i
| changes in governmental and commercial insurer reimbursement for our complete products and services portfolio, including the new expanded Medicare reimbursement system for dialysis services; | |
| changes in utilization patterns for pharmaceuticals and in our costs of purchasing pharmaceuticals; | |
| the outcome of ongoing government investigations; | |
| the influence of private insurers and managed care organizations; | |
| the impact of recently enacted and possible future health care reforms; | |
| product liability risks; | |
| the outcome of ongoing potentially material litigation; | |
| risks relating to the integration of acquisitions and our dependence on additional acquisitions; | |
| the impact of currency fluctuations; | |
| introduction of generic or new pharmaceuticals that compete with our pharmaceutical products; | |
| changes in raw material and energy costs; and | |
| the financial stability and liquidity of our governmental and commercial payors. |
1
2
3
4
For the three months
|
For the six months
|
|||||||||||||||
ended June 30, | ended June 30, | |||||||||||||||
2011 | 2010 | 2011 | 2010 | |||||||||||||
(in millions) | (in millions) | |||||||||||||||
Total revenue
|
||||||||||||||||
North America
|
$ | 2,029 | $ | 2,028 | $ | 4,009 | $ | 3,988 | ||||||||
International
|
1,163 | 919 | 2,217 | 1,842 | ||||||||||||
Corporate
|
4 | | 8 | | ||||||||||||
Totals
|
3,196 | 2,947 | 6,234 | 5,830 | ||||||||||||
Inter-segment revenue
|
||||||||||||||||
North America
|
2 | 1 | 4 | 2 | ||||||||||||
International
|
| | | | ||||||||||||
Totals
|
2 | 1 | 4 | 2 | ||||||||||||
Total net revenue
|
||||||||||||||||
North America
|
2,027 | 2,027 | 4,005 | 3,986 | ||||||||||||
International
|
1,163 | 919 | 2,217 | 1,842 | ||||||||||||
Corporate
|
4 | | 8 | | ||||||||||||
Totals
|
3,194 | 2,946 | 6,230 | 5,828 | ||||||||||||
Amortization and depreciation
|
||||||||||||||||
North America
|
67 | 63 | 135 | 127 | ||||||||||||
International
|
43 | 33 | 83 | 70 | ||||||||||||
Corporate
|
26 | 25 | 54 | 49 | ||||||||||||
Totals
|
136 | 121 | 272 | 246 | ||||||||||||
Operating income
|
||||||||||||||||
North America
|
348 | 332 | 661 | 640 | ||||||||||||
International
|
203 | 173 | 374 | 324 | ||||||||||||
Corporate
|
(41 | ) | (38 | ) | (80 | ) | (72 | ) | ||||||||
Totals
|
510 | 467 | 955 | 892 | ||||||||||||
Interest income
|
16 | 8 | 26 | 14 | ||||||||||||
Interest expense
|
(91 | ) | (76 | ) | (172 | ) | (149 | ) | ||||||||
Income tax expense
|
(149 | ) | (129 | ) | (273 | ) | (257 | ) | ||||||||
Net Income
|
286 | 270 | 536 | 500 | ||||||||||||
Less: Net Income attributable to Noncontrolling interests
|
(25 | ) | (22 | ) | (55 | ) | (41 | ) | ||||||||
Net Income attributable to FMC-AG & Co. KGaA
|
$ | 261 | $ | 248 | $ | 481 | $ | 459 | ||||||||
5
Key Indicators for Consolidated Financial Statements | ||||||||||||||||
For the three months
|
||||||||||||||||
ended
|
Change in % | |||||||||||||||
June 30, |
at constant
|
|||||||||||||||
2011 | 2010 | as reported | exchange rates | |||||||||||||
Number of treatments
|
8,384,473 | 7,749,584 | 8% | |||||||||||||
Same market treatment growth in %
|
3.9% | 4.3% | ||||||||||||||
Revenue in $ million
|
3,194 | 2,946 | 8% | 5% | ||||||||||||
Gross profit as a % of revenue
|
35.1% | 34.3% | ||||||||||||||
Selling, general and administrative costs as a % of revenue
|
18.6% | 17.8% | ||||||||||||||
Net income attributable to FMC-AG & Co. KGaA in
$ million
|
261 | 248 | 5% |
6
7
Key Indicators for North America Segment | ||||||||||||
For the three months
|
||||||||||||
ended
|
||||||||||||
June 30, | ||||||||||||
2011 | 2010 | Change in % | ||||||||||
Number of treatments
|
5,379,508 | 5,189,159 | 4% | |||||||||
Same market treatment growth in %
|
3.2% | 4.2% | ||||||||||
Revenue in $ million
|
2,027 | 2,027 | 0% | |||||||||
Depreciation and amortization in $ million
|
67 | 63 | 6% | |||||||||
Operating income in $ million
|
348 | 332 | 5% | |||||||||
Operating income margin in %
|
17.2% | 16.4% |
8
Key Indicators for International Segment | ||||||||||||||||
For the three months
|
||||||||||||||||
ended
|
Change in % | |||||||||||||||
June 30, |
at constant
|
|||||||||||||||
2011 | 2010 | as reported | exchange rates | |||||||||||||
Number of treatments
|
3,004,965 | 2,560,425 | 17% | |||||||||||||
Same market treatment growth in %
|
5.2% | 4.4% | ||||||||||||||
Revenue in $ million
|
1,163 | 919 | 26% | 15% | ||||||||||||
Depreciation and amortization in $ million
|
43 | 33 | 28% | |||||||||||||
Operating income in $ million
|
203 | 173 | 17% | |||||||||||||
Operating income margin in %
|
17.5% | 18.8% |
9
Key Indicators for Consolidated Financial Statements | ||||||||||||||||
For the six months
|
||||||||||||||||
ended
|
Change in % | |||||||||||||||
June 30, |
at constant
|
|||||||||||||||
2011 | 2010 | as reported | exchange rates | |||||||||||||
Number of treatments
|
16,559,315 | 15,258,148 | 9% | |||||||||||||
Same market treatment growth in %
|
4.1% | 4.3% | ||||||||||||||
Revenue in $ million
|
6,230 | 5,828 | 7% | 5% | ||||||||||||
Gross profit as a % of revenue
|
34.6% | 33.9% | ||||||||||||||
Selling, general and administrative costs as a % of revenue
|
18.7% | 17.9% | ||||||||||||||
Net income attributable to FMC- AG & Co. KGaA in
$ million
|
481 | 459 | 5% |
10
Key Indicators for North America Segment | ||||||||||||
For the six months
|
||||||||||||
ended
|
||||||||||||
June 30, | ||||||||||||
2011 | 2010 | Change in % | ||||||||||
Number of treatments
|
10,621,160 | 10,223,675 | 4% | |||||||||
Same market treatment growth in %
|
3.5% | 4.2% | ||||||||||
Revenue in $ million
|
4,005 | 3,986 | 0% | |||||||||
Depreciation and amortization in $ million
|
135 | 127 | 6% | |||||||||
Operating income in $ million
|
661 | 640 | 3% | |||||||||
Operating income margin in %
|
16.5% | 16.1% |
11
Key Indicators for International Segment | ||||||||||||||||
For the six months
|
||||||||||||||||
ended
|
Change in % | |||||||||||||||
June 30, |
at constant
|
|||||||||||||||
2011 | 2010 | as reported | exchange rates | |||||||||||||
Number of treatments
|
5,938,155 | 5,034,473 | 18% | |||||||||||||
Same market treatment growth in %
|
5.4% | 4.3% | ||||||||||||||
Revenue in $ million
|
2,217 | 1,842 | 20% | 14% | ||||||||||||
Depreciation and amortization in $ million
|
83 | 70 | 19% | |||||||||||||
Operating income in $ million
|
374 | 324 | 15% | |||||||||||||
Operating income margin in %
|
16.9% | 17.6% |
12
13
14
June 30,
|
December 31,
|
|||||||
2011 | 2010 | |||||||
North America days sales outstanding
|
59 | 54 | ||||||
International days sales outstanding
|
121 | 116 | ||||||
FMC-AG & Co. KGaA average days sales outstanding
|
82 | 76 | ||||||
15
16
17
For the six months
|
||||||||
ended June 30, | ||||||||
2011 | 2010 | |||||||
($ in millions) | ||||||||
Total EBITDA
|
$ | 1,227 | $ | 1,137 | ||||
Interest expense (net of interest income)
|
(146 | ) | (135 | ) | ||||
Income tax expense, net
|
(273 | ) | (257 | ) | ||||
Change in deferred taxes, net
|
53 | (1 | ) | |||||
Changes in operating assets and liabilities
|
(388 | ) | (112 | ) | ||||
Stock compensation expense
|
15 | 14 | ||||||
Other items, net
|
(1 | ) | (3 | ) | ||||
Net cash provided by (used in) operating activities
|
$ | 487 | $ | 643 | ||||
18
2011 | ||
($ in millions) | ||
Net Revenues
|
> $13,000 | |
Net Income attributable to FMC-AG & Co. KGaA
|
$1,070 - $1,090 | |
Debt/EBITDA
|
< 3.0x | |
Capital Expenditures in % of revenue
|
~ 5% | |
Acquisitions
|
~ $1,900 |
19
20
For the three months
|
For the six months
|
|||||||||||||||
ended June 30, | ended June 30, | |||||||||||||||
2011 | 2010 | 2011 | 2010 | |||||||||||||
Net revenue:
|
||||||||||||||||
Dialysis Care
|
$ | 2,361,563 | $ | 2,224,321 | $ | 4,646,879 | $ | 4,395,105 | ||||||||
Dialysis Products
|
832,489 | 721,878 | 1,583,561 | 1,433,223 | ||||||||||||
3,194,052 | 2,946,199 | 6,230,440 | 5,828,328 | |||||||||||||
Costs of revenue:
|
||||||||||||||||
Dialysis Care
|
1,651,399 | 1,554,649 | 3,317,593 | 3,096,330 | ||||||||||||
Dialysis Products
|
420,726 | 379,942 | 755,821 | 756,098 | ||||||||||||
2,072,125 | 1,934,591 | 4,073,414 | 3,852,428 | |||||||||||||
Gross profit
|
1,121,927 | 1,011,608 | 2,157,026 | 1,975,900 | ||||||||||||
Operating (income) expenses:
|
||||||||||||||||
Selling, general and administrative
|
594,480 | 525,584 | 1,165,928 | 1,043,321 | ||||||||||||
Research and development
|
26,783 | 21,373 | 52,932 | 44,462 | ||||||||||||
Income from equity method investees
|
(8,880 | ) | (1,914 | ) | (16,462 | ) | (3,627 | ) | ||||||||
Operating income
|
509,544 | 466,565 | 954,628 | 891,744 | ||||||||||||
Other (income) expense:
|
||||||||||||||||
Interest income
|
(15,579 | ) | (8,244 | ) | (26,000 | ) | (14,083 | ) | ||||||||
Interest expense
|
90,183 | 76,468 | 172,169 | 149,732 | ||||||||||||
Income before income taxes
|
434,940 | 398,341 | 808,459 | 756,095 | ||||||||||||
Income tax expense
|
148,856 | 129,075 | 273,260 | 256,603 | ||||||||||||
Net income
|
286,084 | 269,266 | 535,199 | 499,492 | ||||||||||||
Less: Net income attributable to noncontrolling interests
|
25,323 | 20,997 | 53,737 | 40,107 | ||||||||||||
Net income attributable to FMC-AG & Co. KGaA
|
$ | 260,761 | $ | 248,269 | $ | 481,462 | $ | 459,385 | ||||||||
Basic income per ordinary share
|
$ | 0.86 | $ | 0.83 | $ | 1.59 | $ | 1.53 | ||||||||
Fully diluted income per ordinary share
|
$ | 0.86 | $ | 0.82 | $ | 1.58 | $ | 1.52 | ||||||||
21
For the three months
|
For the six months
|
|||||||||||||||
ended June 30, | ended June 30, | |||||||||||||||
2011 | 2010 | 2011 | 2010 | |||||||||||||
Net Income
|
$ | 286,084 | $ | 269,266 | $ | 535,199 | $ | 499,492 | ||||||||
Gain (loss) related to cash flow hedges
|
(1,855 | ) | (55,489 | ) | 2,129 | (72,951 | ) | |||||||||
Actuarial gains (losses) on defined benefit pension plans
|
1,782 | 1,220 | 3,565 | 2,410 | ||||||||||||
Gain (loss) related to foreign currency translation
|
47,405 | (184,969 | ) | 166,358 | (309,906 | ) | ||||||||||
Income tax benefit (expense) related to components of other
comprehensive income
|
(4,696 | ) | 14,271 | (8,847 | ) | 19,152 | ||||||||||
Other comprehensive income (loss), net of tax
|
42,636 | (224,967 | ) | 163,205 | (361,295 | ) | ||||||||||
Total comprehensive income
|
$ | 328,720 | $ | 44,299 | $ | 698,404 | $ | 138,197 | ||||||||
Comprehensive income attributable to noncontrolling interests
|
26,080 | 21,212 | 54,762 | 39,207 | ||||||||||||
Comprehensive income attributable to FMC-AG & Co. KGaA
|
$ | 302,640 | $ | 23,087 | $ | 643,642 | $ | 98,990 | ||||||||
22
June 30,
|
December 31,
|
|||||||
2011 | 2010 | |||||||
(unaudited) | (audited) | |||||||
Assets
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$ | 449,253 | $ | 522,870 | ||||
Trade accounts receivable less allowance for doubtful accounts
of $284,171 in 2011 and $277,139 in 2010
|
2,947,033 | 2,573,258 | ||||||
Accounts receivable from related parties
|
114,873 | 113,976 | ||||||
Inventories
|
976,893 | 809,097 | ||||||
Prepaid expenses and other current assets
|
985,154 | 783,231 | ||||||
Deferred taxes
|
348,731 | 350,162 | ||||||
Total current assets
|
5,821,937 | 5,152,594 | ||||||
Property, plant and equipment, net
|
2,656,984 | 2,527,292 | ||||||
Intangible assets
|
696,707 | 692,544 | ||||||
Goodwill
|
8,902,372 | 8,140,468 | ||||||
Deferred taxes
|
91,284 | 93,168 | ||||||
Investment in equity method investees
|
344,986 | 250,373 | ||||||
Other assets and Notes Receivables
|
538,364 | 238,222 | ||||||
Total assets
|
$ | 19,052,634 | $ | 17,094,661 | ||||
Liabilities and shareholders equity
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
$ | 490,799 | $ | 420,637 | ||||
Accounts payable to related parties
|
135,836 | 121,887 | ||||||
Accrued expenses and other current liabilities
|
1,687,871 | 1,537,423 | ||||||
Short-term borrowings and other financial liabilities
|
760,957 | 670,671 | ||||||
Short-term borrowings from related parties
|
161,363 | 9,683 | ||||||
Current portion of long-term debt and capital lease obligations
|
230,817 | 263,982 | ||||||
Company-obligated mandatorily redeemable preferred securities of
subsidiary Fresenius Medical Care Capital Trusts holding solely
Company-guaranteed debentures of subsidiaries
current portion
|
| 625,549 | ||||||
Income tax payable
|
120,877 | 117,542 | ||||||
Deferred taxes
|
29,774 | 22,349 | ||||||
Total current liabilities
|
3,618,294 | 3,789,723 | ||||||
Long-term debt and capital lease obligations, less current
portion
|
5,960,463 | 4,309,676 | ||||||
Other liabilities
|
273,255 | 294,015 | ||||||
Pension liabilities
|
211,099 | 190,150 | ||||||
Income tax payable
|
180,931 | 200,581 | ||||||
Deferred taxes
|
580,866 | 506,896 | ||||||
Total liabilities
|
10,824,908 | 9,291,041 | ||||||
Noncontrolling interests subject to put provisions
|
306,723 | 279,709 | ||||||
Shareholders equity:
|
||||||||
Preference shares, no par value, 1.00 nominal value,
12,356,880 shares authorized, 3,963,293 issued and
outstanding
|
4,449 | 4,440 | ||||||
Ordinary shares, no par value, 1.00 nominal value,
373,436,220 shares authorized, 298,964,667 issued and
outstanding
|
369,986 | 369,002 | ||||||
Additional paid-in capital
|
3,368,938 | 3,339,781 | ||||||
Retained earnings
|
4,058,893 | 3,858,080 | ||||||
Accumulated other comprehensive (loss) income
|
(31,865 | ) | (194,045 | ) | ||||
Total FMC-AG & Co. KGaA shareholders equity
|
7,770,401 | 7,377,258 | ||||||
Noncontrolling interests not subject to put provisions
|
150,602 | 146,653 | ||||||
Total equity
|
7,921,003 | 7,523,911 | ||||||
Total liabilities and equity
|
$ | 19,052,634 | $ | 17,094,661 | ||||
23
For the six months
|
||||||||
ended June 30, | ||||||||
2011 | 2010 | |||||||
Operating Activities:
|
||||||||
Net income
|
$ | 535,199 | $ | 499,492 | ||||
Adjustments to reconcile net income to net cash provided by
operating activities:
|
||||||||
Depreciation and amortization
|
272,273 | 245,365 | ||||||
Change in deferred taxes, net
|
53,336 | (747 | ) | |||||
(Gain) loss on sale of investments
|
(115 | ) | (1,852 | ) | ||||
(Gain) loss on sale of fixed assets
|
(818 | ) | (86 | ) | ||||
Compensation expense related to stock options
|
14,631 | 13,712 | ||||||
Cash outflow from hedging
|
(58,581 | ) | | |||||
Changes in assets and liabilities, net of amounts from
businesses acquired:
|
||||||||
Trade accounts receivable, net
|
(263,509 | ) | (94,298 | ) | ||||
Inventories
|
(120,325 | ) | (33,482 | ) | ||||
Prepaid expenses, other current and non-current assets
|
(78,091 | ) | (91,264 | ) | ||||
Accounts receivable from related parties
|
(2,164 | ) | 128,263 | |||||
Accounts payable to related parties
|
6,108 | (133,600 | ) | |||||
Accounts payable, accrued expenses and
|
||||||||
other current and non-current liabilities
|
155,153 | 129,381 | ||||||
Income tax payable
|
(26,534 | ) | (17,421 | ) | ||||
Net cash provided by (used in) operating activities
|
486,563 | 643,463 | ||||||
Investing Activities:
|
||||||||
Purchases of property, plant and equipment
|
(238,384 | ) | (226,635 | ) | ||||
Proceeds from sale of property, plant and equipment
|
8,088 | 8,582 | ||||||
Acquisitions and investments, net of cash acquired, and
purchases of intangible assets
|
(1,122,458 | ) | (291,247 | ) | ||||
Proceeds from divestitures
|
| 7,867 | ||||||
Net cash provided by (used in) investing activities
|
(1,352,754 | ) | (501,433 | ) | ||||
Financing Activities:
|
||||||||
Proceeds from short-term borrowings and other financial
liabilities
|
69,252 | 72,674 | ||||||
Repayments of short-term borrowings and other financial
liabilities
|
(99,760 | ) | (65,870 | ) | ||||
Proceeds from short-term borrowings from related parties
|
146,494 | | ||||||
Proceeds from long-term debt and capital lease obligations (net
of debt issuance costs and other hedging costs of $72,926 in
2011 and $10,218 in 2010)
|
1,660,189 | 828,735 | ||||||
Repayments of long-term debt and capital lease obligations
|
(211,568 | ) | (495,003 | ) | ||||
Redemption of trust preferred securities
|
(653,760 | ) | | |||||
Increase (decrease) of accounts receivable securitization program
|
130,000 | 86,000 | ||||||
Proceeds from exercise of stock options
|
31,741 | 28,084 | ||||||
Dividends paid
|
(280,649 | ) | (231,967 | ) | ||||
Distributions to noncontrolling interests
|
(61,735 | ) | (67,562 | ) | ||||
Contributions from noncontrolling interests
|
12,290 | 14,850 | ||||||
Net cash provided by (used in) financing activities
|
742,494 | 169,941 | ||||||
Effect of exchange rate changes on cash and cash equivalents
|
50,080 | (40,345 | ) | |||||
Cash and Cash Equivalents:
|
||||||||
Net increase (decrease) in cash and cash equivalents
|
(73,617 | ) | 271,626 | |||||
Cash and cash equivalents at beginning of period
|
522,870 | 301,225 | ||||||
Cash and cash equivalents at end of period
|
$ | 449,253 | $ | 572,851 | ||||
24
Total
|
||||||||||||||||||||||||||||||||||||||||
Accumulated
|
FMC-AG &
|
Noncontrolling
|
||||||||||||||||||||||||||||||||||||||
Preference Shares | Ordinary Shares |
Additional
|
Other
|
Co. KGaA
|
interests not
|
|||||||||||||||||||||||||||||||||||
Number of
|
No par
|
Number of
|
No par
|
paid in
|
Retained
|
comprehensive
|
shareholders
|
subject to put
|
Total
|
|||||||||||||||||||||||||||||||
shares | value | shares | value | capital | earnings | income (loss) | equity | provisions | Equity | |||||||||||||||||||||||||||||||
Balance at December 31, 2009
|
3,884,328 | $ | 4,343 | 295,746,635 | $ | 365,672 | $ | 3,243,466 | $ | 3,111,530 | $ | (49,724 | ) | $ | 6,675,287 | $ | 123,103 | $ | 6,798,390 | |||||||||||||||||||||
Proceeds from exercise of options and related tax effects
|
72,840 | 97 | 2,532,366 | 3,330 | 98,819 | | | 102,246 | | 102,246 | ||||||||||||||||||||||||||||||
Compensation expense related to stock options
|
| | | | 27,981 | | | 27,981 | | 27,981 | ||||||||||||||||||||||||||||||
Dividends paid
|
| | | | | (231,967 | ) | | (231,967 | ) | | (231,967 | ) | |||||||||||||||||||||||||||
Purchase/ sale of noncontrolling interests
|
| | | | (6,263 | ) | | | (6,263 | ) | 17,295 | 11,032 | ||||||||||||||||||||||||||||
Contributions from / to noncontrolling interests
|
| | | | | | | | (54,225 | ) | (54,225 | ) | ||||||||||||||||||||||||||||
Changes in fair value of noncontrolling interests subject to put
provisions
|
| | | | (24,222 | ) | | | (24,222 | ) | | (24,222 | ) | |||||||||||||||||||||||||||
Net income
|
| | | | | 978,517 | | 978,517 | 58,040 | 1,036,557 | ||||||||||||||||||||||||||||||
Other comprehensive income (loss)
|
| | | | | | (144,321 | ) | (144,321 | ) | 2,440 | (141,881 | ) | |||||||||||||||||||||||||||
Comprehensive income
|
| | | | | | | 834,196 | 60,480 | 894,676 | ||||||||||||||||||||||||||||||
Balance at December 31, 2010
|
3,957,168 | $ | 4,440 | 298,279,001 | $ | 369,002 | $ | 3,339,781 | $ | 3,858,080 | $ | (194,045 | ) | $ | 7,377,258 | $ | 146,653 | $ | 7,523,911 | |||||||||||||||||||||
Proceeds from exercise of options and related tax effects
|
6,125 | 9 | 685,666 | 984 | 29,196 | | | 30,189 | | 30,189 | ||||||||||||||||||||||||||||||
Compensation expense related to stock options
|
| | | | 14,631 | | | 14,631 | | 14,631 | ||||||||||||||||||||||||||||||
Dividends paid
|
| | | | | (280,649 | ) | | (280,649 | ) | | (280,649 | ) | |||||||||||||||||||||||||||
Purchase/ sale of noncontrolling interests
|
| | | | 596 | | | 596 | (7,071 | ) | (6,475 | ) | ||||||||||||||||||||||||||||
Contributions from / to noncontrolling interests
|
| | | | | | | | (23,787 | ) | (23,787 | ) | ||||||||||||||||||||||||||||
Changes in fair value of noncontrolling interests subject to put
provisions
|
| | | | (15,266 | ) | | | (15,266 | ) | | (15,266 | ) | |||||||||||||||||||||||||||
Net income
|
| | | | | 481,462 | | 481,462 | 34,328 | 515,790 | ||||||||||||||||||||||||||||||
Other comprehensive income (loss)
|
| | | | | | 162,180 | 162,180 | 479 | 162,659 | ||||||||||||||||||||||||||||||
Comprehensive income
|
| | | | | | | 643,642 | 34,807 | 678,449 | ||||||||||||||||||||||||||||||
Balance at June 30, 2011
|
3,963,293 | $ | 4,449 | 298,964,667 | $ | 369,986 | $ | 3,368,938 | $ | 4,058,893 | $ | (31,865 | ) | $ | 7,770,401 | $ | 150,602 | $ | 7,921,003 | |||||||||||||||||||||
25
1. | The Company and Basis of Presentation |
2. | Acquisitions |
26
3. | Related Party Transactions |
a) | Service and Lease Agreements |
b) | Products |
27
c) | Financing Provided by and to Fresenius SE and the General Partner |
4. | Inventories |
June 30,
|
December 31,
|
|||||||
2011 | 2010 | |||||||
Raw materials and purchased components
|
$ | 167,437 | $ | 158,163 | ||||
Work in process
|
73,639 | 56,345 | ||||||
Finished goods
|
620,132 | 475,641 | ||||||
Health care supplies
|
115,685 | 118,948 | ||||||
Inventories
|
$ | 976,893 | $ | 809,097 | ||||
28
5. | Other Assets and Notes Receivables |
6. | Short-Term Borrowings, Other Financial Liabilities and Short-Term Borrowings from Related Parties |
June 30,
|
December 31,
|
|||||||
2011 | 2010 | |||||||
Borrowings under lines of credit
|
$ | 111,841 | $ | 131,791 | ||||
Accounts receivable facility
|
640,000 | 510,000 | ||||||
Other financial liabilities
|
9,116 | 28,880 | ||||||
Short-term borrowings and other financial liabilities
|
760,957 | 670,671 | ||||||
Short-term borrowings from related parties (see Note 3.c.)
