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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13A-16 OR 15D-16 OF THE
SECURITIES EXCHANGE ACT OF 1934
For the month of May 2018
FRESENIUS MEDICAL CARE AG & Co. KGaA
(Translation of registrant's name into English)
Else-Kröner Strasse 1
61346 Bad Homburg
Germany
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ý Form 40-F o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes o No ý
If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82 .
FRESENIUS MEDICAL CARE AG & Co. KGaA
Interim Report of Financial Condition and Results of Operations for the three months ended March 31, 2018 and 2017
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FRESENIUS MEDICAL CARE AG & Co. KGaA
Management's discussion and analysis
You should read the following discussion and analysis of the results of operations of Fresenius Medical Care AG & Co. KGaA ("FMC-AG & Co. KGaA," or the "Company") and its subsidiaries in conjunction with our unaudited consolidated financial statements and related notes contained elsewhere in this report and our disclosures and discussions in our consolidated financial statements for the year ended December 31, 2017 prepared in accordance with International Financial Reporting Standards ("IFRS") as issued by the International Accounting Standards Board ("IASB"), using the euro as our reporting currency. At March 31, 2018, there were no IFRS or International Financial Reporting Interpretation Committee ("IFRIC") interpretations as endorsed by the European Union relevant for internal reporting that differed from IFRS as issued by the IASB.
In this report, "FMC-AG & Co. KGaA," or the "Company," "we," "us" or "our" refers to the Company or the Company and its subsidiaries on a consolidated basis, as the context requires. The term "North America Segment" refers to our North America operating segment, the term "EMEA Segment" refers to the Europe, Middle East and Africa operating segment, the term "Asia-Pacific Segment" refers to our Asia-Pacific operating segment, and the term "Latin America Segment" refers to our Latin America operating segment. The term "Corporate" includes certain headquarters' overhead charges, including accounting and finance, centrally managed production, asset management, quality management, procurement and research and development. The abbreviation "M" is used to denote the presentation of amounts in millions. The term "Constant Currency" or at "Constant Exchange Rates" means that we have translated local currency revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items for the current reporting period into euro using the prior year exchange rates to ensure a comparable analysis without effect from exchange rate fluctuations on translation, as described below under "Financial condition and results of operations II. Discussion of measures Non-IFRS measures Constant currency information."
This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). When used in this report, the words "outlook," "expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates" and similar expressions are generally intended to identify forward looking statements. Although we believe that the expectations reflected in such forward-looking statements are reasonable, forward-looking statements are inherently subject to risks and uncertainties, many of which cannot be predicted with accuracy and some of which might not even be anticipated, and future events and actual results, financial and otherwise, could differ materially from those set forth in or contemplated by the forward-looking statements contained elsewhere in this report. We have based these forward-looking statements on current estimates and assumptions made to the best of our knowledge. By their nature, such forward-looking statements involve risks, uncertainties, assumptions and other factors which could cause actual results, including our financial condition and profitability, to differ materially, positively or negatively, relative to the results expressly or implicitly described in or suggested by these statements. Moreover, forward-looking estimates or predictions derived from third parties' studies or information may prove to be inaccurate. Consequently, we cannot give any assurance regarding the future accuracy of the opinions set forth in this report or the actual occurrence of the projected developments described herein. In addition, even if our future results meet the expectations expressed here, those results may not be indicative of our performance in future periods.
These risks, uncertainties, assumptions, and other factors, including associated costs, could cause actual results to differ from our projected results and include, among others, the following:
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FRESENIUS MEDICAL CARE AG & Co. KGaA
Important factors that could contribute to such differences are noted in "Financial condition and results of operations I. Overview" below, in note 11 of the notes to consolidated financial statements (unaudited) included in this report, in note 22 of the notes to consolidated financial statements included in our Annual Report on Form 20-F for the year ended December 31, 2017, as well as under "Risk Factors," "Business overview," "Operating and financial review and prospects," and elsewhere in that report.
Our business is also subject to other risks and uncertainties that we describe from time to time in our public filings. Developments in any of these areas could cause our results to differ materially from the results that we or others have projected or may project.
Our reported financial condition and results of operations are sensitive to accounting methods, assumptions and estimates that are the basis of our financial statements. The actual accounting policies, the judgments made in the selection and application of these policies as well as the sensitivities of reported results to changes in accounting policies, assumptions and estimates are factors to be considered along with our financial statements and the discussion under "Results of operations, financial position and net assets" below.
As a result of the implementation of IFRS 15 Revenue from Contracts with Customers ("IFRS 15") and IFRS 9 Financial Instruments ("IFRS 9"), the Company has updated its accounting policies accordingly. Please
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FRESENIUS MEDICAL CARE AG & Co. KGaA
refer to note 1 of the notes to consolidated financial statements (unaudited) included in this report for further details on the updated policies. Excluding the policy updates for IFRS 15 and IFRS 9, there have been no significant changes during the three months ended March 31, 2018 to the items disclosed within the critical accounting policies and estimates in notes 1 and 2 to the consolidated financial statements in our annual report on Form 20-F for the year ended December 31, 2017 in accordance with IFRS as issued by the IASB.
Rounding adjustments applied to individual numbers and percentages shown in this and other reports may result in these figures differing immaterially from their absolute values.
Financial condition and results of operations
We are the world's largest kidney dialysis company, based on publicly reported sales and number of patients treated. We provide dialysis care and related services to persons who suffer from end stage renal disease ("ESRD") as well as other health care services. We develop and manufacture a wide variety of health care products, which includes both dialysis and non-dialysis products. Our dialysis products include dialysis machines, water treatment systems and disposable products while our non-dialysis products include acute cardiopulmonary and apheresis products. We sell our health care products to customers in around 150 countries and we also use them in our own health care service operations. Our dialysis business is therefore vertically integrated. We describe certain other health care services that we provide in our North America Segment and our Asia-Pacific Segment as "Care Coordination." Care Coordination currently includes, but is not limited to, coordinated delivery of pharmacy services, vascular, cardiovascular and endovascular specialty services as well as ambulatory surgery center services, physician nephrology and cardiology services, health plan services, urgent care services and ambulant treatment services. Care Coordination also includes the coordinated delivery of emergency, intensivist and hospitalist physician services as well as transitional care which we refer to as "hospital related physician services." All of these Care Coordination services together with dialysis care and related services represent our health care services. We estimated the volume of the global dialysis market was approximately €70 billion in 2017. Due to the complexity and evolving nature of Care Coordination services, we are currently unable to estimate the global volume of this market. Dialysis patient growth results from factors such as the aging population and increased life expectancies; shortage of donor organs for kidney transplants; increasing incidence of kidney disease and better treatment of and survival of patients with diabetes, hypertension and other illnesses, which frequently lead to the onset of chronic kidney disease; improvements in treatment quality, new pharmaceuticals and product technologies, which prolong patient life; and improving standards of living in developing countries, which make life-saving dialysis treatment available. We are also engaged in different areas of health care research.
As a global company delivering health care services and products, we face the challenge of addressing the needs of a wide variety of stakeholders, such as patients, customers, payors, regulators and legislators in many different economic environments and health care systems. In general, government-funded programs (in some countries in coordination with private insurers) pay for certain health care items and services provided to their citizens. Not all health care systems provide for dialysis treatment. Therefore, the reimbursement systems and ancillary services utilization environment in various countries significantly influence our business.
On August 18, 2016, the Centers for Medicare and Medicaid Services ("CMS") issued a request for information ("RFI") seeking public comment on concerns about providers' steering patients inappropriately to individual plans offered on the Patient Protection and Affordable Care Act individual health insurance market. Fresenius Medical Care Holdings, Inc. ("FMCH") and other dialysis providers, commercial insurers and other industry participants responded to the RFI, and in that response, we reported that we do not engage in such steering. On December 14, 2016, CMS published an Interim Final Rule ("IFR") titled "Medicare Program; Conditions for Coverage for End-Stage Renal Disease Facilities-Third Party Payment" that would amend the Conditions for Coverage for dialysis providers, like FMCH. The IFR would have effectively enabled insurers to reject premium payments made by patients who received grants for individual market coverage from the American Kidney Fund ("AKF") and, therefore, could have resulted in those patients losing their individual market health insurance coverage. The loss of individual market coverage for these patients would have had a material and adverse impact on our operating results. On January 25, 2017, a federal district court in Texas, responsible for litigation initiated by a patient advocacy group and dialysis providers
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FRESENIUS MEDICAL CARE AG & Co. KGaA
including FMCH, preliminarily enjoined CMS from implementing the IFR ( Dialysis Patient Citizens v. Burwell (E.D. Texas, Sherman Div.) ). The preliminary injunction was based on CMS' failure to follow appropriate notice-and-comment procedures in adopting the IFR. The injunction remains in place and the court retains jurisdiction over the dispute. On June 22, 2017, CMS requested a stay of proceedings in the litigation pending further rulemaking concerning the IFR. CMS stated, in support of its request that it expects to publish a Notice of Proposed Rulemaking in the Federal Register and otherwise pursue a notice-and-comment process in the fall of 2017 which has not been published to date. Plaintiffs in the litigation, including FMCH, consented to the stay, which was granted by the court.
The operation of charitable assistance programs like that of the AKF is also receiving increased attention by state insurance regulators. The result may be a regulatory framework that differs from state to state. Even in the absence of the IFR or similar administrative actions, insurers are likely to continue efforts to thwart charitable premium assistance to our patients for individual market plans and other insurance coverages. If successful, these efforts would have a material adverse impact on our operating results.
On January 3, 2017, FMCH received a subpoena from the United States Attorney for the District of Massachusetts inquiring into our interactions and relationships with AKF, including our charitable contributions to the Fund and the Fund's financial assistance to patients for insurance premiums. FMCH is cooperating with the investigation.
Further federal or state legislation or regulations may be enacted in the future that could substantially modify or reduce the amounts paid for services and products offered by us and our subsidiaries and/or implement new or alternative payment models for dialysis that could present more risk sharing for dialysis clinics. Ballot initiatives introduced at the state level which could further regulate clinic staffing requirements, state inspection requirements and commercial reimbursement rates. State regulation at this level would introduce an unprecedented level of oversight and additional expense at the clinic level which could have a material adverse effect on our business in the impacted states. While there is uncertainty regarding the passage and scope of these ballot initiatives, if some form of ballot initiative passes at the state level, such action could have a material adverse impact on our business. It is also possible that statutes may be adopted or regulations may be promulgated in the future that impose additional eligibility requirements for participation in the federal and state healthcare programs. Such new legislation or regulations could, depending upon the detail of the provisions, have positive or adverse effects, possibly material, on our businesses and results of operations.
Significant U.S. reimbursement developments
The majority of health care services we provide are paid for by governmental institutions. For the three months ended March 31, 2018, approximately 32% of our consolidated revenue is attributable to U.S. federally-funded health care benefit programs, such as Medicare and Medicaid reimbursement, under which reimbursement rates are set by CMS. Legislative changes could affect Medicare reimbursement rates for a significant portion of the services we provide. To date, while we have generally experienced stable reimbursement globally, the stability of reimbursement in the U.S. has been affected by (i) the implementation of the ESRD prospective payment system ("ESRD PPS") in January 2011, (ii) the U.S. federal government across the board spending cuts in payments to Medicare providers commonly referred to as "U.S. Sequestration," (iii) the reduction to the ESRD PPS rate to account for the decline in utilization of certain drugs and biologicals associated with dialysis pursuant to the American Taxpayer Relief Act of 2012 ("ATRA") as subsequently modified under the Protecting Access to Medicare Act of 2014 ("PAMA") and (iv) CMS's 2017 final rule on the Physician Fee Schedule, which partially corrected reimbursement for certain procedures that were materially undervalued in 2016. Please see the detailed discussions on these and further legislative developments below:
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Presently, there is considerable uncertainty regarding possible future changes in health care regulation, including the regulation of reimbursement for dialysis services. See "Risk factors We operate in a highly regulated industry such that the potential for legislative reform provides uncertainty and potential threats to our operating models and results" which is included in our Annual Report on Form 20-F for the year ended December 31, 2017.
In a final rule published on November 6, 2015, CMS provided for implementation of the PAMA oral-only provision. CMS clarified that once any non-oral ESRD-related drug in a category previously considered oral only is approved by the U.S. Food and Drug Administration ("FDA"), such category of drugs will cease to be considered oral only. However, for at least two years, CMS will pay for both oral and non-oral versions of the drug using a "transitional drug add-on payment adjustment," based on the average sales price plus 6% (4.3% after giving effect to the U.S. Sequestration) or some other mechanism set in accordance with Section 1847A of the Social Security Act. During this transition period, CMS will not pay outlier payments for these drugs, but the agency will collect data reflecting utilization of both the oral and injectable or intravenous forms of the drugs, as well as payment patterns, in order to help determine how to appropriately adjust the ESRD PPS payment rate as these drugs are included in the payment bundle. At the end of this transition period, CMS will incorporate payment for the oral and non-oral versions of the drug in the ESRD PPS payment rates, utilizing a public rulemaking process.
On February 7, 2017, Amgen, Inc. announced that the FDA had approved Parsabiv, an intravenous calcimimetic for the treatment of secondary hyperparathyroidism in adult patients with chronic kidney disease on dialysis. Effective January 1, 2018, CMS implemented the transitional drug add-on payment adjustment and applied it to calcimimetics. CMS adjusted the ESRD PPS rate to reflect the addition of the calcimimetics to the ESRD PPS payment bundle. As a result, we expect lower utilization of and revenue from calcimimetics in our U.S. dialysis business as compared to historical levels ("PAMA oral-only provision"). Under PAMA, CMS will collect and review intravenous and oral
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FRESENIUS MEDICAL CARE AG & Co. KGaA
calcimimetics utilization data and payment patterns during the transition period and adjust the ESRD PPS payment rate at the end of the transition period based on CMS's findings.
The introduction of Parsabiv also impacts how some payors, other than Medicare, arrange for the provision of calcimimetics for their patients. While some patients continue to receive calcimimetics from their pharmacies as a pharmacy benefit, other patients receive calcimimetics from their dialysis providers as a medical benefit. While we anticipate receiving additional reimbursement from payors when these drugs are provided by our clinics, this type of transition from an oral-only drug has not occurred previously and the reimbursement landscape for non-Medicare payors is still being developed.
If we are unable to secure appropriate reimbursement arrangements for calcimimetics when provided by our dialysis clinics, we could experience a material adverse effect on our business, results of operations and financial condition.
Participation in new Medicare payment arrangements
Under CMS's Comprehensive ESRD Care Model (the "Model"), dialysis providers and physicians can form entities known as ESRD Seamless Care Organizations, or "ESCOs," as part of a new payment and care delivery model that seeks to deliver better health outcomes for ESRD patients while lowering CMS' costs. We are presently participating in the Model through 24 ESCOs formed at our dialysis facilities. ESCOs that achieve the program's minimum quality thresholds and generate reductions in CMS' cost of care above certain thresholds for the ESRD patients covered by the ESCO will receive a share of the cost savings, which is adjusted based on the ESCO's performance on certain quality metrics. ESCOs that include dialysis chains with more than 200 facilities are required to share in the risk of cost increases and to reimburse CMS a share of any such increases if actual costs rise above set thresholds. As of January 1, 2018, the existing twenty-four ESCOs expanded by adding new physician practice partners and dialysis facilities, growing the number of patients participating from approximately 26,000 in 2017 to 41,000 in 2018.
In November 2017, we announced the results from the first performance year from our ESCOs. The results, which cover the period from October 2015 through December 2016, show improved health outcomes for patients receiving care coordination through the ESCOs. This success was validated by an independent report, which showed a nearly nine percent decrease in hospitalization rates for these patients during the same time. As a result, the Company's ESCOs together generated more than $43 M in gross savings, an average 5.47% reduction in expenditures per patient, with all six of its first-year ESCOs exceeding the shared savings benchmark.
Bundled Payment for Care Improvement ("BPCI") is a CMS pilot initiative, extended through September 30, 2018, with bundled payments for the individual services furnished to Medicare beneficiaries during a single episode of illness or course of treatment, including acute inpatient hospital services, physician services, and post-acute services. Our majority-owned subsidiary, Sound Inpatient Physicians, Inc. ("Sound"), commenced participation under BPCI in April 2015 in several markets. Under the BPCI, we have the ability to receive additional payments if we are able to deliver quality care at a cost that is lower than certain established benchmarks, but also have the risk of incurring financial penalties if we are unsuccessful in doing so. Should Sound fail to perform as required under its BCPI agreement, CMS may terminate Sound's participation in the BPCI program, in whole or in part. On April 20, 2018, we entered into a definitive agreement to divest our controlling interest in Sound. See note 15 of the notes to consolidated financial statements (unaudited) included in this report. We will continue to monitor certain of our businesses' potential participation in existing and future CMS programs.
On January 9, 2018, CMS announced the launch of a new bundled payment model named Bundled Payments for Care Improvement Advanced ("BPCI Advanced"). Under BPCI Advanced, participants can earn additional payment if expenditures for a beneficiary's episode of care do not exceed spending targets which includes measures for quality. BPCI Advanced qualifies as an Advanced Alternative Payment Model ("Advanced APM") under the Quality Payment Program as required by the Medicare and CHIP Reauthorization Act of 2015 ("MACRA"). Under Advanced APMs, providers take on financial risk to earn the Advanced APM incentive payment. The model performance period for BPCI Advanced starts on October 1, 2018 and continues to December 31, 2023. Similar to the current BPCI model, a formal, independent evaluation will be performed to assess the quality of care and changes in spending under BPCI Advanced. We plan to participate in BPCI Advanced in the future.
We are providing Medicare Advantage ESRD Chronic Conditions Special Needs Plan ("MA-CSNP") products in five states since January 1, 2017. MA-CSNPs are Medicare health plans offered by private companies that contract with
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Medicare to provide Medicare benefits to special needs individuals with specific severe or disabling chronic conditions such as ESRD, with a focus on improving the coordination of care. As a MA-CSNP, we will provide health care services and receive set payments from CMS for the complete care of ESRD patients who have enrolled in our MA-CSNP. For each MA-CSNP, we manage medical costs through underwriting criteria, product design, negotiation of favorable provider contracts and care management programs. Total medical costs are affected by the number and type of individual services rendered as well as the cost of each service. Our revenue on Medicare Advantage policies is based on CMS' premiums set for ESRD beneficiaries, based on the average cost of similar beneficiaries in the Medicare program. The benefits, and projected medical costs, of these plans are submitted to CMS in June the year before the contract year ("Bid"). MA-CSNPs were set to expire on January 1, 2019, but the authorization of these plans was permanently extended as part of Section 50311 of the Bipartisan Budget Act of 2018. Although we base the premiums we charge and our Bids on our estimates of future medical costs over the fixed contract period, many factors may cause actual costs to exceed those estimated and reflected in premiums or Bids. Failure to adequately price our products or estimate the costs of providing benefits to our beneficiaries, or effectively manage our operating expenses, may result in a material adverse impact on our business, financial condition and results of operations.
We have also entered into sub-capitation and other risk-based and value-based arrangements with certain payors to provide care to Medicare Advantage ESRD patients. Under these arrangements, a baseline per patient per month amount is established. If we provide complete care for less than the baseline, we retain the difference. If the cost of complete care exceeds the baseline, we owe the payor the difference.
Our operating segments are the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment. The operating segments are determined based upon how we manage our businesses with geographical responsibilities. All segments are primarily engaged in providing health care services and the distribution of products and equipment for the treatment of ESRD and other extracorporeal therapies. Management evaluates each segment using measures that reflect all of the segment's controllable revenues and expenses. With respect to the performance of business operations, management believes that the most appropriate IFRS measures are revenue, operating income and operating income margin. We do not include income taxes as we believe this is outside the segments' control. Financing is a corporate function which our segments do not control. Therefore, we do not include interest expense relating to financing as a segment measurement. Similarly, we do not allocate certain costs which relate primarily to certain headquarters' overhead charges, including accounting and finance, because we believe that these costs are also not within the control of the individual segments. Production of products, production asset management, quality management and procurement related to production are centrally managed at Corporate. Global research and development is also centrally managed at Corporate. These corporate activities do not fulfill the definition of a segment according to IFRS 8. Products are transferred to the segments at cost; therefore no internal profit is generated. The associated internal revenue for the product transfers and their elimination are recorded as corporate activities (See note 13 of the notes to consolidated financial statements (unaudited) found elsewhere in this report). Capital expenditures for production are based on the expected demand of the segments and consolidated profitability considerations. In addition, certain revenues, investments and intangible assets, as well as any related expenses, are not allocated to a segment but accounted for as Corporate. Accordingly, all of these items are excluded from our analysis of segment results and are discussed below in the discussion of our consolidated results of operations.
Certain of the following key performance indicators and other financial information as well as discussions and analyses set out in this report include measures that are not defined by IFRS ("Non-IFRS Measure"). We believe this information, along with comparable IFRS measurements, is useful to our investors as it provides a basis for assessing our performance, payment obligations related to performance-based compensation as well as our compliance with financial covenants. Non-IFRS financial measures should not be viewed or interpreted as a substitute for financial information presented in accordance with IFRS.
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Delivered EBIT (Non-IFRS Measure)
As a result of the significance of noncontrolling interest holders in our operations, we believe a measure that is meaningful to investors is operating income less noncontrolling interests ("Delivered EBIT"). Delivered EBIT approximates the operating income attributable to the shareholders of FMC-AG & Co. KGaA. As such, we believe that operating income, or EBIT, is the closest comparable IFRS measure.
