be a beneficial owner of the 10,800 shares of Common Stock owned by the Foundation and previously contributed to it by Mr. Kimberlin. (c) Except as set forth in Item 3 above, there have been no transactions in the Common Stock effected during the past 60 days by the Partnership or Mr. Kimberlin. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Pursuant to the Trust Agreement, dated as of December 29, 1989, creating the Foundation, of which Mr. Kimberlin is the settlor and a co-trustee, the trustees of the Foundation, by majority vote, have the sole right to vote and dispose of the shares of Common Stock previously contributed by Mr. Kimberlin to the Foundation. Item 7. Material to be Filed as Exhibits Exhibit 7.1 Trust Agreement, dated as of December 29, 1989 by and between Kevin B. Kimberlin (as settlor and trustee), Lynn McClure (as trustee) and Joni Steele (as trustee) Page 7 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. March 16, 1998 KIMBERLIN FAMILY PARTNERS, L.P. By:Kevin B. Kimberlin ----------------------- Kevin B. Kimberlin General Partner Kevin B. Kimberlin ----------------------- Kevin B. Kimberlin Page 8 EXHIBIT INDEX Page # Exhibit 7.1 Trust Agreement, dated as of 9 December 29, 1989 by and between Kevin B. Kimberlin (as settlor and trustee), Lynn McClure (as trustee) and Joni Steele (as trustee) EX-1 2 Page 9 THE INTERNATIONAL AIDS CHARITABLE FOUNDATION TRUST AGREEMENT, dated as of December 29, 1989, by and between Kevin B. Kimberlin, whose address is 44 Wall Street, New York, New York 10005 (the "Settlor"), Lynn McClure, whose address is 2300 Irvine Road, Old Greenwich, Connecticut 06870, Joni Steele, whose address is 9 Oak Lane, Old Greenwich, Connecticut 06870, and Kevin B. Kimberlin, whose address is 44 Wall Street, New York, New York 10005 (Lynn McClure, Joni Steele, and Kevin B. Kimberlin being hereafter collectively referred to as the "Trustees"). WHEREAS, the Settlor wishes to create the trust as herein provided (the Trust"); and WHEREAS, the Trustees wish to act as trustees of the Trust as herein provided; NOW, THEREFORE, the parties hereto agree as follows: 1. Name of Trust. The name of the Trust shall be The International AIDS Charitable Foundation. 2. Purpose of Trust. The purposes of the Trust are to devote and apply the property vested in the Trustees by this Agreement and the income to be derived therefrom (collectively, the "Trust Fund") exclusively for religious, charitable, scientific, literary or educational purposes Page 10 within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), either directly or by contribution to organizations duly authorized to carry on religious, charitable, scientific, literary or educational activities described in such Section 501(c)(3) of the Code with particular emphasis on contributions to organizations conducting medical research dealing with acquired immune deficiency syndrome; provided, however, that no part of the Trust Fund shall inure to the benefit of any Trustee or any individual, and no part of the direct or indirect activities of the Trust shall consist of carrying on propaganda, or otherwise attempting to influence legislation, or of participating in, or intervening in (including the publication or distribution of statements), any political campaign on behalf of (or in opposition to) any candidate for public office. Notwithstanding any other provision hereof, the Trust shall not conduct or carry on any activities not permitted to be conducted or carried on by an organization exempt under Section 501(c)(3) of the Code and the regulations promulgated thereunder as they now exist or as they may hereafter be amended (the " Regulations"), or by an organization contributions to which are deductible under Section 170(c)(2) of the Code and the Regulations. Page 11 3. Trust Fund. The property to constitute the Trust shall consist of the assets listed on Exhibit A hereto and such other assets as the Settlor or anyone else may from time to time hereafter transfer to the Trustees and be accepted by them. Such assets shall be transferred to the Trustees to be held by them in trust and disposed of as herein provided. 4. Use of Trust Fund. The Trustees, except as herein limited, shall have the power and authority and are directed to distribute from time to time exclusively for any of the purposes of the Trust set forth in Section 2 hereof, such amounts of income or principal of the Trust Fund as they in their discretion may direct. The Trustees shall distribute the income of the Trust Fund for each taxable year at such time and in such manner as not to become subject to the tax on undistributed income imposed by Section 4942 of the Code or the Regulations. 