|
161,363 | 9,683 | ||||||
Short-term borrowings, Other financial liabilities and
Short-term borrowings from related parties
|
$ | 922,320 | $ | 680,354 | ||||
7. | Long-term Debt and Capital Lease Obligations |
June 30,
|
December 31,
|
|||||||
2011 | 2010 | |||||||
Amended 2006 Senior Credit Agreement
|
$ | 3,474,088 | $ | 2,953,890 | ||||
Senior Notes
|
1,929,959 | 824,446 | ||||||
Euro Notes
|
289,060 | 267,240 | ||||||
EIB Agreements
|
366,960 | 351,686 | ||||||
Capital lease obligations
|
15,652 | 15,439 | ||||||
Other
|
115,561 | 160,957 | ||||||
6,191,280 | 4,573,658 | |||||||
Less current maturities
|
(230,817 | ) | (263,982 | ) | ||||
$ | 5,960,463 | $ | 4,309,676 | |||||
29
Maximum Amount
|
||||||||||||||||
Available | Balance Outstanding | |||||||||||||||
June 30,
|
December 31,
|
June 30,
|
December 31,
|
|||||||||||||
2011 | 2010 | 2011 | 2010 | |||||||||||||
Revolving Credit
|
$ | 1,200,000 | $ | 1,200,000 | $ | 669,397 | $ | 81,126 | ||||||||
Term Loan A
|
1,275,000 | 1,335,000 | 1,275,000 | 1,335,000 | ||||||||||||
Term Loan B
|
1,529,691 | 1,537,764 | 1,529,691 | 1,537,764 | ||||||||||||
$ | 4,004,691 | $ | 4,072,764 | $ | 3,474,088 | $ | 2,953,890 | |||||||||
30
8. | Stock Options |
31
9. | Earnings Per Share |
For the three months
|
For the six months
|
|||||||||||||||
ended June 30, | ended June 30, | |||||||||||||||
2011 | 2010 | 2011 | 2010 | |||||||||||||
Numerators:
|
||||||||||||||||
Net income attributable to FMC-AG & Co. KGaA
|
$ | 260,761 | $ | 248,269 | $ | 481,462 | $ | 459,385 | ||||||||
less:
|
||||||||||||||||
Dividend preference on Preference shares
|
28 | 25 | 55 | 51 | ||||||||||||
Income available to all classes of shares
|
$ | 260,733 | $ | 248,244 | $ | 481,407 | $ | 459,334 | ||||||||
Denominators:
|
||||||||||||||||
Weighted average number of:
|
||||||||||||||||
Ordinary shares outstanding
|
298,559,749 | 296,104,554 | 298,427,098 | 295,926,583 | ||||||||||||
Preference shares outstanding
|
3,958,515 | 3,899,075 | 3,957,978 | 3,894,560 | ||||||||||||
Total weighted average shares outstanding
|
302,518,264 | 300,003,629 | 302,385,076 | 299,821,143 | ||||||||||||
Potentially dilutive Ordinary shares
|
2,336,573 | 1,775,499 | 2,095,345 | 1,594,139 | ||||||||||||
Potentially dilutive Preference shares
|
21,174 | 49,206 | 20,432 | 46,919 | ||||||||||||
Total weighted average Ordinary shares outstanding assuming
dilution
|
300,896,322 | 297,880,053 | 300,522,443 | 297,520,722 | ||||||||||||
Total weighted average Preference shares outstanding assuming
dilution
|
3,979,689 | 3,948,281 | 3,978,410 | 3,941,479 | ||||||||||||
Basic income per Ordinary share
|
$ | 0.86 | $ | 0.83 | $ | 1.59 | $ | 1.53 | ||||||||
Plus preference per Preference shares
|
0.01 | | 0.02 | 0.02 | ||||||||||||
Basic income per Preference share
|
$ | 0.87 | $ | 0.83 | $ | 1.61 | $ | 1.55 | ||||||||
Fully diluted income per Ordinary share
|
$ | 0.86 | $ | 0.82 | $ | 1.58 | $ | 1.52 | ||||||||
Plus preference per Preference shares
|
| 0.01 | 0.01 | 0.02 | ||||||||||||
Fully diluted income per Preference share
|
$ | 0.86 | $ | 0.83 | $ | 1.59 | $ | 1.54 | ||||||||
32
10. | Employee Benefit Plans |
Three months ended
|
Six months ended
|
|||||||||||||||
June 30, | June 30, | |||||||||||||||
2011 | 2010 | 2011 | 2010 | |||||||||||||
Components of net periodic benefit cost:
|
||||||||||||||||
Service cost
|
$ | 2,735 | $ | 1,915 | $ | 5,357 | $ | 3,965 | ||||||||
Interest cost
|
6,139 | 5,521 | 12,175 | 11,188 | ||||||||||||
Expected return on plan assets
|
(4,275 | ) | (4,366 | ) | (8,550 | ) | (8,732 | ) | ||||||||
Amortization of unrealized losses
|
1,801 | 1,221 | 3,601 | 2,411 | ||||||||||||
Net periodic benefit costs
|
$ | 6,400 | $ | 4,291 | $ | 12,583 | $ | 8,832 | ||||||||
11. | Mandatorily Redeemable Trust Preferred Securities |
12. | Noncontrolling Interests Subject to Put Provisions |
33
June 30,
|
December 31,
|
|||||||
2011 | 2010 | |||||||
Beginning balance
|
$ | 279,709 | $ | 231,303 | ||||
Contributions to noncontrolling interests
|
(18,435 | ) | (38,964 | ) | ||||
Purchase/ sale of noncontrolling interests
|
6,819 | 28,969 | ||||||
Contributions from noncontrolling interests
|
3,409 | 5,289 | ||||||
Changes in fair value of noncontrolling interests
|
15,266 | 24,222 | ||||||
Net income
|
19,409 | 28,839 | ||||||
Other comprehensive income (loss)
|
546 | 51 | ||||||
Ending balance
|
$ | 306,723 | $ | 279,709 | ||||
13. | Commitments and Contingencies |
34
35
36
37
38
14. | Financial Instruments |
June 30, 2011 | December 31, 2010 | |||||||||||||||
Carrying
|
Fair
|
Carrying
|
Fair
|
|||||||||||||
Amount | Value | Amount | Value | |||||||||||||
Non-derivatives
|
||||||||||||||||
Assets
|
||||||||||||||||
Cash and cash equivalents
|
$ | 449,253 | $ | 449,253 | $ | 522,870 | $ | 522,870 | ||||||||
Accounts Receivable
|
3,061,906 | 3,061,906 | 2,687,234 | 2,687,234 | ||||||||||||
Long-term Notes Receivable
|
234,215 | 239,701 | | | ||||||||||||
Liabilities
|
||||||||||||||||
Accounts payable
|
626,635 | 626,635 | 542,524 | 542,524 | ||||||||||||
Short-term borrowings
|
760,957 | 760,957 | 670,671 | 670,671 | ||||||||||||
Short-term borrowings from related parties
|
161,363 | 161,363 | 9,683 | 9,683 | ||||||||||||
Long term debt, excluding Amended 2006 Senior Credit Agreement,
Euro Notes and Senior Notes
|
498,173 | 498,173 | 528,082 | 528,082 | ||||||||||||
Amended 2006 Senior Credit Agreement
|
3,474,088 | 3,467,077 | 2,953,890 | 2,937,504 | ||||||||||||
Senior Notes
|
1,929,959 | 1,957,191 | 824,446 | 880,366 | ||||||||||||
Euro Notes
|
289,060 | 297,205 | 267,240 | 276,756 | ||||||||||||
Trust Preferred Securities
|
| | 625,549 | 643,828 | ||||||||||||
Noncontrolling interests subject to put provisions
|
306,723 | 306,723 | 279,709 | 279,709 |
39
40
41
June 30, 2011 | December 31, 2010 | |||||||||||||||
Assets (2) | Liabilities (2) | Assets (2) | Liabilities (2) | |||||||||||||
Derivatives in cash flow hedging
relationships
(1)
|
||||||||||||||||
Current
|
||||||||||||||||
Foreign exchange contracts
|
77,491 | (3,070 | ) | 3,703 | (51,816 | ) | ||||||||||
Interest rate contracts
|
| (35,838 | ) | | (51,604 | ) | ||||||||||
Non-current
|
||||||||||||||||
Foreign exchange contracts
|
12 | | 810 | (486 | ) | |||||||||||
Interest rate contracts
|
| (27,301 | ) | | (73,221 | ) | ||||||||||
Total
|
$ | 77,503 | $ | (66,209 | ) | $ | 4,513 | $ | (177,127 | ) | ||||||
Derivatives not designated as hedging
instruments
(1)
|
||||||||||||||||
Current
|
||||||||||||||||
Foreign exchange contracts
|
17,243 | (15,889 | ) | 3,517 | (20,751 | ) | ||||||||||
Non-current
|
||||||||||||||||
Foreign exchange contracts
|
7,414 | (7,202 | ) | 509 | (213 | ) | ||||||||||
Total
|
$ | 24,657 | $ | (23,091 | ) | $ | 4,026 | $ | (20,964 | ) | ||||||
(1) | As of June 30, 2011, the valuation of the Companys derivatives was determined using Significant Other Observable Inputs (Level 2) in accordance with the fair value hierarchy levels established in U.S. GAAP. | |
(2) | Derivative instruments are marked to market each reporting period resulting in carrying amounts being equal to fair values at the reporting date. |
42
Amount of Gain or
|
Amount of (Gain) or
|
|||||||||||||||||
(Loss) Recognized in OCI
|
Loss Reclassified
|
|||||||||||||||||
on Derivatives
|
from AOCI in
|
|||||||||||||||||
(Effective Portion)
|
Location of (Gain) or
|
Income
|
||||||||||||||||
for the six months
|
Loss Reclassified from
|
(Effective Portion)
|
||||||||||||||||
Derivatives in Cash Flow
|
ended June 30, |
AOCI in Income
|
for the six months ended June 30, | |||||||||||||||
Hedging Relationships | 2011 | 2010 | (Effective Portion) | 2011 | 2010 | |||||||||||||
Interest rate contracts
|
$ | 9,478 | $ | (52,710 | ) | Interest income/expense | $ | | $ | | ||||||||
Foreign exchange contracts
|
(7,945 | ) | (22,130 | ) | Costs of Revenue | 596 | 1,889 | |||||||||||
$ | 1,533 | $ | (74,840 | ) | $ | 596 | $ | 1,889 | ||||||||||
Amount of (Gain) or Loss Recognized in Income
|
||||||||||
on Derivatives
|
||||||||||
Location of (Gain) or Loss
|
for the six months ended
|
|||||||||
Derivatives not Designated
|
Recognized in Income
|
June 30, | ||||||||
as Hedging Instruments | on Derivative | 2011 | 2010 | |||||||
Foreign exchange contracts
|
Selling, general and
administrative expense |
$ | (24,714 | ) | $ | 42,864 | ||||
Interest income/expense | 5,559 | (9,247 | ) | |||||||
$ | (19,155 | ) | $ | 33,617 | ||||||
15. | Business Segment Information |
43
North
|
Segment
|
|||||||||||||||||||
America | International | Total | Corporate | Total | ||||||||||||||||
Three months ended June 30, 2011
|
||||||||||||||||||||
Net revenue external customers
|
$ | 2,027,419 | $ | 1,162,448 | $ | 3,189,867 | $ | 4,185 | $ | 3,194,052 | ||||||||||
Inter segment revenue
|
1,815 | | 1,815 | (1,815 | ) | | ||||||||||||||
Revenue
|
2,029,234 | 1,162,448 | 3,191,682 | 2,370 | 3,194,052 | |||||||||||||||
Depreciation and amortization
|
(66,555 | ) | (42,822 | ) | (109,377 | ) | (26,912 | ) | (136,289 | ) | ||||||||||
Operating income
|
348,457 | 203,144 | 551,601 | (42,057 | ) | 509,544 | ||||||||||||||
Income (loss) from equity method investees
|
8,849 | 31 | 8,880 | | 8,880 | |||||||||||||||
Capital expenditures, acquisitions and investments
|
74,555 | 797,637 | 872,192 | 32,692 | 904,884 | |||||||||||||||
Three months ended June 30, 2010
|
||||||||||||||||||||
Net revenue external customers
|
$ | 2,026,582 | $ | 919,524 | $ | 2,946,106 | $ | 93 | $ | 2,946,199 | ||||||||||
Inter segment revenue
|
1,263 | | 1,263 | (1,263 | ) | | ||||||||||||||
Revenue
|
2,027,845 | 919,524 | 2,947,369 | (1,170 | ) | 2,946,199 | ||||||||||||||
Depreciation and amortization
|
(63,004 | ) | (33,508 | ) | (96,512 | ) | (24,395 | ) | (120,907 | ) | ||||||||||
Operating income
|
332,097 | 173,095 | 505,192 | (38,627 | ) | 466,565 | ||||||||||||||
Income (loss) from equity method investees
|
1,887 | 27 | 1,914 | | 1,914 | |||||||||||||||
Capital expenditures, acquisitions and investments
|
71,316 | 93,608 | 164,924 | 163,478 | 328,402 |
44
North
|
Segment
|
|||||||||||||||||||
America | International | Total | Corporate | Total | ||||||||||||||||
Six months ended June 30, 2011
|
||||||||||||||||||||
Net revenue external customers
|
$ | 4,004,707 | $ | 2,217,681 | $ | 6,222,388 | $ | 8,052 | $ | 6,230,440 | ||||||||||
Inter segment revenue
|
3,509 | | 3,509 | (3,509 | ) | | ||||||||||||||
Total net revenue
|
4,008,216 | 2,217,681 | 6,225,897 | 4,543 | 6,230,440 | |||||||||||||||
Depreciation and amortization
|
(134,782 | ) | (83,171 | ) | (217,953 | ) | (54,320 | ) | (272,273 | ) | ||||||||||
Operating Income
|
660,563 | 374,154 | 1,034,717 | (80,089 | ) | 954,628 | ||||||||||||||
Income (loss) from equity method investees
|
16,367 | 95 | 16,462 | | 16,462 | |||||||||||||||
Segment
assets
(1)
|
11,415,424 | 5,541,670 | 16,957,094 | 2,095,540 | 19,052,634 | |||||||||||||||
thereof investments in equity method investees
|
339,230 | 5,756 | 344,986 | | 344,986 | |||||||||||||||
Capital expenditures, acquisitions and
investments
(2)
|
462,425 | 838,413 | 1,300,838 | 60,004 | 1,360,842 | |||||||||||||||
Six months ended June 30, 2010
|
||||||||||||||||||||
Net revenue external customers
|
$ | 3,986,270 | $ | 1,841,747 | $ | 5,828,017 | $ | 311 | $ | 5,828,328 | ||||||||||
Inter segment revenue
|
1,828 | | 1,828 | (1,828 | ) | | ||||||||||||||
Total net revenue
|
3,988,098 | 1,841,747 | 5,829,845 | (1,517 | ) | 5,828,328 | ||||||||||||||
Depreciation and amortization
|
(126,715 | ) | (70,067 | ) | (196,782 | ) | (48,583 | ) | (245,365 | ) | ||||||||||
Operating Income
|
640,003 | 324,025 | 964,028 | (72,284 | ) | 891,744 | ||||||||||||||
Income (loss) from equity method investees
|
3,577 | 50 | 3,627 | | 3,627 | |||||||||||||||
Segment assets
|
11,281,830 | 3,948,045 | 15,229,875 | 769,689 | 15,999,564 | |||||||||||||||
thereof investments in equity method investees
|
16,543 | 3,478 | 20,021 | | 20,021 | |||||||||||||||
Capital expenditures, acquisitions and
investments
(3)
|
144,883 | 178,858 | 323,741 | 194,141 | 517,882 |
(1) | If production was still managed within the segments, as it was in 2010, segment assets would have been $12,403,823 in North America, $6,153,751 in International and $495,060 in Corporate in 2011. | |
(2) | North America and International acquisitions exclude $6,000 and $1,731, respectively, of non-cash acquisitions for 2011. | |
(3) | International and Corporate acquisitions exclude $8,884 and $2,125 of non-cash acquisitions for 2010. |
45
16. | Supplementary Cash Flow Information |
Six months ended
|
||||||||
June 30, | ||||||||
2011 | 2010 | |||||||
Supplementary cash flow information:
|
||||||||
Cash paid for interest
|
$ | 108,898 | $ | 128,915 | ||||
Cash paid for income
taxes
(1)
|
$ | 242,776 | $ | 261,695 | ||||
Cash inflow for income taxes from stock option exercises
|
$ | 4,980 | $ | 2,378 | ||||
Supplemental disclosures of cash flow information:
|
||||||||
Details for acquisitions:
|
||||||||
Assets acquired
|
$ | (874,302 | ) | $ | (186,560 | ) | ||
Liabilities assumed
|
37,555 | 11,303 | ||||||
Noncontrolling interest
|
1,441 | 5,741 | ||||||
Notes assumed in connection with acquisition
|
1,731 | 11,009 | ||||||
Cash paid
|
(833,575 | ) | (158,507 | ) | ||||
Less cash acquired
|
12,435 | 1,678 | ||||||
Net cash paid for acquisitions
|
$ | (821,140 | ) | $ | (156,829 | ) | ||
(1) | Net of tax refund |
17. | Subsequent Events |
46
18. | Supplemental Condensed Combining Information |
For the six months ended June 30, 2011 | ||||||||||||||||||||||||||||
Issuer | Guarantors | |||||||||||||||||||||||||||
FMC US
|
FMC-AG &
|
Non-Guarantor
|
Combining
|
Combined
|
||||||||||||||||||||||||
Finance | Co. KGaA | D-GmbH | FMCH | Subsidiaries | Adjustment | Total | ||||||||||||||||||||||
Net revenue
|
$ | | $ | | $ | 934,792 | $ | | $ | 6,676,858 | $ | (1,381,210 | ) | $ | 6,230,440 | |||||||||||||
Cost of revenue
|
| | 584,172 | | 4,848,221 | (1,358,979 | ) | 4,073,414 | ||||||||||||||||||||
Gross profit
|
| | 350,620 | | 1,828,637 | (22,231 | ) | 2,157,026 | ||||||||||||||||||||
Operating expenses (income):
|
||||||||||||||||||||||||||||
Selling, general and administrative
|
2 | 36,236 | 97,705 | (52,627 | ) | 1,070,828 | (2,678 | ) | 1,149,466 | |||||||||||||||||||
Research and development
|
| | 34,212 | | 18,720 | | 52,932 | |||||||||||||||||||||
Operating (loss) income
|
(2 | ) | (36,236 | ) | 218,703 | 52,627 | 739,089 | (19,553 | ) | 954,628 | ||||||||||||||||||
Other (income) expense:
|
||||||||||||||||||||||||||||
Interest, net
|
(1,936 | ) | 40,063 | 3,809 | 62,721 | 47,235 | (5,723 | ) | 146,169 | |||||||||||||||||||
Other, net
|
| (611,365 | ) | 144,905 | (332,306 | ) | | 798,766 | | |||||||||||||||||||
Income (loss) before income taxes
|
1,934 | 535,066 | 69,989 | 322,212 | 691,854 | (812,596 | ) | 808,459 | ||||||||||||||||||||
Income tax expense (benefit)
|
715 | 53,604 | 60,749 | (3,982 | ) | 291,583 | (129,409 | ) | 273,260 | |||||||||||||||||||
Net Income (loss)
|
1,219 | 481,462 | 9,240 | 326,194 | 400,271 | (683,187 | ) | 535,199 | ||||||||||||||||||||
Net Income attributable to noncontrolling interests
|
| | | | | 53,737 | 53,737 | |||||||||||||||||||||
Net income (loss) attributable to the FMC-AG & Co. KGaA
|
$ | 1,219 | $ | 481,462 | $ | 9,240 | $ | 326,194 | $ | 400,271 | $ | (736,924 | ) | $ | 481,462 | |||||||||||||
47
For the six months ended June 30, 2010 | ||||||||||||||||||||||||||||
Issuer | Guarantors | |||||||||||||||||||||||||||
FMC
|
FMC-AG &
|
Non-Guarantor
|
Combining
|
Combined
|
||||||||||||||||||||||||
Finance III | Co. KGaA | D-GmbH | FMCH | Subsidiaries | Adjustment | Total | ||||||||||||||||||||||
Net revenue
|
$ | | $ | | $ | 784,670 | $ | | $ | 6,181,531 | $ | (1,137,873 | ) | $ | 5,828,328 | |||||||||||||
Cost of revenue
|
| | 501,977 | | 4,477,730 | (1,127,279 | ) | 3,852,428 | ||||||||||||||||||||
Gross profit
|
| | 282,693 | | 1,703,801 | (10,594 | ) | 1,975,900 | ||||||||||||||||||||
Operating expenses (income):
|
||||||||||||||||||||||||||||
Selling, general and administrative
|
8 | 63,750 | 72,357 | 45,197 | 869,660 | (11,278 | ) | 1,039,694 | ||||||||||||||||||||
Research and development
|
| | 30,255 | | 14,207 | | 44,462 | |||||||||||||||||||||
Operating (loss) income
|
(8 | ) | (63,750 | ) | 180,081 | (45,197 | ) | 819,934 | 684 | 891,744 | ||||||||||||||||||
Other (income) expense:
|
||||||||||||||||||||||||||||
Interest, net
|
(360 | ) | 12,953 | 1,429 | 27,293 | 90,660 | 3,674 | 135,649 | ||||||||||||||||||||
Other, net
|
| (573,536 | ) | 127,397 | (289,983 | ) | | 736,122 | | |||||||||||||||||||
Income (loss) before income taxes
|
352 | 496,833 | 51,255 | 217,493 | 729,274 | (739,112 | ) | 756,095 | ||||||||||||||||||||
Income tax expense (benefit)
|
100 | 37,448 | 51,352 | (28,561 | ) | 299,439 | (103,175 | ) | 256,603 | |||||||||||||||||||
Net Income (loss)
|
252 | 459,385 | (97 | ) | 246,054 | 429,835 | (635,937 | ) | 499,492 | |||||||||||||||||||
Net Income attributable to noncontrolling interests
|
| | | | | 40,107 | 40,107 | |||||||||||||||||||||
Net income (loss) attributable to the FMC-AG & Co. KGaA
|
$ | 252 | $ | 459,385 | $ | (97 | ) | $ | 246,054 | $ | 429,835 | $ | (676,044 | ) | $ | 459,385 | ||||||||||||
48
At June 30, 2011 | ||||||||||||||||||||||||||||
Issuer | Guarantors |
Non-
|
||||||||||||||||||||||||||
FMC US
|
FMC-AG &
|
Guarantor
|
Combining
|
Combined
|
||||||||||||||||||||||||
Finance | Co. KGaA | D-GmbH | FMCH | Subsidiaries | Adjustment | Total | ||||||||||||||||||||||
Current assets:
|
||||||||||||||||||||||||||||
Cash and cash equivalents
|
$ | 6 | $ | 170 | $ | 83 | $ | | $ | 448,994 | $ | | $ | 449,253 | ||||||||||||||
Trade accounts receivable, less allowance for doubtful accounts
|
| | 185,556 | | 2,761,477 | | 2,947,033 | |||||||||||||||||||||
Accounts receivable from related parties
|
1,274,828 | 3,627,849 | 994,836 | 670,736 | 3,885,243 | (10,338,619 | ) | 114,873 | ||||||||||||||||||||
Inventories
|
| | 237,033 | | 848,191 | (108,331 | ) | 976,893 | ||||||||||||||||||||
Prepaid expenses and other current assets
|
| 155,071 | 28,824 | 150 | 839,367 | (38,258 | ) | 985,154 | ||||||||||||||||||||
Deferred taxes
|
| 7,916 | | | 329,305 | 11,510 | 348,731 | |||||||||||||||||||||
Total current assets
|
1,274,834 | 3,791,006 | 1,446,332 | 670,886 | 9,112,577 | (10,473,698 | ) | 5,821,937 | ||||||||||||||||||||
Property, plant and equipment, net
|
| 444 | 181,039 | | 2,585,221 | (109,720 | ) | 2,656,984 | ||||||||||||||||||||
Intangible assets
|
| 350 | 67,731 | | 628,626 | | 696,707 | |||||||||||||||||||||
Goodwill
|
| | 66,294 | | 8,836,078 | | 8,902,372 | |||||||||||||||||||||
Deferred taxes
|
| 6,061 | 5,913 | | 116,957 | (37,647 | ) | 91,284 | ||||||||||||||||||||
Other assets
|
| 7,705,852 | 651,219 | 10,386,845 | (7,315,138 | ) | (10,545,428 | ) | 883,350 | |||||||||||||||||||
Total assets
|
$ | 1,274,834 | $ | 11,503,713 | $ | 2,418,528 | $ | 11,057,731 | $ | 13,964,321 | $ | (21,166,493 | ) | $ | 19,052,634 | |||||||||||||
Current liabilities:
|
||||||||||||||||||||||||||||
Accounts payable
|
$ | 310 | $ | 940 | $ | 36,144 | $ | | $ | 453,405 | $ | | $ | 490,799 | ||||||||||||||
Accounts payable to related parties
|
101 | 1,398,600 | 1,006,740 | 1,546,648 | 6,591,570 | (10,407,823 | ) | 135,836 | ||||||||||||||||||||
Accrued expenses and other current liabilities
|
20,394 | 100,155 | 130,097 | 1,835 | 1,455,500 | (20,110 | ) | 1,687,871 | ||||||||||||||||||||
Short-term borrowings
|
| 104 | 723 | | 760,130 | | 760,957 | |||||||||||||||||||||
Short-term borrowings from related parties
|
| | | | 107,530 | 53,833 | 161,363 | |||||||||||||||||||||
Current portion of long-term debt and capital lease obligations
|
| 67,051 | | 41,145 | 122,621 | | 230,817 | |||||||||||||||||||||
Company obligated mandatorily redeemable preferred securities of
subsidiary Fresenius Medical Care Capital Trusts holding solely
Company-guaranteed debentures of subsidiaries
current portion
|
| | | | | | | |||||||||||||||||||||
Income tax payable
|
715 | 82,593 | | | 43,292 | (5,723 | ) | 120,877 | ||||||||||||||||||||
Deferred taxes
|
| | 8,420 | | 37,030 | (15,676 | ) | 29,774 | ||||||||||||||||||||
Total current liabilities
|
21,520 | 1,649,443 | 1,182,124 | 1,589,628 | 9,571,078 | (10,395,499 | ) | 3,618,294 | ||||||||||||||||||||
Long term debt and capital lease obligations, less current
portion
|
1,194,595 | 1,277,715 | | 1,561,619 | 5,211,148 | (3,284,614 | ) | 5,960,463 | ||||||||||||||||||||
Long term borrowings from related parties
|
| 791,139 | 224,040 | | 3,776 | (1,018,955 | ) | | ||||||||||||||||||||
Other liabilities
|
| 7,202 | 11,877 | | 201,250 | 52,926 | 273,255 | |||||||||||||||||||||
Pension liabilities
|
| 6,670 | 162,306 | | 42,123 | | 211,099 | |||||||||||||||||||||
Income tax payable
|
| 1,143 | | | 55,178 | 124,610 | 180,931 | |||||||||||||||||||||
Deferred taxes
|
| | | | 597,347 | (16,481 | ) | 580,866 | ||||||||||||||||||||
Total liabilities
|
1,216,115 | 3,733,312 | 1,580,347 | 3,151,247 | 15,681,900 | (14,538,013 | ) | 10,824,908 | ||||||||||||||||||||
Noncontrolling interests subject to put provisions
|
| | | | 306,723 | | 306,723 | |||||||||||||||||||||
Total FMC-AG & Co. KGaA shareholders equity
|
58,719 | 7,770,401 | 838,181 | 7,906,484 | (2,174,904 | ) | (6,628,480 | ) | 7,770,401 | |||||||||||||||||||
Noncontrolling interests not subject to put provisions
|
| | | | 150,602 | | 150,602 | |||||||||||||||||||||
Total equity
|
58,719 | 7,770,401 | 838,181 | 7,906,484 | (2,024,302 | ) | (6,628,480 | ) | 7,921,003 | |||||||||||||||||||
Total liabilities and equity
|
$ | 1,274,834 | $ | 11,503,713 | $ | 2,418,528 | $ | 11,057,731 | $ | 13,964,321 | $ | (21,166,493 | ) | $ | 19,052,634 | |||||||||||||
49
At December 31, 2010 | ||||||||||||||||||||||||||||
Issuer | Guarantors | |||||||||||||||||||||||||||