Below is a table showing the reconciliation of operating income to Delivered EBIT on a consolidated basis and for our reporting segments:
Delivered EBIT reconciliation | |||||||
in € M |
|
Three months ended
March 31 |
||||||
---|---|---|---|---|---|---|---|
|
2018 | 2017 | |||||
Total |
|||||||
Operating income (EBIT) |
497 | 651 | |||||
less noncontrolling interests |
(51) | (69) | |||||
| | | | | | | |
Delivered EBIT |
446 | 582 | |||||
North America |
|
|
|||||
Operating income (EBIT) |
362 | 526 | |||||
less noncontrolling interests |
(48) | (67) | |||||
| | | | | | | |
Delivered EBIT |
314 | 459 | |||||
Dialysis |
|
|
|||||
Operating income (EBIT) |
349 | 527 | |||||
less noncontrolling interests |
(45) | (60) | |||||
| | | | | | | |
Delivered EBIT |
304 | 467 | |||||
Care Coordination |
|
|
|||||
Operating income (EBIT) |
13 | (1) | |||||
less noncontrolling interests |
(3) | (7) | |||||
| | | | | | | |
Delivered EBIT |
10 | (8) | |||||
EMEA |
|
|
|||||
Operating income (EBIT) |
109 | 114 | |||||
less noncontrolling interests |
(1) | 0 | |||||
| | | | | | | |
Delivered EBIT |
108 | 114 | |||||
Asia-Pacific |
|
|
|||||
Operating income (EBIT) |
74 | 82 | |||||
less noncontrolling interests |
(2) | (2) | |||||
| | | | | | | |
Delivered EBIT |
72 | 80 | |||||
Dialysis |
|
|
|||||
Operating income (EBIT) |
68 | 79 | |||||
less noncontrolling interests |
(2) | (2) | |||||
| | | | | | | |
Delivered EBIT |
66 | 77 | |||||
Care Coordination |
|
|
|||||
Operating income (EBIT) |
6 | 3 | |||||
less noncontrolling interests |
0 | 0 | |||||
| | | | | | | |
Delivered EBIT |
6 | 3 | |||||
Latin America |
|
|
|||||
Operating income (EBIT) |
14 | 14 | |||||
less noncontrolling interests |
0 | 0 | |||||
| | | | | | | |
Delivered EBIT |
14 | 14 | |||||
| | | | | | | |
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Net cash provided by (used in) operating activities in % of revenue (Non-IFRS Measure)
Our consolidated statement of cash flows indicates how we generated and used cash and cash equivalents. In conjunction with our other primary financial statements, it provides information that helps us evaluate changes to our net assets and our financial structure (including liquidity and solvency). Net cash provided by (used in) operating activities is applied to assess whether a business can generate the cash required to make the necessary replacement and expansion of investments. This indicator is impacted by the profitability of our business and the development of working capital, mainly receivables. Net cash provided by (used in) operating activities in percent of revenue shows the percentage of our revenue that is available in terms of financial resources. It is an indicator of our operating financial strength.
Free cash flow in % of revenue (Non-IFRS Measure)
Free cash flow (net cash provided by (used in) operating activities after capital expenditures, before acquisitions and investments) refers to the cash flow we have at our disposal. This indicator shows the percentage of revenue available for acquisitions and investments, dividends to shareholders, reducing debt financing or for repurchasing shares.
The following table shows the significant cash flow key performance indicators for the three months ended 2018 and 2017 and reconciles free cash flow and free cash flow in percent of revenue to Net cash provided by (used in) operating activities and Net cash provided by (used in) operating activities in percent of revenue, respectively:
Cash flow measures |
|||||||
in € M, except where otherwise specified |
|
For the three months
ended March 31 |
|||
---|---|---|---|---|
|
2018 | 2017 | ||
Revenue |
3,976 | 4,548 | ||
| | | | |
Net cash provided by (used in) operating activities |
(45) | 170 | ||
Capital expenditures |
(221) |
(197) |
||
Proceeds from sale of property, plant and equipment |
3 |
2 |
||
| | | | |
Capital expenditures, net |
(218) | (195) | ||
| | | | |
Free cash flow |
(263) | (25) | ||
Net cash provided by (used in) operating activities in % of revenue |
(1.1%) |
3.7% |
||
Free cash flow in % of revenue |
(6.6%) |
(0.6%) |
||
| | | | |
Net leverage ratio (Non-IFRS Measure)
The Net Leverage Ratio is a key performance indicator used for internal management. To determine the Net Leverage Ratio, debt less cash and cash equivalents (net debt) is compared to EBITDA (earnings before interest, taxes, depreciation and amortization) (adjusted for acquisitions and divestitures made for the last twelve months with a purchase price above a €50 M threshold as defined in our Amended 2012 Credit Agreement and non-cash charges). The ratio is an indicator of the length of time the Company needs to service the net debt out of its own resources. We believe that the Net Leverage Ratio provides more reliable information about the extent to which we are able to meet our payment obligations rather than considering only the absolute amount of our debt. We have a strong market position in a growing, global and mainly non-cyclical market. Furthermore, most of our customers have a high credit rating as the dialysis industry is characterized by stable and sustained cash flows. We believe this
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enables us to work with a relatively large share of debt capital compared with companies in other industries. The following table shows the reconciliation of Net Leverage Ratio as of March 31, 2018 and December 31, 2017.
Reconciliation of net leverage ratio |
|||||||
in € M, except where otherwise specified
|
|
March 31,
2018 |
December 31,
2017 |
||
---|---|---|---|---|
Debt |
7,721 | 7,448 | ||
Cash and cash equivalents |
846 | 978 | ||
| | | | |
Net Debt |
6,875 | 6,470 | ||
Operating Income (1),(2) |
2,199 |
2,372 |
||
Depreciation and amortization (1),(2) |
717 | 731 | ||
Non-cash charges (2) |
51 | 51 | ||
| | | | |
EBITDA (1),(2) |
2,967 | 3,154 | ||
| | | | |
Net leverage ratio (1) |
2.3 | 2.1 | ||
| | | | |
| | | | |
| | | | |
(1) Including adjustments for acquisitions and divestitures made for the last twelve months with a purchase price above a €50 M threshold as defined in the Amended 2012 Credit Agreement.
(2) Last 12 months.
Return on invested capital ("ROIC")(Non-IFRS Measure)
ROIC is the ratio of operating income, for the last twelve months, after tax ("net operating profit after tax" or "NOPAT") to the average invested capital of the last five quarter closing dates and expresses how efficiently we allocate the capital under our control or how well we employ our capital with regard to a specific investment project.
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The following table shows the reconciliation of average invested capital to total assets, which we believe to be the most directly comparable IFRS financial measure, and how ROIC is calculated:
Reconciliation of Average Invested Capital and ROIC |
||||||||||||||||
in € M, except where otherwise specified
|
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FRESENIUS MEDICAL CARE AG & Co. KGaA
2017 |
December 31,
2017 |
September 30,
2017 (2) |
June 30,
2017 (2) |
March 31,
2017 (2) |
December 31,
2016 (2) |
|||||
---|---|---|---|---|---|---|---|---|---|---|
Total assets |
24,025 | 24,156 | 24,617 | 26,016 | 25,825 | |||||
Plus: Cumulative goodwill amortization |
394 | 400 | 413 | 439 | 444 | |||||
Minus: Cash and cash equivalents |
(978) | (729) | (721) | (678) | (716) | |||||
Minus: Loans to related parties |
(92) | (146) | (169) | (220) | (220) | |||||
Minus: Deferred tax assets |
(315) | (334) | (308) | (311) | (292) | |||||
Minus: Accounts payable |
(590) | (518) | (484) | (505) | (584) | |||||
Minus: Accounts payable to related parties |
(147) | (224) | (216) | (271) | (264) | |||||
Minus: Provisions and other current liabilities (1) |
(2,791) | (2,763) | (2,822) | (2,791) | (2,866) | |||||
Minus: Income tax payable |
(194) | (251) | (234) | (277) | (242) | |||||
| | | | | | | | | | |
Invested capital |
19,312 | 19,591 | 20,076 | 21,402 | 21,085 | |||||
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
Average invested capital as of December 31, 2017 |
20,293 | |||||||||
Operating income (2) |
2,372 | |||||||||
Income tax expense (2),(4),(5) |
(617) | |||||||||
| | | | | | | | | | |
NOPAT |
1,755 | |||||||||
| | | | | | | | | | |
| | | | | | | | | | |
| | | | | | | | | | |
ROIC in % |
8.6% | |||||||||
| | | | | | | | | | |
(1) Including non-current provisions, non-current labor expenses and variable payments outstanding for acquisitions and excluding pension liabilities and noncontrolling interests subject to put provisions.
(2) Including adjustments for acquisitions and divestitures made for the last twelve months with a purchase price above a €50 million threshold as defined in the Amended 2012 Credit Agreement.
(3) Last 12 months.
(4) Adjusted for noncontrolling partnership interests.
(5) Includes the remeasurement of deferred tax balances as a result of U.S. tax reform ("U.S. Tax Reform") of approximately €236 M.
EBITDA (Non-IFRS)
EBITDA is the basis for determining compliance with certain covenants contained in our Amended 2012 Credit Agreement or may be relevant in other major financing arrangements. You should not consider EBITDA to be an alternative to net earnings determined in accordance with IFRS or to cash flow from operations, investing activities or financing activities. In addition, not all funds depicted by EBITDA are available for management's discretionary use. For example, a substantial portion of such funds are subject to contractual restrictions and functional requirements to fund debt service, capital expenditures and other commitments from time to time as described in more detail elsewhere in this report. EBITDA, as calculated, may not be comparable to similarly titled measures reported by other companies, particularly since our calculation of EBITDA includes adjustments provided in our Amended 2012 Credit
12
FRESENIUS MEDICAL CARE AG & Co. KGaA
Agreement. A reconciliation of EBITDA to cash flow provided by (used in) operating activities, which we believe to be the most directly comparable IFRS financial measure, is calculated as follows:
Reconciliation of EBITDA to net cash provided by (used in) operating activities |
|||||||
in € M
|
|
For the three months
ended March 31 |
||||||
---|---|---|---|---|---|---|---|
|
2018 | 2017 | |||||
Total EBITDA |
672 | 841 | |||||
Interest expense (net of interest income) |
(80) |
(92) |
|||||
Income tax expense |
(87) |
(182) |
|||||
Change in deferred taxes, net |
(8) |
(17) |
|||||
Changes in operating assets and liabilities |
(584) |
(385) |
|||||
Compensation expense related to share-based plans |
19 |
15 |
|||||
Other items, net |
23 |
(10) |
|||||
| | | | | | | |
Net cash provided by (used in) operating activities |
(45) | 170 | |||||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Constant currency information
Some key performance indicators and other financial measures used in this report such as changes in revenue, operating income and net income attributable to shareholders of FMC-AG & Co. KGaA include the impact of translating local currencies to our reporting currency for financial reporting purposes. We calculate these Non-IFRS financial measures at constant exchange rates in our filings to show changes in our revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items without giving effect to period-to-period currency fluctuations. Under IFRS, amounts received in local (non-euro) currency are translated into euro at the average exchange rate for the period presented. Once we translate the local currency for the constant currency, we then calculate the change, as a percentage, of the current period calculated using the prior period exchange rates versus the prior period. This resulting percentage is a Non-IFRS Measure referring to a change as a percentage at constant currency. These currency-adjusted financial measures are identifiable by the designated terms "Constant Exchange Rates" or "Constant Currency."
We believe that the measures at Constant Currency (Non-IFRS Measure) are useful to investors, lenders and other creditors because such information enables them to gauge the impact of currency fluctuations on our revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items from period to period. However, we limit our use of Constant Currency period-over-period changes to a measure for the impact of currency fluctuations on the translation of local currency into euro. We do not evaluate our results and performance without considering both Constant Currency period-over-period changes in Non-IFRS revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items and changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items prepared in accordance with IFRS. We caution the readers of this report to follow a similar approach by considering data on Constant Currency period-over-period changes only in addition to, and not as a substitute for or superior to, changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items prepared in accordance with IFRS. We present the growth rate derived from IFRS measures next to the growth rate derived from Non-IFRS measures such as revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items. As the reconciliation is inherent in the disclosure, we believe that a separate reconciliation would not provide any additional benefit.
Business metrics for Care Coordination
The measures for the North America Segment and the Asia-Pacific Segment discussed below include current and future programs that we will be participating in and will be reflected in the discussion of our business. Currently, in our North America Segment, sub-capitation, BPCI, ESCO programs, MA-CSNPs and other shared savings programs are included within the Member Months and Medical Cost Under Management calculations below. In the future, other programs may be included in the metrics below. Note that due to the timing required by CMS to review the BPCI and
13
FRESENIUS MEDICAL CARE AG & Co. KGaA
ESCO program data that we provide, estimates have been used in order to report these metrics in a timely manner. The Asia-Pacific Segment Care Coordination metric currently used for discussion purposes is patient encounters. These metrics may be developed further in future periods. These metrics are neither IFRS measures nor non-IFRS measures, and are therefore not accompanied by or reconciled to IFRS measures.
Member months under medical cost management
In our North America Segment, member months under medical cost management is calculated by multiplying the number of members included in value-based reimbursement programs, such as Medicare Advantage plans or other value-based programs in the U.S., by the corresponding number of months these members participate in those programs ("Member Months"). In the aforementioned programs, we assume the risk of generating savings. The financial results are recorded in earnings as our performance is determined. The membership offerings within Care Coordination are sub-capitation arrangements, MA-CSNPs, ESCO and BPCI programs as well as other shared savings programs. An increase in patient membership may indicate future earnings or losses as our performance is determined through these managed care programs.
Medical cost under management
In our North America Segment, medical cost under management represents the management of medical costs associated with our patient membership in value-based programs. For ESCO, BPCI and other shared savings programs, this is calculated by multiplying the Member Months in each program by the benchmark of expected medical costs per member per month. The sub-capitation and MA-CSNPs calculation multiplies the premium per member of the program per month by the number of Member Months associated with the plan, as noted above.
Care coordination patient encounters
Care Coordination patient encounters represents the total patient encounters and procedures conducted by certain of our Care Coordination activities and, we believe, is an indicator of the revenue generated. Care Coordination patient encounters in the North America Segment is the sum of all encounters and procedures completed during the period by Sound, MedSpring Urgent Care Centers, Azura Vascular Care, and National Cardiovascular Partners, the trade name of Laurus Healthcare L.P., as well as patients in our Fresenius Medical Care Rx Bone Mineral Metabolism ("Rx BMM") program. On April 20, 2018, we entered into a definitive agreement to divest our controlling interest in Sound. See note 15 of the notes to the consolidated financial statements (unaudited) included in this report. Care Coordination patient encounters in the Asia-Pacific Segment is the sum of all encounters for the following services: ambulant treatment services in day care hospitals, comprehensive and specialized health check-ups, inpatient and outpatient services, vascular access and other chronic treatment services.
III. Results of operations, financial position and net assets
The following sections summarize our results of operations, financial position and net assets as well as key performance indicators by reporting segment, as well as Corporate, for the periods indicated. We prepared the information using a management approach, consistent with the manner in which management internally disaggregates financial information to assist in making internal operating decisions and evaluating management performance.
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FRESENIUS MEDICAL CARE AG & Co. KGaA
Segment data (including Corporate) |
|||||||
in € M |
|
For the three months ended March 31 | ||||||
---|---|---|---|---|---|---|---|
|
2018 | 2017 | |||||
Total revenue |
|||||||
North America |
2,774 | 3,375 | |||||
EMEA |
636 | 614 | |||||
Asia-Pacific |
392 | 378 | |||||
Latin America |
170 | 177 | |||||
Corporate |
4 | 4 | |||||
| | | | | | | |
Total |
3,976 | 4,548 | |||||
| | | | | | | |
Operating income |
|||||||
North America |
362 | 526 | |||||
EMEA |
109 | 114 | |||||
Asia-Pacific |
74 | 82 | |||||
Latin America |
14 | 14 | |||||
Corporate |
(62) | (85) | |||||
| | | | | | | |
Total |
497 | 651 | |||||
| | | | | | | |
Interest income |
24 | 29 | |||||
Interest expense |
(104) | (121) | |||||
Income tax expense |
(87) | (182) | |||||
| | | | | | | |
Net Income |
330 | 377 | |||||
Less: Net Income attributable to noncontrolling interests |
(51) | (69) | |||||
| | | | | | | |
Net Income attributable to shareholders of FMC-AG & Co. KGaA |
279 | 308 | |||||
| | | | | | | |
| | | | | | | |
| | | | | | | |
Revenue and operating income generated in countries outside the eurozone are subject to currency fluctuations. The three months ended March 31, 2018 and 2017 were negatively impacted by the development of the euro against the U.S. dollar. For the three-months ended March 31, 2018, approximately 70% of revenue and approximately 73% of operating income were generated in U.S. dollars.
15
FRESENIUS MEDICAL CARE AG & Co. KGaA
Three months ended March 31, 2018 compared to three months ended March 31, 2017
Key indicators for the consolidated financial statements |
|||||||||||||
in € M, except where otherwise specified |
|
|
|
Change in % | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
For the three months ended
March 31 |
As
reported |
Constant
Currency (1) |
||||||||||
|
2018 | 2017 |
|
|
|||||||||
Revenue | 3,976 | 4,548 | (13%) | (1%) | |||||||||
Health care services |
3,209 | 3,769 | (15%) | (3%) | |||||||||
Health care products |
767 | 779 | (2%) | 6% | |||||||||
Number of dialysis treatments | 12,154,164 | 11,744,442 | 3% | ||||||||||
Same market treatment growth in % | 2.3% | 3.0% | |||||||||||
Gross profit as a % of revenue | 30.3% | 35.0% | |||||||||||
Selling, general and administrative costs as a % of revenue | 17.4% | 20.3% | |||||||||||
Operating income | 497 | 651 | (24%) | (15%) | |||||||||
Operating income margin in % | 12.5% | 14.3% | |||||||||||
Delivered EBIT (2) | 446 | 582 | (23%) | (15%) | |||||||||
Net income attributable to shareholders of FMC-AG & Co. KGaA | 279 | 308 | (10%) | 0% | |||||||||
Basic earnings per share | 0.91 | 1.01 | (10%) | 0% | |||||||||
| | | | | | | | | | | | | |
(1) For further information on Constant Exchange Rates, see " II. Discussion of Measures Non-IFRS Measures Constant currency information" above.
(2) For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to Operating Income on a consolidated basis and for each of our operating segments, see " II. Discussion of Measures Non-IFRS Measures Delivered EBIT" above.
Health care services revenue decreased by 15%, including a 12% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care services revenue decreased by 3% driven by the inclusion of implicit price concessions related to the implementation of IFRS 15 ("Implementation of IFRS 15") (4%), the prior year revenue impact from the recognition of revenue related to the agreement with the United States Departments of Veterans Affairs and Justice for reimbursement for services performed during the period of January 2009 through February 15, 2011 ("VA Agreement") (3%), and the effect of closed or sold clinics (1%), partially offset by contributions from acquisitions (3%) and growth in same market treatments (2%). For further information on the Implementation of IFRS 15, see note 1 of the notes to the consolidated financial statements (unaudited) included in this report. Excluding (i) the effect from the implementation of IFRS 15, of approximately €139 M and (ii) the 2017 effect from VA Agreement of approximately €100 M, health care service revenue decreased by 9% to €3,209 M from €3,530 M including a 13% negative impact resulting from foreign currency translation. At Constant Exchange Rates, excluding the effects above, health care service revenue increased by 4%.
Dialysis treatments increased by 3% as a result of growth in same market treatments (2%) and contributions from acquisitions (1%).
At March 31, 2018, we owned, operated or managed (excluding those managed but not consolidated in the U.S.) 3,790 dialysis clinics compared to 3,654 dialysis clinics at March 31, 2017. During the three months ended March 31, 2018, we acquired 11 dialysis clinics, opened 35 dialysis clinics and combined or closed 8 clinics. The number of patients treated in dialysis clinics that we own, operate or manage (excluding patients of dialysis clinics managed but not consolidated in the U.S.) increased by 4% to 322,253 at March 31, 2018 from 310,473 at March 31, 2017.
Health care product revenue decreased by 2%, including an 8% negative impact from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 6%. Dialysis product revenue decreased by 1%, including an 8% negative impact from foreign currency translation. At Constant Exchange Rates, dialysis product revenues increased by 7% due to higher sales of chronic hemodialysis products, renal pharmaceuticals, products for acute care treatments and peritoneal dialysis products. Non-dialysis product revenue decreased by 6% to €20 M from €21 M with
16
FRESENIUS MEDICAL CARE AG & Co. KGaA
no foreign currency translation effects. The non-dialysis product revenue decrease was due to lower sales of acute cardiopulmonary products.
The decrease period over period in the gross profit margin was 4.7 percentage points. Foreign currency translation effects represented a 0.4 percentage point increase in the current period. At Constant Exchange Rates, the decrease primarily reflects reduced margins in the North America Segment, the Asia-Pacific Segment and the EMEA Segment, partially offset by a positive impact of varying margins across the four operating segments. The gross profit margin decrease in the North America Segment was mainly due to the Implementation of IFRS 15, the prior year impact of the VA Agreement, higher implicit price concessions, lower revenue from commercial payors, decreased earnings from the BPCI initiative due to the initial recognition in the prior year, and other cost increases, partially offset by a favorable impact from pharmacy services driven by favorable pricing for certain pharmaceuticals due to delays for rebasing of reimbursement. The gross profit margin decrease in the Asia-Pacific Segment was due to unfavorable foreign currency transaction effects and an unfavorable mix effect related to acquisitions with lower margins. The gross profit margin decrease in the EMEA Segment was driven by unfavorable impacts from manufacturing and foreign currency transaction effects, partially offset by the impact from one additional dialysis day. Adjusting for the revenue impact from the Implementation of IFRS 15 and excluding the 2017 effect of the VA Agreement, the gross profit margin decreased by 1.1 percentage points. Foreign currency translation effects represented a 0.4 percentage point increase in the current period. At Constant Exchange Rates, excluding the effects above, the gross profit margin decreased by 1.5 percentage points.