5. Meeting of Trustees. (a) Regular meetings of the Trustees may be held without notice at such time and place as shall from time to time be determined by the Trustees. Special meetings of the Trustees shall be held at such time and place as shall be designated in the notice of the meeting whenever called by a majority of the Trustees. Page 12 (b) The Secretary of the Trustees, or in his absence any other Trustee, shall give each Trustee notice of the time and place of holding of special meetings of the Trustees by mail at least five days before the meeting, or by telegram, cable, telecopy, radiogram or personal service at least two days before the meeting. Unless otherwise stated in the notice thereof, any and all business may be transacted at any meeting without specification of such business in the notice. (c) Any action required or permitted to be taken at any meeting of Trustees may be taken without a meeting if all of the Trustees consent thereto in writing. A Trustee may participate in a meeting of the Trustees by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. (d) A majority of the Trustees shall constitute a quorum for the transaction of business, but, if at any meeting of the Trustees (whether or not adjourned from a previous meeting) there shall be less than a quorum present, a majority of those present may adjourn the meeting to another time and place, and the meeting may be held as adjourned without further notice or waiver. Except as other- wise provided by law or in this Agreement, a majority of the Page 13 Trustees present at any meeting at which a quorum is present may decide any question brought before such meeting; provided, however, that, during his lifetime, Kevin B. Kimberlin shall have the power to veto any proposed contribution to be made by the Trust; provided, further, that this power may not be used to cause the Trust to become subject to any tax referred to in Section 4 hereof. (e) Kevin B. Kimberlin shall be Chairman and Joni Steele shall be Secretary of the Trustees until their respective successors are elected by a majority of the Trustees and qualified. The Chairman shall preside at meetings of the Trustees and the Secretary shall keep records of the proceedings at such meetings and send out notices pursuant to Section 5(b), but otherwise these Trustees shall not have any implied or apparent powers of corporate officers. (f) All Trustees shall serve without compensation, but shall be entitled to reimbursement for reasonable expenses of serving as a Trustee. All Trustees shall serve without bond. 6. Powers of Trustees. (a) The Trustees shall have the power and authority, within their discretion and exercise of judgment, to sell and dispose of any of the assets transferred to the Trust by this Agreement, or subsequently acquired by the Trust, and to invest and Page 14 reinvest the income or funds thereby obtained, or the income from time to time accumulated, in corporate shares, bonds, securities, property or other assets. The investments and reinvestments made by the Trustees shall not be limited to those which are commonly known as those in which trust funds are authorized to be invested under the law of the State of New York. The Trustees shall not be responsible for any loss arising out of any investments made by them in the exercise of their judgment and discretion. The Trustees shall have power and authority to give a proxy to anyone selected by the Trustees to vote any of the securities held in the Trust at any meeting of any corporation or other entity having issued such securities. (b) The Trustees shall have and exercise, subject to the limitations herein provided, all the rights and powers incident to the ownership of all the properties, real and personal, from time to time belonging to the Trust, as fully and absolutely as though they were the owners of such properties in their own right. The Trustees shall have power to deposit the moneys and securities belonging to the Trust from time to time in such banks and safe deposits and trust companies as they may from time to time select. (c) Notwithstanding any other provision hereof, no power or authority shall be exercised by the Trustees Page 15 in any manner or for any purpose whatsoever which may jeopardize the status of the Trust as an exempt organization under Section 501(c)(3) of the Code and the Regulations; nor shall the Trustees engage in any act of self-dealing as defined in Section 4941(d) of the Code and the Regulations; nor retain any excess business holdings as defined in Section 4943(c) of the Code and the Regulations; nor make any investments in such manner as to incur tax liability under Section 4944 of the Code and the Regulations; nor make any taxable expenditures as defined in Section 4945(d) of the Code and the Regulations. 