FMC
|
FMC-AG &
|
Non-Guarantor
|
Combining
|
Combined
|
||||||||||||||||||||||||
Finance III | Co. KGaA | D-GmbH | FMCH | Subsidiaries | Adjustment | Total | ||||||||||||||||||||||
Current assets:
|
||||||||||||||||||||||||||||
Cash and cash equivalents
|
$ | 123 | $ | 147,177 | $ | 225 | $ | | $ | 342,401 | $ | 32,944 | $ | 522,870 | ||||||||||||||
Trade accounts receivable, less allowance for doubtful accounts
|
| | 157,755 | | 2,415,503 | | 2,573,258 | |||||||||||||||||||||
Accounts receivable from related parties
|
16,542 | 2,418,066 | 667,484 | 441,601 | 2,826,527 | (6,256,244 | ) | 113,976 | ||||||||||||||||||||
Inventories
|
| | 184,948 | | 711,053 | (86,904 | ) | 809,097 | ||||||||||||||||||||
Prepaid expenses and other current assets
|
1 | 111,594 | 11,341 | 50 | 662,188 | (1,943 | ) | 783,231 | ||||||||||||||||||||
Deferred taxes
|
| 14,221 | | | 317,644 | 18,297 | 350,162 | |||||||||||||||||||||
Total current assets
|
16,666 | 2,691,058 | 1,021,753 | 441,651 | 7,275,316 | (6,293,850 | ) | 5,152,594 | ||||||||||||||||||||
Property, plant and equipment, net
|
| 390 | 168,939 | | 2,458,364 | (100,401 | ) | 2,527,292 | ||||||||||||||||||||
Intangible assets
|
| 428 | 65,684 | | 626,432 | | 692,544 | |||||||||||||||||||||
Goodwill
|
| | 65,315 | | 8,075,153 | | 8,140,468 | |||||||||||||||||||||
Deferred taxes
|
| 9,463 | 4,693 | | 121,875 | (42,863 | ) | 93,168 | ||||||||||||||||||||
Other assets
|
494,231 | 7,201,295 | 644,523 | 9,320,731 | (6,581,295 | ) | (10,590,890 | ) | 488,595 | |||||||||||||||||||
Total assets
|
$ | 510,897 | $ | 9,902,634 | $ | 1,970,907 | $ | 9,762,382 | $ | 11,975,845 | $ | (17,028,004 | ) | $ | 17,094,661 | |||||||||||||
Current liabilities:
|
||||||||||||||||||||||||||||
Accounts payable
|
$ | | $ | 5,738 | $ | 22,387 | $ | | $ | 392,512 | $ | | $ | 420,637 | ||||||||||||||
Accounts payable to related parties
|
229 | 952,141 | 670,613 | 1,538,658 | 3,210,393 | (6,250,147 | ) | 121,887 | ||||||||||||||||||||
Accrued expenses and other current liabilities
|
15,866 | 122,000 | 94,978 | 2,054 | 1,292,562 | 9,963 | 1,537,423 | |||||||||||||||||||||
Short-term borrowings
|
| 121 | | | 670,550 | | 670,671 | |||||||||||||||||||||
Short-term borrowings from related parties
|
| | | | 2,004 | 7,679 | 9,683 | |||||||||||||||||||||
Current portion of long-term debt and capital lease obligations
|
| 106,862 | | 101,145 | 55,975 | | 263,982 | |||||||||||||||||||||
Company obligated mandatorily redeemable preferred securities of
subsidiary Fresenius Medical Care Capital Trusts holding solely
Company-guaranteed debentures of subsidiaries
current portion
|
| | | | 625,549 | | 625,549 | |||||||||||||||||||||
Income tax payable
|
24 | 54,366 | | | 62,504 | 648 | 117,542 | |||||||||||||||||||||
Deferred taxes
|
| | 5,513 | | 27,143 | (10,307 | ) | 22,349 | ||||||||||||||||||||
Total current liabilities
|
16,119 | 1,241,228 | 793,491 | 1,641,857 | 6,339,192 | (6,242,164 | ) | 3,789,723 | ||||||||||||||||||||
Long term debt and capital lease obligations, less current
portion
|
494,231 | 870,348 | | 1,357,745 | 4,069,605 | (2,482,253 | ) | 4,309,676 | ||||||||||||||||||||
Long term borrowings from related parties
|
| 334,428 | 208,368 | 494,231 | 400,883 | (1,437,910 | ) | | ||||||||||||||||||||
Other liabilities
|
| 73,382 | 11,241 | | 184,542 | 24,850 | 294,015 | |||||||||||||||||||||
Pension liabilities
|
| 4,933 | 143,362 | | 41,855 | | 190,150 | |||||||||||||||||||||
Income tax payable
|
| 1,057 | | | 75,055 | 124,469 | 200,581 | |||||||||||||||||||||
Deferred taxes
|
| | | | 522,521 | (15,625 | ) | 506,896 | ||||||||||||||||||||
Total liabilities
|
510,350 | 2,525,376 | 1,156,462 | 3,493,833 | 11,633,653 | (10,028,633 | ) | 9,291,041 | ||||||||||||||||||||
Noncontrolling interests subject to put provisions
|
| | | | 279,709 | | 279,709 | |||||||||||||||||||||
Total FMC-AG & Co. KGaA shareholders equity
|
547 | 7,377,258 | 814,445 | 6,268,549 | (84,170 | ) | (6,999,371 | ) | 7,377,258 | |||||||||||||||||||
Noncontrolling interests not subject to put provisions
|
| | | | 146,653 | | 146,653 | |||||||||||||||||||||
Total equity
|
547 | 7,377,258 | 814,445 | 6,268,549 | 62,483 | (6,999,371 | ) | 7,523,911 | ||||||||||||||||||||
Total liabilities and equity
|
$ | 510,897 | $ | 9,902,634 | $ | 1,970,907 | $ | 9,762,382 | $ | 11,975,845 | $ | (17,028,004 | ) | $ | 17,094,661 | |||||||||||||
50
For the six months ended June 30, 2011 | ||||||||||||||||||||||||||||
Issuer | Guarantors | |||||||||||||||||||||||||||
FMC US
|
FMC-AG &
|
Non-Guarantor
|
Combining
|
Combined
|
||||||||||||||||||||||||
Finance | Co. KGaA | D-GmbH | FMCH | Subsidiaries | Adjustment | Total | ||||||||||||||||||||||
Operating Activities:
|
||||||||||||||||||||||||||||
Net income (loss)
|
$ | 1,219 | $ | 481,462 | $ | 9,240 | $ | 326,194 | $ | 400,271 | $ | (683,187 | ) | $ | 535,199 | |||||||||||||
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
|
||||||||||||||||||||||||||||
Equity affiliate income
|
| (358,305 | ) | | (332,306 | ) | | 690,611 | | |||||||||||||||||||
Depreciation and amortization
|
| 682 | 22,927 | 5,769 | 249,455 | (6,560 | ) | 272,273 | ||||||||||||||||||||
Change in deferred taxes, net
|
| 15,286 | 1,572 | | 41,884 | (5,406 | ) | 53,336 | ||||||||||||||||||||
(Gain) loss on sale of fixed assets and investments
|
| | 58 | | (991 | ) | | (933 | ) | |||||||||||||||||||
(Gain) loss on investments
|
| 1,833 | | | | (1,833 | ) | | ||||||||||||||||||||
Compensation expense related to stock options
|
| 14,631 | | | | | 14,631 | |||||||||||||||||||||
Cash outflow from hedging
|
| | | | (58,581 | ) | | (58,581 | ) | |||||||||||||||||||
Changes in assets and liabilities, net of amounts from
businesses acquired:
|
||||||||||||||||||||||||||||
Trade accounts receivable, net
|
| | (21,238 | ) | | (242,271 | ) | | (263,509 | ) | ||||||||||||||||||
Inventories
|
| | (33,466 | ) | | (104,067 | ) | 17,208 | (120,325 | ) | ||||||||||||||||||
Prepaid expenses and other current and non-current assets
|
| (28,927 | ) | (19,192 | ) | (44,068 | ) | 13,341 | 755 | (78,091 | ) | |||||||||||||||||
Accounts receivable from / payable to related parties
|
(612 | ) | (688,780 | ) | (65,753 | ) | 6,577 | 760,710 | (8,198 | ) | 3,944 | |||||||||||||||||
Accounts payable, accrued expenses and other current and
non-current liabilities
|
2,976 | (38,526 | ) | 45,519 | (218 | ) | 145,157 | 245 | 155,153 | |||||||||||||||||||
Income tax payable
|
715 | 23,075 | | (3,982 | ) | (32,506 | ) | (13,836 | ) | (26,534 | ) | |||||||||||||||||
Net cash provided by (used in) operating activities
|
4,298 | (577,569 | ) | (60,333 | ) | (42,034 | ) | 1,172,402 | (10,201 | ) | 486,563 | |||||||||||||||||
Investing Activities:
|
||||||||||||||||||||||||||||
Purchases of property, plant and equipment
|
| (133 | ) | (16,484 | ) | | (231,968 | ) | 10,201 | (238,384 | ) | |||||||||||||||||
Proceeds from sale of property, plant and equipment
|
| | 22 | | 8,066 | | 8,088 | |||||||||||||||||||||
Disbursement of loans to related parties
|
| 377,936 | 100 | (798,172 | ) | | 420,136 | | ||||||||||||||||||||
Acquisitions and investments, net of cash acquired, and net
purchases of intangible assets
|
| (25,128 | ) | (3,611 | ) | | (1,867,825 | ) | 774,106 | (1,122,458 | ) | |||||||||||||||||
Proceeds from divestitures
|
| | | | | | | |||||||||||||||||||||
Net cash provided by (used in) investing activities
|
| 352,675 | (19,973 | ) | (798,172 | ) | (2,091,727 | ) | 1,204,443 | (1,352,754 | ) | |||||||||||||||||
Financing Activities:
|
||||||||||||||||||||||||||||
Short-term borrowings, net
|
310 | 102,267 | 80,150 | (299 | ) | (66,442 | ) | | 115,986 | |||||||||||||||||||
Long-term debt and capital lease obligations, net
|
(62,102 | ) | 305,359 | | 152,115 | 1,473,385 | (420,136 | ) | 1,448,621 | |||||||||||||||||||
Redemption of trust preferred securities
|
| | | | (653,760 | ) | | (653,760 | ) | |||||||||||||||||||
Increase (decrease) of accounts receivable securitization program
|
| | | | 130,000 | | 130,000 | |||||||||||||||||||||
Proceeds from exercise of stock options
|
| 26,762 | | | 4,979 | | 31,741 | |||||||||||||||||||||
Dividends paid
|
| (280,649 | ) | | | 22 | (22 | ) | (280,649 | ) | ||||||||||||||||||
Capital increase (decrease)
|
57,500 | | | 688,390 | 28,216 | (774,106 | ) | | ||||||||||||||||||||
Distributions to noncontrolling interest
|
| | | | (61,735 | ) | | (61,735 | ) | |||||||||||||||||||
Contributions from noncontrolling interest
|
| | | | 12,290 | | 12,290 | |||||||||||||||||||||
Net cash provided by (used in) financing activities
|
(4,292 | ) | 153,739 | 80,150 | 840,206 | 866,955 | (1,194,264 | ) | 742,494 | |||||||||||||||||||
Effect of exchange rate changes on cash and cash equivalents
|
| (75,852 | ) | 14 | | 125,896 | 22 | 50,080 | ||||||||||||||||||||
Cash and Cash Equivalents:
|
||||||||||||||||||||||||||||
Net increase (decrease) in cash and cash equivalents
|
6 | (147,007 | ) | (142 | ) | | 73,526 | | (73,617 | ) | ||||||||||||||||||
Cash and cash equivalents at beginning of period
|
| 147,177 | 225 | | 375,468 | | 522,870 | |||||||||||||||||||||
Cash and cash equivalents at end of period
|
$ | 6 | $ | 170 | $ | 83 | $ | | $ | 448,994 | $ | | $ | 449,253 | ||||||||||||||
51
For the six months ended June 30, 2010 | ||||||||||||||||||||||||||||
Issuer | Guarantors | |||||||||||||||||||||||||||
FMC
|
FMC-AG &
|
Non-Guarantor
|
Combining
|
Combined
|
||||||||||||||||||||||||
Finance III | Co. KGaA | D-GmbH | FMCH | Subsidiaries | Adjustment | Total | ||||||||||||||||||||||
Operating Activities:
|
||||||||||||||||||||||||||||
Net income (loss)
|
$ | 252 | $ | 459,385 | $ | (97 | ) | $ | 246,054 | $ | 429,835 | $ | (635,937 | ) | $ | 499,492 | ||||||||||||
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
|
||||||||||||||||||||||||||||
Equity affiliate income
|
| (307,027 | ) | | (289,983 | ) | | 597,010 | | |||||||||||||||||||
Depreciation and amortization
|
| 726 | 19,048 | 444 | 236,173 | (11,026 | ) | 245,365 | ||||||||||||||||||||
Change in deferred taxes, net
|
| (13,919 | ) | 435 | | 15,046 | (2,309 | ) | (747 | ) | ||||||||||||||||||
(Gain) loss on sale of fixed assets and investments
|
| | 3 | | (1,941 | ) | | (1,938 | ) | |||||||||||||||||||
(Gain) loss on investments
|
| | 28 | | | (28 | ) | | ||||||||||||||||||||
Compensation expense related to stock options
|
| 13,712 | | | | | 13,712 | |||||||||||||||||||||
Changes in assets and liabilities, net of amounts from
businesses acquired:
|
||||||||||||||||||||||||||||
Trade accounts receivable, net
|
| | (9,466 | ) | | (84,832 | ) | | (94,298 | ) | ||||||||||||||||||
Inventories
|
| | (18,613 | ) | | (21,876 | ) | 7,007 | (33,482 | ) | ||||||||||||||||||
Prepaid expenses and other current and non-current assets
|
| (126,932 | ) | (9,920 | ) | 45,925 | (132,358 | ) | 132,021 | (91,264 | ) | |||||||||||||||||
Accounts receivable from / payable to related parties
|
239 | 215,521 | 56,183 | 18,897 | (517,889 | ) | 221,712 | (5,337 | ) | |||||||||||||||||||
Accounts payable, accrued expenses and other current and
non-current liabilities
|
(21 | ) | (294 | ) | 27,060 | (43 | ) | 97,637 | 5,042 | 129,381 | ||||||||||||||||||
Income tax payable
|
15 | 30,431 | | (28,561 | ) | (21,801 | ) | 2,495 | (17,421 | ) | ||||||||||||||||||
Net cash provided by (used in) operating activities
|
485 | 271,603 | 64,661 | (7,267 | ) | (2,006 | ) | 315,987 | 643,463 | |||||||||||||||||||
Investing Activities:
|
||||||||||||||||||||||||||||
Purchases of property, plant and equipment
|
| (199 | ) | (13,920 | ) | | (225,035 | ) | 12,519 | (226,635 | ) | |||||||||||||||||
Proceeds from sale of property, plant and equipment
|
| 9 | 603 | | 7,970 | | 8,582 | |||||||||||||||||||||
Disbursement of loans to related parties
|
| 239,804 | 89 | (149,883 | ) | (327,341 | ) | 237,331 | | |||||||||||||||||||
Acquisitions and investments, net of cash acquired, and net
purchases of intangible assets
|
| (2,759 | ) | (2,129 | ) | | (157,663 | ) | (128,696 | ) | (291,247 | ) | ||||||||||||||||
Proceeds from divestitures
|
| | | | 7,867 | | 7,867 | |||||||||||||||||||||
Net cash provided by (used in) investing activities
|
| 236,855 | (15,357 | ) | (149,883 | ) | (694,202 | ) | 121,154 | (501,433 | ) | |||||||||||||||||
Financing Activities:
|
||||||||||||||||||||||||||||
Short-term borrowings, net
|
| | (49,319 | ) | | 56,123 | | 6,804 | ||||||||||||||||||||
Long-term debt and capital lease obligations, net
|
| (146,576 | ) | | 157,150 | 560,489 | (237,331 | ) | 333,732 | |||||||||||||||||||
Increase (decrease) of accounts receivable securitization program
|
| | | | 86,000 | | 86,000 | |||||||||||||||||||||
Proceeds from exercise of stock options
|
| 25,706 | | | 2,378 | | 28,084 | |||||||||||||||||||||
Dividends paid
|
(495 | ) | (231,967 | ) | | | (5,795 | ) | 6,290 | (231,967 | ) | |||||||||||||||||
Capital increase (decrease)
|
| | | | 4,014 | (4,014 | ) | | ||||||||||||||||||||
Distributions to noncontrolling interest
|
| | | | (67,562 | ) | | (67,562 | ) | |||||||||||||||||||
Contributions from noncontrolling interest
|
| | | | 14,850 | | 14,850 | |||||||||||||||||||||
Net cash provided by (used in) financing activities
|
(495 | ) | (352,837 | ) | (49,319 | ) | 157,150 | 650,497 | (235,055 | ) | 169,941 | |||||||||||||||||
Effect of exchange rate changes on cash and cash equivalents
|
| (81,980 | ) | (28 | ) | | 41,639 | 24 | (40,345 | ) | ||||||||||||||||||
Cash and Cash Equivalents:
|
||||||||||||||||||||||||||||
Net increase (decrease) in cash and cash equivalents
|
(10 | ) | 73,641 | (43 | ) | | (4,072 | ) | 202,110 | 271,626 | ||||||||||||||||||
Cash and cash equivalents at beginning of period
|
108 | 24 | 194 | | 300,899 | | 301,225 | |||||||||||||||||||||
Cash and cash equivalents at end of period
|
$ | 98 | $ | 73,665 | $ | 151 | $ | | $ | 296,827 | $ | 202,110 | $ | 572,851 | ||||||||||||||
52
53
54
Votes
|
||||||||||
(in percentage of
|
||||||||||
shares actually
|
||||||||||
voting) | ||||||||||
Resolution | In Favor | Opposed | ||||||||
TOPIC 1
|
Resolution on the approval of the annual financial statements of Fresenius Medical Care AG & Co. KGaA for the fiscal year 2010 | 99.99 | % | 0.01 | % | |||||
TOPIC 2
|
Resolution on the allocation of distributable profit | 99.98 | % | 0.02 | % | |||||
TOPIC 3
|
Resolution on the approval of the actions of the General Partner (1) | 99.95 | % | 0.05 | % | |||||
TOPIC 4
|
Resolution on the approval of the actions of the members of the Supervisory Board (1) | 99.94 | % | 0.06 | % | |||||
TOPIC 5
|
Resolution on the approval of the revised system of compensation of the Management Board members of the General Partner | 99.71 | % | 0.29 | % | |||||
TOPIC 6
|
Election of the auditors and consolidated group auditors for the fiscal year 2011 (1) | 99.65 | % | 0.35 | % | |||||
TOPIC 7.1
|
Election of Mr. Dr. Gerd Krick to the Supervisory Board (1) | 81.60 | % | 18.40 | % | |||||
TOPIC 7.2
|
Election of Mr. Dr. Dieter Schenk to the Supervisory Board (1) | 75.57 | % | 24.43 | % | |||||
TOPIC 7.3
|
Election of Mr. Prof. Dr. Bernd Fahrholz to the Supervisory Board (1) | 81.56 | % | 18.44 | % | |||||
TOPIC 7.4
|
Election of Mr. Dr. Walter L. Weisman to the Supervisory Board and to the Joint Committee (1) | 80.06 | % | 19.94 | % | |||||
TOPIC 7.5
|
Election of Mr. William P. Johnston to the Supervisory Board and to the Joint Committee (1) | 99.50 | % | 0.50 | % | |||||
TOPIC 7.6
|
Election of Mr. Rolf. A. Classon to the Supervisory Board (1) | 97.09 | % | 2.91 | % | |||||
TOPIC 8
|
Resolution on modifications of the remuneration of the Supervisory Board and its committees and on the corresponding amendments to Articles 13 and 13e of the Articles of Association | 94.20 | % | 5.80 | % |
55
Votes
|
||||||||||
(in percentage of
|
||||||||||
shares actually
|
||||||||||
voting) | ||||||||||
Resolution | In Favor | Opposed | ||||||||
TOPIC 9
|
Resolution on the cancellation of conditional capitals and a corresponding amendment to the Articles of Association as well as on authorizing the granting of options to managerial staff members (Führungskräfte) and members of the management of Fresenius Medical Care AG & Co. KGaA or an affiliate (Stock Option Program 2011) and the creation of conditional capital to provide for the Stock Option Program 2011 and a corresponding amendment to the Articles of Association | 98.86 | % | 1.14 | % | |||||
TOPIC 10
|
Resolution on the authorization to purchase and use treasury shares pursuant to section 71(1) No. 8 AktG and on the exclusion of subscription rights | 99.13 | % | 0.87 | % |
(1) | Under the German Stock Corporation Act § 285 and § 136, 106,673,961 shares were not entitled to vote on TOPIC 3, TOPIC 4, TOPIC 6 and TOPIC 7. |
56
Exhibit No. | ||||
10 | .1 | English convenience translation of the Articles of Association ( Satzung ) of the Registrant. | ||
10 | .2 | English convenience translation of the Stock Option Plan 2011 of Fresenius Medical Care AG & Co. KGaA. | ||
10 | .3 | Amendment No. 5 dated as of July 6, 2011 to Bank Credit Agreement and Term Loan Credit Agreement. | ||
10 | .4 | Supplemental Indenture dated as of June 20, 2011 to Indenture dated as of July 2, 2007. | ||
10 | .5 | English convenience translation of the Phantom Stock Plan 2011 of Fresenius Medical Care AG & Co. KGaA. | ||
31 | .1 | Certification of Chief Executive Officer and Chairman of the Management Board of the Companys General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | ||
31 | .2 | Certification of Chief Financial Officer and member of the Management Board of the Companys General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | ||
32 | .1 | Certification of Chief Executive Officer and Chairman of the Management Board of the Companys General Partner and Chief Financial Officer and member of the Management Board of the Companys General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (this exhibit accompanies this report as required by the Sarbanes-Oxley Act of 2002 and is not to be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended). | ||
101 | The following financial statements as of and for the six-month period ended June 30, 2011 from FMC-AG & Co. KGaAs Report on Form 6-K for the month of August 2011, formatted in XBRL (eXtensible Business Reporting Language): (i) Consolidated Statements of Income, (ii) Consolidated Statements of Comprehensive Income, (iii) Consolidated Balance Sheets, (iv) Consolidated Statements of Cash Flows, (v) Consolidated Statements of Shareholders Equity and (vi) Notes to Consolidated Financial Statements. |
57
a partnership limited by shares, represented by:
general partner
Title:
Chief Executive Officer and
General Partner
Title:
Chief Financial Officer and
58
I. | General Terms |
(1) | The Company is a partnership limited by shares ( KGaA ). The name of the Company is |
(2) | The registered office of the Company is in Hof an der Saale. |
(1) | The objects of the Company are: |
a) | the development, production and distribution of as well as the trading in health care products, systems and procedures, including dialysis; | ||
b) | the projecting, planning, establishment, acquisition and operation of health care businesses, including dialysis centers, also in separate enterprises or through third parties as well as the participation in such dialysis centers; | ||
c) | the development, production and distribution of other pharmaceutical products and the provision of services in this field; | ||
d) | the provision of advice in the medical and pharmaceutical areas as well as scientific information and documentation; | ||
e) | the provision of laboratory services for dialysis and non-dialysis patients and homecare medical services. |
The Company will operate itself or through subsidiaries at home and abroad. | ||
(2) | The Company shall be entitled to enter into any and all business transactions and take any and all measures which seem to be necessary or useful to achieve the objects of the Company and may, in particular, participate in other enterprises of the same or similar kind, take over the management and/or the representation of such enterprises, transfer company divisions, including essential company divisions, to enterprises in which the Company holds an interest and establish branches at home and abroad. |
(1) | All notifications of the Company shall be made in the electronic Federal Gazette ( Elektronischer Bundesanzeiger ). |
(2) | English short versions of the invitations to general meetings which must provide for the place, date and time and the items on the agenda of the general meeting and the prerequisites of participation in the meetings as well as English short versions of the other notifications shall also be published in The Wall Street Journal and in The New York Times. The newspapers mentioned above are not journals used by the Company for notifications in the sense of Article 3 paragraph (1); such publications shall not be a pre-condition for a valid notification of the Company. With the consent of the supervisory board the general partner may determine deviations from this provision. |
II. | Capital and Shares |
(1) | The capital of the Company amounts to EUR 302,236,169.00 (in words: three hundred two million two hundred thirty six thousand one hundred sixty nine Euro) and is divided into 298,279,001 (in words: two hundred ninety eight million two hundred seventy nine thousand one) bearer ordinary shares and |
2
3,957,168 (in words: three million nine hundred fifty seven thousand one hundred sixty eight) non-voting bearer preference shares. | ||
In case of issuance of non-voting bearer preference shares, particulars thereof are set forth in Article 19. | ||