The decrease period over period in the selling, general and administrative ("SG&A") expenses as a percentage of revenue was 2.9 percentage points. Foreign currency translation effects represented a 0.2 percentage point increase in the current period. At Constant Exchange Rates, the decrease was primarily driven by decreases in the North America Segment and at Corporate. The decrease in the North America Segment was mainly driven by the Implementation of IFRS 15, lower bad debt expense, decreased personnel expense and the prior year change in fair value of subsidiary share-based compensation, partially offset by the prior year impact of the VA Agreement and the impact from the initial increase in valuation of Sound's share-based payment program in connection with its divestiture ("Initial Sound Valuation Impact"). The decrease at Corporate was largely due to lower legal and consulting costs related to the Foreign Corrupt Practices Act ("FCPA") investigation (for further information, see note 11 of the notes to the consolidated financial statements (unaudited) included in this report). Adjusting for the revenue impact from the Implementation of IFRS 15 and excluding the (i) the 2017 effect of the VA Agreement and (iii) the 2018 Initial Sound Valuation Impact, the SG&A expenses as a percentage of revenue decreased by 1.1 percentage points including a 0.2 percentage point negative impact from foreign currency translation. At Constant Exchange Rates, excluding the effects above, the SG&A expenses as a percentage of revenue decreased by 1.3 percentage points.
Research and development expenses remained stable at €32 M. The increase period over period, as a percentage of revenue, was 0.1 percentage point.
Income from equity method investees increased by 20% to €18 M from €15 M. The increase was primarily driven by higher income from Vifor Fresenius Medical Care Renal Pharma Ltd., an entity in which we have ownership of 45%, due to increased sales in North America.
The decrease period over period in the operating income margin was 1.8 percentage points. Foreign currency translation effects represented a 0.2 percentage point increase in the current period. At Constant Exchange Rates, the decrease was largely driven by decreased gross profit margin and increased research and development expenses, as a percentage of revenue, partially offset by decreases in SG&A, as a percentage of revenue, and an increase in income from equity method investees as discussed above. Adjusting for the revenue impact from the Implementation of IFRS 15 and excluding (i) the 2017 effect of the VA Agreement of approximately €99 M and (ii) the 2018 Initial Sound Valuation Impact of approximately €13 M, operating income margin remained stable at 12.8%.
Delivered EBIT decreased by 23% including an 8% negative impact from foreign currency translation. At Constant Exchange Rates, delivered EBIT decreased by 15% due to decreased operating income, partially offset by decreased income from noncontrolling interests driven by lower earnings from dialysis and Care Coordination in the United States.
17
FRESENIUS MEDICAL CARE AG & Co. KGaA
Net interest expense decreased by 14% to €80 M from €92 M, including a 9% positive impact resulting from foreign currency translation. At Constant Exchange Rates, net interest expense decreased by 5% primarily due to the replacement of high interest bearing senior notes repaid in 2017 by debt instruments at lower interest rates.
Income tax expense decreased by 52% to €87 M from €182 M. The effective tax rate decreased to 20.9% from 32.5% for the same period of 2017 largely driven by the U.S. Tax Reform. Excluding (i) the 2018 effect from U.S. Tax Reform of approximately €48 M, (ii) the 2017 effect from the VA Agreement of approximately €38 M and (iii) the 2018 Initial Sound Valuation Impact which is non-taxable, the effective tax rate increased to 31.4% from 31.2%.
Net income attributable to noncontrolling interests decreased by 26% to €51 M from €69 M, including a 12% negative impact resulting from foreign currency translation. At Constant Exchange Rates, net income attributable to noncontrolling interests decreased by 14% driven by lower earnings from dialysis and Care Coordination in the United States.
Net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 10% to €279 M from €308 M including a 10% negative impact resulting from foreign currency translation. At Constant Exchange Rates, net income attributable to shareholders of FMC-AG & Co. KGaA remained stable due to the combined effects of the items discussed above. Excluding (i) the 2017 effect of approximately €59 M, net of tax, related to the VA Agreement, (ii) the 2018 impact from U.S. Tax Reform of approximately €48 M and (iii) the 2018 Initial Sound Valuation Impact of approximately €13 M, net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 2%, including a 10% negative impact resulting from foreign currency translation. At Constant Exchange Rates, excluding the items above, the increase in net income attributable to shareholders of FMC-AG & Co. KGaA was 8%. Excluding the 2018 Initial Sound Valuation Impact of approximately €13 M, net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 5%, including a 10% negative impact resulting from foreign currency translation. At Constant Exchange Rates, excluding this impact, the increase in net income attributable to shareholders of FMC-AG & Co. KGaA was 5%.
Basic earnings per share decreased by 10%, including a 10% negative impact resulting from foreign currency translation. At Constant Exchange Rates, basic earnings per share remained stable. The average weighted number of shares outstanding for the period was approximately 306.5 M in 2018 (306.2 M in 2017).
We employed 114,831 people (full-time equivalents) as of March 31, 2018 compared to 110,530 as of March 31, 2017, an increase of 4%, primarily due to organic growth in our business and acquisitions.
The following discussions pertain to the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment and the measures we use to manage these segments.
18
FRESENIUS MEDICAL CARE AG & Co. KGaA
Key indicators and business metrics for the North America Segment |
|||||||||||||
in € M, except where otherwise specified |
|
|
|
Change in % | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
For the three months ended
March 31 |
As
Reported |
Constant
Currency (1) |
||||||||||
|
2018 | 2017 |
|
|
|||||||||
Total North America Segment | |||||||||||||
Revenue | 2,774 | 3,375 | (18%) | (5%) | |||||||||
Health care services |
2,590 | 3,165 | (18%) | (6%) | |||||||||
Health care products |
184 | 210 | (12%) | 1% | |||||||||
Operating income | 362 | 526 | (31%) | (21%) | |||||||||
Operating income margin in % | 13.1% | 15.6% | |||||||||||
Delivered EBIT (2) | 314 | 459 | (32%) | (22%) | |||||||||
Dialysis |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue | 2,259 | 2,684 | (16%) | (3%) | |||||||||
Number of dialysis treatments | 7,473,764 | 7,246,232 | 3% | ||||||||||
Same market treatment growth in % | 2.3% | 2.6% | |||||||||||
Operating income | 349 | 527 | (34%) | (24%) | |||||||||
Operating income margin in % | 15.4% | 19.6% | |||||||||||
Delivered EBIT (2) | 304 | 467 | (35%) | (26%) | |||||||||
Care Coordination |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue | 515 | 691 | (25%) | (14%) | |||||||||
Operating income | 13 | (1) | Not applicable | Not applicable | |||||||||
Operating income margin in % | 2.6% | (0.1%) | |||||||||||
Delivered EBIT (2) | 10 | (8) | Not applicable | Not applicable | |||||||||
Member Months Under Medical Cost Management (3),(4) | 165,672 | 141,950 | 17% | ||||||||||
Medical Cost Under Management (3),(4) | 1,186 | 1,004 | 18% | 36% | |||||||||
Care Coordination Patient Encounters (3),(4) | 1,957,694 | 1,608,179 | 22% | ||||||||||
| | | | | | | | | | | | | |
(1) For further information on Constant Exchange Rates, see " II. Discussion of Measures Non-IFRS Measures Constant currency information" above.
(2) For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to Operating Income on a consolidated basis and for each of our operating segments, see " II. Discussion of Measures Non-IFRS Measures Delivered EBIT" above.
(3) For further information on these metrics, please refer to the discussion above of our Care Coordination measures under "Business Metrics for Care Coordination"
(4) The metrics may be understated due to a physician mapping issue related to the BPCI program within a CMS system which has not yet been resolved. Additionally, data presented for the BPCI and ESCO metrics are subject to finalization by CMS, which may result in changes from previously reported metrics.
Revenue
Dialysis care revenue decreased by 16% to €2,075 M from €2,474 M, including a 13% negative impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis care revenue decreased by 3% mainly due to the Implementation of IFRS 15 (4%) and the prior year impact from the VA Agreement (4%), partially offset by growth in same market treatments (2%), increases in organic revenue per treatment (2%) and contributions from acquisitions (1%). Excluding (i) the 2017 effect from the VA Agreement of approximately €100 M and (ii) the 2017 effect from the Implementation of IFRS15 of approximately €88 M, dialysis care revenue decreased by 9% to €2,075 M from €2,286 M including an 14% negative impact resulting from foreign currency translation. At Constant Exchange Rates, excluding the effects above, dialysis care revenue increased by 5%.
Dialysis treatments increased by 3% largely due to growth in same market treatments (2%) and contributions from acquisitions (1%). At March 31, 2018, 197,339 patients (4% increase from March 31, 2017) were being treated in the
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FRESENIUS MEDICAL CARE AG & Co. KGaA
2,419 dialysis clinics that we own or operate in the North America Segment, compared to 190,480 patients treated in 2,323 dialysis clinics at March 31, 2017.
In the U.S., the average revenue per treatment, restated for the Implementation of IFRS 15, decreased to $348 (€327 at Constant Exchange Rates) from $357 (€336). Excluding the 2017 impact from the VA Agreement, the average revenue per treatment increased to $348 (€327 at Constant Exchange Rates) from $342 (€322). The development was mainly attributable to the implementation of the PAMA oral-only provision, partially offset by higher implicit price concessions and lower revenue from commercial payors.
Cost per treatment in the U.S., restated for the Implementation of IFRS 15, increased to $288 (€270 at Constant Exchange Rates) from $276 (€260). This development was largely a result of the implementation of the PAMA oral-only provision, higher personnel expense, as well as increased property and other occupancy related costs as well as increased costs for medical supplies, partially offset by lower costs for health care supplies.
Health care product revenue decreased by 12% including a 13% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 1% due to higher sales of renal pharmaceuticals, peritoneal dialysis products, as well as hemodialysis solutions and concentrates, partially offset by lower sales of machines due to the Implementation of IFRS 15 as well as decreased sales of dialyzers.
Operating income margin
The decrease period over period in the dialysis operating income margin was 4.2 percentage points. Foreign currency translation effects represented a 0.1 percentage point increase in the current period. At Constant Exchange Rates, the decrease was driven by the prior year impact of the VA Agreement, higher implicit price concessions, lower revenue from commercial payors, the implementation of the PAMA oral-only provision as well as increased property and other occupancy related costs, higher costs for medical supplies and increased freight costs, partially offset by lower personnel expense and the Implementation of IFRS 15 due to the effect on revenue as a driver in the margin. Adjusting for the revenue impact from the Implementation of IFRS 15 and excluding the 2017 effect from the VA Agreement of approximately €99 M, the dialysis operating income margin decreased to 15.4% from 17.1%.
Delivered EBIT
Dialysis delivered EBIT decreased by 35%, including a 9% negative impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis delivered EBIT decreased by 26% mainly as the result of decreased operating income, partially offset by lower income from noncontrolling interests driven by lower performance in entities in which we have less than 100% ownership.
Revenue
Care Coordination revenue decreased by 25%, including an 11% negative impact resulting from foreign currency translation. At Constant Exchange Rates, Care Coordination revenue decreased by 14% driven by decreases in organic revenue growth due to the implementation of the PAMA oral-only provision which moved certain pharmaceuticals into the bundled rate (9%), the Implementation of IFRS 15 (7%) and the impact from divestitures (3%), partially offset by contributions from acquisitions (5%). Excluding the effect from the Implementation of IFRS 15 of approximately €51 M, Care Coordination revenue decreased by 20% to €515 M from €640 M including a 13% negative impact resulting from foreign currency translation. At Constant Exchange Rates, excluding the effects above, Care Coordination revenue decreased by 7%.
Operating income margin
The increase period over period in the Care Coordination operating income margin was 2.7 percentage points with virtually no impact from foreign currency translation effects. The increase was mainly driven by a favorable impact from pharmacy services driven by favorable pricing for certain pharmaceuticals due to delays for rebasing of reimbursement and the implementation of the PAMA oral-only provision which had low margins as a result of higher costs for external services, lower bad debt expense, the prior year change in fair value of subsidiary share-based
20
FRESENIUS MEDICAL CARE AG & Co. KGaA
compensation and increased earnings recognized related to ESCOs, partially offset by lower earnings from the BPCI initiative due to the initial recognition in the prior year and the Initial Sound Valuation Impact. Adjusting for the revenue impact from the Implementation of IFRS 15 and excluding the 2018 Initial Sound Valuation Impact of approximately €13 M, Care Coordination operating income margin increased to 5.1% from (0.1%)
Delivered EBIT
Care Coordination delivered EBIT increased to €10 M for the first three months of 2018 from €(8) M for the first three months of 2017 mainly as the result of increased operating income coupled with decreased income from noncontrolling interests.
Care Coordination business metrics
The increase in member months under medical cost management was primarily attributable to an expansion of our existing ESCOs through the addition of new physician practice partners and dialysis facilities, partially offset by a decrease in BPCI due to our voluntary elimination of certain non-performing risks from our BPCI portfolio. See note 4 to the table "Key indicators and business metrics for the North America Segment," above.
Care Coordination's medical cost under management increased by 18%, including an 18% negative impact from foreign currency translation in the current period. At Constant Exchange Rates, Care Coordination's medical cost under management increased by 36% primarily due to an expansion of our existing ESCOs through the addition of new physician practice partners and dialysis facilities. See note 4 to the table "Key indicators and business metrics for the North America Segment," above.
The increase in patient encounters was primarily driven by increased encounters for hospital related physician services. See note 4 to the table "Key indicators and business metrics for the North America Segment," above.
Key indicators for the EMEA Segment |
|||||||||||||
in € M, except where otherwise specified |
|
|
|
Change in % | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
For the three months ended
March 31 |
As
Reported |
Constant
Currency (1) |
||||||||||
|
2018 | 2017 |
|
|
|||||||||
Revenue | 636 | 614 | 4% | 6% | |||||||||
Health care services |
314 | 303 | 4% | 6% | |||||||||
Health care products |
322 | 311 | 4% | 6% | |||||||||
Number of dialysis treatments | 2,387,160 | 2,271,334 | 5% | ||||||||||
Same market treatment growth in % | 2.4% | 3.9% | |||||||||||
Operating income | 109 | 114 | (5%) | (4%) | |||||||||
Operating income margin in % | 17.1% | 18.7% | |||||||||||
Delivered EBIT (2) | 108 | 114 | (5%) | (4%) | |||||||||
| | | | | | | | | | | | | |
(1) For further information on Constant Exchange Rates, see " II. Discussion of Measures Non-IFRS Measures Constant currency information" above.
(2) For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to Operating Income on a consolidated basis and for each of our operating segments, see " II. Discussion of Measures Non-IFRS Measures Delivered EBIT" above.
Revenue
Health care service revenue increased by 4%, including a 2% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care service revenue increased by 6% as a result of contributions from acquisitions (3%), growth in same market treatments (2%) and an increase in dialysis days (1%).
21
FRESENIUS MEDICAL CARE AG & Co. KGaA
Dialysis treatments increased by 5% mainly due to growth in same market treatments (2%), contributions from acquisitions (2%) and an increase in dialysis days (1%). As of March 31, 2018, we had 63,114 patients (5% increase from March 31, 2017) being treated at the 754 dialysis clinics that we own, operate or manage in the EMEA Segment compared to 60,168 patients treated at 722 clinics at March 31, 2017.
Health care product revenue increased by 4%, including a 2% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 6%. Dialysis product revenue increased by 4%, including a 3% negative impact resulting from foreign currency translation. At Constant Exchange Rates, the increase of 7% in dialysis product revenue was due to higher sales of products for acute care treatments, machines, peritoneal dialysis products and renal pharmaceuticals. Non-Dialysis product revenue decreased by 6% to €20 M from €21 M with virtually no impact from foreign currency translation effects. The non-dialysis product revenue decrease was due to lower sales of acute cardiopulmonary products.
Operating income margin
The decrease period over period in the operating income margin was 1.6 percentage points. Foreign currency translation effects represented a 0.2 percentage point increase in the operating income margin. At Constant Exchange Rates, operating income margin decreased mainly due to unfavorable foreign currency transaction effects, partially offset by the impact of one additional dialysis day.
Delivered EBIT
Delivered EBIT decreased by 5%, including a 1% negative impact resulting from foreign currency translation. At Constant Exchange Rates, Delivered EBIT decreased by 4% primarily due to decreased operating income.
Key indicators for the Asia-Pacific Segment |
|||||||||||||
in € M, except where otherwise specified |
|
|
|
Change in % | ||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
For the three months ended
March 31 |
As
Reported |
Constant
Currency (1) |
||||||||||
|
2018 | 2017 |
|
|
|||||||||
Total Asia-Pacific Segment |
|||||||||||||
Revenue |
392 | 378 | 4% | 14% | |||||||||
Health care services |
184 | 169 | 9% | 20% | |||||||||
Health care products |
208 | 209 | 0% | 8% | |||||||||
Operating income |
74 | 82 | (9%) | (4%) | |||||||||
Operating income margin in % |
19.0% | 21.7% | |||||||||||
Delivered EBIT (2) |
72 | 80 | (10%) | (5%) | |||||||||
Dialysis |
|
|
|
|
|||||||||
Revenue |
346 | 358 | (3%) | 6% | |||||||||
Number of dialysis treatments |
1,060,114 | 1,042,046 | 2% | ||||||||||
Same market treatment growth in % |
4.2% | 3.8% | |||||||||||
Operating income |
68 | 79 | (14%) | (9%) | |||||||||
Operating income margin in % |
19.7% | 22.2% | |||||||||||
Delivered EBIT (2) |
66 | 77 | (15%) | (10%) | |||||||||
Care Coordination |
|
|
|
|
|||||||||
Revenue |
46 | 20 | 130% | 154% | |||||||||
Operating income |
6 | 3 | 148% | 175% | |||||||||
Operating income margin in % |
13.7% | 12.7% | |||||||||||
Delivered EBIT (2) |
6 | 3 | 133% | 158% | |||||||||
Care Coordination Patient Encounters (3) |
200,138 | | Not applicable | Not applicable | |||||||||
| | | | | | | | | | | | | |
(1) For further information on Constant Exchange Rates, see " II. Discussion of Measures Non-IFRS Measures Constant currency information" above.
(2) For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to Operating Income on a consolidated basis and for each of our operating segments, see " II. Discussion of Measures Non-IFRS Measures Delivered EBIT" above.
(3) For further information on patient encounters, please refer to the discussion above of our Care Coordination measures under "Business Metrics for Care Coordination"
22
FRESENIUS MEDICAL CARE AG & Co. KGaA
Revenue
Dialysis care service revenue decreased by 8% to €138 M from €149 M, including a 10% negative impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis care service revenue increased by 2% as a result of growth in same market treatments (4%) and an increase in dialysis days (1%), partially offset by the effect of closed or sold clinics (3%).
Dialysis treatments increased by 2% mainly due to growth in same market treatments (4%), partially offset by the effect of closed or sold clinics (2%). As of March 31, 2018, we had 30,194 patients (2% increase from March 31, 2017) being treated at the 385 dialysis clinics that we own, operate or manage in the Asia-Pacific Segment compared to 29,639 patients treated at 377 clinics at March 31, 2017.
Health care product revenue remained stable including an 8% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 8% as a result of increased sales of chronic hemodialysis products as well as products for acute care treatments.
Operating income margin
The decrease period over period in the operating income margin was 2.5 percentage points. Foreign currency translation effects represented a 0.7 percentage point increase in the operating income margin. At Constant Exchange Rates, the operating income margin decreased due to unfavorable impacts from foreign currency transaction effects as well as delayed product sales.
Delivered EBIT
Delivered EBIT decreased by 15%, including a 5% negative impact resulting from foreign currency translation. At Constant Exchange Rates, delivered EBIT decreased by 10% mainly due to decreased operating income.
Revenue
Care Coordination revenue increased by 130%, including a 24% negative impact resulting from foreign currency translation. At Constant Exchange Rates, Care Coordination revenue increased by 154% driven by contributions from acquisitions (138%) and organic revenue growth (16%).
Operating income margin
The increase period over period in the Care Coordination operating income margin was 1.0 percentage points with virtually no impact from foreign currency translation. The increase was driven by a favorable impact from acquisitions.
Delivered EBIT
Care Coordination delivered EBIT increased by 133%, including a 25% negative impact resulting from foreign currency translation. At Constant Exchange Rates, Care Coordination delivered EBIT increased by 158% mainly as the result of increased operating income.
Care Coordination business metrics
We have provided Care Coordination patient encounters in the Asia-Pacific Segment since the third quarter of 2017 due to an acquisition in Australia during the second quarter of 2017. Previously, there were immaterial amounts of services performed in Care Coordination within the Asia-Pacific Segment. As a result, there is no data for patient encounters for the three months ended March 31, 2017 available for comparative purposes. The patient encounters for the three months ended March 31, 2018 primarily relate to encounters for ambulant treatment services as well as comprehensive and specialized health check-ups, inpatient and outpatient services, vascular access and other chronic treatment services.
23
FRESENIUS MEDICAL CARE AG & Co. KGaA
Key indicators for the Latin America Segment |
|||||||||||||
in € M, except where otherwise specified |
|
|
|
As
Reported |
Constant
Currency (1) |
||||
---|---|---|---|---|---|---|---|---|
|
|
|
Change in % | |||||
|
For the three months
ended March 31 |
|
|
|||||
|
2018 | 2017 |
|
|
||||
Revenue |
170 | 177 | (4%) | 17% | ||||
Health care services |
121 | 132 | (8%) | 15% | ||||
Health care products |
49 | 45 | 9% | 25% | ||||
Number of dialysis treatments |
1,233,126 | 1,184,830 | 4% | |||||
Same market treatment growth in % |
1.1% | 2.5% | ||||||
Operating income |
14 | 14 | (2%) | 10% | ||||
Operating income margin in % |
8.3% | 8.1% | ||||||
Delivered EBIT (2) |
14 | 14 | (2%) | 10% | ||||
| | | | | | | | |
(1) For further information on Constant Exchange Rates, see " II. Discussion of Measures Non-IFRS Measures Constant currency information" above.