7. Appointment of Trustees. (a) A Trustee may at any time resign by delivering his resignation in writing to the other Trustees. New Trustees may be appointed and any Trustee may be removed by action of a majority of the Trustees then serving, by instrument in writing signed by the majority of the Trustees and filed with the Trust's records and, if the Settlor is then living, with a copy thereof delivered to the Settlor. (b) Every such new Trustee so appointed from time to time, upon his written acceptance of such appointment, shall have, possess and exercise all the powers, authority and discretion by this Agreement conferred upon the Page 16 original Trustees, as fully and effectively as though he were named by this Agreement as one of the original Trustees. 8. Contributions From Others. If any person at any time is disposed to make gifts or bequests to the Trust, power and authority is hereby conferred upon the Trustees to receive such gifts and bequests and to apply the principal and income therefrom to the purposes of the Trust, under the powers, authorities and discretions contained in this Agreement, provided that such gifts or bequests are not made upon any terms or conditions that would conflict with the uses, purposes, and provisions of this Agreement and the administration thereof by the Trustees, except that restrictions in such gifts and bequests may be agreed to by the Trustees and accepted subject thereto. 9. Creation of Corporation. The Settlor authorizes and empowers the Trustees, if they desire to do so, to form and organize a corporation for the uses and purposes of the Trust provided for by this Agreement. Such corporation may be organized under the laws of such jurisdiction as may be determined by the Trustees and will have power to administer and control the affairs and property of the Trust, and to carry out the uses, objects and purposes of the Trust. 10. Term of Trust. The Trust may at any time by vote of at least 75% of the Trustees be wound up and the Page 17 assets distributed exclusively to such organizations that at that time are tax exempt under Section 501(c)(3) of the Code and the Regulations as the Trustees in their discretion shall determine. 11. Amendment of Trust Agreement. This Agreement may be amended by the Settlor with unanimous consent of all of the Trustees, and if the Settlor is not living, by the unanimous vote of the Trustees, but no such amendment shall be adopted which shall cause the Trust to be organized and operated for any purpose or in any manner which would cause the Trust to lose its tax-exempt status under Section 501(c)(3) of the Code and the Regulations. 12. Separability. If any provision of this Agreement is invalid, illegal or unenforceable, the balance of this Agreement shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances. 13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to conflict of laws. 14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed Page 18 an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, this Agreement has been signed by the Settlor and the Trustees. Kevin B. Kimberlin _________________________ Kevin B. Kimberlin Settlor _________________________ Lynn McClure Trustee Joni Steele _________________________ Joni Steele Trustee Kevin B. Kimberlin _________________________ Kevin B. Kimberlin Trustee Page 19 STATE OF ____________) ) ss.: COUNTY OF ___________) On the ____ day of December, 1989, before me personally came Lynn McClure, to me known, and known to me to be the person described in and who executed the foregoing instrument, and she acknowledged to me that she executed the same. __________________________ Notary Public State of Connecticut ) ) ss.: Greenwich County of Fairfield ) On the 17th day of December, 1990, before me personally came Joni Steele, to me known, and known to me to be the person described in and who executed the foregoing instrument, and she acknowledged to me that she executed the same. /s/ Louise A. Meyer __________________________ Notary Public State of New York ) ) ss.: County of New York ) On the 29th day of December, 1989, before me personally came Kevin B. Kimberlin, to me known, and known to me to be the person described in and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s/ Alan Stahler _____________________ Notary Public Page 20 Exhibit A THE INTERNATIONAL AIDS CHARITABLE FOUNDATION 40,000 shares of common stock of Cortex Pharmaceuticals, Inc. contributed by Kevin B. Kimberlin. -----END PRIVACY-ENHANCED MESSAGE-----