No consent of the preferred shareholders shall be required for the issuance of non-voting bearer preference shares which, for the distribution of the profits or the corporate assets, will be equal to or be preferred to the non-voting bearer preference shares existing from time to time, if and to the extent that the subscription rights of the preference shareholders are not excluded. | ||
(2) | The capital stock in the amount of DM 100,000.00 (in words: one hundred thousand Deutsche Mark) available at the transformation of the Company into a Stock Corporation was raised through change of the legal form of the legal entity of previous legal form, Fresenius Medical Care GmbH with registered office in Hof an der Saale. | |
The capital stock in the amount of EUR 250,271,178.24 (in words: two hundred and fifty million two hundred and seventy one thousand one hundred seventy eight Euro and twenty four Cent) available at the transformation of the Company into a partnership limited by shares (KGaA) was raised through change of the legal form of the legal entity of previous legal form, Fresenius Medical Care AG with registered office in Hof an der Saale. | ||
(3) | The General Partner is authorized up to 10 May 2015 to increase the share capital of the Company with the approval of the Supervisory Board once or several times by up to a total of EUR 35,000,000.00 (in words: thirty-five million Euros) for cash by the issue of new bearer ordinary shares (Authorized Capital 2010/I). The number of shares must be increased in the same proportion as the share capital. The shareholders have, in principle, a pre-emption right. The new shares can also be taken up by credit institutions nominated by the general partner with the obligation to offer them to the shareholders of the Company (indirect pre-emption right). The general partner is, however, authorized with the approval of the supervisory board to exclude the pre-emption right of the shareholders in order to exclude fractions from the pre-emption right. The general partner is also authorized with the approval of the supervisory board to determine the other details for the implementation of capital |
3
increases from the Authorized Capital 2010/I. The supervisory board is authorized to amend the wording of the Articles of Association accordingly after complete or partial implementation of the increase of the share capital from the Authorized Capital 2010/I or after the expiry of the period of authorization. | ||
(4) | The general partner is authorized up to 10 May 2015 to increase the share capital of the Company with the approval of the supervisory board once or several times by up to a total of EUR 25,000,000.00 (in words: twenty-five million Euros) for cash or contributions in kind by the issue of new bearer ordinary shares (Authorized Capital 2010/II). The number of shares must be increased in the same proportion as the share capital. The shareholders have, in principle, a pre-emption right. The new shares can also be taken up by credit institutions nominated by the general partner with the obligation to offer them to the shareholders of the Company (indirect pre-emption right). The general partner is, however, authorized with the approval of the supervisory board to exclude the pre-emption right of the shareholders |
| in the case of one or more capital increases for contributions in kind for the purpose of acquiring companies, parts of companies, interests in companies or other assets, or | ||
| in the case of one or more capital increases for cash if the issue price for the shares does not significantly fall below the stock exchange price of the shares of the same class already listed and the proportionate amount of the share capital of the Company attributable to the shares issued with exclusion of pre-emption rights exceeds 10% of the share capital neither at the time of this authorization coming into effect nor at the time of the use of the authorization. To be set-off against this limitation is the proportionate amount of share capital attributable to new shares or shares of the Company previously acquired by the Company itself which are issued or sold during the period of validity of this authorization with exclusion of pre-emption rights in direct, analogous or corresponding application of Section 186 (3) sent. 4 German Stock Corporation Act and the proportionate amount of the share capital attributable to shares issued or to be issued to satisfy option or conversion rights or discharge option or conversion obligations from bonds, if the bonds are issued during the period of validity of this authorization with exclusion of pre-emption |
4
rights in analogous application of Section 186 (3) sent. 4 German Stock Corporation Act. |
The general partner is also authorized with the approval of the supervisory board to determine the further details for the implementation of capital increases from the Authorized Capital 2010/II. The supervisory board is authorized to amend the wording of the Articles of Association accordingly after complete or partial implementation of the increase of the share capital from the Authorized Capital 2010/II or after the expiry of the period of authorization. | ||
(5) | The capital of the Company is conditionally increased by up to EUR 5,147,811.00 (in words: five million one hundred forty seven thousand eight hundred eleven Euro) by the issue of up to 3,109,354 (in words: three million one hundred nine thousand three hundred fifty four) new non-voting bearer preference shares and by up to 2,038,457 (in words: two million thirty eight thousand four hundred fifty seven) new bearer ordinary shares. The conditional capital increase will be implemented only to the extent that, in accordance with the international employee participation program resolved on by the general meeting of 23.05.2001 convertible bonds relating to non-par value shares have been issued and the holders of convertible bonds exercise their right of conversion. The new non-voting bearer preference shares and the new bearer ordinary shares shall participate in profits from the beginning of the fiscal year in which they arise by the exercise of the right of conversion. | |
(6) | The capital of the Company is conditionally increased by up to EUR 13,078,992.00 (in words: thirteen million seventy eight thousand nine hundred ninety two Euro) by the issue of up to 13,078,992 (in words: thirteen million seventy eight thousand nine hundred ninety two) new bearer ordinary shares. The conditional capital increase will be implemented only to the extent that options have been issued in accordance with the Stock Option Program 2006 under the resolutions of the general meeting of 9 May 2006 and 15 May 2007, the holders of options exercise their right and the Company for the satisfaction of the options does not grant any of its own shares, for the granting and processing of options of members of the management board of the general partner, its supervisory board is exclusively competent. The new bearer ordinary shares participate in profits from the beginning of the financial year in which they are issued. |
5
(7) | The capital of the Company is conditionally increased by up to 12,000,000.00 EUR (in words: twelve million Euro) by the issuance of up to 12,000,000 (in words: twelve million) new non-par value bearer ordinary shares. The conditional capital increase will be implemented only to the extent that options have been issued in accordance with the Stock Option Program 2011 under the resolution of the general meeting of 12 May 2011, the holders of options exercise their right and the Company for the satisfaction of the options does not grant any of its own shares, for the granting and processing of options of members of the management board of the General Partner, its supervisory board is exclusively competent. The new non-par value bearer ordinary shares participate in profits from the beginning of the financial year in which they are issued. | |
(8) | In case of a capital increase, the profit participation may be determined in derogation from Section 60 (2) German Stock Corporation Act ( AktG ). |
(1) | The shares will be non-par value bearer shares. | |
(2) | The Company shall be entitled to issue share certificates made out to bearer each evidencing a plurality of shares (collective share certificates). There is no claim of the shareholders to share certificates with respect to their individual participation. | |
(3) | The form of the share certificates and of the dividend coupons and renewal coupons shall be determined by the general partner with the consent of the supervisory board. | |
(4) | The Company shall take the necessary measures to achieve that its shares will, preferably, be admitted for official quotation on the stock exchange in Frankfurt am Main and in suitable form e.g. as American Depositary Shares on the New York Stock Exchange and that such admissions will be maintained. With the consent of the supervisory board which must decide unanimously on such consent, the general partner may determine deviations from this provision. |
6
III. | Constitution of the Company |
(1) | General partner of the Company is |
with registered office in Hof an der Saale. | ||
(2) | The general partner has not made a capital contribution. It shall neither participate in the profit or the loss of the Company nor in its assets. | |
(3) | The general partner will cease to be general partner of the Company if and when all shares in the general partner are no longer held directly or indirectly by a person holding more than 25 per cent of the capital of the Company, directly or indirectly via a controlled enterprise in the sense of Section 17 (1) German Stock Corporation Act ( AktG ); this will not apply if and when all shares in the general partner are held directly or indirectly by the Company. | |
Additionally, the general partner will cease to be general partner of the Company, if the shares in the general partner are acquired by a person |
| who does not acquire shares of the Company in the amount of more than 25 per cent of the capital of the Company or | ||
| who had not, within three months after the effectiveness of such acquisition, submitted a voluntary or mandatory takeover offer to the shareholders of the Company according to the rules of the German Takeover Act (WpÜG); the fair consideration offered to the shareholders must also reflect the consideration which the purchaser had paid for the share in the general partner, if the amount for such consideration is above the amount of its equity capital. |
7
The other grounds for withdrawal as provided for by law remain unaffected with respect to the general partner. | ||
(4) | If the general partner withdraws from the Company or if such withdrawal can be foreseen, the supervisory board is authorized and obliged to admit immediately, or at the time of the withdrawal of the general partner, as new general partner of the Company a corporation whose shares are fully owned by the Company. If the general partner withdraws from the Company while no new general partner is admitted simultaneously as aforesaid, the Company shall for the time being be continued by the limited shareholders of the Company alone. In such case, the supervisory board shall immediately apply for the appointment of a substitute representative who will represent the Company until the admission of a new general partner according to sentence 1 of this paragraph, in particular with respect to the acquisition or formation of such new general partner. | |
The supervisory board is authorized to adjust the version of the Articles of Association so as to reflect the change of the general partner. | ||
(5) | In the case of the continuing of the Company pursuant to Article 6 paragraph (4) of these Articles of Association or in the case that all shares in the general partner are held directly or indirectly by the Company an extraordinary general meeting or the next annual general meeting shall decide about the transformation of the Company into a stock corporation ( Aktiengesellschaft ). The resolution with respect to such transformation can be taken with a simple majority of the votes cast. The general partner is obliged to consent to such transformation decided by the general meeting. |
(1) | The Company shall be represented by its general partner. Vis-à-vis the general partner the Company shall be represented by the supervisory board. |
(2) | The general partner shall be responsible for management of the Company. The general partners management authority also encompasses exceptional management measures. The right of the shareholders to consent to exceptional management measures at the general meeting is excluded. |
8
(3) | The general partner shall be reimbursed for any and all expenses in connection with management of the Companys business, which includes remuneration of the members of its executive bodies. The general partner shall invoice its expenses monthly; it is entitled to claim payment in advance. |
(4) | As consideration for assuming the management of the Company and the liability, the general partner shall receive a non-profit-and-loss-based annual remuneration of 4 per cent of its equity capital. |
(5) | The general partner is not authorized to undertake transactions for its own or for anothers account outside the scope of its responsibilities within the Company. |
(1) | The supervisory board consists of six (6) members. | |
All six (6) members shall be elected by the general meeting according to the provisions of the German Stock Corporation Act ( AktG ). The resolution can only be taken with a majority of a minimum of 75 per cent of the votes cast. | ||
(2) | Unless expressly otherwise resolved by the general meeting, the supervisory board members shall be appointed to hold office until the end of the ordinary general meeting which resolves on the discharge for the fourth fiscal year after commencement of the term of office. The year in which the term of office commences shall not be considered for this calculation. Re-election of supervisory board members shall be permissible. | |
(3) | If a member elected by the general meeting withdraws from the supervisory board before expiration of his term of office, a new member is to be elected in the next general meeting to replace the withdrawing member. The newly elected member shall hold office for the remaining term of office of the withdrawing member. |
9
(4) | The general meeting may, for the supervisory board members to be elected by it, appoint substitute members who will become members of the supervisory board on the basis of a specific order to be determined upon election if and when supervisory board members withdraw before expiration of their term of office. Their position as substitute members shall revive if and when the general meeting elects a new member instead of the withdrawing supervisory board member replaced by such substitute member. The term of office of the substitute member shall end upon completion of the general meeting in which an election according to Article 8 paragraph (3) is made. |
(5) | Each member of the supervisory board may resign from office by giving one months written notice even without good cause. |
(1) | Following the general meeting in which the supervisory board has been newly elected, the supervisory board shall hold a meeting without special notice of meeting and, where necessary, shall elect in such meeting from among its members a chairman and a deputy chairman for the whole term of office of the elected persons as supervisory board members. |
(2) | If the chairman or his deputy resigns his office before expiration of his term of office, the supervisory board shall immediately hold a new election to replace the resigning chairman/deputy. |
(1) | The meetings of the supervisory board shall be called by the chairman by notice subject to a notice period of fourteen (14) days. The meetings may be called in writing, by fax or by other electronic means of communication. The items on the agenda must be stated in the invitation to the meeting. Notwithstanding sentence 2, in urgent cases, this period may be shortened and the meeting may be called by telegram, telex or telephone. |
10
(2) | The meetings of the supervisory board shall in the regular case be by personal attendance. It is, however, admissible that meetings of the supervisory board be held by way of a video conference or that individual supervisory board members participate by way of video link, provided that in these cases the passing of resolutions also takes place by way of a video conference or video link. Outside of meetings, resolutions in writing, telegraph, telex, fax, telephone or electronic communication (e-mail etc.) are admissible, if this is ordered by the chairman of the supervisory board, or in the event of his being unable to act, by his deputy. |
(3) | The supervisory board shall constitute a quorum if half the members making up the entire board take part in the adoption of the resolution. |
(4) | If members of the supervisory board are prevented from attending the meeting, they may have another member of the supervisory board submit their written votes. Such delivery of the written vote shall be deemed to be participation in the adoption of the resolution. |
(5) | Resolutions of the supervisory board shall require the majority of the votes cast unless otherwise provided by law or the Articles of Association. In case of a tie, a new vote shall be taken on the same issue at the request of the chairman of the supervisory board or of another member of the supervisory board. In the event that such new vote leads again to a tie, the chairman of the supervisory board shall have two (2) votes (to the legally permissible extent, this shall apply also to committees of the supervisory board of which he is a member). Article 10 paragraph (4) shall be applicable to the casting of the second vote. The deputy chairman of the supervisory board shall not be entitled to such second vote. |
(6) | Minutes of the meetings of the supervisory board shall be prepared in the English language. The minutes shall be signed by the chairman of the meeting. Any minutes to be prepared outside of the meeting by personal attendance ( Präsenzsitzung ), as outlined in Article 10 paragraph (2) with respect to resolutions shall be signed by the chairman of the supervisory board. On demand of a member of the supervisory board a German translation of the minutes shall be prepared. |
11
(1) | The supervisory board shall have the rights and duties defined by mandatory legal provisions and these Articles of Association. |
(2) | The supervisory board shall, at any time, have the right to supervise the entire management of the general partner and to inspect and audit all books and records, including the minutes of the meetings of the management board of the general partner, as well as the assets of the Company. This right to inspect and audit can also be claimed by any individual supervisory board member. The supervisory board member must direct his request to the chairman of the supervisory board who shall pass the request on to the chairman of the management board of the general partner or, in the case that a chairman does not exist, to the management board of the general partner. |
(3) | The general partner shall regularly report to the supervisory board. In addition, the supervisory board may request the submission of a report if and when there is reasonable cause therefore including where such cause relates to a business event at an affiliated company which has become known to the general partner and which may substantially influence the situation of the Company. Article 11 paragraph (2), sentences 2 and 3 apply mutatis mutandis with the proviso that a report only to the supervisory board can be demanded. |
(4) | If the Company holds a participation in its general partner, all rights of the Company under and with respect to such participation (e.g. voting rights, information rights etc.) will be exercised by the supervisory board. |
(5) | The supervisory board shall be entitled, without resolution of the general meeting, to make any amendments to the Articles of Association which concern only the wording. |
(1) | The supervisory board shall, within the statutory provisions and the Articles of Association, provide itself with rules of procedure which shall, in particular, |
12
also take account of the interests of the non-German speaking supervisory board members. |
(2) | The supervisory board has an audit and corporate governance committee. The audit and corporate governance committee has three members at least two of whom are independent members. Independent members are persons who, apart from their membership of the supervisory board of the general partner or of Fresenius AG, have no significant business, professional or personal relations with the Company or any of its affiliates. The audit and corporate governance committee reviews the report of the general partner on relations to affiliates without affecting the competence of the supervisory board. The report of the supervisory board is to contain a report on the activity of the audit and corporate governance committee and its proposals. The rules of procedures of the audit and corporate governance committee shall provide more detailed provisions. |
(1) | The members of the supervisory board shall be reimbursed for the expenses incurred in the exercise of their office, including any value-added tax. |
(2) | Each member of the supervisory board shall receive a fixed fee of USD 80,000.00 per annum for each full fiscal year, payable in four equal installments at the end of each calendar quarter. |
(3) | The chairman of the supervisory board shall receive additional remuneration in the amount of USD 80,000.00 and his deputy additional remuneration in the amount of USD 40,000.00. |