(2) For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to Operating Income on a consolidated basis and for each of our operating segments, see " II. Discussion of Measures Non IFRS Measures Delivered EBIT" above.
Revenue
Health care service revenue decreased by 8%, including a 23% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care service revenue increased by 15% as a result of increases in organic revenue per treatment (11%), contributions from acquisitions (2%), an increase in dialysis days (1%) and growth in same market treatments (1%).
Dialysis treatments increased by 4% mainly due to contributions from acquisitions (2%), growth in same market treatments (1%) and an increase in dialysis days (1%). As of March 31, 2018, we had 31,606 patients (an 5% increase from March 31, 2017) being treated at the 232 dialysis clinics that we own, operate or manage in the Latin America Segment compared to 30,186 patients treated at 232 clinics at March 31, 2017.
Health care product revenue increased by 9%, including a 16% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 25% driven by higher sales of dialyzers, machines, products for acute care treatments and peritoneal dialysis products.
Operating income margin
The increase period over period in the operating income margin was 0.2 percentage points. Foreign currency translation effects represented a 0.7 percentage point increase in the operating income margin. At Constant Exchange Rates, the operating income margin decreased mainly due to higher costs related to inflation.
Delivered EBIT
Delivered EBIT decreased by 2% including a 12% negative impact resulting from foreign currency translation. At Constant Exchange Rates, delivered EBIT increased by 10% due to increased operating income at Constant Exchange Rates.
Our primary sources of liquidity are typically cash provided by operating activities, cash provided by short-term debt from third parties and related parties, proceeds from the issuance of long-term debt and equity securities as well as divestitures. We require this capital primarily to finance working capital needs, fund acquisitions and clinics in which we have ownership of less than 100%, develop free-standing renal dialysis clinics and other health care facilities,
24
FRESENIUS MEDICAL CARE AG & Co. KGaA
purchase equipment for existing or new renal dialysis clinics and production sites, repay debt, pay dividends and repurchase shares (see "Net cash provided by (used in) investing activities" and "Net cash provided by (used in) financing activities" below).
In our long-term financial planning, we focus primarily on the Net Leverage Ratio, a Non- IFRS Measure, see " II. Discussion of Measures Non-IFRS Measures Net leverage ratio (Non-IFRS Measure)" above. At March 31, 2018 and December 31, 2017, the Net Leverage Ratio, was 2.3 and 2.1, respectively.
At March 31, 2018, we had cash and cash equivalents of €846 M compared to €978 at December 31, 2017.
Free cash flow (Net cash provided by (used in) operating activities, after capital expenditures, before acquisitions and investments) amounted to €(263) M and €(25) M for the three months ended March 31, 2018 and March 31, 2017, respectively. Free cash flow is a non-IFRS measure. For a reconciliation to Net cash provided by (used in) operating activities, the most directly comparable IFRS measure, see " II. Discussion of measures Non-IFRS measures Cash flow measures" above. Free cash flow in percent of revenue was (6.6%) and (0.6%) for three months ended 2018 and 2017, respectively.
Net cash provided by (used in) operating activities
In the first three months of 2018, net cash used in operating activities was €45 M as compared to net cash provided by operating activities of €170 M in the first three months of 2017. Net cash provided by (used in) operating activities in percent of revenue decreased to (1%) for the first three months of 2018 as compared to 4% for 2017. Cash provided by (used in) operating activities is impacted by the profitability of our business, the development of our working capital, principally inventories, receivables and cash outflows that occur due to a number of specific items as discussed below. The decrease in net cash provided by operating activities was largely driven by the impact from the 2017 payment related to the VA Agreement, a higher impact from seasonality in invoicing and increased inventory levels, partially offset by a positive impact from income tax payments.
The profitability of our business depends significantly on reimbursement rates. Approximately 81% of our revenue is generated by providing health care services, a major portion of which is reimbursed by either public health care organizations or private insurers. For the three months ended March 31, 2018, approximately 32% of our consolidated revenue was attributable to U.S. federal health care benefit programs, such as Medicare and Medicaid reimbursement. Legislative changes could affect Medicare reimbursement rates for a significant portion of the services we provide as well as the scope of Medicare coverage. A decrease in reimbursement rates or the scope of coverage could have a material adverse effect on our business, financial condition and results of operations and thus on our capacity to generate cash flow. See "I. Overview," above.
We intend to continue to address our current cash and financing requirements using cash provided by operating activities, our existing and future credit agreements, issuances under the commercial paper program (see note 7 of the notes to the consolidated financial statements (unaudited) included in this report) as well as the utilization of the Accounts Receivable Facility. In addition, when funds are required for acquisitions or to meet other needs, we expect to successfully complete long-term financing arrangements, such as the issuance of bonds. We aim to preserve financial resources with a minimum of €500 M of committed and unutilized credit facilities.
Net cash provided by (used in) operating activities depends on the collection of accounts receivable. Commercial customers and governments generally have different payment cycles. Lengthening their payment cycles could have a material adverse effect on our capacity to generate cash flow. In addition, we could face difficulties in enforcing and collecting accounts receivable under some countries' legal systems and due to the economic conditions in some countries. Accounts receivable balances, net of valuation allowances, represented Days Sales Outstanding ("DSO") of 85 days at March 31, 2018, an increase as compared to 75 days at December 31, 2017.
DSO by segment is calculated by dividing the segment's accounts and other receivable and contract liabilities, converted to euro using the average exchange rate for the period presented, less any value added tax included in the receivables, by the average daily sales for the last twelve months of that segment, converted to euro using the average exchange rate for the period. Receivables and sales are adjusted for amounts related to acquisitions and divestitures made within the reporting period with a purchase price above a €50 M threshold as defined in the
25
FRESENIUS MEDICAL CARE AG & Co. KGaA
Amended 2012 Credit Agreement. DSO amounts reported in the prior year have been adjusted to conform to the current year's presentation. The development of DSO by reporting segment is shown in the table below:
DSO by reporting segment | ||||
---|---|---|---|---|
|
March 31, 2018 |
December 31, 2017 |
||
North America Segment |
73 | 59 | ||
EMEA Segment |
103 |
102 |
||
Asia-Pacific Segment |
117 |
123 |
||
Latin America Segment |
129 |
127 |
||
FMC-AG & Co. KGaA average days sales outstanding |
85 |
75 |
||
| | | | |
The DSO increase in the North America Segment was largely due to seasonality in invoicing. The DSO increase in the EMEA Segment was due to payment fluctuations in the region. The Asia-Pacific Segment's DSO decrease primarily reflects a continued improvement of payment collections in China. The Latin America Segment's DSO increase reflects periodic delays in payment of public health care organizations in certain countries.
Due to the fact that a large portion of our reimbursement is provided by public health care organizations and private insurers, we expect that most of our accounts receivable will be collectible.
Net cash provided by (used in) investing activities
In the first three months of 2018 and 2017, net cash used in investing activities was €400 M and €355 M, respectively. The following table shows our capital expenditures for property, plant and equipment, net of proceeds from sales of property, plant and equipment as well as acquisitions, investments and purchases of intangible assets for first three months of 2018 and 2017:
Capital expenditures (net), acquisitions, investments and purchases of intangible assets | |||||||||||||
in € M
|
|
Capital expenditures, net |
Acquisitions, investments
and purchases of intangible assets |
||||||
---|---|---|---|---|---|---|---|---|
|
For the three months ended March 31 | |||||||
|
2018 | 2017 | 2018 | 2017 | ||||
North America Segment |
137 | 117 | 159 | 147 | ||||
EMEA Segment |
28 | 26 | 17 | 11 | ||||
Asia-Pacific Segment |
9 | 6 | 0 | 0 | ||||
Latin America Segment |
2 | 6 | 4 | 2 | ||||
Corporate |
42 | 40 | 1 | 0 | ||||
| | | | | | | | |
Total |
218 | 195 | 181 | 160 |
The majority of our capital expenditures were used for maintaining existing clinics, equipping new clinics, maintenance and expansion of production facilities (primarily in France, the North America Segment and Germany), capitalization of machines provided to our customers and for Care Coordination as well as capitalization of certain development costs. Development costs were incurred and capitalized. Capital expenditures increased to approximately 5% of total revenue in the first three months of 2018 as compared to 4% the same period in 2017.
The investments in the first three months of 2018 were primarily driven by debt securities in the North America Segment. The remaining investments in the North America Segment, the EMEA Segment and the Latin America Segment were largely acquisitions of dialysis clinics. The investments in the first three months of 2017 were virtually all acquisitions of dialysis clinics in the North America Segment.
26
FRESENIUS MEDICAL CARE AG & Co. KGaA
We anticipate capital expenditures of €0.9 to €1.0 billion and expect to make acquisitions of approximately €1.0 to €1.2 billion in 2018. See "Outlook" below.
Net cash provided by (used in) financing activities
In the first three months of 2018 and 2017, net cash provided by financing activities was €338 M and €146 M, respectively.
In the first three months of 2018, cash was mainly provided by proceeds from short-term debt including draws under the commercial paper program as well as proceeds from long-term debt and capital lease obligations including additional drawings under the U.S. dollar revolving credit facility of the Amended 2012 Credit Agreement, partially offset by distributions to noncontrolling interests. In the first three months of 2017, cash was mainly provided by proceeds from short-term debt and short-term debt from related parties, partially offset by distributions to noncontrolling interests as well as repayments of long-term debt and capital lease obligations.
Total assets as of March 31, 2018 increased by 1% to €24.2 billion from €24.0 billion as compared to December 31, 2017, including a 2% negative impact resulting from foreign currency translation. At Constant Exchange Rates, total assets increased by 3% to €24.7 billion from €24.0 billion.
Current assets as a percent of total assets increased to 28% at March 31, 2018 as compared to 27% at December 31, 2017. The equity ratio, the ratio of our equity divided by total liabilities and shareholders' equity, remained stable at 45% at March 31, 2018 as compared to December 31, 2017. ROIC decreased to 8.4% at March 31, 2018 as compared to 8.6% at December 31, 2017.
Report on post-balance sheet date events
Refer to note 15 for details on post-balance sheet date events.
27
FRESENIUS MEDICAL CARE AG & Co. KGaA
Below is a table showing our growth outlook for 2018. The outlook for 2018 is based on exchange rates prevailing at the beginning of 2018. We have presented our outlook at Constant Currency without a reconciliation to IFRS in reliance on Item 10(e)(1)(i)(B) or SEC Regulation S-K. Any such reconciliation would require actual exchange rates for the full year 2018. Any attempt to predict such rates would be purely speculative.
Outlook 2018
|
Outlook 2018
(at Constant Currency) (1) |
|
---|---|---|
Revenue (2),(3) |
Growth 5 - 7% | |
Operating income (3),(4) |
Growth 12 - 14% | |
Delivered EBIT (3),(4) |
Growth 13 - 15% | |
Net income growth at Constant Currency (3),(4),(5) |
13 - 15% | |
Net income growth at Constant Currency (3),(4),(5),(6) |
7 - 9% | |
Basic earnings per share growth at Constant Currency (3) |
based on development of net income | |
Capital expenditures (3) |
€0.9 - €1.0 BN | |
Acquisitions and investments |
€1.0 - €1.2 BN | |
Net cash provided by (used in) operating activities in % of revenue (3) |
> 10% | |
Free cash flow in % of revenue (3) |
> 4% | |
Net leverage ratio (3) |
< 2.5 | |
ROIC (3) |
³ 8.0% | |
Dividend per share |
based on development of net income | |
Employees (7) |
> 117,000 | |
Research and development expenses |
€140 - €150 M | |
| | |
At Constant Exchange Rates, the revenue growth target was adjusted from around 8% to a range of 5 to 7% as a result of our recent reassessment of dosing of calcimimetic drugs in the dialysis service business in the United States. The reduction in dosing was faster than assumed and results in a lower than expected revenue contribution. Concurrently, we reconfirm our 2018 outlook for the net income growth target of 13 to 15% at Constant Exchange Rates. Our 2018 outlook continues to exclude the effects of the expected acquisition of NxStage Medical, Inc. and excludes the effects of the divestiture of Sound.
Recently Issued Accounting Standards
Refer to note 1 of the notes to the consolidated financial statements (unaudited) in this report for information regarding recently issued accounting standards.
28
FRESENIUS MEDICAL CARE AG & Co. KGaA
Financial statements
Consolidated statements of income
(unaudited)
Consolidated statements of income |
|||||||||
in € thousands ("THOUS"), except per share data |
|
Note |
For the
three months ended March 31, |
|||||||
---|---|---|---|---|---|---|---|---|---|
|
|
2018 | 2017 | ||||||
Revenue: |
|||||||||
Health care services |
3,208,795 | 3,769,339 | |||||||
Health care products |
766,834 | 778,781 | |||||||
| | | | | | | | | |
|
2 a, 13 | 3,975,629 | 4,548,120 | ||||||
Costs of revenue: |
|
|
|
||||||
Health care services |
2,434,324 | 2,630,241 | |||||||
Health care products |
338,556 | 326,218 | |||||||
| | | | | | | | | |
|
2,772,880 | 2,956,459 | |||||||
Gross profit |
1,202,749 |
1,591,661 |
|||||||
Operating (income) expenses: |
|
|
|
||||||
Selling, general and administrative |
691,880 | 923,131 | |||||||
Research and development |
2 b | 31,897 | 32,136 | ||||||
Income from equity method investees |
(17,904) | (14,885) | |||||||
| | | | | | | | | |
Operating income |
496,876 | 651,279 | |||||||
Other (income) expense: |
|
|
|
||||||
Interest income |
(24,155) | (28,686) | |||||||
Interest expense |
104,131 | 121,414 | |||||||
| | | | | | | | | |
Income before income taxes |
416,900 |
558,551 |
|||||||
Income tax expense |
87,191 | 181,568 | |||||||
Net income |
329,709 | 376,983 | |||||||
Net income attributable to noncontrolling interests |
51,154 |
68,808 |
|||||||
| | | | | | | | | |
Net income attributable to shareholders of FMC-AG & Co. KGaA |
278,555 | 308,175 | |||||||
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
Basic earnings per share |
2 c |
0.91 |
1.01 |
||||||
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
|
2 c | ||||||||
Fully diluted earnings per share |
0.91 | 1.00 | |||||||
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
See accompanying notes to unaudited consolidated financial statements.
29
FRESENIUS MEDICAL CARE AG & Co. KGaA
Consolidated statements of comprehensive income
(unaudited)
Consolidated statements of comprehensive income |
||||||
in € THOUS |
|
|
For the three months
ended March 31, |
||||
---|---|---|---|---|---|---|
|
Note | 2018 | 2017 | |||
Net income |
329,709 | 376,983 | ||||
| | | | | | |
Other comprehensive income (loss): |
||||||
Components that may be reclassified subsequently to profit or loss: |
|
|
|
|||
Gain (loss) related to foreign currency translation |
(263,651) | (61,369) | ||||
Gain (loss) related to cash flow hedges (1) |
12 | 7,834 | 9,369 | |||
Income tax (expense) benefit related to components of other comprehensive income that may be reclassified |
(2,218) |
(2,978) |
||||
| | | | | | |
Other comprehensive income (loss), net of tax |
(258,035) | (54,978) | ||||
| | | | | | |
Total comprehensive income |
71,674 | 322,005 | ||||
Comprehensive income attributable to noncontrolling interests |
25,776 | 56,080 | ||||
| | | | | | |
Comprehensive income attributable to shareholders of FMC-AG & Co. KGaA |
45,898 | 265,925 | ||||
| | | | | | |
| | | | | | |
| | | | | | |
See accompanying notes to unaudited consolidated financial statements.
30
FRESENIUS MEDICAL CARE AG & Co. KGaA
Consolidated balance sheets |
||||||
in € THOUS, except share data |
|
Note |
March 31,
2018 |
December 31,
2017 |
|||
---|---|---|---|---|---|---|
|
|
(unaudited)
|
(audited)
|
|||
Assets |
||||||
Cash and cash equivalents |
4 | 846,378 | 978,109 | |||
Trade accounts and other receivables |
5 | 3,776,566 | 3,389,326 | |||
Accounts receivable from related parties |
3 | 121,612 | 111,643 | |||
Inventories |
6 | 1,354,503 | 1,290,779 | |||
Other current assets |
744,551 | 604,450 | ||||
| | | | | | |
Total current assets |
6,843,610 | 6,374,307 | ||||
Property, plant and equipment |
3,478,381 |
3,491,771 |
||||
Intangible assets |
682,208 | 683,058 | ||||
Goodwill |
11,834,584 | 12,103,921 | ||||
Deferred taxes |
324,851 | 315,168 | ||||
Investment in equity method investees |
13 | 619,730 | 647,009 | |||
Other non-current assets |
373,697 | 409,894 | ||||
| | | | | | |
Total non-current assets |
17,313,451 | 17,650,821 | ||||
| | | | | | |
Total assets |
24,157,061 | 24,025,128 | ||||
| | | | | | |
| | | | | | |
| | | | | | |
Liabilities |
||||||
Accounts payable |
508,701 | 590,493 | ||||
Accounts payable to related parties |
3 | 236,237 | 147,349 | |||
Current provisions and other current liabilities |
2,645,420 | 2,843,760 | ||||
Short-term debt |
7 | 1,010,536 | 760,279 | |||
Short-term debt from related parties |
7 | 40,800 | 9,000 | |||
Current portion of long-term debt and capital lease obligations |
8 | 872,508 | 883,535 | |||
Income tax payable |
114,253 | 65,477 | ||||
| | | | | | |
Total current liabilities |
5,428,455 | 5,299,893 | ||||
Long-term debt and capital lease obligations, less current portion |
8 |
5,797,025 |
5,794,872 |
|||
Non-current provisions and other non-current liabilities |
901,082 | 975,645 | ||||
Pension liabilities |
536,825 | 530,559 | ||||
Income tax payable |
124,926 | 128,433 | ||||
Deferred taxes |
457,800 | 467,540 | ||||
| | | | | | |
Total non-current liabilities |
7,817,658 | 7,897,049 | ||||
| | | | | | |
Total liabilities |
13,246,113 | 13,196,942 | ||||
Shareholders' equity: |
|
|
|
|||
Ordinary shares, no par value, €1.00 nominal value, 385,913,972 shares authorized, 308,121,322 issued and 306,461,371 outstanding as of March 31, 2018 and 385,913,972 shares authorized, 308,111,000 issued and 306,451,049 outstanding as of December 31, 2017 |
308,121 | 308,111 | ||||
Treasury stock, at cost |
(108,931) | (108,931) | ||||
Additional paid-in capital |
3,974,570 | 3,969,245 | ||||
Retained earnings |
7,476,464 | 7,137,255 | ||||
Accumulated other comprehensive income (loss) |
(1,718,235) | (1,485,578) | ||||
| | | | | | |
Total FMC-AG & Co. KGaA shareholders' equity |
9,931,989 | 9,820,102 | ||||
Noncontrolling interests |
978,959 | 1,008,084 | ||||
| | | | | | |
Total equity |
10,910,948 | 10,828,186 | ||||
| | | | | | |
Total liabilities and equity |
24,157,061 | 24,025,128 | ||||
| | | | | | |
| | | | | | |
| | | | | | |
See accompanying notes to unaudited consolidated financial statements.
31
FRESENIUS MEDICAL CARE AG & Co. KGaA
Consolidated statements of cash flows
(unaudited)
Consolidated statements of cash flows |
||||||||||
in € THOUS |
|
|
For the three months
ended March 31, |
|||||||
---|---|---|---|---|---|---|---|---|---|
|
Note | 2018 | 2017 | ||||||
Operating activities |
|||||||||
Net income |
329,709 | 376,983 | |||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
|||||||||
Depreciation and amortization |
13 | 174,994 | 189,908 | ||||||
Change in deferred taxes, net |
(8,147) | (17,124) | |||||||
(Gain) loss on sale of fixed assets and investments |
2,028 | 3,143 | |||||||
Compensation expense related to share-based plans |
18,656 | 14,607 | |||||||
Investments in equity method investees, net |
22,303 | (12,640) | |||||||
Changes in assets and liabilities, net of amounts from businesses acquired: |
|||||||||
Trade accounts and other receivables |
(462,386) | (279,921) | |||||||
Inventories |
(84,210) | (11,690) | |||||||
Other current and non-current assets |
(15,299) | 11,188 | |||||||
Accounts receivable from related parties |
(10,370) | (2,127) | |||||||
Accounts payable to related parties |
90,081 | 8,086 | |||||||
Accounts payable, provisions and other current and non-current liabilities |
(45,524) | (16,522) | |||||||
Paid interest |
(108,473) | (141,995) | |||||||
Received interest |
6,436 | 13,280 | |||||||
Income tax payable |
98,827 | 187,225 | |||||||
Paid income taxes |
53,433 | (152,805) | |||||||
| | | | | | | | | |
Net cash provided by (used in) operating activities |
(44,808) | 169,596 | |||||||
| | | | | | | | | |
Investing activities |
|||||||||
Purchases of property, plant and equipment |
(221,486) | (197,548) | |||||||
Proceeds from sale of property, plant and equipment |
3,095 | 2,480 | |||||||
Acquisitions and investments, net of cash acquired, and purchases of intangible assets |
14 | (181,403) | (160,211) | ||||||
Proceeds from divestitures |
14 | 158 | 299 | ||||||
| | | | | | | | | |
Net cash provided by (used in) investing activities |
(399,636) | (354,980) | |||||||
| | | | | | | | | |
Financing activities |
|||||||||
Proceeds from short-term debt |
268,785 | 144,118 | |||||||
Repayments of short-term debt |
(18,889) | (13,692) | |||||||
Proceeds from short-term debt from related parties |
31,800 | 116,000 | |||||||
Proceeds from long-term debt and capital lease obligations |
105,899 | 2,053 | |||||||
Repayments of long-term debt and capital lease obligations |
(15,027) | (29,277) | |||||||
Increase (decrease) of accounts receivable securitization program |
9,356 | (4,696) | |||||||
Proceeds from exercise of stock options |
562 | 4,436 | |||||||
Distributions to noncontrolling interests |
(50,951) | (80,119) | |||||||
Contributions from noncontrolling interests |
6,303 | 7,562 | |||||||
| | | | | | | | | |
Net cash provided by (used in) financing activities |
337,838 | 146,385 | |||||||
| | | | | | | | | |
Effect of exchange rate changes on cash and cash equivalents |
(25,125) | 692 | |||||||
Cash and cash equivalents: |
|||||||||
Net increase (decrease) in cash and cash equivalents |
(131,731) | (38,307) | |||||||
Cash and cash equivalents at beginning of period |
978,109 | 708,882 | |||||||
| | | | | | | | | |
Cash and cash equivalents at end of period |
4 | 846,378 | 670,575 | ||||||
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
See accompanying notes to unaudited consolidated financial statements.
32
FRESENIUS MEDICAL CARE AG & Co. KGaA
Consolidated statement of shareholders´ equity
For the three months ended March 31, 2018 and 2017 (unaudited)
Consolidated Statements of Shareholders´ Equity |
|||||||||||||||||||||||||||||||||||||||
in € THOUS, except share data
|
|
|
Ordinary Shares | Treasury Stock |
|
|
Accumulated other
comprehensive income (loss) |
|
|
|
||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Note |
Number of
shares |
No par
value |
Number of
shares |
Amount |
Additional
paid in capital |
Retained
earnings |
Foreign
currency translation |
Cash flow
hedges |
Pensions |
Total
FMC-AG & Co. KGaA shareholders' equity |
Noncontrolling
interests |
Total
Equity |
||||||||||||||||||||||||||
Balance at December 31, 2016 |
307,221,791 | 307,222 | (999,951) | (50,993) | 3,960,115 | 6,085,876 | (26,019) | (38,107) | (260,437) | 9,977,657 | 1,073,475 | 11,051,132 | |||||||||||||||||||||||||||
Proceeds from exercise of options and related tax effects |
82,064 | 82 | - | - | 4,014 | - | - | - | - | 4,096 | - | 4,096 | |||||||||||||||||||||||||||
Compensation expense related to stock options |
- | - | - | - | 2,163 | - | - | - | - | 2,163 | - | 2,163 | |||||||||||||||||||||||||||
Purchase/ sale of noncontrolling interests |
- | - | - | - | (32,225) | - | - | - | - | (32,225) | 17,337 | (14,888) | |||||||||||||||||||||||||||
Contributions from/ to noncontrolling interests |
- | - | - | - | - | - | - | - | - | - | (51,364) | (51,364) | |||||||||||||||||||||||||||
Noncontrolling interests subject to put provisions |
12 | - | - | - | - | - | (15,091) | - | - | - | (15,091) | - | (15,091) | ||||||||||||||||||||||||||
Net Income |
- | - | - | - | - | 308,175 | - | - | - | 308,175 | 68,808 | 376,983 | |||||||||||||||||||||||||||
Other comprehensive income (loss) related to: |
|||||||||||||||||||||||||||||||||||||||
Foreign currency translation |
- | - | - | - | - | - | (50,440) | 18 | 1,781 | (48,641) | (12,728) | (61,369) | |||||||||||||||||||||||||||
Cash flow hedges, net of related tax effects |
- | - | - | - | - | - | - | 6,391 | - | 6,391 | - | 6,391 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Comprehensive income |
- | - | - | - | - | - | - | - | - | 265,925 | 56,080 | 322,005 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Balance at March 31, 2017 |
307,303,855 | 307,304 | (999,951) | (50,993) | 3,934,067 | 6,378,960 | (76,459) | (31,698) | (258,656) | 10,202,525 | 1,095,528 | 11,298,053 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Balance at December 31, 2017 |
308,111,000 | 308,111 | (1,659,951) | (108,931) | 3,969,245 | 7,137,255 | (1,203,904) | (18,336) | (263,338) | 9,820,102 | 1,008,084 | 10,828,186 | |||||||||||||||||||||||||||
Adjustment due to initial application of IFRS 9 |
- | - | - | - | - | (6,466) | - | - | - | (6,466) | - | (6,466) | |||||||||||||||||||||||||||
Adjusted balance at December 31, 2017 |
308,111,000 | 308,111 | (1,659,951) | (108,931) | 3,969,245 | 7,130,789 | (1,203,904) | (18,336) | (263,338) | 9,813,636 | 1,008,084 | 10,821,720 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Proceeds from exercise of options and related tax effects |
10,322 | 10 | - | - | 476 | - | - | - | - | 486 | - | 486 | |||||||||||||||||||||||||||
Compensation expense related to stock options |
- | - | - | - | 2,014 | - | - | - | - | 2,014 | - | 2,014 | |||||||||||||||||||||||||||
Purchase/ sale of noncontrolling interests |
- | - | - | - | 2,835 | - | - | - | - | 2,835 | (11,199) | (8,364) | |||||||||||||||||||||||||||
Contributions from/ to noncontrolling interests |
- | - | - | - | - | - | - | - | - | - | (43,702) | (43,702) | |||||||||||||||||||||||||||
Noncontrolling interests subject to put provisions |
12 | - | - | - | - | - | 67,120 | - | - | - | 67,120 | - | 67,120 | ||||||||||||||||||||||||||
Net Income |
- | - | - | - | - | 278,555 | - | - | - | 278,555 | 51,154 | 329,709 | |||||||||||||||||||||||||||
Other comprehensive income (loss) related to: |
|||||||||||||||||||||||||||||||||||||||
Foreign currency translation |
- | - | - | - | - | - | (242,242) | 13 | 3,956 | (238,273) | (25,378) | (263,651) | |||||||||||||||||||||||||||
Cash flow hedges, net of related tax effects |
- | - | - | - | - | - | - | 5,616 | - | 5,616 | - | 5,616 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Comprehensive income |
- | - | - | - | - | - | - | - | - | 45,898 | 25,776 | 71,674 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Balance at March 31, 2018 |
308,121,322 | 308,121 | (1,659,951) | (108,931) | 3,974,570 | 7,476,464 | (1,446,146) | (12,707) | (259,382) | 9,931,989 | 978,959 | 10,910,948 | |||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
See accompanying notes to unaudited consolidated financial statements.
33
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
1. The Company and basis of presentation
Fresenius Medical Care AG & Co. KGaA ("FMC-AG & Co. KGaA" or the "Company"), a German partnership limited by shares (Kommanditgesellschaft auf Aktien) registered in the commercial registry of Hof an der Saale under HRB 4019, with its business address at Else-Kröner-Str. 1, 61352 Bad Homburg v. d. Höhe, is the world's largest kidney dialysis company, based on publicly reported sales and number of patients treated. The Company provides dialysis treatment and related dialysis care services to persons who suffer from end-stage renal disease ("ESRD"), as well as other health care services. The Company also develops and manufactures a wide variety of health care products, which includes dialysis and non-dialysis products. The Company's dialysis products include hemodialysis machines, peritoneal cyclers, dialyzers, peritoneal solutions, hemodialysis concentrates, solutions and granulates, bloodlines, renal pharmaceuticals and systems for water treatment. The Company's non-dialysis products include acute cardiopulmonary and apheresis products. The Company supplies dialysis clinics it owns, operates or manages with a broad range of products and also sells dialysis products to other dialysis service providers. The Company describes certain of its other health care services as "Care Coordination." Care Coordination currently includes, but is not limited to, the coordinated delivery of pharmacy services, vascular, cardiovascular and endovascular specialty services as well as ambulatory surgery center services, physician nephrology and cardiology services, health plan services, urgent care services and ambulant treatment services. Care Coordination also includes the coordinated delivery of emergency, intensivist and hospitalist physician services as well as transitional care which the Company refers to as "hospital related physician services." All of these Care Coordination services together with dialysis care and related services represent the Company's health care services.
In these unaudited consolidated financial statements, "FMC-AG & Co. KGaA," or the "Company" refers to the Company or the Company and its subsidiaries on a consolidated basis, as the context requires. "Fresenius SE" and "Fresenius SE & Co. KGaA" refer to Fresenius SE & Co. KGaA, a German partnership limited by shares resulting from the change of legal form of Fresenius SE (effective as of January 2011), a European Company (Societas Europaea) previously called Fresenius AG, a German stock corporation. "Management AG" and the "General Partner" refer to Fresenius Medical Care Management AG which is FMC-AG & Co. KGaA's general partner and is wholly owned by Fresenius SE. "Management Board" refers to the members of the management board of Management AG and, except as otherwise specified, "Supervisory Board" refers to the supervisory board of FMC-AG & Co. KGaA. The term "North America Segment" refers to the North America operating segment, the term "EMEA Segment" refers to the Europe, Middle East and Africa operating segment, the term "Asia-Pacific Segment" refers to the Asia-Pacific operating segment, and the term "Latin America Segment" refers to the Latin America operating segment. For further discussion of the Company's operating segments, see note 13.
Basis of presentation
The consolidated financial statements and other financial information included in the Company's quarterly reports on Form 6-K and its Annual Report on Form 20-F for 2017 were prepared solely in accordance with IFRS as issued by the International Accounting Standards Board ("IASB"), using the euro as the Company's reporting currency. At March 31, 2018, there were no IFRS or International Financial Reporting Interpretation Committee ("IFRIC") interpretations as endorsed by the European Union relevant for interim reporting that differed from IFRS as issued by the IASB. As such, the accompanying condensed interim report complies with the requirements of International Accounting Standard ("IAS") 34, Interim Financial Reporting as well as with the rules concerning interim reporting as issued by the IASB.
The consolidated financial statements at March 31, 2018 and for the three months ended March 31, 2018 and 2017 contained in this report are unaudited and should be read in conjunction with the consolidated financial statements contained in the Company's 2017 Annual Report on Form 20-F. The preparation of Consolidated Financial
34
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the Consolidated Financial Statements and the reported amounts of revenue and expense during the reporting period. Actual results could differ from those estimates. Such financial statements reflect all adjustments that, in the opinion of management, are necessary for a fair presentation of the results of the periods presented. All such adjustments are of a normal recurring nature.
As a result of the implementation of IFRS 15 - Revenue from Contracts with Customers and IFRS 9 Financial Instruments, the Company has updated its accounting policies accordingly. Please refer to "Recently implemented accounting pronouncements" below for further details on the updated policies. Excluding the policy updates for IFRS 15 and IFRS 9, the accounting policies applied in the accompanying consolidated financial statements are the same as those applied in the consolidated financial statements as of December 31, 2017.
Finance lease receivables in the amount of €58,336 in the prior years' comparative consolidated financial statements have been reclassified from other currents assets to trade accounts and other receivables to conform to the current year's presentation.
The results of operations for the three months ended March 31, 2018 are not necessarily indicative of the results of operations for the year ending December 31, 2018.
Recently implemented accounting pronouncements
The Company has prepared its consolidated financial statements at March 31, 2018 in conformity with IFRS in force for the interim periods on January 1, 2018. In the first quarter of 2018, the Company applied the following new standards relevant for its business for the first time:
The Company adopted IFRS 15, Revenue from Contracts with Customers, as issued in May 2014, with the effective date of January 1, 2018. While this standard applies to nearly all contracts with customers, the main exceptions are leases, financial instruments and insurance contracts. In accordance with the transition provisions in IFRS 15 the new rules were only adopted for those contracts that are not completed contracts as of January 1, 2018 following the cumulative effect method with no restatement of the comparative periods presented.
The major changes in the Company's accounting policies resulting from the implementation of IFRS 15 are summarized below:
Health care services
For services performed for patients where the collection of the billed amount or a portion of the billed amount cannot be determined at the time services are performed, the Company concludes that the consideration is variable ("implicit price concession") and records the difference between the billed amount and the amount estimated to be collectible as a reduction to health care services revenue, whereas prior to the adoption of IFRS 15 it was recorded as an allowance for doubtful accounts. Implicit price concessions include such items as amounts due from patients without adequate insurance coverage and patient co-payment and deductible amounts due from patients with health care coverage. The Company determines implicit price concessions primarily upon past collection history.
IFRS 15 requires the consideration of implicit price concessions when determining the transaction price which, through adoption, resulted in the implicit price concessions directly reducing revenue in the amount of €156,592 for the three months ended March 31, 2018. Prior to the adoption of IFRS 15, implicit price concessions were included as
35
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
part of selling, general and administrative expenses as an allowance for doubtful accounts in the amount of €138,952 for the three months ended March 31, 2017. There is no effect on net income as the implicit price concessions are merely presented in different lines within the consolidated statements of income.
Revenue from insurance contracts will be disclosed as part of "Other revenue" separately from IFRS 15 revenue in the notes to the consolidated financial statements.
Health care products
In the health care product business, major revenues are generated from the sale of dialysis machines and water treatment systems, disposable products and maintenance agreements for the Company´s health care products. Prior to the adoption of IFRS 15 revenues were recorded upon transfer of title to the customer, either at the time of shipment, upon receipt or upon any other terms that clearly define passage of title. With the adoption of IFRS 15, revenues from the sale of dialysis machines and water treatment systems are typically recognized upon installation and provision of the necessary technical instructions as only thereafter does the customer obtain control of the medical device.
A portion of dialysis product revenues is generated from arrangements which give the customer, typically a health care provider, the right to use dialysis machines. IFRS 15 specifically excludes leases from the scope of the revenue standard. As a result, the transaction price is allocated in accordance with IFRS 15, and revenue is recognized separately for the lease and the non-lease components of the contract in accordance with IAS 17.
Revenue from lease contracts will be disclosed as part of "Other revenue" separately from IFRS 15 revenue in the notes to the consolidated financial statements.
As of March 31, 2018 there are no contract assets and an immaterial amount of contract liabilities resulting from the implementation of IFRS 15. Contract assets would be shown in the consolidated balance sheet in line item "Trade accounts and other receivables" and contract liabilities are shown in line item "Current provisions and other current liabilities."
The Company has adopted IFRS 9 Financial instruments with the effective date of January 1, 2018. IFRS 9 was issued in July 2014 and mainly replaced IAS 39 Financial instruments: recognition and measurement. Additionally, the Company has adopted the related amendments to IFRS 7 Financial instruments: disclosures.
The major changes in the Company's accounting policies resulting from the implementation of IFRS 9 are summarised below:
Classification and measurement of financial assets and financial liabilities
IFRS 9 defined the following three categories for financial assets: measured at amortized cost, measured at fair value through other comprehensive income ("FVOCI") and measured at fair value through profit or loss ("FVPL"). The classification depends on the business model that the financial assets are managed in and the contractual terms of the cash flows of the financial assets. IFRS 9 eliminated the following categories that were applicable for the Company under IAS 39: loans and receivables and available for sale financial assets.
The requirements for the classification and measurement of financial liabilities have not changed significantly. Consequently, the implementation of IFRS 9 does not have a material impact on the Company's accounting policies for financial liabilities.
36
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Impairment of financial assets
IFRS 9 replaces the incurred loss model under IAS 39 with an expected credit loss approach. Under the new approach, the Company is only allowed to recognize an impairment loss if a loss event occurred. This means that generally all impacted financial assets will carry a loss allowance based on their expected credit losses. Expected credit losses are a probability-weighted estimate of credit losses over the contractual life of the financial assets. This model comprises a three stage approach. Upon recognition, the Company shall recognize losses that are expected within the next 12 months. If credit risk deteriorates significantly, from that time, impairment losses shall amount to lifetime expected losses. When assessing for significant increases in credit risk, the Company shall compare the risk of a default occurring on the financial instrument at the reporting date with the risk of a default occurring on the financial instrument at the date of initial recognition. The Company should consider reasonable and supportable information including historic loss rates, present developments such as liquidity issues and information about future economic conditions, to ensure foreseeable changes in the customer-specific or macroeconomic environment are considered.
In case of objective evidence of impairment there is an assignment to stage 3. The assignment of a financial asset to stage 3 should rely on qualitative knowledge on the customers' unfavorable financial position (for example bankruptcy, lawsuits with private or public payers), or quantitative criteria, based on an individual maturity analysis. When a counterpart defaults, all financial assets against this counterpart are considered impaired. The definition of default is mainly based on payment practices specific to individual regions and businesses.
The Company recognizes a loss allowance for expected credit losses on financial assets measured at amortized cost, contract assets and lease receivables as well as in investments in debt securities measured at fair value through other comprehensive income. The financial assets mainly comprise trade accounts receivables and cash and cash equivalents. The amount of expected credit losses is updated at each reporting date to reflect changes in credit risk since initial recognition of the respective instrument. Financial assets whose expected credit loss is not assessed individually are grouped on the basis of geographical regions and the impairment is generally assessed on the basis of macroeconomic indicators such as credit default swaps.
For trade accounts receivable, the Company uses the simplified method which requires recognizing lifetime expected credit losses. Expected credit losses on cash and cash equivalents are measured according to the general method which is based on 12-month expected credit losses. Due to the short maturity term of the financial instruments this corresponds with the lifetime expected loss.
Based on the external credit ratings of the counterparties the Company considers that its cash and cash equivalents have a low credit risk.
Hedge accounting
The Company implemented the IFRS 9 hedge accounting model. The new model allows for improved alignment of hedge accounting with risk management strategies and objectives. The Company applies cash flow hedge accounting mainly for the purpose of hedging forecasted transactions relating to inventory purchases and sales. To hedge the resulting foreign currency exposure, the Company generally enters into foreign exchange forward contracts. With the application of IFRS 9, only the effective fair value changes of the spot component of these contracts will be designated as hedging instrument and accounted for in other comprehensive income (loss) ("OCI"). Forward points are recognized and accumulated in a separate component within OCI. Under IAS 39, the fair value changes of both the spot and forward component were designated as hedging instrument, and recognized in accumulated OCI ("AOCI"). Under IAS 39 accumulated amounts related to cash flow hedges were reclassified to profit or loss in the same period as the hedged forecasted transaction affected profit or loss. Under IFRS 9, accumulated amounts in OCI for cash flow hedges of foreign exchange risk in relation to hedged forecasted product purchases from third party are directly included in the initial cost of the asset when it is recognized.
37
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Recent accounting pronouncements not yet adopted
In January 2016, the IASB issued IFRS 16, Leases, which supersedes the current standard on lease-accounting, IAS 17, as well as the interpretations IFRIC 4, SIC-15 and SIC-27. IFRS 16 significantly changes lessee accounting. For all leases, a lessee is required to recognize a right-of-use asset representing its right to use the underlying leased asset and a lease liability representing its obligation to make lease payments. Depreciation of the right-of-use asset and interest on the lease liability must be recognized in the income statement for every lease contract. Therefore, straight-line rental expenses will no longer be shown. The lessor accounting requirements in IAS 17 are substantially carried forward. The standard is effective for fiscal years beginning on or after January 1, 2019. Earlier application is permitted for entities that have also adopted IFRS 15 Revenue from Contracts with Customers. The Company decided that IFRS 16 will not be adopted early. The Company expects a balance sheet extension due to the on balance sheet recognition of right of use assets and liabilities for agreed lease payment obligations, currently classified as operating leases, resulting in particular from leased clinics and buildings. Based on a first impact analysis as of December 31, 2015 using certain assumptions and simplifications, the Company expects a financial debt increase of approximately €4,000,000. Referring to the consolidated statement of income, the Company expects an operating income improvement due to the split of rent expenses in depreciation and interest expenses, by having unchanged cash outflows. The Company also expects that its net leverage ratio (net debt as compared to Earnings before Interest, Taxes, Depreciation and Amortization, "EBITDA"), adjusted for acquisitions and divestitures made during the last twelve months with a purchase price above a €50,000 threshold as defined in the Amended 2012 Credit Agreement and non-cash charges) will increase by about 0.5. The impact on the Company will depend on the contract portfolio at the effective date, as well as the transition method. Based on a first impact analysis, the Company will apply the modified retrospective method. Except for the transition method, the Company is currently evaluating the accounting policy options of IFRS 16.
In May 2017, the IASB issued IFRS 17, Insurance Contracts. IFRS 17 establishes principles for the recognition, measurement, presentation and disclosure related to the issuance of insurance contracts. IFRS 17 replaces IFRS 4, Insurance Contracts, which was brought in as an interim standard in 2004. IFRS 4 permitted the use of national accounting standards for the accounting of insurance contracts under IFRS. As a result of the varied application for insurance contracts there was a lack of comparability among peer groups. IFRS 17 eliminates this diversity in practice by requiring all insurance contracts to be accounted for using current values. The frequent updates to the insurance values are expected to provide more useful information to users of financial statements. IFRS 17 is effective for fiscal years beginning on or after January 1, 2021. Earlier adoption is permitted for entities that have also adopted IFRS 9 Financial Instruments and IFRS 15 Revenue from Contracts with Customers. The Company is evaluating the impact of IFRS 17 on the consolidated financial statements.
In the Company's view, all other pronouncements issued by the IASB do not have a material impact on the consolidated financial statements.
38
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
2. Notes to the consolidated statements of income
The Company has recognized the following revenue in the consolidated statement of income for the three months ended March 31, 2018:
Revenue
in € THOUS |
|
For the three months ended March 31, 2018 | |||||
---|---|---|---|---|---|---|
|
Revenue from
contracts with customers (IFRS 15) |
Other revenue | Total | |||
Health care services |
3,155,537 | 53,258 | 3,208,795 | |||
Dialysis services |
2,648,293 | - | 2,648,293 | |||
Care Coordination |
507,244 | 53,258 | 560,502 | |||
Health care products |
749,098 |
17,736 |
766,834 |
|||
Dialysis products |
729,956 | 17,736 | 747,692 | |||
Non-dialysis products |
19,142 | - | 19,142 | |||
| | | | | | |
Total |
3,904,635 | 70,994 | 3,975,629 | |||
| | | | | | |
| | | | | | |
| | | | | | |
b) Research and development expenses
Research and development expenses of €31,897 for the three months ended March 31, 2018 (for the three months ended March 31, 2017: €32,136) include expenditure for research and non-capitalizable development costs as well as depreciation and amortization expenses related to capitalized development costs of €80 (for the three months ended March 31, 2017: €104).