(4) | For each full fiscal year, each member of the supervisory board shall also receive a variable performance-related remuneration which is based upon the respective average growth of earnings per share of the Company (EPS) during the period of the last three (3) fiscal years prior to the payment date. The amount of this variable remuneration component is determined by the following formula: |
13
3-year average EPS growth | Amount of variable remuneration | ||
(as %) | (in USD) | ||
8.00 8.99
|
60,000.00 | ||
9.00 9.99
|
70,000.00 | ||
≥ 10.00
|
80,000.00 |
If the aforementioned three percentage margins are reached, the respective variable remuneration amounts are earned to their full extent, i.e. within these margins there is no pro rata remuneration (e.g. 8.00% = USD 60,000.00; 8.99% = 60,000.00). | ||
In any case, the variable remuneration component pursuant to this Article 13 (4) is capped at the maximum amount of USD 80,000.00 per annum. Reciprocally, the members of the supervisory board are only entitled to the variable remuneration component if the 3 year average EPS growth of at least 8.00% is reached. | ||
The variable remuneration component according to this Article 13 (4) is in principle disbursed on a yearly basis, namely following approval of the Companys annual financial statements at the end of the calendar quarter in which the Companys annual financial statements are approved; for the first time, the payment may take place after the approval of the annual financial statements for fiscal year 2011, i.e. based on the 3 year average EPS growth for fiscal years 2009, 2010, 2011. | ||
(5) | In the event that the general meeting, taking into consideration the respective relevant annual results, resolves a higher remuneration (fixed fee, variable remuneration) by a three fourths majority of the votes cast, such higher remuneration shall be payable. | |
(6) | As a member of a committee, a supervisory board member shall receive an additional amount of USD 40,000.00 per year. As chairman of a committee, a member of the committee shall in addition receive USD 20,000.00 per year and as deputy chairman an additional USD 10,000.00 respectively, payable in each case in four equal installments at the end of each calendar quarter. For memberships in the Nomination Committee and in the Joint Committee (Articles 13a et |
14
seqq.) as well as in the capacity of their respective chairmen and deputy chairmen, no separate remuneration shall be granted. Section 13e (3) shall remain unaffected. | ||
(7) | If a fiscal year is not a complete calendar year, the remuneration relating to a full fiscal year shall be paid on a pro rata temporis basis. | |
(8) | To the extent that a member of the supervisory board is at the same time a member of the supervisory board of the General Partner Fresenius Medical Care Management AG and receives remuneration for his services as a member of the supervisory board of Fresenius Medical Care Management AG, the remuneration according to Article 13 (2) and (4) will be reduced to half of it respectively. The same shall apply in relation to additional remuneration of the chairman and his deputy according to Article 13 (3) if such person is, at the same time, the chairman or deputy chairman, respectively, of the supervisory board of Fresenius Medical Care Management AG. If the deputy chairman of the supervisory board of the Company is at the same time chairman of the supervisory board of Fresenius Medical Care Management AG he shall not receive additional remuneration according to Article 13 (3) for his services as deputy chairman of the Supervisory Board of the Company. | |
(9) | To the extent that a member of a committee is at the same time a member of a supervisory board committee of Fresenius Medical Care Management AG and receives remuneration for his services as a member of such supervisory board committee, this remuneration will be set off against the respective amount of remuneration received pursuant to Article 13 (6), if the committees in both companies have the same functions and competences; apart from that, no further setoff or adjustment shall take place. | |
(10) | The Company shall pay the remuneration of the supervisory board members subject to statutory deductions. | |
(11) | The Company shall provide the members of the supervisory board with an insurance protection regarding the fulfillment of their duties as such members of the supervisory board which is subject to an appropriate deductible. |
15
(1) | Section 103 (2) German Stock Corporation Act ( AktG ) shall apply to the members of the joint committee to be delegated by the general partner. | |
(2) | The members of the supervisory board of the Company on the joint committee will be appointed by resolution of the general meeting. For the appointment and removal of members of the supervisory board of the Company in the joint committee, the provisions on the election and removal of members of the supervisory board in Sections 103 (1) and (5), 124 (3) sent. 1, 127, 137, 285 (1) sent. 2 No. 1 German Stock Corporation Act ( AktG ) apply accordingly. If a member of the supervisory board of the Company on the joint committee leaves the joint committee prior to the expiry of his period of office and no replacement member is appointed, the supervisory board of the Company shall appoint a replacement member from among its members, the period of office of whom will end at the ending of the next ordinary general meeting of the Company. | |
(3) | For the members of the joint committee Section 103 (3) sent. 1 and 4 German Stock Corporation Act ( AktG ) apply accordingly. The joint committee shall decide on resolutions with a simple majority. | |
(4) | The provisions in Art. 8 (2) to (5) shall apply to the election and periods of office of members of the joint committee unless otherwise provided in subsecs. (1) and (2). |
16
(1) | The general partner requires the approval of the joint committee for the following matters: |
a) | transactions between the Company and companies controlled by it on the one hand and a company which controls the Company or a company which is controlled by the controlling company, without at the same time being controlled by the Company on the other side, if considerable importance is attributed to them and the consideration in the transaction in a single case or in the case of long-term transactions the annual expense exceeds 0.25% of the group turnover. The group turnover as shown in the group financial statements of the Company presented most recently to the general meeting according to Sections 278 (3), 176 (1) sent. 1 German Stock Corporation Act ( AktG ) is decisive. | ||
b) | The acquisition and sale of significant participations and parts of companies; | ||
c) | the spin-off of significant parts of the business from the assets of the Company or of a company in which it holds directly or indirectly all the shares; | ||
d) | part mergers which refer to a significant part of the business; | ||
e) | conclusion of inter-company agreements between a company significantly under the control of the Company and a third party; | ||
f) | conclusion of leases of operations with third parties insofar as the subject matter of the lease is a significant part of the business; | ||
g) | the stock market flotation of significant companies controlled by the Company; | ||
h) | the conclusion of profit-sharing agreements between a company significantly controlled by the Company and a third party. |
(2) | Matters referred to in (1) b) to h) are significant if 40% of the group turnover, the group balance sheet total and the group profit (annual surplus prior to interest and tax/EBIT) is affected by the matter. The significance shall be determined |
17
on the basis of the mathematical average of the said figures in the audited and unreservedly certified group accounts of the Company in the previous three financial years. | ||
(3) | The competences and rights of the general meeting under statute and the Articles of Association remain unaffected. |
(1) | Meetings of the joint committee will be called by its chairman stating the matter which is to be the subject of a resolution. | |
(2) | The chairman of the joint committee shall with the invitation, but at the latest the third day prior to the meeting of the joint committee, transmit a report of the general partner on the matters which are the subject matter of resolutions. The report shall conclude with a draft resolution of the general partner. | |
(3) | Every member of the joint committee can demand information on all affairs of the Company which are the subject matter of resolutions, from the general partner. At the request of two members of the joint committee, the members of the joint committee are to be granted the facility to inspect the books and documents of the Company if and to the extent a reference to the subject matter of the resolution exists. | |
(4) | The joint committee has a quorum if at least three members participate in the taking of the resolution. If a resolution is not passed because of the lack of a quorum, the chairman of the joint committee shall again call a meeting of the joint committee with notice of at least one week, which shall then have a quorum if at least two members participate in the taking of the resolution. The joint committee decides by a majority of the votes. Every member of the joint committee has one vote. In the case of a tie, a new vote on the same subject is to be taken on the application of the chairman or another member of the joint committee. In that vote, if there is also a tie, the chairman of the joint committee has two votes. | |
(5) | Unless otherwise provided in (1) to (4), Art. 10 of the Articles of Association shall apply to the meetings and the resolutions of the joint committee. |
18
(1) | The joint committee can, subject to mandatory legal provisions and the Articles of Association of the Company give itself rules of procedure which will, in particular, take account of the interests of the non-German speaking members of the joint committee. | |
(2) | If the joint committee has met, it shall report to the general meeting on its activities. Section 171 (2) sent. 1 and 2 (first half sentence) German Stock Corporation Act ( AktG ) and Section 176 (1) sent. 1 German Stock Corporation Act ( AktG ) shall apply mutatis mutandis. If resolutions are passed by the exercise of the second vote of the chairman of the joint committee, this is to be disclosed in the report. | |
(3) | The members of the joint committee shall receive USD 3,500.00 for a meeting. Article 13 (1), (10), and (11) of the Articles of Association shall be applied accordingly. |
(1) | The general meeting is, unless a shorter period is not permitted by law, to be called at least thirty days prior to the day of the general meeting. This notice period shall be extended by the days of the period for registration (Article 15 (1)). The day of the general meeting and the day of calling it shall not be included in the calculation of the notice period. |
19
(2) | No later than on the last day of the convocation period, also the English short version pursuant to Article 3 paragraph (2) shall be published, if necessary. |
(3) | The general meeting shall be held at the place where the registered office of the Company is located, or in a German city where a stock exchange is situated or at the place where the registered office of a domestic affiliated company is located. |
(1) | Only those shareholders are entitled to attend the general meeting and to exercise the voting right who have registered and provided evidence of their entitlement. As evidence of entitlement, evidence of the shareholding by the depositary institution is required. The evidence must relate to the beginning of the 21st day (0:00 a.m. at the registered office of the Company) prior to the general meeting. The registration and the evidence of entitlement must be received by the Company in text form in the German or English language at least six days prior to the general meeting under the address specified in the invitation to the general meeting for that purpose. In the invitation, a shorter period measured in days can be provided. The day of the general meeting and the day of the receipt of the registration and the evidence shall not be included in the calculation of the period. | |
(2) | The members of the management board of the general partner and of the supervisory board should personally attend the general meeting. If it is not possible for a member of the supervisory board to attend at the place of the general meeting, in particular, because he is abroad for cause, he may participate in the general meeting by way of picture and sound transmission. | |
(3) | The voting right can be exercised by a proxy. To the extent no simplification is specified in the invitation to the General Meeting, the issue of the proxy, its revocation and the evidence of authorization to the Company require text form; Section 135 German Stock Corporation Act remains unaffected. |
20
(1) | The general meeting shall be chaired by the chairman of the supervisory board or, if he is prevented or at the request of the chairman of the supervisory board, by another supervisory board member to be designated by the chairman of the supervisory board. If and when no such designation has been made and the chairman of the supervisory board is prevented, another member to be designated by the supervisory board shall preside over the general meeting. | |
(2) | The chairman shall chair the meeting and determine the order of items to be dealt with as well as the kind and form of the voting. The chairman is entitled to reasonably limit the speaking time of the shareholders and the time to ask questions from the beginning of the general meeting on, if such limitation is allowed by law. | |
(3) | The majorities of the votes cast and of the capital stock represented for the adoption of the resolution which are required for the resolutions of the general meeting shall be governed by the statutory provisions, unless otherwise provided for in these Articles of Association. In case of a tie, a proposal shall be deemed denied. | |
(4) | Each ordinary share shall grant one (1) vote at the general meeting. The preference shares have no voting rights, unless otherwise required by mandatory legal provisions; otherwise, sentence 1 of this paragraph shall apply mutatis mutandis. | |
(5) | The chairman can decide that the entire general meeting or extracts therefrom be transmitted in sound and/or picture. Such transmission can even be in a form to which the public has unlimited access. The form of the transmission should be made known in the invitation. |
21
(6) | To the extent that the resolutions of the general meeting are subject to the consent of the general partner, the general partner shall declare at the general meeting whether consent to the resolutions will be given or will be refused. |
(1) | The fiscal year shall be the calendar year. | |
(2) | Within the first three (3) months of the fiscal year but no later than within the maximum period required by mandatory legal provisions, the general partner shall prepare the annual financial statement and the management report for the preceding fiscal year and submit the same to the supervisory board without delay. The general partner may allocate in the annual financial statement a part of the annual net profit up to the half of the annual net profit to other revenue reserves. | |
(3) | The supervisory board shall commission the audit by the auditors of the financial statements. Before the audit report of the auditors is forwarded to the supervisory board, the general partner shall be given the opportunity to express its opinion. | |
(4) | At the same time as the submission of the annual financial statement and the management report the general partner shall provide the supervisory board with the proposal on the appropriation of the net profits. | |
(5) | The annual financial statement shall be approved by a resolution of the general meeting with the consent of the general partner. | |
(6) | Article 18 paragraphs (2) and (3) shall apply correspondingly to group financial statements and to a report on the economic group position, as far as Section 170 (1) sent. 2 German Stock Corporation Act ( AktG ) is applicable to the Company as Parent Company. |
22
(1) | The general meeting shall resolve on the disposition of the balance sheet profits subject to the following paragraphs (2) to (4) of this Article. | |
(2) | Out of the annual balance sheet profits, the non-voting bearer preference shares shall receive a dividend which exceeds that for the ordinary shares by an amount of EUR 0.02 per preference share, but at least a dividend in an amount of EUR 0.04 per preference share. | |
(3) | The minimum dividend of EUR 0.04 per preference share shall take precedence over the distribution of a dividend on the ordinary shares. | |
(4) | In the event that the balance sheet profits for one or more fiscal years are insufficient to distribute EUR 0.04 per preference share, the lacking sums shall be paid subsequently without interest out of the balance sheet profits for the following fiscal years, i.e. after distribution of the minimum dividend on the preference shares for these fiscal years and before distribution of a dividend on the ordinary shares. The right to subsequent payment shall be part of the profit share for the fiscal year from the balance sheet profits of which the subsequent payment on the preference shares is made. |
23
(1) | The formation expenses (Notarys fees, court costs, costs of notification) amount up to DM 5,000.00 (in words: five thousand German Marks). |
(2) | Additionally, the Company has to bear the expenses for the transformation of Fresenius Medical Care AG into Fresenius Medical Care AG & Co. KGaA in an amount up to EUR 7,500,000.00 (in words: seven million five hundred thousand Euro). |
24
CLAUSE | PAGE | |||
1. PREAMBLE AND PURPOSE
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- 1 - | |||
2. GRANT OF OPTIONS
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- 1 - | |||
3. OPTIONS
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- 2 - | |||
4. PARTICIPANTS AND DISTRIBUTION OF THE OPTIONS
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- 2 - | |||
5. EXERCISE PRICE
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- 3 - | |||
6. CONDITIONS FOR THE EXERCISE OF THE OPTIONS
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- 3 - | |||
7. EXERCISE OF THE OPTIONS
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- 6 - | |||
8. EFFECTIVENESS OF THE EXERCISE OF THE OPTIONS
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- 7 - | |||
9. OPTION OFFICE
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- 8 - | |||
10. ADJUSTMENT OF THE EXERCISE PRICE
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- 8 - | |||
11. OPTIONS IN SPECIAL CASES
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- 9 - | |||
12. TRANSFERABILITY AND FORFEITURE
|
- 11 - | |||
13. TAXES, CONTRIBUTIONS AND OTHER EXPENSES
|
- 11 - | |||
14. PROCEDURE, ENDING AND ADJUSTMENT OF THE PLAN
|
- 12 - | |||
15. LIABILITY RISKS, EXCHANGE RISKS AND TAX RISKS
|
- 14 - | |||
16. MISCELLANEOUS PROVISIONS
|
- 14 - | |||
17. DEFINITIONS
|
- 15 - |
-ii-
1. | Preamble and Purpose | |
1.1 | The ordinary General Meeting of Fresenius Medical Care AG & Co. KGaA (the Company ) on 12 May 2011 decided (i) to increase the capital up to 12,000,000.00 Euro subject to the issuance of 12,000,000 non-par value bearer ordinary shares of the Company by way of creating conditional capital and (ii) to grant these options to members of the management board of Fresenius Medical Care Management AG (the General Partner ) in their capacity as organs of the General Partner of the Company, to the members of the management boards of Affiliated Companies of the Company and to managerial staff members ( Führungskräfte ) of the Company and its Affiliated Companies within the FMC Group (the Options ), which entitle them to purchase a total maximum of 12,000,000 Shares. Members of the management and employees exclusively employed by Fresenius SE & Co. KGaA or its Affiliated Companies which are affiliated to the Company only through Fresenius SE & Co. KGaA are excluded. Instead of new Shares to fulfill the obligation out of this stock option plan (the Plan ), Shares which have been acquired by the Company or which the Company itself has in its own possession can also be issued if a separate authorizing resolution is passed by the general meeting. | |
1.2 | The Plan contains the requirements, conditions and procedures for the grant and exercise of the Options (the Option Conditions ) and has been adopted by the General Partner and, in so far as members of the management board of the General Partner are entitled under this plan, by the supervisory board of the General Partner. | |
1.3 | The purpose of this Plan is to align the interests of the management boards and the managerial staff members with the interest of the shareholders in encouraging the long term growth of the Company. This Plan offers the Participants an internationally competitive and transparent remuneration component which combines the long term benefits for the Participants with the sustained success of the Company. The Plan therefore constitutes an incentive to direct decisions at the achievement of the ambitious, clearly defined Success Target for the Company. | |
2. | Grant of Options | |
2.1 | The grant of the total Options available under the Plan should be made as far as possible in equal tranches within the Authorization Period. This can, however, be subject to deviation in the case of objective grounds ( sachliche Gründe ), decided |