The following table contains reconciliations of the numerators and denominators of the basic and fully diluted earnings per share computations for 2018 and 2017:
Reconciliation of Basic and Diluted Earnings per Share
in € THOUS, except share and per share data |
|
For the three months
ended March 31, |
|||
---|---|---|---|---|
|
2018 | 2017 | ||
Numerator: |
||||
Net income attributable to shareholders of FMC-AG & Co. KGaA |
278,555 |
308,175 |
||
| | | | |
Denominators: |
||||
Weighted average number of shares outstanding |
306,453,070 |
306,241,321 |
||
Potentially dilutive shares |
986,454 | 519,712 | ||
| | | | |
Basic earnings per share |
0.91 |
1.01 |
||
| | | | |
| | | | |
| | | | |
Fully diluted earnings per share |
0.91 | 1.00 | ||
| | | | |
| | | | |
| | | | |
39
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Fresenius SE is the Company's largest shareholder and owns 30.8% of the Company's outstanding shares, excluding treasury shares held by the Company, at March 31, 2018. The Company has entered into certain arrangements for services, leases and products with Fresenius SE or its subsidiaries and with certain of the Company's equity method investees as described in item a) below. The Company's terms related to the receivables or payables for these services, leases and products are generally consistent with the normal terms of the Company's ordinary course of business transactions with unrelated parties. Financing arrangements as described in item b) below have agreed upon terms which are determined at the time such financing transactions occur and reflect market rates at the time of the transaction. The relationship between the Company and its key management personnel who are considered to be related parties is described in item c) below. Our related party transactions are settled through Fresenius SE's cash management system where appropriate.
a) Service agreements, lease agreements and products
The Company is party to service agreements with Fresenius SE and certain of its affiliates (collectively the "Fresenius SE Companies") to receive services, including, but not limited to: administrative services, management information services, employee benefit administration, insurance, information technology services, tax services and treasury management services. The Company also provides central purchasing services to the Fresenius SE Companies. These related party agreements generally have a duration of 1 to 5 years and are renegotiated on an as needed basis when the agreement comes due. The Company provides administrative services to one of its equity method investees.
The Company is a party to real estate operating lease agreements with the Fresenius SE Companies, which mainly include leases for the Company's corporate headquarters in Bad Homburg, Germany and production sites in Schweinfurt and St. Wendel, Germany. The majority of the leases expire at the end of 2026.
In addition to the above mentioned service and lease agreements, the Company sold products to the Fresenius SE Companies and made purchases from the Fresenius SE Companies and equity method investees. In addition, Fresenius Medical Care Holdings, Inc. ("FMCH") purchases heparin supplied by Fresenius Kabi USA, Inc. ("Kabi USA"), through an independent group purchasing organization ("GPO"). Kabi USA is an indirect, wholly-owned subsidiary of Fresenius SE. The Company has no direct supply agreement with Kabi USA and does not submit purchase orders directly to Kabi USA. FMCH acquires heparin from Kabi USA, through the GPO contract, which was negotiated by the GPO at arm's length on behalf of all members of the GPO.
In December 2010, the Company and Galenica Ltd. (now known as Vifor Pharma Ltd.) formed the renal pharmaceutical company Vifor Fresenius Medical Care Renal Pharma Ltd., ("VFMCRP"), an equity method investee of which the Company owns 45%. The Company has entered into exclusive supply agreements to purchase certain pharmaceuticals from VFMCRP.
40
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Below is a summary, including the Company's receivables from and payables to the indicated parties resulting from the above described transactions with related parties.
Service Agreements, Lease Agreements and Products
in € THOUS |
|
For the three months ended March 31, 2018 |
For the three months ended March 31, 2017 |
March 31, 2018 | December 31, 2017 | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Sales of
goods and services |
Purchases of
goods and services |
Sales of
goods and services |
Purchases of
goods and services |
Accounts
Receivables |
Accounts
Payables |
Accounts
Receivables |
Accounts
Payables |
||||||||
Service Agreements (1) |
||||||||||||||||
Fresenius SE |
70 | 5,724 | 54 | 5,454 | 124 | 2,890 | 40 | 2,948 | ||||||||
Fresenius SE affiliates |
876 | 24,455 | 840 | 18,370 | 513 | 3,444 | 9,445 | 4,696 | ||||||||
Equity method investees |
5,060 | - | 4,236 | - | 845 | - | 1,738 | - | ||||||||
| | | | | | | | | | | | | | | | |
Total |
6,006 | 30,179 | 5,130 | 23,824 | 1,482 | 6,334 | 11,223 | 7,644 | ||||||||
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
Lease Agreements |
||||||||||||||||
Fresenius SE |
- | 2,069 | - | 2,211 | - | - | - | - | ||||||||
Fresenius SE affiliates |
- | 2,532 | - | 3,153 | - | - | - | - | ||||||||
| | | | | | | | | | | | | | | | |
Total |
- | 4,601 | - | 5,364 | - | - | - | - | ||||||||
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
Products |
||||||||||||||||
Fresenius SE affiliates |
7,907 | 9,075 | 7,794 | 10,221 | 11,185 | 4,164 | 9,148 | 3,976 | ||||||||
Equity method investees |
- | 121,021 | - | 98,363 | - | 116,626 | - | 36,550 | ||||||||
| | | | | | | | | | | | | | | | |
Total |
7,907 | 130,096 | 7,794 | 108,584 | 11,185 | 120,790 | 9,148 | 40,526 | ||||||||
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | |
(1) In addition to the above shown Accounts Payable, Accrued Expenses for Service Agreements with related parties amounted to €6,055 and €6,397 at March 31, 2018 and December 31, 2017, respectively.
b) Financing
The Company receives short-term financing from and provides short-term financing to Fresenius SE. The Company also utilizes Fresenius SE's cash management system for the settlement of certain intercompany receivables and payables with its subsidiaries and other related parties. As of March 31, 2018 and December 31, 2017, the Company had accounts receivable from Fresenius SE related to short-term financing in the amount of €108,764 and €91,026, respectively. As of March 31, 2018 and December 31, 2017, the Company had accounts payable to Fresenius SE related to short-term financing in the amount of €84,172 and €76,159, respectively. The interest rates for these cash management arrangements are set on a daily basis and are based on the then-prevailing overnight reference rate, with a floor of zero, for the respective currencies.
On August 19, 2009, the Company borrowed €1,500 from the General Partner on an unsecured basis at 1.335%. The loan repayment has been extended periodically and is currently due August 22, 2018 with an interest rate of 1.100%. On November 28, 2013, the Company borrowed an additional €1,500 with an interest rate of 1.875% from the General Partner. The loan repayment has been extended periodically and is currently due on November 23, 2018 with an interest rate of 1.100%.
At March 31, 2018 and December 31, 2017, a subsidiary of Fresenius SE held unsecured bonds issued by the Company in the amount of €6,000 and €6,000, respectively. The bonds were issued in 2011 and 2012, mature in 2021 and 2019, respectively, and each has a coupon rate of 5.25% with interest payable semiannually.
At March 31, 2018 and December 31, 2017, the Company borrowed from Fresenius SE in the amount of €37,800 on an unsecured basis at an interest rate of 0.825% and €6,000 on an unsecured basis at an interest rate of 0.825%, respectively. For further information on this loan agreement, see note 7.
41
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
c) Key management personnel
Due to the Company's legal form of a German partnership limited by shares, the General Partner holds a key management position within the Company. In addition, as key management personnel, members of the Management Board and the Supervisory Board, as well as their close relatives, are considered related parties.
The Company's Articles of Association provide that the General Partner shall be reimbursed for any and all expenses in connection with management of the Company's business, including remuneration of the members of the General Partner's supervisory board and the members of the Management Board. The aggregate amount reimbursed to the General Partner was €4,016 and €5,383, respectively, for its management services during the three months ended March 31, 2018 and 2017. As of March 31, 2018 and December 31, 2017, the Company had accounts receivable from the General Partner in the amount of €181 and €246, respectively. As of March 31, 2018 and December 31, 2017, the Company had accounts payable to the General Partner in the amount of €24,941 and €23,020, respectively.
4. Cash and cash equivalents
As of March 31, 2018 and December 31, 2017, cash and cash equivalents are as follows:
Cash and cash equivalents
in € THOUS |
|
March 31,
2018 |
December 31,
2017 |
||
---|---|---|---|---|
Cash |
613,132 | 620,145 | ||
Securities and Time deposits |
233,246 | 357,964 | ||
| | | | |
Cash and cash equivalents |
846,378 | 978,109 | ||
| | | | |
| | | | |
| | | | |
The cash and cash equivalents disclosed in the table above, and respectively in the consolidated statements of cash flows, include at March 31, 2018 an amount of €442 (December 31, 2017: €53,694) from collateral requirements towards an insurance company in North America that are not available for use.
5. Trade accounts and other receivables
As of March 31, 2018, the trade accounts and other receivables, including the corresponding allowance, contain an impact from the implementation of IFRS 9. This results in an increase in the allowance which amounts to €4,924.
The implementation of IFRS 15 also had an impact on trade accounts receivable and, correspondingly, on the allowance in North America. This isolated impact of €351,643 was recorded against trade accounts receivable and the allowance.
42
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
As of March 31, 2018 and December 31, 2017, trade accounts and other receivables are as follows:
Trade accounts and other receivables
in € THOUS |
|
March 31,
2018 |
December 31,
2017 |
||||
---|---|---|---|---|---|---|
|
|
thereof
Credit- Impaired |
|
|||
Trade accounts and other receivables, gross | 3,892,362 | 325,130 | 3,864,217 | |||
thereof Finance Lease Receivables |
56,857 | 58,336 | ||||
less allowances | (115,796) | (86,677) | (474,891) | |||
| | | | | | |
Trade accounts and other receivables | 3,776,566 | 238,453 | 3,389,326 | |||
| | | | | | |
| | | | | | |
| | | | | | |
The other receivables include finance lease receivables.
All trade accounts and other receivables are due within one year. A small portion of the trade account receivables are subject to factoring agreements.
Trade accounts receivables and finance lease receivables with a term of more than one year in the amount of €85,725 (December 31, 2017: €90,344) are included in the balance sheet item "Other non-current assets". For these trade accounts receivables and finance leases the implementation of IFRS 9 results in an increase of the allowance, which amounts to €235.
6. Inventories
At March 31, 2018 and December 31, 2017, inventories consisted of the following:
Inventories
in € THOUS |
|
March 31,
2018 |
December 31,
2017 |
||
---|---|---|---|---|
Finished goods |
727,553 | 672,851 | ||
Health care supplies |
350,652 | 343,351 | ||
Raw materials and purchased components |
195,887 | 193,295 | ||
Work in process |
80,411 | 81,282 | ||
| | | | |
Inventories |
1,354,503 | 1,290,779 | ||
| | | | |
| | | | |
| | | | |
43
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
7. Short-term debt and short-term debt from related parties
At March 31, 2018 and December 31, 2017, short-term debt and short-term debt from related parties consisted of the following:
Short-term debt and short-term debt from related parties
in € THOUS |
|
March 31,
2018 |
December 31,
2017 |
||
---|---|---|---|---|
Commercial paper program |
944,814 | 679,886 | ||
Borrowings under lines of credit |
64,634 | 79,313 | ||
Other |
1,088 | 1,080 | ||
| | | | |
Short-term debt |
1,010,536 | 760,279 | ||
Short-term debt from related parties (see note 3 b) |
40,800 | 9,000 | ||
| | | | |
Short-term debt and short-term debt from related parties |
1,051,336 | 769,279 | ||
| | | | |
| | | | |
| | | | |
The Company and certain consolidated entities operate a multi-currency notional pooling cash management system. The Company met the conditions to offset balances within this cash pool for reporting purposes. At March 31, 2018 and December 31, 2017, cash and borrowings under lines of credit in the amount of €109,152 and €318,654 were offset under this cash management system.
Commercial paper program
The Company maintains a commercial paper program under which short-term notes of up to €1,000,000 can be issued. At March 31, 2018 and December 31, 2017, the outstanding commercial paper amounted to €945,000 and €680,000, respectively.
Other
At March 31, 2018 and December 31, 2017, the Company had €1,088 and €1,080 of other debt outstanding related to fixed payments outstanding for acquisitions.
Short-term debt from related parties
The Company is party to an unsecured loan agreement with Fresenius SE under which the Company or FMCH may request and receive one or more short-term advances up to an aggregate amount of $400,000 until maturity on July 31, 2022. For further information on short-term debt from related parties, see note 3 b).
44
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
8. Long-term debt and capital lease obligations
As of March 31, 2018 and December 31, 2017, long-term debt and capital lease obligations consisted of the following:
Long-term debt and capital lease obligations
in € THOUS |
|
March 31,
2018 |
December 31,
2017 |
||
---|---|---|---|---|
Amended 2012 Credit Agreement |
2,079,048 | 2,017,952 | ||
Bonds |
3,736,039 | 3,810,483 | ||
Convertible Bonds |
388,546 | 386,984 | ||
Accounts Receivable Facility |
295,273 | 293,673 | ||
Capital lease obligations |
36,277 | 37,704 | ||
Other |
134,350 | 131,611 | ||
| | | | |
Long-term debt and capital lease obligations |
6,669,533 | 6,678,407 | ||
Less current portion |
(872,508) | (883,535) | ||
| | | | |
Long-term debt and capital lease obligations, less current portion |
5,797,025 | 5,794,872 | ||
| | | | |
| | | | |
| | | | |
Amended 2012 Credit Agreement
The following table shows the available and outstanding amounts under the Amended 2012 Credit Agreement at March 31, 2018 and December 31, 2017:
Amended 2012 Credit AgreementMaximum amount available and balance outstanding
in THOUS |
|
Maximum amount available
March 31, 2018 |
Balance outstanding
March 31, 2018 (1) |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Revolving credit USD |
$ | 900,000 | € | 730,460 | $ | 225,000 | € | 182,615 | |||||
Revolving credit EUR |
€ | 600,000 | € | 600,000 | € | - | € | - | |||||
USD term loan 5-year |
$ | 1,440,000 | € | 1,168,736 | $ | 1,440,000 | € | 1,168,736 | |||||
EUR term loan 5-year |
€ | 336,000 | € | 336,000 | € | 336,000 | € | 336,000 | |||||
EUR term loan 3-year |
€ | 400,000 | € | 400,000 | € | 400,000 | € | 400,000 | |||||
| | | | | | | | | | | | | |
|
€ | 3,235,196 | € | 2,087,351 | |||||||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
|
Maximum amount available
December 31, 2017 |
Balance outstanding
December 31, 2017 (1) |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Revolving credit USD |
$ | 900,000 | € | 750,438 | $ | 70,000 | € | 58,367 | |||||
Revolving credit EUR |
€ | 600,000 | € | 600,000 | € | - | € | - | |||||
USD term loan 5-year |
$ | 1,470,000 | € | 1,225,715 | $ | 1,470,000 | € | 1,225,715 | |||||
EUR term loan 5-year |
€ | 343,000 | € | 343,000 | € | 343,000 | € | 343,000 | |||||
EUR term loan 3-year |
€ | 400,000 | € | 400,000 | € | 400,000 | € | 400,000 | |||||
| | | | | | | | | | | | | |
|
€ | 3,319,153 | € | 2,027,082 | |||||||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
At March 31, 2018 and December 31, 2017, the Company had letters of credit outstanding in the amount of $1,690 and $1,690 (€1,372 and €1,409), respectively, under the USD revolving credit facility, which are not included above
45
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
as part of the balance outstanding at those dates, but which reduce available borrowings under the applicable revolving credit facility.
Accounts Receivable Facility
The following table shows the available and outstanding amounts under the Accounts Receivable Facility at March 31, 2018 and at December 31, 2017:
Accounts Receivable Facility Maximum amount available and balance outstanding
in THOUS |
|
Maximum amount available
March 31, 2018 (1) |
Balance outstanding
March 31, 2018 (2) |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Accounts Receivable Facility |
$ | 800,000 | € | 649,298 | $ | 364,500 | € | 295,836 | |||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
|
Maximum amount available
December 31, 2017 (1) |
Balance outstanding
December 31, 2017 (2) |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Accounts Receivable Facility |
$ | 800,000 | € | 667,056 | $ | 353,000 | € | 294,338 | |||||
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | | | | | | | | | | | | |
The Company also had letters of credit outstanding under the Accounts Receivable Facility in the amount of $71,244 and $71,244 (€57,823 and €59,404) at March 31, 2018 and December 31, 2017, respectively. These letters of credit are not included above as part of the balance outstanding at March 31, 2018 and December 31, 2017; however, they reduce available borrowings under the Accounts Receivable Facility.
9. Supplementary information on capital management
As of March 31, 2018 and December 31, 2017 the total equity in percent of total assets was 45.2% and 45.1%, respectively, and the debt in percent of total assets was 32.0% and 31.0%, respectively.
Further information on the Company's capital management is available in the Annual Report on Form 20-F as of December 31, 2017.
The Company's financing structure and business model are reflected in the investment grade ratings. The Company is covered by the three leading rating agencies, Moody's, Standard & Poor's and Fitch.
Rating (1) | ||||||
---|---|---|---|---|---|---|
|
Standard & Poor´s | Moody´s | Fitch | |||
Corporate Credit Rating | BBB | Baa3 | BBB | |||
Outlook |
|
positive |
|
stable |
|
stable |
| | | | | | |
(1) A rating is not a recommendation to buy, sell or hold securities of the Company, and may be subject to suspension, change or withdrawal at any time by the assigning rating agency.
10. Employee benefit plans
The Company currently has five principal pension plans, one for German employees, three for French employees and the other covering employees in the United States, the last of which was curtailed in 2002. Plan benefits are generally based on years of service and final salary. As there is no legal requirement in Germany to fund defined benefit plans, the Company's pension obligations in Germany are unfunded. Each year FMCH contributes to the plan covering United States employees at least the minimum required by the Employee Retirement Income Security Act of
46
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
1974, as amended. In 2018, FMCH did not have a minimum funding requirement. For the first three months of 2018, the Company voluntarily provided €247 to the defined benefit plan. For the remaining period of 2018, the Company expects further voluntarily contributions of €746.
The following table provides the calculations of net periodic benefit cost for the three months ended March 31, 2018 and 2017, respectively.
Net periodic benefit cost
in € THOUS |
|
For the three months ended
March 31, |
|||
---|---|---|---|---|
|
2018 | 2017 | ||
Service cost | 6,794 | 7,107 | ||
Net interest cost | 3,208 | 2,785 | ||
| | | | |
Net periodic benefit costs | 10,002 | 9,892 | ||
| | | | |
| | | | |
| | | | |
11. Commitments and contingencies
The Company is routinely involved in claims, lawsuits, regulatory and tax audits, investigations and other legal matters arising, for the most part, in the ordinary course of its business of providing health care services and products. Legal matters that the Company currently deems to be material or noteworthy are described below. For the matters described below in which the Company believes a loss is both reasonably possible and estimable, an estimate of the loss or range of loss exposure is provided. For the other matters described below, the Company believes that the loss probability is remote and/or the loss or range of possible losses cannot be reasonably estimated at this time. The outcome of litigation and other legal matters is always difficult to predict accurately and outcomes that are not consistent with the Company's view of the merits can occur. The Company believes that it has valid defenses to the legal matters pending against it and is defending itself vigorously. Nevertheless, it is possible that the resolution of one or more of the legal matters currently pending or threatened could have a material adverse effect on its business, results of operations and financial condition.
On February 15, 2011, a whistleblower (relator) action under the False Claims Act against FMCH was unsealed by order of the United States District Court for the District of Massachusetts and served by the relator. United States ex rel. Chris Drennen v. Fresenius Medical Care Holdings, Inc. , 2009 Civ. 10179 (D. Mass.). The relator's complaint, which was first filed under seal in February 2009, alleged that the Company sought and received reimbursement from government payors for serum ferritin and multiple forms of hepatitis B laboratory tests that were medically unnecessary or not properly ordered by a physician. Discovery on the relator's complaint closed in May 2015. Although the United States initially declined to intervene in the case, the government subsequently changed position. On April 3, 2017, the court allowed the government to intervene with respect only to certain hepatitis B surface antigen tests performed prior to 2011, when Medicare reimbursement rules for such tests changed. The court has subsequently rejected government requests to conduct new discovery and to add counts to its complaint-in-intervention that would expand upon the relator's complaint, but has allowed FMCH to take discovery against the government as if the government had intervened at the outset.
Beginning in 2012, the Company received certain communications alleging conduct in countries outside the U.S. that might violate the FCPA or other anti-bribery laws. Since that time, the Company's Supervisory Board, through its Audit and Corporate Governance Committee, has conducted investigations with the assistance of independent counsel. In a continuing dialogue, the Company voluntarily advised the SEC and the DOJ about these investigations,
47
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
while the SEC and DOJ (collectively the "government" or "government agencies") have conducted their own investigations, in which the Company has cooperated.
In the course of this dialogue, the Company identified and reported to the government, and has taken remedial actions including employee disciplinary actions with respect to, conduct that has resulted in the government agencies' seeking monetary penalties or other sanctions against the Company under the FCPA or other anti-bribery laws, such conduct or its remediation may impact adversely the Company's ability to conduct business in certain jurisdictions.
The Company has substantially concluded its investigations and undertaken discussions toward a possible settlement with the government agencies that would avoid litigation over government demands related to certain identified conduct. These discussions are continuing and have not yet achieved an agreement-in-principle; failure to reach agreement and consequent litigation with either or both government agencies remains possible. The discussions have revolved around possible bribery and corruption questions principally related to certain conduct in the Company's products business in a number of countries.
The Company recorded a charge of €200,000 in the fourth quarter of 2017. The charge is based on ongoing settlement negotiations that would avoid litigation between the Company and the government agencies and represents an estimate from a range of potential outcomes estimated from current discussions. The charge encompasses government agencies claims for profit disgorgement, as well as accruals for fines or penalties, certain legal expenses and other related costs or asset impairments.
The Company continues to implement enhancements to its anti-corruption compliance program, including internal controls related to compliance with international anti-bribery laws. The Company continues to be fully committed to FCPA and other anti-bribery law compliance.
On April 5, 2013, the U.S. Judicial Panel on Multidistrict Litigation ordered that the numerous lawsuits pending in various federal courts alleging wrongful death and personal injury claims against FMCH and certain of its affiliates relating to FMCH's acid concentrate products NaturaLyte® and GranuFlo® be transferred and consolidated for pretrial management purposes into a consolidated multidistrict litigation in the United States District Court for the District of Massachusetts. In Re: Fresenius GranuFlo/NaturaLyte Dialysate Products Liability Litigation , Case No. 2013-md-02428. The Massachusetts state courts and the St. Louis City (Missouri) court subsequently established similar consolidated litigation for their cases. In Re: Consolidated Fresenius Cases , Case No. MICV 2013-03400-O (Massachusetts Superior Court, Middlesex County). Similar cases were filed in other state courts. The lawsuits alleged generally that inadequate labeling and warnings for these products caused harm to patients. On February 17, 2016, the Company reached with a committee of plaintiffs' counsel and reported to the courts an agreement in principle for settlement of potentially all cases. The agreement in principle called for the Company to pay $250,000 into a settlement fund in exchange for releases of substantially all the plaintiffs' claims, subject to the Company's right to void the settlement under certain conditions.
On or about November 28, 2017, after the plaintiff committee and the Company determined that the condition of settlement related to minimum participation had been satisfied, the Company and its insurers funded and consummated the settlement. Fewer than fifty (50 ) plaintiffs with cases pending in the U.S. District Court for Massachusetts (Boston); Los Angeles, California county court; Birmingham, Alabama county court; or Staten Island, New York county court declined to participate in the settlement and have expressed intent to continue litigation. These remaining cases represent less than 0.5% of the total cases filed. There are no trial dates set in the remaining cases and dispositive motions by the Company are either pending or will be pursued in all of them. The remaining personal injury and wrongful death cases, collectively or individual, are not significant to the Company's financial statements and reporting on them will be discontinued.
48
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
The Company's affected insurers funded $220,000 of the settlement fund, with a reservation of rights regarding certain coverage issues between and among the Company and its insurers. The Company accrued a net expense of $60,000 for consummation of the settlement, including legal fees and other anticipated costs.
Following entry of the agreement in principle, the Company's insurers in the AIG group and the Company each initiated litigation against the other relating to the AIG group's coverage obligations under applicable policies. In the coverage litigation, the AIG group seeks to be indemnified by the Company for a portion of its $220,000 outlay; the Company seeks to confirm the AIG group's $220,000 funding obligation, to recover defense costs already incurred by the Company, and to compel the AIG group to honor defense and indemnification obligations, if any, required for resolution of cases not participating in the settlement. As a result of decisions on issues of venue, the coverage litigation is proceeding in the New York state trial court for Manhattan. ( National Union Fire Insurance v. Fresenius Medical Care , 2016 Index No. 653108 (Supreme Court of New York for New York County)).
Certain of the complaints in the GranuFlo®/NaturaLyte® litigation named combinations of FMC-AG & Co. KGaA, Management AG, Fresenius SE and Fresenius Management SE as defendants, in addition to FMCH and its domestic United States affiliates. Plaintiffs participating in the settlement dismissed and released their claims encompassing the European defendants.
Four institutional plaintiffs filed complaints against FMCH or its affiliates under state deceptive practices statutes resting on certain background allegations common to the GranuFlo®/NaturaLyte® personal injury litigation, but seeking as remedy the repayment of sums paid to FMCH attributable to the GranuFlo®/NaturaLyte® products. These cases implicate different legal standards, theories of liability and forms of potential recovery from those in the personal injury litigation and their claims were not extinguished by the personal injury litigation settlement described above. The four plaintiffs are the Attorneys General for the States of Kentucky, Louisiana and Mississippi and the commercial insurance company Blue Cross Blue Shield of Louisiana in its private capacity. State of Mississippi ex rel. Hood, v. Fresenius Medical Care Holdings, Inc., No. 14-cv-152 (Chancery Court, DeSoto County); State of Louisiana ex re. Caldwell and Louisiana Health Service & Indemnity Company v. Fresenius Medical Care Airline , 2016 Civ. 11035 (U.S.D.C. D. Mass.); Commonwealth of Kentucky ex rel. Beshear v. Fresenius Medical Care Holdings, Inc. et al ., No. 16-CI-00946 (Circuit Court, Franklin County).
In August 2014, FMCH received a subpoena from the United States Attorney for the District of Maryland inquiring into FMCH's contractual arrangements with hospitals and physicians involving contracts relating to the management of in-patient acute dialysis services. FMCH is cooperating in the investigation.
In July 2015, the Attorney General for Hawaii issued a civil complaint under the Hawaii False Claims Act alleging a conspiracy pursuant to which certain Liberty Dialysis subsidiaries of FMCH overbilled Hawaii Medicaid for Liberty's Epogen® administrations to Hawaii Medicaid patients during the period from 2006 through 2010, prior to the time of FMCH's acquisition of Liberty. Hawaii v. Liberty DialysisHawaii, LLC et al. , Case No. 15-1-1357-07 (Hawaii 1 st Circuit). The State alleges that Liberty acted unlawfully by relying on incorrect and unauthorized billing guidance provided to Liberty by Xerox State Healthcare LLC, which acted as Hawaii's contracted administrator for its Medicaid program reimbursement operations during the relevant period. The amount of the overpayment claimed by the State is approximately $8,000, but the State seeks civil remedies, interest, fines, and penalties against Liberty and FMCH under the Hawaii False Claims Act substantially in excess of the overpayment. After prevailing on motions by Xerox to preclude it from doing so, FMCH is pursuing third-party claims for contribution and indemnification against Xerox. The State's False Claims Act complaint was filed after Liberty initiated an administrative action challenging the State's recoupment of alleged overpayments from sums currently owed to Liberty. The civil litigation and administrative action are proceeding in parallel. Trial in the civil litigation is scheduled for April 2019.
On August 31 and November 25, 2015, respectively, FMCH received subpoenas under the False Claims Act from the United States Attorneys for the District of Colorado and the Eastern District of New York inquiring into FMCH's participation in and management of dialysis facility joint ventures in which physicians are partners. On March 20, 2017, FMCH received a subpoena in the Western District of Tennessee inquiring into certain of the operations of
49
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
dialysis facility joint ventures with the University of Tennessee Medical Group, including joint ventures in which FMCH's interests were divested to Satellite Dialysis in connection with FMCH's acquisition of Liberty Dialysis in 2012. FMCH is cooperating in these investigations.
Beginning October 6, 2015, the United States Attorney for the Eastern District of New York and the Office of Inspector General of the United States Department of Health and Human Services ("OIG") have investigated, through subpoenas issued under the False Claims Act, utilization and invoicing by the Company's subsidiary Azura Vascular Care, for a period beginning after the Company's acquisition of American Access Care LLC in October 2011 ("AAC"). The Company is cooperating in the government's inquiry. Allegations against AAC arising in districts in Connecticut, Florida and Rhode Island relating to utilization and invoicing were settled in 2015.
On June 30, 2016, FMCH received a subpoena from the United States Attorney for the Northern District of Texas (Dallas) seeking information under the False Claims Act about the use and management of pharmaceuticals including Velphoro® as well as FMCH's interactions with DaVita Healthcare Partners, Inc. The investigation encompasses DaVita, Amgen, Sanofi, and other pharmaceutical manufacturers and includes inquiries into whether certain compensation transfers between manufacturers and pharmacy vendors constituted unlawful kickbacks. The Company understands that this investigation is substantively independent of the $63,700 settlement by Davita Rx announced on December 14, 2017 in the matter styled United States ex rel. Gallian v. DaVita Rx , 2016 Civ. 0943 (N.D. Tex.). FMCH is cooperating in the investigation.
On November 18, 2016, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) seeking documents and information relating to the operations of Shiel Medical Laboratory, Inc., which FMCH acquired in October 2013. In the course of cooperating in the investigation and preparing to respond to the subpoena, FMCH identified falsifications and misrepresentations in documents submitted by a Shiel salesperson that relate to the integrity of certain invoices submitted by Shiel for laboratory testing for patients in long term care facilities. On February 21, 2017, FMCH terminated the employee and notified the United States Attorney of the termination and its circumstances. The terminated employee's conduct is expected to result in demands for the Company to refund overpayments and to pay related penalties under applicable laws, but the monetary value of such payment demands cannot yet be reasonably estimated.
On December 12, 2017, the Company sold to Quest Diagnostics certain Shiel operations that are the subject of this Brooklyn subpoena, including the misconduct reported to the United States Attorney. Under the sale agreement, the Company retains responsibility for the Brooklyn investigation and its outcome. The Company continues to cooperate in the ongoing investigation.
On December 14, 2016, the Center for Medicare & Medicaid Services ("CMS"), which administers the federal Medicare program, published an Interim Final Rule ("IFR") titled "Medicare Program; Conditions for Coverage for End-Stage Renal Disease Facilities-Third Party Payment." The IFR would have amended the Conditions for Coverage for dialysis providers, like FMCH and would have effectively enabled insurers to reject premium payments made by or on behalf of patients who received grants for individual market coverage from the American Kidney Fund ("AKF" or "the Fund"). The IFR could thus have resulted in those patients losing individual insurance market coverage. The loss of coverage for these patients would have had a material and adverse impact on the operating results of FMCH.
On January 25, 2017, a federal district court in Texas responsible for litigation initiated by a patient advocacy group and dialysis providers including FMCH preliminarily enjoined CMS from implementing the IFR. Dialysis Patient Citizens v. Burwel l, 2017 Civ. 0016 (E.D. Texas, Sherman Div.). The preliminary injunction was based on CMS' failure to follow appropriate notice-and-comment procedures in adopting the IFR. The injunction remains in place and the court retains jurisdiction over the dispute.
On June 22, 2017, CMS requested a stay of proceedings in the litigation pending further rulemaking concerning the IFR. CMS stated, in support of its request, that it expects to publish a Notice of Proposed Rulemaking in the Federal
50
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Register and otherwise pursue a notice-and-comment process. Plaintiffs in the litigation, including FMCH, consented to the stay, which was granted by the court on June 27, 2017.
On January 3, 2017, the Company received a subpoena from the United States Attorney for the District of Massachusetts under the False Claims Act inquiring into the Company's interactions and relationships with the AKF, including the Company's charitable contributions to the Fund and the Fund's financial assistance to patients for insurance premiums. FMCH is cooperating in the investigation, which is part of a broader investigation into charitable contributions in the medical industry. The Company believes that the investigated revolves around conduct alleged to be unlawful in United Healthcare v. American Renal Associates , 2018 Civ. 10622 (D. Mass), but believes that such unlawful conduct was not under taken by the Company.
In early May 2017, the United States Attorney for the Middle District of Tennessee (Nashville) issued identical subpoenas to FMCH and two subsidiaries under the False Claims Act concerning the Company's retail pharmaceutical business. The investigation is exploring allegations related to improper inducements to dialysis patients to fill oral prescriptions through FMCH's pharmacy service, improper billing for returned pharmacy products and other allegations similar to those underlying the $63,700 settlement by DaVita Rx in Texas announced on December 14, 2017. United States ex rel. Gallian , 2016 Civ. 0943 (N.D. Tex.). FMCH is cooperating in the investigation.
The Company received a subpoena dated December 11, 2017 from the United States Attorney for the Eastern District of California (Sacramento) requesting information under the False Claims Act concerning Spectra Laboratories, the Company's affiliate engaged in laboratory testing for dialysis patients. The inquiry relates to allegations that certain services or materials provided by Spectra to its outpatient dialysis facility customers constitute unlawful kickbacks. The Company understands that the allegations originate with an industry competitor and is cooperating in the investigation.
From time to time, the Company is a party to or may be threatened with other litigation or arbitration, claims or assessments arising in the ordinary course of its business. Management regularly analyzes current information including, as applicable, the Company's defenses and insurance coverage and, as necessary, provides accruals for probable liabilities for the eventual disposition of these matters.
The Company, like other healthcare providers, insurance plans and suppliers, conducts its operations under intense government regulation and scrutiny. It must comply with regulations which relate to or govern the safety and efficacy of medical products and supplies, the marketing and distribution of such products, the operation of manufacturing facilities, laboratories, dialysis clinics and other health care facilities, and environmental and occupational health and safety. With respect to its development, manufacture, marketing and distribution of medical products, if such compliance is not maintained, the Company could be subject to significant adverse regulatory actions by the U.S. Food and Drug Administration ("FDA") and comparable regulatory authorities outside the U.S. These regulatory actions could include warning letters or other enforcement notices from the FDA, and/or comparable foreign regulatory authority which may require the Company to expend significant time and resources in order to implement appropriate corrective actions. If the Company does not address matters raised in warning letters or other enforcement notices to the satisfaction of the FDA and/or comparable regulatory authorities outside the U.S., these regulatory authorities could take additional actions, including product recalls, injunctions against the distribution of products or operation of manufacturing plants, civil penalties, seizures of the Company's products and/or criminal prosecution. FMCH is currently engaged in remediation efforts with respect to one pending FDA warning letter. The Company must also comply with the laws of the United States, including the federal Anti-Kickback Statute, the federal False Claims Act, the federal Stark Law, the federal Civil Monetary Penalties Law and the federal Foreign Corrupt Practices Act as well as other federal and state fraud and abuse laws. Applicable laws or regulations may be amended, or enforcement agencies or courts may make interpretations that differ from the Company's interpretations or the manner in which it conducts its business. Enforcement has become a high priority for the federal government and some states. In addition, the provisions of the False Claims Act authorizing payment of a portion of any recovery to the party bringing the suit encourage private plaintiffs to commence whistleblower actions. By virtue of this
51
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
regulatory environment, the Company's business activities and practices are subject to extensive review by regulatory authorities and private parties, and continuing audits, subpoenas, other inquiries, claims and litigation relating to the Company's compliance with applicable laws and regulations. The Company may not always be aware that an inquiry or action has begun, particularly in the case of whistleblower actions, which are initially filed under court seal.
The Company operates many facilities and handles the personal data ("PD") of its patients and beneficiaries throughout the United States and other parts of the world, and engages with other business associates to help it carry out its health care activities. In such a decentralized system, it is often difficult to maintain the desired level of oversight and control over the thousands of individuals employed by many affiliated companies and its business associates. On occasion, the Company or its business associates may experience a breach under the Health Insurance Portability and Accountability Act Privacy Rule and Security Rules, the EU's General Data Protection Regulation and or other similar laws ("Data Protection Laws") when there has been impermissible use, access, or disclosure of unsecured PD or when the Company or its business associates neglect to implement the required administrative, technical and physical safeguards of its electronic systems and devices, or a data breach that results in impermissible use, access or disclosure of personal identifying information of its employees, patients and beneficiaries. On those occasions, the Company must comply with applicable breach notification requirements.
The Company relies upon its management structure, regulatory and legal resources, and the effective operation of its compliance program to direct, manage and monitor the activities of its employees. On occasion, the Company may identify instances where employees or other agents deliberately, recklessly or inadvertently contravene the Company's policies or violate applicable law. The actions of such persons may subject the Company and its subsidiaries to liability under the Anti-Kickback Statute, the Stark Law, the False Claims Act, Data Protection Laws, the Health Information Technology for Economic and Clinical Health Act and the Foreign Corrupt Practices Act, among other laws and comparable state laws or laws of other countries.
Physicians, hospitals and other participants in the healthcare industry are also subject to a large number of lawsuits alleging professional negligence, malpractice, product liability, worker's compensation or related claims, many of which involve large claims and significant defense costs. The Company has been and is currently subject to these suits due to the nature of its business and expects that those types of lawsuits may continue. Although the Company maintains insurance at a level which it believes to be prudent, it cannot assure that the coverage limits will be adequate or that insurance will cover all asserted claims. A successful claim against the Company or any of its subsidiaries in excess of insurance coverage could have a material adverse effect upon it and the results of its operations. Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on the Company's reputation and business.
The Company has also had claims asserted against it and has had lawsuits filed against it relating to alleged patent infringements or businesses that it has acquired or divested. These claims and suits relate both to operation of the businesses and to the acquisition and divestiture transactions. The Company has, when appropriate, asserted its own claims, and claims for indemnification. A successful claim against the Company or any of its subsidiaries could have a material adverse effect upon its business, financial condition, and the results of its operations. Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on the Company's reputation and business.
In Germany, the tax audits for the years 2006 through 2009 have been substantially completed. The German tax authorities have indicated a re-qualification of dividends received in connection with intercompany mandatorily redeemable preferred shares into fully taxable interest payments for these and subsequent years until 2013 and the disallowance of certain other tax deductions. The Company has defended its position and will avail itself of appropriate remedies. An adverse determination with respect to fully taxable interest payments related to intercompany mandatorily redeemable preferred shares and the disallowance of certain other tax deductions could have a material adverse effect on the Company's financial condition and results of operations.
52
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
The Company is also subject to ongoing and future tax audits in the U.S., Germany and other jurisdictions in the ordinary course of business. Tax authorities routinely pursue adjustments to the Company's tax returns and disallowances of claimed tax deductions. When appropriate, the Company defends these adjustments and disallowances and asserts its own claims. A successful tax related claim against the Company or any of its subsidiaries could have a material adverse effect upon its business, financial condition and results of operations. Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on the Company's reputation and business.
Other than those individual contingent liabilities mentioned above, the current estimated amount of the Company's other known individual contingent liabilities is immaterial.
12. Financial instruments
Transition from IAS 39 to IFRS 9
The Company applied IFRS 9 using the modified retrospective method. Comparative periods have not been restated. Differences in the carrying amounts of financial instruments resulting from the adoption of IFRS 9 are recognized in retained earnings as at January 1, 2018. Information presented for 2017 does not reflect the requirements of IFRS 9 and consequently is not comparable to the information presented for 2018 under IFRS 9.
At the date of initial application, the Company determined the business model within which a financial asset is held. Further, certain equity investments have been designated at FVOCI. Changes to the hedge accounting policy are applied prospectively. The existing hedging relationships designated under IAS 39 at December 31, 2017 met the criteria for hedge accounting under IFRS 9 as well and are regarded as continuing hedging relationships.
The following table shows the measurement categories under IAS 39 at December 31, 2017 and the new classification of financial assets under IFRS 9 at January 1, 2018:
Financial asset classification under IFRS 9
in € THOUS |
|
Categories under IAS 39 |
New
classification under IFRS 9 |
Carrying amount
under IAS 39 |
Carrying amount
under IFRS 9 |
||||
---|---|---|---|---|---|---|---|---|
|
|
|
December 31, 2017 |
adjusted December 31, 2017 |
||||
Cash and cash equivalents | Not assigned to a category | Amortized cost | 620,145 | 620,145 | ||||
Cash and cash equivalents | Not assigned to a category | FVPL | 357,964 | 357,964 | ||||
Trade accounts and other receivables | Loans and receivables | Amortized cost | 3,330,990 | 3,326,258 | ||||
Trade accounts and other receivables | Not assigned to a category | Not classified | 58,336 | 58,144 | ||||
Accounts receivable from related parties | Loans and receivables | Amortized cost | 111,643 | 111,643 | ||||
Derivatives cash flow hedging instruments (1) | Not assigned to a category | Not classified | 561 | 561 | ||||
Derivatives not designated as hedging instruments (1) | FVPL | FVPL | 113,713 | 113,713 | ||||
Equity investments (1) | Available for sale | FVOCI | 16,010 | 16,010 | ||||
Equity investments (1) | Not assigned to a category | FVOCI | 10,537 | 10,537 | ||||
Equity investments (1) | Not assigned to a category | FVPL | 7,259 | 7,259 | ||||
Debt securities (1) | Available for sale | FVOCI | 2,650 | 2,650 | ||||
Debt securities (1) | Available for sale | Not classified | 833 | 833 | ||||
Other financial assets (1) | Loans and receivables | Amortized cost | 130,964 | 129,616 | ||||
Other financial assets (1) | Not assigned to a category | Not classified | 78,368 | 78,174 | ||||
| | | | | | | | |
Financial assets | 4,839,973 | 4,833,507 |
53
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Financial liabilities measured at amortized cost under IAS 39 are also classified as measured at amortized cost under IFRS 9, with no change to the carrying amounts of the liabilities. This is also applicable for financial liabilities measured at FVPL under IAS 39 and IFRS 9 as well as financial liabilities not assigned to a category under IAS 39 and not classified under IFRS 9.
The transition to IFRS 9 had an impact on retained earnings at January 1, 2018 in the amount of €6,466. This impact results from the recognition of expected credit losses under IFRS 9. For further details on Trade accounts and other receivables, see note 5.