--1--
by the General Partners supervisory board with respect to Options granted to the management board of the General Partner, otherwise by the General Partner. |
2.2 | The Options will be granted to the Participants two times a year in each case with effect as of the last Monday in July and/or the first Monday in December (both days are referred to as the Grant Date in each case). The grant shall be made in text form. If the conditional capital created by the General Meeting resolution of 12 May 2011 is not entered in the commercial register prior to 22 July 2011, Options will be granted for the first time on the first working day of the calendar month following the entry. | |
2.3 | The grant of Options will be made without any additional payment ( Zuzahlung ). | |
2.4 | The Options will not be evidenced by certificates. | |
3. | Options | |
3.1 | The Options issued under the Plan entitle the relevant persons to purchase Shares in accordance with the terms of the Option Conditions. | |
3.2 | One Option carries the entitlement to purchase one Share of the Company. In this Plan, a total of up to 12,000,000 Options which grant entitlement to subscribe for a total of 12,000,000 Shares may be issued within the Authorization Period. The right to purchase Shares can be satisfied either out of the conditional capital created for that purpose or from the Companys stock of its own Shares. If the management board of the General Partner is concerned, its supervisory board will decide how to satisfy the right deriving from Options, and for the other Participants, the General Partner will make such decisions. | |
3.3 | An Option has a term of eight years from the time at which it is granted to the Participant. | |
4. | Participants and Distribution of the Options | |
4.1 | Options can be issued only to the following groups of persons (hereinafter referred to as the Participants ); the maximum limits stated below may not be exceeded (in relation in each case to the entire group): |
|
(a) | Members of the management board of the General Partner | max. 2,000,000 Options | |||
|
||||||
|
(b) | Members of the management boards of Affiliated Companies within the FMC Group | max. 2,500,000 Options |
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|
(c) | Managerial staff members (in the sense of grading by the Company) of the Company and Affiliated Companies within the FMC Group. | max. 7,500,000 Options |
4.2 | For the individual members of the management board of the General Partner its supervisory board will decide who is entitled to receive Options. For the other Participants the General Partner will decide this. | |
4.3 | The number of Options to be granted to a Participant is determined on the basis of individual performance of the Participant and the Participants responsibilities within the FMC Group. This determination will be made in the case of management board members of the General Partner by its supervisory board. The General Partner makes the determination for the other Participants. | |
4.4 | There is no legal right to receive Options on the basis of this Plan. The status or possible status of an employee as Participant or the fact that a Participant was granted Options in the past cannot be interpreted as an obligation that this employee or a possible Participant in general or in the future will be granted Options. In particular no operational practice ( betriebliche Übung ) is constituted by the grant of Options. This applies even if Options are granted in several successive years. | |
5. | Exercise Price | |
The exercise price of an Option shall be the average Stock Exchange Price of the Shares of the Company on the Frankfurt Stock Exchange on the last 30 calendar days prior to the Grant Date in each case in Euro (the Exercise Price ). Clause 10 (Adjustment of the Exercise Price) remains unaffected. | ||
6. | Conditions for the Exercise of the Options | |
For the exercise of the Options, all the following conditions, subject to the general Option Conditions, must be fulfilled. |
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(a) | Unless otherwise expressly stated in these Option Conditions, the Options may be exercised only after the expiration of the Waiting Period, during the Exercise Period and before the end of their term in accordance with Clause 3.3, not, however, during the Black-Out Periods. | ||
(b) | The Waiting Period is four years from the Grant Date in each case (the Waiting Period ). After expiry of the Waiting Period, the Options can be exercised during any Exercise Period within the term of the Options. | ||
(c) | The exercise of the Options can be declared in each case at any time outside Black-Out Periods (the Exercise Period ). | ||
(d) | The Black-Out Periods are the following in each case: |
(i) | the period from the 15 th of December to the 15 th of January; | ||
(ii) | the period from the 21 st calendar day prior to a Companys general meeting until the end of the day of such general meeting; | ||
(iii) | the period from the day on which the Company publishes an offer to its shareholders to subscribe for new shares in a stock exchange gazette or the Electronic Federal Gazette up to the day on which the shares of the Company issued in accordance with that right are listed for the first time on the Frankfurt Stock Exchange ex subscription rights; and | ||
(iv) | the period from the fifteenth calendar day prior to the publication of the quarterly results/annual results until the publication of the quarterly results/annual results. |
The above mentioned Black-Out Periods include in each case the times for beginnings and ends stated. On inquiry, the Company shall inform the Participants of the exact beginning and end dates of the periods in which exercise is blocked. | |||
If the management board of the General Partner is concerned, its supervisory board and if other Participants are concerned, the General Partner, shall, in justified exceptional cases, determine other black-out |
--4--
periods, the beginning of which will in each case be notified to the Participants in due time in advance. |
(a) | The Success Target is achieved if within the Waiting Period either the adjusted basic income per Share has increased by at least eight per cent per annum in comparison to the previous year in each case or if this is not the case the compounded annual growth rate of the adjusted basic income per Share during the four years of the Waiting Period reflects an increase of at least eight per cent per annum. | ||
(b) | The adjusted basic income per Share shall be calculated following the US-GAAP ( Generally Accepted Accounting Principles ) methodology based upon the hereafter described adjusted net income as follows: | ||
The adjusted net income corresponds to the net income attributable to the Company shown in the consolidated financial statements of the Company (prepared in accordance with the accountancy principles of US-GAAP), |
(i) | to which is added the costs shown in the relevant consolidated financial statement for: |
| - provided that the costs occur only once the purchase, integration and financing of companies or dialysis clinics, including the costs in connection with |
| any costs and expenses attributable to liability exposure existing already prior to the time of acquisition and/or | ||
| the sale of dialysis clinics irrespective of whether this was ordered by the competent anti-trust authority or not; |
| extraordinary items in the meaning of the US-GAAP; | ||
| changes to US-GAAP accounting principles in the first year after such policies become effective; and | ||
| any tax effects in respect to the above mentioned points; and |
--5--
(ii) | from which is subtracted any gains shown in the consolidated financial statements in each case by reference to the following |
| the sale of dialysis clinics irrespective of whether this was ordered by the competent anti-trust authority or not; | ||
| extraordinary items as defined under US-GAAP; | ||
| changes to US-GAAP accounting principles in the first year after such policies become effective; and | ||
| any tax effects in respect to the above mentioned points. |
(c) | The determination of the adjusted basic income per Share and changes thereto compared to the adjusted basic income per Share of the relevant comparison year will be verified in a binding manner in each case by the auditors of the Company on the basis of the audited consolidated financial statements with regard to the question of the admissibility of exercise of Options. | ||
(d) | If with regard to one or more of the four comparison periods within the Waiting Period neither the adjusted basic income per Share increases by at least eight per cent per annum in comparison to the previous year nor the compounded annual growth rate of the adjusted basic income per Share during the four years of the Waiting Period reflects an increase of at least eight per cent per annum, the Options issued in each case are forfeited only in the proportion in which the Success Target has not been achieved within the Waiting Period, i.e. for one quarter, two quarters, three quarters, or completely. |
6.3 | Personal Preconditions for Exercise |
(a) | The Participant must at the time of exercise be in an employment or service relationship with the Company, a domestic or foreign Affiliated Company in the FMC Group or with the General Partner. | ||
(b) | Clause 11 (Options in Special Cases) remains unaffected. |
7. | Exercise of the Options | |
7.1 | Within the Exercise Period, the entitled person can exercise the Options exercisable under Clause 6 in whole or in part in each case. |
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7.2 | The exercise of the Options must be declared in writing to the Company or, if an Option Office is nominated under Clause 9 (Option Office), to this Option Office in text form ( Exercise Declaration ). The Exercise Declaration must be received within the Exercise Period and must contain the declaration as to how many Options of the entitled person are exercised. If the Exercise Declaration is not received in time, it is deemed to not have been made. If the Option Office undertakes, in accordance with Section 198 Stock Corporation Act ( Aktiengesetz, AktG ), the necessary declaration vis-à-vis the Company for the Participant, a form for the making of the Exercise Declaration (for example, entry in an electronic system) can be agreed between the Participant and the Option Office. | |
7.3 | The exercise of the Options is irrevocable and cannot be made subject to any conditions whatsoever. | |
7.4 | The Options can only be exercised if the Exercise Price for the Options which are intended to be exercised is paid. The Exercise Price must be received by the Company or, if an Option Office in accordance with Clause 9 (Option Office) is named, by the Option Office at the latest on the day of the effect of the exercise of the Options. Clause 8 (Effectiveness of the Exercise of the Options) remains unaffected. | |
7.5 | In case an Option Office is named by the Company, Options can only be exercised if Participants grant an irrevocable power-of-attorney in writing to the Option Office in the form provided to entitle the Option Office to make all declarations and undertake all actions necessary for the acquisition of Shares. | |
7.6 | The entitled person shall inform the Company of the depository account the Shares arising out of the exercise of its Options are to be entered. The entitled person can state that the Shares arising out of the exercise of its Options should immediately be sold. The Company will make reasonable efforts that the Option Office will render services necessary to comply with the requirements of the Plan when Options should immediately be sold. | |
8. | Effectiveness of the Exercise of the Options | |
8.1 | The exercise of the Options shall be effective on the day of receipt by the Company of the Exercise Declaration or if an Option Office is named, by the Option Office if the receipt is within the Usual Banks Working Hours, otherwise on the next following Banking Day. |
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8.2 | For the Options of the management board of the General Partner, its supervisory board, and for the other Participants/entitled persons, the General Partner can provide that the exercise of the Options will be effective only uniformly after the expiry of a maximum of ten Banking Days after the end of the Exercise Period, if this is to be indicated on grounds of processing. | |
9. | Option Office | |
For technical processing of the exercise of the Options, the management board of the General Partner can instruct a service provider to act as an Option Office. | ||
10. | Adjustment of the Exercise Price | |
10.1 | If the Company, during the term of the Options , while granting a direct or indirect subscription right to its shareholders increases its capital by the issue of new Shares or issues bonds with conversion or option rights and if, in that case, fixed conversion or option prices per Share are less than the Exercise Price for the Options, the General Partner or if members of the management board of the General Partner are affected, its supervisory board, is entitled to establish financial equality for the Participants. This equality may be established by the reduction of the Exercise Price or the adjustment of the number of Options or a combination of both. The Participants have no right to such financial equality. In the case of the issue of Shares, debentures or options in the course of equity based incentive programs of the Company, no equalization will be granted. | |
10.2 | In the event of a capital increase out of retained earnings by the issue of new Shares, the conditional capital will, in accordance with Section 218 AktG, be increased in the same proportion as the share capital. The right of the Participants to subscribe new Shares by the exercise of Options shall increase in the same proportion. The Exercise Price per Share will be reduced in the same proportion. If the capital increase out of retained earnings takes place without the issue of new Shares, (Section 207 subs. 2 sentence 2 AktG) the Options and the Exercise Price remain unchanged. | |
10.3 | In the event of a capital reduction, no adjustment of the Exercise Price or the option ratio shall take place if by the capital reduction the total number of Shares is not changed or the reduction is associated with a repayment of capital or with the acquisition of the Companys own Shares for a valuable consideration. In the case of a capital reduction by merger of Shares without capital redemption and in the case of an increase in the number of Shares without any change in capital (share split), the number of Shares which can be acquired for each Option at the |
--8--
Exercise Price shall be reduced or increased in proportion to the capital reduction or share split. The Exercise Price for one Share shall be adjusted in the same proportion. | ||
10.4 | Notwithstanding the provisions of Clause 10.1 through 10.3 the General Partner or if members of the management board of the General Partner are affected, its supervisory board will abstain from any actions to adjust the Exercise Price or the number of Options that result in the Options constituting deferred compensation as defined in Section 409A of the U.S. Internal Revenue Code of 1986 as amended (the IRC ) to any Participant. | |
11. | Options in Special Cases | |
11.1 | Leaving on Age Grounds | |
If the Participant retires from employment or service with a company of the FMC Group upon reaching the minimum required age for retirement and without having been dismissed, the Options remain unaffected. Disability, occupational disability and early retirement shall be equivalent to retirement. The Participant is obligated to give evidence to the Company or an office named by the Company of the occurrence of the above mentioned cases within three months of the retirement date in an appropriate manner. Otherwise, for the management board of the General Partner, its supervisory board and for the other Participants, the General Partner, may declare the Options to be forfeited without replacement. | ||
11.2 | Ordinary Termination / Cancellation of Employment by Agreement | |
If the employment or service relationship of a Participant with the Company or its Affiliated Company within the FMC Group has ended by termination or agreement, the Participant can exercise the Options provided that they are exercisable under this Plan at the time the employment or service relationship ends, within the 60 calendar day period immediately following such termination or agreement, subject to an extension for any Black-Out Periods which would reduce the 60 calendar day period. Each Option not exercised after the expiry of this Exercise Period, shall be forfeited without replacement irrespective of whether the further conditions of this Plan have been fulfilled. Clause 11.4 (Extraordinary Termination) remains unaffected. |
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11.3 | Death | |
In the case of the death of a Participant, the Options remain unaffected. These rights may be exercised by the Heirs of the Participant. The Heirs are obligated to give evidence of their entitlement within three months after the death of the Participant upon which the Participants estate passes to its Heirs in an appropriate manner; otherwise, for the Options of the former members of management board of the General Partner, its supervisory board and for the Options of other former Participants, the General Partner, may declare the Options to be forfeited without replacement. Clause 11.4 (Extraordinary Termination) remains unaffected. | ||
11.4 | Extraordinary Termination | |
The Participant is not entitled to exercise the Options in accordance with Clause 11.2 (Ordinary Termination) if the Participants employment or service agreement was terminated for good cause by the Company or by an Affiliated Company within the FMC Group, or if at the time of leaving, there were grounds which would have entitled the Company or an Affiliate Company within the FMC Group, to issue an extraordinary termination. The same applies in case the Options shall be exercised in accordance with Clause 11.3 (Death). | ||
11.5 | Effect of Change in Status as Affiliated Company | |
If a company is no longer an Affiliated Company within the FMC Group, the employment or service relationship of each Participant who is no longer employed by the Company or an Affiliated Company within the FMC Group shall be deemed to have been terminated according to Clause 11.2 (Ordinary Termination) in the meaning of the Plan and in reference to all Options based on the Plan. | ||
11.6 | Effect of Change in Status as General Partner | |
If the General Partner is no longer general partner of the Company, the service agreements of the members of the General Partners management board shall be deemed to have been ended according to Clause 11.2 (Ordinary Termination). | ||
11.7 | Engagement with Fresenius Group | |
The Options will not be affected by the transfer of a Participant from the Company or from an Affiliated Company within the FMC Group to Fresenius SE & Co. KGaA or to an Affiliated Company of Fresenius SE & Co. KGaA (including Fresenius Management SE). |
--10--
11.8 | Individual Cases | |
In individual cases, the supervisory board of the General Partner can with regard to Options of the members of the management board of the General Partner, and the General Partner with respect to Options of the other Participants, waive or amend the provisions according to Clause 11.1 (Leaving on Age Grounds) to Clause 11.6 (Effect of Change in Status as General Partner). | ||
12. | Transferability and Forfeiture | |
12.1 | Options granted under this Plan and Options inherited according to Clause 11.3 are not transferable. Any purported assignment or disposal over Options, such as the granting of sub-participations therein, pledging, granting usufruct rights ( Nießbrauch ) or the formation of a trust, shall be void and invalid. The same applies to legal transactions which are economically equal to a transfer or assignment. | |
12.2 | All unexercised Options are forfeited without replacement on expiry of their term, irrespective of whether they were ever exercisable within the terms of these Option Conditions. | |
13. | Taxes, Contributions and other Expenses | |
13.1 | General | |
All taxes incurred in connection with the Options or their exercise shall be borne by the Participant of such Options themselves. The obligation of the Company or an Affiliated Company within the FMC Group to pay income tax and other taxes or contributions on behalf of the Participants remains unaffected. The Company or Affiliated Companies within the FMC Group are entitled for this purpose to deduct the necessary amounts from the wages/salaries of the Participants until the tax and contributions are completely repaid or to require the Participants to pay or provide for payment of at least the minimum amount of any taxes and contributions that the Company or an Affiliated Company within the FMC Group may be required to withhold with respect to the Option or their exercise. The Company can make the exercise of the Options by the Participants conditional, inter alia , on evidence of payment of tax and/or contributions, or that adequate security is provided by the Participants. In this respect, the provisions of Section 38 subs. 4 Income Tax Act are referred to. |
--11--
13.2 | Foreign Participants in the Plan | |
If the Participant is not liable for tax in Germany, the above provisions shall apply according to the applicable foreign tax law. The Participant will, as the case may be, receive from the Company or an Affiliated Company a certificate as to the financial benefit received. | ||
13.3 | Section 162 (m) U.S. Internal Revenue Code | |
If the supervisory board of the General Partner, in its sole discretion, determines at the request of the General Partner that the limitations on deductions under Section 162(m) IRC may apply to an Option granted to Participants hereunder, the supervisory board of the General Partner shall be entitled to decide upon the grant of Options made to such Participants. | ||
13.4 | Costs | |
The Participants shall themselves bear all costs in connection with the exercise of the Options or will reimburse the Company for these costs. | ||
14. | Procedure, Ending and Adjustment of the Plan | |
14.1 | Unless provided otherwise in this Plan, the terms of the Plan shall be interpreted, waived, adjusted or otherwise administered, for the members of the management board of the General Partner, by its supervisory board and all Options granted to members of the management board of the General Partner will be approved by its supervisory board. Otherwise, the Plan shall be interpreted, waived, adjusted or otherwise administered by the General Partner and all Options granted to the other Participants will be approved by the General Partner. All acts of the General Partner or its supervisory board in connection with the Plan shall be performed in accordance with German law, the articles of association of the Company and the relevant rules of procedure. | |
14.2 | The General Partners supervisory board is entitled to end the Plan with effect for all Participants at any time. The Options already granted to the Participants remain unaffected. | |
14.3 | Consistent with the requirement of German Corporate Law and the US-Sarbanes-Oxley-Act the supervisory board of the General Partner is entitled to claim reimbursement of any compensation granted under the Plan (the Compensation ) to the Company if, in the view of the supervisory board of the General Partner, during a term of three years starting with the respective Grant Date: |
--12--
| The Compensation was predicated upon achievement of financial or other financial results that were subsequently restated or corrected, and | ||
| the management board member of the General Partner from whom such reimbursement is sought engaged in misconduct or fraud that caused or partially caused the restatement or correction, and | ||
| a lower payment would have been made to the management board member of the General Partner upon restated or corrected financial results. |
14.4 | If the rights of the management board of the General Partner are affected, its supervisory board, otherwise the General Partner, is entitled to adjust the Plan at any time. This applies even to dealing with Options already granted if this does not influence the value of the Options or if financial compensation accordingly is granted; however, in case of Extraordinary Developments the General Partners supervisory board is entitled to cap grants of Options and/or reduce already granted Options made to the management board of the General Partner under the Plan. The same applies to the management board of the General Partner with regard to any other Participant. | |
14.5 | The management board of the General Partner and its supervisory board will take appropriate measures in order to prevent a dilution of the shareholdings of the shareholders of the Company as a result of the issuance of Shares to the Participants entitled under this Plan. | |
14.6 | The Plan shall be construed, interpreted and administered to comply with Section 409A of the IRC so as to avoid any Option resulting in deferred compensation to any Participant, including without limitation the method for granting Options and making adjustments under Clause 10 (provided such administration complies with any applicable laws). In addition, for the members of the management board of the General Partner, its supervisory board and for all other Participants the General Partner is entitled to adjust the Plan and/or the terms of an outstanding Option, in each case without the consent of the entitled person of such outstanding Option (provided any such adjustment complies with any applicable laws), to the extent that the General Partner or as far as the management board of the General Partner is concerned, its supervisory board, reasonably determines that the adjustment is necessary or advisable in order to preserve the intended tax consequences of the Option as not constituting deferred compensation in light of Section 409A IRC and any regulations or other guidance promulgated thereunder. The same applies with regard to tax disadvantages the Company or Participants may suffer according to rules and regulations of any other jurisdiction. |
--13--
15. | Liability Risks, Exchange Risks and Tax Risks | |
15.1 | The liability of the Company, its legal representatives, employees and agents and the Options Office, its legal representatives, employees and agents for simple negligence and consequential loss and loss of profit is excluded. | |
15.2 | The Company grants no warranty for the general market development and price of the Shares of the Company after the granting of Options or the exercise of Options or for any other point or period in time. There is, in particular therefore, no warranty that the Participants will be able to exercise the Options or that Participants who exercise Options will obtain a financial benefit of the difference between the Exercise Price and the current stock exchange price or are in a position to sell the Shares subscribed at a profit. The acceptance and exercise of Options therefore is at the sole risk of each Participant. | |
15.3 | The Company grants no warranty that the tax and contributions deducted in accordance with Clause 13 (Taxes, Contributions and other expenses) or that other tax and contributions payable by the Participants will be charged only on the difference between the Exercise Price and the current stock exchange price at the exercise of the Options or on delivery of the Shares, on profit actually achieved by (immediate) sale or on any other specific sum. The Participants are advised to obtain advice on their personal tax situation. | |
16. | Miscellaneous Provisions | |
16.1 | This Plan is subject exclusively to German law. The German text version of the Plan prevails in all cases. | |
16.2 | All provisions of this Plan are subject to the conditions that the resolution of the General Meeting on which it is based is legally valid and that the statutory conditions are fulfilled. | |
16.3 | No provisions contained in this Plan (or in any documents referring to this Plan) transfer to a Participant or possible Participant any right to request the continuation of its employment or service relationship with the Company or any of its Affiliated Companies within the FMC Group. No employment or service agreement can be deduced from this Plan (or from any documents referring to this Plan), nor shall it have any effect on the right of the Company or any Affiliated Company within the FMC Group to change remuneration or other benefits of such Participant or to terminate its employment relationship with or without notice. This applies subject to the provision that this Plan or any document connected |
--14--
therewith will adversely influence any independent contractual right of these persons. | ||
16.4 | If any provision of this Plan is invalid on grounds other than those in Clause 16.2 this shall not affect the validity of the remaining provisions of the Plan. The same applies if it is ascertained that the Plan is subject to an omission. In that case, this paragraph shall apply to the effect that the invalid or unenforceable provision shall be substituted or an omission repaired by such provision which most closely corresponds to the intended purpose of this Plan. | |
16.5 | References and headings attributed to individual sections and subsections of this Plan are solely for the purpose of easier reference. These headings are in no case significant or relevant for the interpretation of the Plan. | |
16.6 | No provision in this Plan leads to or infers a presumption that the authority of the General Partner or the authority of its supervisory board to issue Options or approve other remuneration connected or not connected to shares granted by any other share based long term incentive program or any other authority may in any way be restricted. | |
17. | Definitions | |
17.1 | Affiliated Company means any German or foreign enterprise of the Company in the meaning of Sections 15 ff. AktG. | |
17.2 | AktG is defined in Clause 7.2. | |
17.3 | Authorization Period means the time period between 12 May 2011 and 11 May 2016. | |
17.4 | Banking Days are days on which banks in Frankfurt/Main are open for public business. | |
17.5 | Black-Out Period is defined in Clause 6.1 (d). | |
17.6 | Company stands for Fresenius Medical Care AG & Co. KGaA, Hof an der Saale, Germany. | |
17.7 | Compensation is defined in Clause 14.3. | |
17.8 | Exercise Declaration is defined in Clause 7.2. |
--15--
17.9 | Exercise Period is defined in Clause 6.1 (c). | |
17.10 | Exercise Price is defined in Clause 5. | |
17.11 | Extraordinary Developments shall mean any kind of extraordinary scenarios in which the price of the Shares and the Companys intrinsic enterprise value would have lost any reasonably arguable correlation; however, no such Extraordinary Development shall be given in cases in which the price of the Shares rises (even substantially) as a result of the performance of the Participants. | |
17.12 | FMC Group stands for the Company and its Affiliated Companies with the exception of Fresenius SE & Co. KGaA and the companies affiliated with Fresenius SE & Co. KGaA in any manner other than through the Company. | |
17.13 | General Partner is the General Partner of the Company, Fresenius Medical Care Management AG, Hof an der Saale, Germany. | |
17.14 | Grant Date is defined in Clause 2.2. | |
17.15 | Heir means the person, the persons, the trust or trusts, which are nominated by a Participant or, if no such nomination is made, is or are entitled by will or law in the event of the death of a Participant, to receive the benefit of the Options under this Plan. The concept heir therefore also includes the executor appointed by will or the administrator appointed by the court, if no heir is named and is in a position to act under the given circumstances. | |
17.16 | IRC is defined in Clause 10.4. | |
17.17 | Options is defined in Clause 1.1. | |
17.18 | Option Conditions is defined in Clause 1.2. | |
17.19 | Option Office is the service provider which can be entrusted by the General Partner with the technical processing of the exchange of Options. | |
17.20 | Participants are persons to whom Options may be granted in the manner defined in Clause 4.1. | |
17.21 | Plan refers to this stock option plan of the Company as amended from time to time. | |
17.22 | Share means non-par value bearer ordinary share in the Company. |
--16--
17.23 | Stock Exchange Price means the closing price ( Schlusskurs ) of the Shares in electronic Xetra trading of the Deutsche Börse AG in Frankfurt/Main or a comparable successor system. If no closing price is set in the electronic Xetra trading, the General Partner is entitled, with the approval of its supervisory board, to agree on a suitable means of replacing the closing price set in electronic Xetra trading. | |
17.24 | Success Target is defined in Clause 7.2. | |
17.25 | Usual Banks Working Hours are working hours on Banking Days during which customer orders are normally taken to enable same-day execution. | |
17.26 | Waiting Period is defined in Clause 6.1 (b). |
--17--
2
3
4
5
BORROWERS AND GUARANTORS: | FRESENIUS MEDICAL CARE AG & Co. KGaA , a German partnership limited by shares, represented by FRESENIUS MEDICAL CARE MANAGEMENT AG , a German corporation, its general partner | |||||
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|
By: |
/s/ Michael Brosnan
|
||||
|
Name: | Michael Brosnan | ||||
|
Title: | Member of the Management Board | ||||
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By: |
/s/ Kent Wanzek
|
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|
Name: | Kent Wanzek | ||||
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Title: | Member of the Management Board |
BORROWER AND GUARANTOR: | FRESENIUS MEDICAL CARE NORTH AMERICA HOLDINGS LIMITED PARTNERSHIP , a Delaware limited partnership | |||||||
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By: | Fresenius Medical Care US Vermögensverwaltungs GmbH and Co. KG, a German partnership | |||||||
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Its General Partner | ||||||||
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By: |
Fresenius Medical Care
Vermögensverwaltungs GmbH, a German limited liability company |
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Its General Partner | ||||||||
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By: |
/s/ Rainer Runte
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Name: | Dr. Rainer Runte | ||||||
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Title: | Managing Director |
BORROWERS AND GUARANTORS: | FRESENIUS MEDICAL CARE HOLDINGS, INC. , a New York corporation | |||||
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By: |
/s/ Mark Fawcett
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Name: | Mark Fawcett | ||||
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Title: | Vice President and Assistant Treasurer |
By:
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/s/ Mark Fawcett
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Name:
|
Mark Fawcett | |||
Title:
|
Vice President and Treasurer |
GUARANTORS: |
BIO-MEDICAL APPLICATIONS OF MARYLAND, INC.
, a Delaware
corporation
FRESENIUS SECURITIES, INC. , a California corporation SRC HOLDING COMPANY , INC., a Delaware corporation |
|||||
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By: |
/s/ Mark Fawcett
|
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Name: | Mark Fawcett | ||||
|
Title: | Vice President and Treasurer |
GUARANTORS: |
BIO-MEDICAL APPLICATIONS MANAGEMENT COMPANY, INC.
,
a Delaware corporation
NMC A, LLC , a Delaware limited liability company BIO-MEDICAL APPLICATIONS OF MAINE , INC. , a Delaware corporation EVEREST HEALTHCARE HOLDINGS, INC , a Delaware corporation FRESENIUS MANAGEMENT SERVICES, INC , a Delaware corporation RENAL CARE GROUP, INC. , a Delaware corporation DIALYSIS CENTERS OF AMERICA ILLINOIS, INC. , an Illinois corporation STAT DIALYSIS CORPORATION, a Delaware corporation RENAL CARE GROUP OF THE MIDWEST, INC. , a Kansas corporation |
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By: |
/s/ Mark Fawcett
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Name: | Mark Fawcett | ||||
|
Title: | Vice President and Treasurer | ||||
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NEW YORK DIALYSIS SERVICES, INC. , a New York corporation | ||||||
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By: |
/s/ Mark Fawcett
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Name: | Mark Fawcett | ||||
|
Title: | Treasurer |
GUARANTORS: | NATIONAL MEDICAL CARE OF SPAIN, S.A. , a corporation (sociedad anónima) organized under the laws of Spain | |||||
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By: |
/s/ Andrea Stopper
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Name: | Dr. Andrea Stopper | ||||
|
Title: | Authorized Representative |
GUARANTORS: | FMC FINANCE VI S.A. , a société anonyme (Public limited company) existing under the laws of Luxembourg | |||||
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By: |
/s/ Gabriele Dux
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Name: | Gabriele Dux | ||||
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Title: | Director | ||||
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FMC FINANCE II S.à r.l. , a private limited company (société à responsabilité limitée) organized under the laws of Luxembourg | ||||||
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By: |
/s/ Gabriele Dux
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Name: | Gabriele Dux | ||||
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Title: | Director | ||||
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FMC FINANCE VII S.A. , a société anonyme (Public limited company) existing under the laws of Luxembourg | ||||||
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By: |
/s/ Gabriele Dux
|
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Name: | Gabriele Dux | ||||
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Title: | Director |
GUARANTORS: | FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH , a German limited liability company | |||||
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By: |
/s/ Alexandra Dambeck
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Name: | Alexandra Dambeck | ||||
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Title: | Managing Director | ||||
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By: |
/s/ Eberhard Sieger
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Name: | Eberhard Sieger | ||||
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Title: | Managing Director | ||||
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FRESENIUS MEDICAL CARE BETEILIGUNGSGESELLSCHAFT mbH , a German limited liability company | ||||||
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By: |
/s/ Emanuele Gatti
|
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Name: | Dr. Emanuele Gatti | ||||
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Title: | Managing Director | ||||
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By: |
/s/ Rainer Runte
|
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Name: | Dr. Rainer Runte | ||||
|
Title: | Managing Director | ||||
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FRESENIUS MEDICAL CARE US BETEILIGUNGSGESELLSCHAFT mbH , a German limited liability company | ||||||
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By: |
/s/ Rainer Runte
|
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Name: | Dr. Rainer Runte | ||||
|
Title: | Managing Director | ||||
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FRESENIUS MEDICAL CARE GmbH , a German limited liability company | ||||||
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By: |
/s/ Gunther Klotz
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Name: | Gunther Klotz | ||||
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Title: | Managing Director | ||||
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By: |
/s/ Sabine Borst
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Name: | Dr. Sabine Borst | ||||
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Title: | Managing Director |
GUARANTORS: |
FRESENIUS MEDICAL CARE US ZWEI VERMÖGENSVERWALTUNGS GmbH & Co.
KG,
a German limited partnership |
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By: |
Fresenius Medical Care
Vermögensverwaltungs GmbH, a German limited liability company |
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Its General Partner | ||||||||
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By: | /s/ Rainer Runte | |||||||
Name: | Dr. Rainer Runte | |||||||
Title: | Managing Director |
ADMINISTRATIVE AGENT
AND
COLLATERAL AGENT |
BANK OF AMERICA, N.A. , for itself in its capacities as Administrative Agent and Collateral Agent on behalf of the lenders | |||||
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By: |
/s/ Angela Lau
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Name: | Angela Lau | ||||
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Title: | Vice President |
FMC FINANCE III S.A. , as Original Issuer |
FRESENIUS MEDICAL CARE AG & Co.
KGaA , a partnership limited by shares and represented by FRESENIUS MEDICAL CARE MANAGEMENT AG , its general partner, as Guarantor |
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By:
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/s/ Gabriele Dux
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By: |
/s/Michael Brosnan
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Title: Director | Title: Member of the Management Board | ||||||
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By: |
/s/Emanuele Gatti
|
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|
Title: Member of the Management Board |
FRESENIUS MEDICAL CARE US
FINANCE, INC., as Successor Issuer |
FRESENIUS MEDICAL CARE
DEUTSCHLAND GMBH |
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By:
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/s/ Mark Fawcett
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By: |
/s/Alexandra Dambeck
|
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Title: Vice President & Treasurer | Title: Managing Director | ||||||
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By: |
/s/Eberhard Sieger
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|
Title: Managing Director | |||||||
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FRESENIUS MEDICAL
CARE HOLDINGS, INC.
|
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By: | /s/ Mark Fawcett | ||||||
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Name: Mark Fawcett
Title: Vice President & Treasurer |
U.S. BANK NATIONAL ASSOCIATION
, as Trustee
|
||||
By: | /s/Elizabeth C. Hammer | |||
Name: | Elizabeth C. Hammer | |||
Title: | Vice President | |||
FRESENIUS MEDICAL CARE US FINANCE, INC
.
|
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By: | ||||
Name: | ||||
Title: | ||||
U.S. BANK NATIONAL
ASSOCIATION
, as Trustee
|
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By: | ||||
Name: | ||||
Title: | ||||
-1-
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| rank pari passu in right of payment with all other Indebtedness of the Issuer and the Guarantors, as applicable, that is not by its terms expressly subordinated to other Indebtedness of the Issuer and the Guarantors, as applicable; | ||
| rank senior in right of payment to all Indebtedness of the Issuer and the Guarantors, as applicable, that is, by its terms, expressly subordinated to the senior Indebtedness of the Issuer and the Guarantors, as applicable; and | ||
| be effectively subordinated to the Secured Indebtedness of the Issuer and the Guarantors, as applicable, to the extent of the value of the collateral securing such Indebtedness, and to the Indebtedness of the Subsidiaries that are not Guarantors of the Notes. |
-4-
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Total Principal | Notation | |||||||
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-9-
-10-
-11-
-12-
-13-
FRESENIUS MEDICAL CARE AG & CO. KGaA
, a
German partnership limited by shares, represented by FRESENIUS MEDICAL CARE MANAGEMENT AG , a German corporation, its general partner, as a Guarantor |
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By: |
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Title: Member of the Management Board | |||||
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By: |
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Title: Member of the Management Board | |||||
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FRESENIUS MEDICAL CARE HOLDINGS, INC ., as a Guarantor | ||||||
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By: |
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Title: | |||||
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FRESENIUS MEDICAL CARE DEUTSCHLAND GMBH
,
as a Guarantor |
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By: |
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Title: | |||||
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By: |
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Title: |
-14-
Page 1/16
CLAUSE | PAGE | |||
1. PREAMBLE AND PURPOSE
|
3 | |||
2. GRANT OF PHANTOM STOCK
|
3 | |||
3. PHANTOM STOCK
|
4 | |||
4. PARTICIPANTS AND DISTRIBUTION OF THE PHANTOM STOCK
|
4 | |||
5. CONDITIONS FOR THE EXERCISE OF PHANTOM STOCK
|
4 | |||
6. EXERCISE OF PHANTOM STOCK
|
7 | |||
7. EFFECTIVENESS OF THE EXERCISE OF PHANTOM STOCK
|
8 | |||
8. PHANTOM STOCK OFFICE
|
8 | |||
9. PHANTOM STOCK IN SPECIAL CASES
|
8 | |||
10. TRANSFERABILITY AND FORFEITURE
|
11 | |||
11. TAXES, CONTRIBUTIONS AND OTHER EXPENSES
|
11 | |||
12. PROCEDURE, ENDING AND ADJUSTMENT OF THE PLAN
|
12 | |||
13. LIABILITY RISKS, EXCHANGE RISKS AND TAX RISKS
|
13 | |||
14. MISCELLANEOUS PROVISIONS
|
14 | |||
15. DEFINITIONS
|
14 |
Page 2/16
1. | Preamble and Purpose | |
1.1 | The management board of Fresenius Medical Care Management AG (the General Partner ), being the general partner of Fresenius Medical Care AG & Co. KGaA (the Company ) and its supervisory board decided to establish a new incentive plan to grant phantom stock to the members of the management board of the General Partner, to members of the management boards of Affiliated Companies of the Company and to managerial staff members ( Führungskräfte ) of the Company and Affiliated Companies within the FMC Group (the Phantom Stock ). The Phantom Stock shall entitle the relevant person to request a cash payment from the Company in line of the following provisions. | |
1.2 | This phantom stock plan (the Plan ) contains the requirements, conditions and procedures for the grant and exercise of Phantom Stock (the Phantom Stock Conditions ) and has been adopted by the General Partner and, in so far as members of the management board of the General Partner are entitled under this plan, by the supervisory board of the General Partner. | |
1.3 | The purpose of this Plan is to align the interests of the management boards and the managerial staff members with the interest of the shareholders in encouraging the long term growth of the Company. This Plan offers the Participants an internationally competitive and transparent remuneration component which combines the long term benefits for the Participants with the sustained success of the Company. The Plan therefore constitutes an incentive to direct decisions at the achievement of the ambitious, clearly defined Success Target for the Company. | |
2. | Grant of Phantom Stock | |
2.1 | The Phantom Stock will be granted to the Participants within a time period of five years starting with the first Grant Date. The grants will be made two times a year with effect as of the last Monday in July and/or the first Monday in December (both days are referred to as the Grant Date in each case). The Grant Date can, however, be subject to deviation in the case of objective grounds ( sachliche Gründe ), decided by the General Partners supervisory board with respect to Phantom Stock granted to the management board of the General Partner, otherwise by the General Partner. | |
2.2 | The grant of Phantom Stock will be made without any payment by the Participant. | |
2.3 | The grant shall be made in text form. |
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2.4 | The Phantom Stock will not be evidenced by certificates. | |
3. | Phantom Stock | |
3.1 | Phantom Stock issued under the Plan entitles the holders of Phantom Stock to receive a payment in Euro from the Company by exercising the Phantom Stock in accordance with the terms of the Phantom Stock Conditions. | |
3.2 | One Phantom Stock carries the entitlement to receive the Stock Exchange Price of one Share of the Company on the Exercise Day (the Phantom Stock Proceeds ). Clause 5.1 (a) and Clause 6 remain unaffected. | |
4. | Participants and Distribution of the Phantom Stock | |
4.1 | For the individual members of the management board of the General Partner its supervisory board will decide who is entitled to receive Phantom Stock. For the other Participants the General Partner will decide this. | |
4.2 | The number of Phantom Stock to be granted to a Participant is determined on the basis of individual performance of the Participant and the Participants responsibilities within the FMC Group. This determination will be made in the case of management board members of the General Partner by its supervisory board. The General Partner makes the determination for the other Participants. | |
4.3 | There is no legal right to the receive Phantom Stock on the basis of this Plan. The status or possible status of an employee as Participant or the fact that a Participant was granted Phantom Stock in the past cannot be interpreted as an obligation that this employee or a possible Participant in general or in future will be granted Phantom Stock. In particular no operational practice ( betriebliche Übung ) is constituted by the grant of Phantom Stock. This applies even if Phantom Stock is granted in several successive years. | |
5. | Conditions for the Exercise of Phantom Stock | |
For the exercise of Phantom Stock, all of the following conditions, subject to the general Phantom Stock Conditions, must be fulfilled. | ||
5.1 | Exercise Period / Waiting Period / Black-Out Periods |
(a) | Unless otherwise expressly stated in these Phantom Stock Conditions, Phantom Stock may be exercised only within one year after the |
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expiration of the Waiting Period, not, however, during any Black-Out Period (the Exercise Period ). For Participants who are US tax payers the Phantom Stock is deemed to be exercised in any event on the 1 st of March of the year following the end of the Waiting Period or, in case the 1 st of March is not a Banking Day, on the first Banking Day following the 1 st of March. The payment of the Phantom Stock Proceeds shall be effected directly after the Exercise Day, with respect to US tax payers in any case no later than 15 th of March. | |||
(b) | The Waiting Period is four years from the Grant Date in each case (the Waiting Period ). | ||
(c) | If the management board of the General Partner is concerned, its supervisory board, and if other Participants are concerned, the General Partner shall, in justified exceptional cases, determine certain periods, during which the Phantom Stock may not be exercised (the Black-Out Periods ). The beginning of a Black-Out Period will be notified to the Participants in due time in advance. |
5.2 | Success Targets / (Partial) Forfeiture in case of Non-achievement |
(a) | The Success Target is achieved if within the Waiting Period either the adjusted basic income per Share has increased by at least eight per cent per annum in comparison to the previous year in each case or if this is not the case the compounded annual growth rate of the adjusted basic income per Share during the four years of the Waiting Period reflects an increase of at least eight per cent per annum. | ||
(b) | The adjusted basic income per Share shall be calculated following the US-GAAP ( Generally Accepted Accounting Principles ) methodology based upon the hereafter described adjusted net income as follows: | ||
The adjusted net income corresponds to the net income attributable to the Company shown in the consolidated financial statements of the Company (prepared in accordance with the accountancy principles of US-GAAP), |
(i) | to which is added the costs shown in the relevant consolidated financial statement for: |
| provided that the costs occur only once the purchase, integration and financing of companies or dialysis clinics, including the costs in connection with |
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| any costs and expenses attributable to liability exposure existing already prior to the time of acquisition and/or | ||
| the sale of dialysis clinics irrespective of whether this was ordered by the competent anti-trust authority or not; |
| extraordinary items in the meaning of the US-GAAP; | ||
| changes to US-GAAP accounting principles in the first year after such policies become effective; and | ||
| any tax effects in respect to the above mentioned points; and |
(ii) | from which is subtracted any gains shown in the consolidated financial statements in each case by reference to the following |
| the sale of dialysis clinics irrespective of whether this was ordered by the competent anti-trust authority or not; | ||
| extraordinary items as defined under US-GAAP; | ||
| changes to US-GAAP accounting principles in the first year after such policies become effective; and | ||
| any tax effects in respect to the above mentioned points. |
(c) | The determination of the adjusted basic income per Share and changes thereto compared to the adjusted basic income per Share of the relevant comparison year will be verified in a binding manner in each case by the auditors of the Company on the basis of the audited consolidated financial statements with regard to the question of the admissibility of exercise of Phantom Stock. | ||
(d) | If with regard to one or more of the four comparison periods within the Waiting Period neither the adjusted basic income per Share increases by at least eight per cent per annum in comparison to the previous year nor the compounded annual growth rate of the adjusted basic income per Share during the four years of the Waiting Period reflects an increase of |
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at least eight per cent per annum, the Phantom Stock issued in each case are forfeited only in the proportion in which the Success Target has not been achieved within the Waiting Period, i.e. for one quarter, two quarters, three quarters, or completely. |
5.3 | Personal Preconditions for Exercise |
(a) | The Participant must at the time of exercise be in an employment or service relationship with the Company, a domestic or foreign Affiliated Company in the FMC Group or with the General Partner. | ||
(b) | Clause 9 (Phantom Stock in Special Cases) remains unaffected. |
6. | Exercise of Phantom Stock | |
6.1 | The entitled person can exercise the Phantom Stock exercisable under Clause 5 in whole or in part in each case. For Participants who are US tax payers Clause 5.1 (a) applies in lieu of the following provisions regarding the exercise of Phantom Stock. | |
6.2 | The exercise of the Phantom Stock must be declared in writing to the Company or, if a Phantom Stock Office is nominated under Clause 8 (Phantom Stock Office), to this Phantom Stock Office in text form (the Exercise Declaration ). The Exercise Declaration must be received within the Exercise Period and must contain the declaration as to how many Phantom Stock of the entitled person are exercised. If the Exercise Declaration is not received within the Exercise Period Clause 6.5 applies. | |
6.3 | The exercise of Phantom Stock is irrevocable and cannot be made subject to any conditions whatsoever. | |
6.4 | In case a Phantom Stock Office is named by the Company, Phantom Stock can only be exercised if Participants grant an irrevocable power-of-attorney in writing to the Phantom Stock Office in the form provided to entitle the Phantom Stock Office to make all declarations and undertake all actions necessary for the exercise of Phantom Stock. | |
6.5 | In order to avoid forfeiture the Phantom Stock in any event is deemed to be exercised on the last day of the Exercise Period if the Phantom Stock has not been exercised within the Exercise Period and/or not been exercised in accordance with the foregoing provisions. If the last day of the Exercise Period is not a Banking |
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Day, the Phantom Stock is deemed to be exercised on the first Banking Day following the last day of the Exercise Period. | ||
6.6 | The entitled person shall inform the Company of its bank account details. Otherwise the Company will transfer the Phantom Stock Proceeds to the account known by the Company. | |
7. | Effectiveness of the Exercise of Phantom Stock | |
The exercise of Phantom Stock shall be effective on the day of receipt by the Company of the Exercise Declaration or if a Phantom Stock Office is named, by the Phantom Stock Office if the receipt is within the Usual Banks Working Hours, otherwise on the next following Banking Day (in each case the Exercise Day ). In cases where Phantom Stock is deemed to be exercised the Exercise Day is equivalent to the day of the assumed exercise. | ||
8. | Phantom Stock Office | |
For technical processing of the exercise of the Phantom Stock, the management board of the General Partner can instruct a service provider to act as a Phantom Stock Office. | ||
9. | Phantom Stock in Special Cases | |
9.1 | Leaving on Age Grounds |
(a) | If the Participant retires from employment or service with the Company or an Affiliated Company within the FMC Group by reaching the minimum required age for retirement and without having been dismissed, the Phantom Stock remains unaffected. Disability and occupational disability and early retirement shall be equivalent to such retirement. The Participant is obligated to give evidence to the Company or an office named by the Company of the occurrence of the above mentioned cases within two months of the retirement date in an appropriate manner. Otherwise, for the management board of the General Partner, its supervisory board and for the other Participants, the General Partner, may declare the Phantom Stock to be forfeited without replacement. | ||
(b) | For Participants who are US tax payers and who are eligible to retire by reaching 65 years of age the portion of Phantom Stock for which the Success Target has already been achieved is deemed to be exercised on |
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the 1st of March following the year after having turned 65 years of age. Each of the other portions of the Phantom Stock for which the Success Target will have been achieved will be deemed to be exercised on the respective 1st of March following the relevant comparison year according to Clause 5.2 (c). The same applies in case of disability or occupational disability of a US tax payer. If a 1st of March is not a Banking Day the Phantom Stock is deemed to be exercised on the first Banking Day following that 1st of March. In case the provisions under Clause 5.2 (c) have not been met on 1st of March or such first Banking Day following 1st of March, the day on which the auditors verify the determination of the adjusted basic income per Share in accordance with Clause 5.2 (c) shall be the Exercise Day. For US tax payers who are members of the management board of the General Partner and have reached 65 years of age the legal consequences and effects stated under this Clause 9.1 (b) shall apply accordingly at the earlier of the expiration of their service contract in effect at the time of the granted Phantom Stock or the end of the Waiting Period. |
9.2 | Ordinary Termination / Cancellation of Employment by Agreement | |
If the employment or service relationship of a Participant with the Company or its Affiliated Companies within the FMC Group has ended by termination or agreement, the Phantom Stock that is exercisable under this Plan at the date the employment or service relationship ends shall be deemed exercised and this date shall be the Exercise Day. All other Phantom Stock and/or portions of Phantom Stock shall be deemed forfeited. Clause 9.4 (Extraordinary Termination) remains unaffected. | ||
9.3 | Death | |
In the case of the death of a Participant, Clause 9.1 (Leaving on Age Grounds) applies accordingly. The Heirs of the Participant are entitled to receive the Phantom Stock Proceeds if they give evidence of their entitlement to the Company or an office named by the Company within two months after the death of the Participant upon which the Participants estate passes to its Heirs in an appropriate manner; otherwise, for the Phantom Stock of the former members of management board of the General Partner, its supervisory board and for the Phantom Stock of other former Participants, the General Partner, may declare the Phantom Stock to be forfeited without replacement. Clause 9.4 (Extraordinary Termination) remains unaffected. With respect to Heirs of Participants who had |
Page 9/16
been US tax payers the legal consequences and effects stated under Clause 9.1 (b) shall apply accordingly with regard to the exercise mechanism. | ||
9.4 | Extraordinary Termination | |
The Participant is not entitled to exercise the Phantom Stock in accordance with Clause 9.2 (Ordinary Termination) if the Participants employment or service agreement was terminated for good cause by the Company or by an Affiliated Company within the FMC Group, or if at the time of leaving, there were grounds which would have entitled the Company or an Affiliated Company within the FMC Group, to issue an extraordinary termination. The same applies in case the Phantom Stock shall be exercised in accordance with Clause 9.3 (Death). | ||
9.5 | Engagement with Fresenius Group | |
The Phantom Stock will not be affected by the transfer of a Participant from the Company or from an Affiliated Company within the FMC Group to Fresenius SE & Co. KGaA or to an Affiliated Company of Fresenius SE & Co. KGaA (including Fresenius Management SE). | ||
9.6 | Effect of Change in Status as Affiliated Company | |
If a company is no longer an Affiliated Company within the FMC Group, the employment or service relationship of each Participant who is no longer employed by the Company or an Affiliated Company within the FMC Group shall be deemed to have been terminated according to Clause 9.2 (Ordinary Termination) in the meaning of the Plan and in reference to all Phantom Stock based on the Plan. | ||
9.7 | Effect of Change in Status as General Partner | |
If the General Partner is no longer general partner of the Company, the service agreements of the members of the General Partners management board shall be deemed to have been terminated in accordance with Clause 9.2 (Ordinary Termination). | ||
9.8 | Individual Cases | |
In individual cases, the supervisory board of the General Partner can with regard to Phantom Stock of the members of the management board of the General Partner, and the General Partner with respect to Phantom Stock of the other |
Page 10/16
Participants, waive or amend the provisions according to Clause 9.1 (Leaving on Age Grounds) to Clause 9.4 (Extraordinary Termination). | ||
10. | Transferability and Forfeiture | |
10.1 | Phantom Stock granted under this Plan and Phantom Stock inherited according to Clause 9.3 are not transferable. Any purported assignment or disposal over Phantom Stock, such as the granting of sub-participations therein, pledging, granting usufruct rights ( Nießbrauch ) or the formation of a trust, shall be void and invalid. The same applies to legal transactions which are economically equal to a transfer or assignment. | |
10.2 | All unexercised Phantom Stock are forfeited without replacement on expiry of their term, irrespective of whether they were ever exercisable within the terms of these Phantom Stock Conditions. | |
11. | Taxes, Contributions and other Expenses | |
11.1 | General | |
All taxes incurred in connection with the Phantom Stock or their exercise shall be borne by the Participant of such Phantom Stock themselves. The obligation of the Company or an Affiliated Company within the FMC Group to pay income tax and other taxes or contributions on behalf of the Participants remains unaffected. | ||
11.2 | Foreign Participants in the Plan | |
If the Participant is not liable for tax in Germany, the above provisions shall apply according to the applicable foreign tax law. The Participant will, as the case may be, receive from the Company or an Affiliated Company a certificate as to the financial benefit received. | ||
11.3 | Section 162 (m) U.S. Internal Revenue Code | |
If the supervisory board of the General Partner, in its sole discretion, determines at the request of the General Partner that the limitations on deductions under Section 162(m) U.S. Internal Revenue Code (the IRC ) may apply to a Phantom Stock granted to Participants hereunder, the supervisory board of the General Partner shall be entitled to decide upon the grant of Phantom Stock made to such Participants. |
Page 11/16
11.4 | Costs | |
The Participants shall themselves bear all costs in connection with the exercise of the Phantom Stock or will reimburse the Company for these costs. | ||
12. | Procedure, Ending and Adjustment of the Plan | |
12.1 | Unless provided otherwise in this Plan, the terms of the Plan shall be interpreted, waived, adjusted or otherwise administered, for the members of the management board of the General Partner, by its supervisory board and all Phantom Stock granted to members of the management board of the General Partner will be approved by its supervisory board. Otherwise, the Plan shall be interpreted, waived, adjusted or otherwise administered by the General Partner and all Phantom Stock granted to the other Participants will be approved by the General Partner. All acts of the General Partner or its supervisory board in connection with the Plan shall be performed in accordance with German law, the articles of association of the Company and the relevant rules of procedure. | |
12.2 | The General Partners supervisory board is entitled to end the Plan with effect for all Participants at any time. The Phantom Stock already granted to the Participants remains unaffected. | |
12.3 | Consistent with the requirement of German Corporate Law and the US-Sarbanes-Oxley-Act the supervisory board of the General Partner is entitled to claim reimbursement of any compensation granted under the Plan (the Compensation ) to the Company if, in the view of the supervisory board of the General Partner, during a term of three years starting with the respective Grant Date: |
| The Compensation was predicated upon achievement of financial or other financial results that were subsequently restated or corrected, and | ||
| the management board member of the General Partner from whom such reimbursement is sought engaged in misconduct or fraud that caused or partially caused the restatement or correction, and | ||
| a lower payment would have been made to the management board member of the General Partner upon restated or corrected financial results. |
12.4 | If the rights of the management board of the General Partner are affected, its supervisory board, otherwise the General Partner, is entitled to adjust the Plan at any time. This applies even to dealing with Phantom Stock already granted if this |
Page 12/16
does not influence the value of the Phantom Stock or if financial compensation accordingly is granted; however, in the case of Extraordinary Developments the General Partners supervisory board is entitled to cap grants of Phantoms Stock made and/or Phantom Stock Proceeds paid to the management board of the General Partner under the Plan. The same applies to the management board of the General Partner with regard to any other Participant. | ||
12.5 | The Plan shall be construed, interpreted and administered to comply with Section 409A of the IRC so as to avoid any Phantom Stock resulting in deferred compensation to any Participant. In addition, for the members of the management board of the General Partner, its supervisory board and for all other Participants the General Partner is entitled to adjust the Plan and/or the terms of an outstanding Phantom Stock, in each case without the consent of the entitled person of such outstanding Phantom Stock (provided any such adjustment complies with any applicable laws), to the extent that the General Partner or as far as the management board of the General Partner is concerned, its supervisory board, reasonably determines that the adjustment is necessary or advisable in order to preserve the intended tax consequences of the Phantom Stock as not constituting deferred compensation in light of Section 409A IRC and any regulations or other guidance promulgated thereunder. The same applies with regard to tax disadvantages the Company or Participants may suffer according to rules and regulations of any other jurisdiction. | |
13. | Liability Risks, Exchange Risks and Tax Risks | |
13.1 | The liability of the Company, its legal representatives, employees and agents and the Phantom Stock Office, its legal representatives, employees and agents for simple negligence and consequential loss and loss of profit is excluded. | |
13.2 | The Company grants no warranty for the general market development and price of the shares of the Company after the granting of Phantom Stock or the exercise of Phantom Stock or for any other point or period in time. The acceptance and exercise of Phantom Stock therefore is at the sole risk of each Participant. | |
13.3 | The Company grants no warranty that the tax and contributions deducted in accordance with Clause 11 (Taxes, Contributions and other expenses) or that other tax and contributions payable by the Participants will be charged only on the Phantom Stock Proceeds. The Participants are advised to obtain advice on their personal tax situation. |
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14. | Miscellaneous Provisions | |
14.1 | This Plan is subject exclusively to German law. The German text version of the Plan prevails in all cases. | |
14.2 | No provisions contained in this Plan (or in any documents referring to this Plan) transfer to a Participant or possible Participant any right to request the continuation of its employment or service relationship with the Company or any of its Affiliated Companies within the FMC Group. No employment or service agreement can be deducted from this Plan (or from any documents referring to this Plan), nor shall it have any effect on the right of the Company or any Affiliated Company within the FMC Group to change remuneration or other benefits of such Participant or to terminate its employment relationship with or without notice. This applies subject to the provision that this Plan or any document connected therewith will adversely influence any independent contractual right of these persons. | |
14.3 | If any provision of this Plan is invalid, this shall not affect the validity of the remaining provisions of the Plan. The same applies if it is ascertained that the Plan is subject to an omission. In that case, this paragraph shall apply to the effect that the invalid or unenforceable provision shall be substituted or an omission repaired by such provision which most closely corresponds to the intended purpose of this Plan. | |
14.4 | References and headings attributed to individual sections and subsections of this Plan are solely for the purpose of easier reference. These headings are in no case significant or relevant for the interpretation of the Plan. | |
14.5 | No provision in this Plan leads to or infers a presumption that the authority of the General Partner or the authority of its supervisory board to issue Phantom Stock or approve other remuneration connected or not connected to shares granted by any other share based long term incentive program or any other authority may in any way be restricted. | |
15. | Definitions | |
15.1 | Affiliated Company means any German or foreign enterprise of the Company in the meaning of Sections 15 ff. Stock Corporation Act ( Aktiengesetz ). | |
15.2 | Banking Days are days on which banks in Frankfurt/Main are open for public business. |
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15.3 | Black-Out Period is defined in Clause 5.1 (c). | |
15.4 | Company stands for Fresenius Medical Care AG & Co. KGaA, Hof an der Saale, Germany. | |
15.5 | Compensation is defined in Clause 12.3. | |
15.6 | Exercise Day is defined in Clause 7. | |
15.7 | Exercise Declaration is defined in Clause 6.2. | |
15.8 | Exercise Period is defined in Clause 5.1 (a). | |
15.9 | Extraordinary Developments shall mean any kind of extraordinary scenarios in which the price of the Shares and the Companys intrinsic enterprise value would have lost any reasonably arguable correlation; however, no such Extraordinary Development shall be given in cases in which the price of the Shares rises (even substantially) as a result of the performance of the Participants. | |
15.10 | FMC Group stands for the Company and its Affiliated Companies with the exception of Fresenius SE & Co. KGaA and the Affiliated Companies of Fresenius SE & Co. KGaA in any manner other than through the Company. | |
15.11 | General Partner is the General Partner of the Company, Fresenius Medical Care Management AG, Hof an der Saale, Germany. | |
15.12 | Grant Date is defined in Clause 2.1. | |
15.13 | Heir means the person, the persons, the trust or trusts, which are nominated by a Participant or, if no such nomination is made, is or are entitled by will or law in the event of the death of a Participant, to receive the benefit of the Options under this Plan. The concept heir therefore also includes the executor appointed by will or the administrator appointed by the court, if no heir is named and is in a position to act under the given circumstances. | |
15.14 | IRC means the U.S. Internal Revenue Code of 1986 as amended from time to time. | |
15.15 | Phantom Stock is defined in Clause 1.1. | |
15.16 | Phantom Stock Conditions is defined in Clause 1.2. | |
15.17 | Phantom Stock Office is the service provider which can be entrusted by the General Partner with the technical processing of the Phantom Stock. |
Page 15/16
15.18 | Phantom Stock Proceeds is defined in Clause 3.2. | |
15.19 | Participants are the following groups of persons to whom Phantom Stock may be granted pursuant to the Plan: (i) Members of the management board of the General Partner; (ii) members of the management boards of Affiliated Companies within the FMC Group; and (iii) managerial staff members of the Company and Affiliated Companies within the FMC Group. | |
15.20 | Plan refers to this phantom stock plan of the Company as amended from time to time. | |
15.21 | Share means non-par value bearer ordinary share of the Company. | |
15.22 | Stock Exchange Price means the closing price ( Schlusskurs ) of the Shares in electronic Xetra trading of the Deutsche Börse AG in Frankfurt/Main or a comparable successor system. If no closing price is set in the electronic Xetra trading, the General Partner is entitled, with the approval of its supervisory board, to agree on a suitable means of replacing the closing price set in electronic Xetra trading. | |
15.23 | Success Target is defined in Clause 5.2. | |
15.24 | Usual banks working hours are working hours on Banking Days during which customer orders are taken by banks staff. | |
15.25 | Waiting Period is defined in Clause 5.1 (b). |
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I, | Ben J. Lipps, certify that: |
1. | I have reviewed this report on Form 6-K of Fresenius Medical Care AG & Co. KGaA (the Report). |
2. | Based on my knowledge, this Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Report; |
4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and we have: |
a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared; | |
b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |
c) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Report based on such evaluation; and | |
d) | disclosed in this Report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent functions): |
a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | |
b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
By: |
/s/ Dr. Ben
J. Lipps
|
1. | I have reviewed this report on Form 6-K of Fresenius Medical Care AG & Co. KGaA (the Report); |
2. | Based on my knowledge, this Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Report; |
4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and we have: |
a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared; |
b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |
c) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Report based on such evaluation; and | |
d) | disclosed in this Report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent function): |
a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | |
b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
By: |
/s/ Michael
Brosnan
|
(1) | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
(2) | The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. |
By: |
/s/ Dr. Ben
J. Lipps
|
By: |
/s/ Michael
Brosnan
|