Financial instruments in accordance with IFRS 9
The following tables show the carrying amounts and fair values of the Company's financial instruments at March 31, 2018 and December 31, 2017:
Carrying amount and fair value of financial instruments
in € THOUS |
March 31, 2018
|
Carrying amount | Fair value | ||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Amortized
cost |
FVPL | FVOCI |
Not
classified |
Total | Level 1 | Level 2 | Level 3 | ||||||||
Cash and cash equivalents (1) | 613,132 | 233,246 | - | - | 846,378 | - | 233,246 | - | ||||||||
Trade accounts and other receivables | 3,704,960 | - | - | 71,606 | 3,776,566 | - | - | - | ||||||||
Accounts receivable from related parties | 121,612 | - | - | - | 121,612 | - | - | - | ||||||||
Derivatives cash flow hedging instruments |
- | - | - | 1,830 | 1,830 | - | 1,830 | - | ||||||||
Derivatives not designated as hedging instruments |
- | 101,459 | - | - | 101,459 | - | 101,459 | - | ||||||||
Equity investments |
- | 4,104 | 20,822 | - | 24,926 | 10,356 | 14,570 | - | ||||||||
Debt securities |
- | 145,491 | 2,476 | - | 147,967 | 145,491 | 2,476 | - | ||||||||
Other financial assets |
98,098 | - | - | 74,193 | 172,291 | - | - | - | ||||||||
| | | | | | | | | | | | | | | | |
Other current and non-current assets | 98,098 | 251,054 | 23,298 | 76,023 | 448,473 | |||||||||||
| | | | | | | | | | | | | | | | |
Financial assets | 4,537,802 | 484,300 | 23,298 | 147,629 | 5,193,029 | |||||||||||
| | | | | | | | | | | | | | | | |
Accounts payable |
|
508,701 |
|
- |
|
- |
|
- |
|
508,701 |
|
- |
|
- |
|
- |
Accounts payable to related parties | 236,237 | - | - | - | 236,237 | - | - | - | ||||||||
Short-term debt and short-term debt from related parties | 1,051,336 | - | - | - | 1,051,336 | - | - | - | ||||||||
Long-term debt and capital lease obligations | 6,633,256 | - | - | 36,277 | 6,669,533 | - | 6,991,614 | - | ||||||||
Derivatives cash flow hedging instruments |
- | - | - | 2,050 | 2,050 | - | 2,050 | - | ||||||||
Derivatives not designated as hedging instruments |
- | 90,501 | - | - | 90,501 | - | 90,501 | - | ||||||||
Variable payments outstanding for acquisitions |
- | 205,097 | - | - | 205,097 | - | - | 205,097 | ||||||||
Noncontrolling interest subject to put provisions |
- | - | - | 742,289 | 742,289 | - | - | 742,289 | ||||||||
Other financial liabilities |
1,292,051 | - | - | - | 1,292,051 | - | - | - | ||||||||
| | | | | | | | | | | | | | | | |
Other current and non-current liabilities | 1,292,051 | 295,598 | - | 744,339 | 2,331,988 | |||||||||||
| | | | | | | | | | | | | | | | |
Financial liabilities | 9,721,581 | 295,598 | - | 780,616 | 10,797,795 | |||||||||||
| | | | | | | | | | | | | | | | |
(1) Highly liquid short-term investments are categorized in level 2 of the fair value hierarchy. Other cash and cash equivalents is not categorized.
54
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Carrying amount and fair value of financial instruments
in € THOUS |
December 31, 2017
|
Carrying amount | Fair value | ||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Loans and
receivables |
Amortized
cost |
FVPL |
Available
for sale |
Not
assigned to a category |
Total | Level 1 | Level 2 | Level 3 | |||||||||
Cash and cash equivalents (1) | - | - | - | - | 978,109 | 978,109 | - | 357,964 | - | |||||||||
Trade accounts and other receivables | 3,330,990 | - | - | - | 58,336 | 3,389,326 | - | - | - | |||||||||
Accounts receivable from related parties | 111,643 | - | - | - | - | 111,643 | - | - | - | |||||||||
Derivatives cash flow hedging instruments |
- | - | - | - | 561 | 561 | - | 561 | - | |||||||||
Derivatives not designated as hedging instruments |
- | - | 113,713 | - | - | 113,713 | - | 113,713 | - | |||||||||
Equity investments |
- | - | - | 16,010 | 17,796 | 33,806 | 16,010 | 17,796 | - | |||||||||
Debt securities |
- | - | - | 3,483 | - | 3,483 | - | 3,483 | - | |||||||||
Other financial assets |
130,964 | - | - | - | 78,368 | 209,332 | - | - | - | |||||||||
| | | | | | | | | | | | | | | | | | |
Other current and non-current assets | 130,964 | - | 113,713 | 19,493 | 96,725 | 360,895 | ||||||||||||
| | | | | | | | | | | | | | | | | | |
Financial assets | 3,573,597 | - | 113,713 | 19,493 | 1,133,170 | 4,839,973 | ||||||||||||
| | | | | | | | | | | | | | | | | | |
Accounts payable |
|
- |
|
590,493 |
|
- |
|
- |
|
- |
|
590,493 |
|
- |
|
- |
|
- |
Accounts payable to related parties | - | 147,349 | - | - | - | 147,349 | - | - | - | |||||||||
Short-term debt and short-term debt from related parties | - | 769,279 | - | - | - | 769,279 | - | - | - | |||||||||
Long-term debt and capital lease obligations | - | 6,640,703 | - | - | 37,704 | 6,678,407 | - | 7,084,986 | - | |||||||||
Derivatives cash flow hedging instruments |
- | - | - | - | 3,209 | 3,209 | - | 3,209 | - | |||||||||
Derivatives not designated as hedging instruments |
- | - | 111,953 | - | - | 111,953 | - | 111,953 | - | |||||||||
Variable payments outstanding for acquisitions |
- | - | 205,792 | - | - | 205,792 | - | - | 205,792 | |||||||||
Noncontrolling interest subject to put provisions |
- | - | - | - | 830,773 | 830,773 | - | - | 830,773 | |||||||||
Other financial liabilities |
- | 1,446,469 | - | - | - | 1,446,469 | - | - | - | |||||||||
| | | | | | | | | | | | | | | | | | |
Other current and non-current liabilities | - | 1,446,469 | 317,745 | - | 833,982 | 2,598,196 | ||||||||||||
| | | | | | | | | | | | | | | | | | |
Financial liabilities | - | 9,594,293 | 317,745 | - | 871,686 | 10,783,724 | ||||||||||||
| | | | | | | | | | | | | | | | | | |
(1) Highly liquid short-term investments are categorized in level 2 of the fair value hierarchy. Other cash and cash equivalents is not categorized.
Derivative and non-derivative financial instruments are categorised in the following three-tier fair value hierarchy that reflects the significance of the inputs in making the measurements. Level 1 is defined as observable inputs, such as quoted prices in active markets. Level 2 is defined as inputs other than quoted prices in active markets that are directly or indirectly observable. Level 3 is defined as unobservable inputs for which little or no market data exists, therefore requiring the Company to develop its own assumptions. Fair value information is not provided for financial instruments, if the carrying amount is a reasonable estimate of fair value due to the relatively short period of maturity of these instruments. Transfers between levels of the fair value hierarchy have not occurred as of March 31, 2018 and December 31, 2017. The Company accounts for possible transfers at the end of the reporting period.
Derivative financial instruments
In order to manage the risk of currency exchange rate fluctuations and interest rate fluctuations, the Company enters into various hedging transactions by means of derivative instruments with highly rated financial institutions. The
55
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Company primarily enters into foreign exchange forward contracts and interest rate swaps. Derivative contracts that do not qualify for hedge accounting are utilized for economic purposes. The Company does not use financial instruments for trading purposes. Additionally the Company purchased share options in connection with the issuance of the Convertible Bonds. Any change in the Company's share price above the conversion price would be offset by a corresponding value change in the share options.
Non-derivative financial instruments
The significant methods and assumptions used for the classification and measurement of non-derivative financial instruments are as follows:
The Company assessed its business models and the cash flow characteristics of its financial assets. The vast majority of the non-derivative financial assets are held in order to collect the contractual cash flows. The contractual terms of the financial assets allow the conclusion that the cash flows represent payment of principle and interest only. Trade accounts and other receivables, Accounts receivable from related parties and Other financial assets are consequently measured at amortized cost.
Cash and cash equivalents are comprised of cash funds and other short-term investments. Cash funds are measured at amortized cost. Short-term investments are highly liquid and readily convertible to known amounts of cash. Short-term investments are measured at FVPL. This risk of changes in fair value is insignificant.
Equity investments are not held for trading. At initial recognition the Company elected, on an instrument-by-instrument basis, to represent subsequent changes in the fair value of individual investments in OCI. If equity instruments are quoted in an active market, the fair value is based on price quotations at the period-end-date.
The majority of debt securities are quoted in an active market and do not give rise to cash flows that are solely payments of principle and interest. Consequently these securities are measured at FVPL. A small part of the debt securities are held within a business model whose objective is achieving both contractual cash flows and sell the securities. The standard coupon bonds give rise on specified date to cash flows that are solely payments of principal and interest on the outstanding principal amount. Subsequently these financial assets have been classified as FVOCI.
Long-term debt is recognized at its carrying amount. The fair values of major long-term debt are calculated on the basis of market information. Liabilities for which market quotes are available are measured using these quotes. The fair values of the other long-term debt are calculated at the present value of the respective future cash flows. To determine these present values, the prevailing interest rates and credit spreads for the Company as of the balance sheet date are used.
Variable payments outstanding for acquisitions are recognized at their fair value. The estimation of the individual fair values is based on the key inputs of the arrangement that determine the future contingent payment as well as the Company's expectation of these factors. The Company assesses the likelihood and timing of achieving the relevant objectives. The underlying assumptions are reviewed regularly.
Noncontrolling interests subject to put provisions are recognized at their fair value. The methodology the Company uses to estimate the fair values assumes the greater of net book value or a multiple of earnings, based on historical earnings, development stage of the underlying business and other factors. Additionally, there are put provisions that are valued by an external valuation firm. The external valuation estimates the fair values using a combination of discounted cash flows and a multiple of earnings and/or revenue. When applicable, the obligations are discounted at a pre-tax discount rate that reflects current market assessments of the time value of money and the risks specific to the liability. The estimated fair values of the noncontrolling interests subject to these put provisions can also fluctuate, and the discounted cash flows as well as the implicit multiple of earnings and/or revenue at which these
56
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
noncontrolling interest obligations may ultimately be settled could vary significantly from the Company's current estimates depending upon market conditions.
Following is a roll forward of variable payments outstanding for acquisitions and noncontrolling interests subject to put provisions at March 31, 2018 and December 31, 2017:
Reconciliation from beginning to ending balance of level 3 financial instruments
in € THOUS |
|
2018 | 2017 | |||||||
---|---|---|---|---|---|---|---|---|---|
|
Variable
payments outstanding for aquisitions |
Noncontrolling
interests subject to put provisions |
Variable
payments outstanding for aquisitions |
Noncontrolling
interests subject to put provisions |
|||||
Beginning balance at January 1, | 205,792 | 830,773 | 223,504 | 1,007,733 | |||||
Increase | 676 | 5,053 | 21,128 | 85,322 | |||||
Decrease | (2,131 | ) | (4,521 | ) | (32,764 | ) | (121,057 | ) | |
(Gain) Loss recognized in profit or loss | 1,929 | 32,785 | (2,685 | ) | 160,916 | ||||
(Gain) Loss recognized in equity | - | (72,662 | ) | - | (20,012 | ) | |||
Dividends | - | (27,775 | ) | - | (164,404 | ) | |||
Foreign currency translation and other changes | (1,169 | ) | (21,364 | ) | (3,391 | ) | (117,725 | ) | |
| | | | | | | | | |
Ending balance at March 31, and December 31, | 205,097 | 742,289 | 205,792 | 830,773 | |||||
| | | | | | | | | |
13. Segment and corporate information
The Company's operating segments are the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment. The operating segments are determined based upon how the Company manages its businesses with geographical responsibilities. All segments are primarily engaged in providing health care services and the distribution of products and equipment for the treatment of ESRD and other extracorporeal therapies.
Management evaluates each segment using measures that reflect all of the segment's controllable revenues and expenses. With respect to the performance of business operations, management believes that the most appropriate measures are revenue, operating income and operating income margin. The Company does not include income taxes as it believes this is outside the segments' control. Financing is a corporate function, which the Company's segments do not control. Therefore, the Company does not include interest expense relating to financing as a segment measurement. Similarly, the Company does not allocate certain costs, which relate primarily to certain headquarters' overhead charges, including accounting and finance, because the Company believes that these costs are also not within the control of the individual segments. Production of products, production asset management, quality management and procurement related to production are centrally managed at Corporate. The Company's global research and development is also centrally managed at Corporate. These corporate activities do not fulfill the definition of a segment according to IFRS 8. Products are transferred to the segments at cost; therefore no internal profit is generated. The associated internal revenue for the product transfers and their elimination are recorded as corporate activities. Capital expenditures for production are based on the expected demand of the segments and consolidated profitability considerations. In addition, certain revenues, investments and intangible assets, as well as any related expenses, are not allocated to a segment but are accounted for as Corporate.
57
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
Information pertaining to the Company's segment and Corporate activities for the three months ended March 31, 2018 and 2017 is set forth below:
Segment and corporate information
in € THOUS |
|
North
America Segment |
EMEA
Segment |
Asia-
Pacific Segment |
Latin
America Segment |
Segment
Total |
Corporate | Total | ||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Three months ended March 31, 2018 | |||||||||||||||
Revenue from contracts with external customers | 2,719,627 | 631,224 | 380,801 | 169,340 | 3,900,992 | 3,643 | 3,904,635 | ||||||||
Other revenues | 54,835 | 4,584 | 10,661 | 914 | 70,994 | - | 70,994 | ||||||||
| | | | | | | | | | | | | | | |
Revenue external customers | 2,774,462 | 635,808 | 391,462 | 170,254 | 3,971,986 | 3,643 | 3,975,629 | ||||||||
Inter-segment revenue | 400 | 303 | 187 | 39 | 929 | (929 | ) | - | |||||||
| | | | | | | | | | | | | | | |
Revenue | 2,774,862 | 636,111 | 391,649 | 170,293 | 3,972,915 | 2,714 | 3,975,629 | ||||||||
| | | | | | | | | | | | | | | |
Operating income | 362,208 | 108,934 | 74,220 | 14,114 | 559,476 | (62,600 | ) | 496,876 | |||||||
| | | | | | | | | | | | | | | |
Interest | (79,976 | ) | |||||||||||||
| | | | | | | | | | | | | | | |
Income before income taxes | 416,900 | ||||||||||||||
Depreciation and amortization | (90,655 | ) | (28,861 | ) | (11,159 | ) | (4,580 | ) | (135,255 | ) | (39,739 | ) | (174,994 | ) | |
Income (loss) from equity method investees | 18,801 | (1,334 | ) | 335 | 102 | 17,904 | - | 17,904 | |||||||
Total assets | 15,408,120 | 3,640,775 | 2,081,140 | 694,375 | 21,824,410 | 2,332,651 | 24,157,061 | ||||||||
thereof investment in equity method investees | 316,916 | 181,938 | 96,961 | 23,915 | 619,730 | - | 619,730 | ||||||||
Additions of property, plant and equipment and intangible assets | 141,821 | 30,405 | 10,034 | 3,796 | 186,056 | 45,114 | 231,170 | ||||||||
Three months ended March 31, 2017 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue external customers | 3,374,842 | 613,687 | 377,545 | 177,409 | 4,543,483 | 4,637 | 4,548,120 | ||||||||
Inter-segment revenue | 674 | - | 19 | 57 | 750 | (750 | ) | - | |||||||
| | | | | | | | | | | | | | | |
Revenue | 3,375,516 | 613,687 | 377,564 | 177,466 | 4,544,233 | 3,887 | 4,548,120 | ||||||||
| | | | | | | | | | | | | | | |
Operating income | 525,815 | 114,479 | 81,835 | 14,405 | 736,534 | (85,255 | ) | 651,279 | |||||||
| | | | | | | | | | | | | | | |
Interest | (92,728 | ) | |||||||||||||
| | | | | | | | | | | | | | | |
Income before income taxes | 558,551 | ||||||||||||||
Depreciation and amortization | (105,007 | ) | (30,453 | ) | (11,655 | ) | (4,508 | ) | (151,623 | ) | (38,285 | ) | (189,908 | ) | |
Income (loss) from equity method investees | 14,808 | (846 | ) | 804 | 119 | 14,885 | - | 14,885 | |||||||
Total assets | 17,434,931 | 3,656,704 | 1,829,306 | 704,626 | 23,625,567 | 2,154,105 | 25,779,672 | ||||||||
thereof investment in equity method investees | 304,409 | 187,658 | 97,321 | 23,851 | 613,239 | - | 613,239 | ||||||||
Additions of property, plant and equipment and intangible assets | 124,701 | 30,228 | 9,416 | 7,360 | 171,705 | 40,893 | 212,598 | ||||||||
| | | | | | | | | | | | | | | |
58
FRESENIUS MEDICAL CARE AG & Co. KGaA
Notes to consolidated financial statements
(unaudited)
(in THOUS, except share and per share data)
14. Supplementary cash flow information
The following additional information is provided with respect to net cash provided by (used in) investing activities:
Details for net cash provided by (used in) investing activities
in € THOUS |
|
For the three months ended March 31, |
||||
---|---|---|---|---|---|
|
2018 | 2017 | |||
Details for acquisitions | |||||
Assets acquired | (36,062) | (155,397) | |||
Liabilities assumed | 2,608 | 6,137 | |||
Noncontrolling interests subject to put provisions | - | 5,700 | |||
Noncontrolling interests | - | 563 | |||
Non-cash consideration | 2,864 | (9,917) | |||
| | | | | |
Cash paid | (30,590) | (152,914) | |||
Less cash acquired | 252 | 383 | |||
| | | | | |
Net cash paid for acquisitions | (30,338) | (152,531) | |||
| | | | | |
Cash paid for investments | (146,867) | (3,693) | |||
Cash paid for intangible assets | (4,198) | (3,987) | |||
| | | | | |
Total cash paid for acquisitions and investments, net of cash acquired, and purchases of intangible assets | (181,403) | (160,211) | |||
| | | | | |
Details for divestitures | |||||
Cash received from sale of subsidiaries or other businesses, less cash disposed |
|
- |
|
173 |
|
Cash received from divestitures of debt securities | 82 | 117 | |||
Cash received from repayment of loans | 76 | 9 | |||
| | | | | |
Proceeds from divestitures | 158 | 299 | |||
| | | | | |
| | | | | |
| | | | | |
Acquisitions of the last twelve months increased consolidated earnings in the amount of €2,175.
15. Events occurring after the balance sheet date
In 2014, the Company invested in becoming the majority shareholder in Sound, which thereafter acquired Cogent Healthcare, Inc. On April 20, 2018 the Company signed a definitive agreement to divest its controlling interest in Sound to an investment consortium led by Summit Partners, L.P. for total transaction proceeds of $2,150,000 (€1,760,000). Closing of the transaction is subject to regulatory approvals and anticipated to occur late in 2018.
Effective September 1, 2018, Ms. Katarzyna Mazur-Hofsäss, Ph.D., will assume the Management Board position in charge of the EMEA Segment. She follows Dominik Wehner, who decided to step down from his position for personal reasons, effective on December 31, 2017. In the interim period, Rice Powell, Chief Executive Officer of Fresenius Medical Care and Chairman of the Management Board, manages the EMEA Segment.
No further significant activities have taken place subsequent to the balance sheet date March 31, 2018 that have a material impact on the key figures and earnings presented. Currently, there are no other significant changes in the Company's structure, management, legal form or personnel.
59
Quantitative and qualitative disclosures about market risk
During the period ended March 31, 2018, no material changes occurred to the information presented in note 12 of the notes to the Company's Annual Report on Form 20-F for the year ended December 31, 2017.
60
The Company is a "foreign private issuer" within the meaning of Rule 3b-4(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). As such, the Company is not required to file quarterly reports with the Securities and Exchange Commission and is required to provide an evaluation of the effectiveness of its disclosure controls and procedures, to disclose significant changes in its internal control over financial reporting and to provide certifications of its Chief Executive Officer and Chief Financial Officer under Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 only in its Annual Report on Form 20-F. The Company furnishes quarterly financial information to the Securities and Exchange Commission (the "Commission") and such certifications under cover of Form 6-K on a voluntary basis and pursuant to the provisions of the Company's pooling agreement entered into for the benefit of the public holders of our shares. In connection with such voluntary reporting, the Company's management, including the Chief Executive Officer and the Chief Financial Officer of the Company's General Partner, has conducted an evaluation of the effectiveness of the Company's disclosure controls and procedures as of the end of the period covered by this report, of the type contemplated by Securities Exchange Act Rule 13a-15. Based on that evaluation, the Chief Executive Officer and the Chief Financial Officer concluded in connection with the furnishing of this report, that the Company's disclosure controls and procedures are designed to ensure that the information the Company is required to disclose in the reports filed or furnished under the Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms and are effective to ensure that the information the Company is required to disclose in its reports is accumulated and communicated to the General Partner's Management Board, including the General Partner's Chief Executive Officer and the Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. During the past fiscal quarter, there have been no significant changes in internal controls, or in factors that could significantly affect internal controls.
The Company has substantially concluded its investigations into allegations of conduct outside the U.S. that may violate the U.S. Foreign Corrupt Practices Act or other anti-bribery laws and has undertaken discussions toward a possible settlement with the government agencies that would avoid litigation over government demands related to certain identified conduct. These discussions are continuing and have not yet achieved an agreement-in-principle; failure to reach agreement and consequent litigation with either or both government agencies remains possible, see note 11 of the notes to the consolidated financial statements (unaudited) presented elsewhere in this Report. The Company continues to implement enhancements to its anti-corruption compliance program, including internal controls related to compliance with international anti-bribery laws.
61
The information in note 11 of the notes to consolidated financial statements (unaudited), presented elsewhere in this report is incorporated by this reference.
Amended and restated deposit agreement
On April 30, 2018, the Company entered into an Amended and Restated Deposit Agreement dated as of April 30, 2018 (the "New Deposit Agreement") with The Bank of New York Mellon Corporation as depositary (the "Depositary"), for American Depositary Shares ("ADSs") representing the Company's ordinary shares. The New Deposit Agreement amends and restates the Deposit Agreement dated November 26, 2006 between the Company and the Depositary (the "Prior Agreement"). Among other amendments, the New Deposit Agreement (i) adds provisions authorizing the Depositary to carry out certain of its duties as Depositary, including currency conversion, in transactions for its own account or through affiliates, and to use affiliated brokers, dealers, foreign currency dealers and other service providers, and (ii) increases the amount that the Depositary may charge for cash distributions to up to $0.05 per ADS and for depositary services to up to $0.05 per ADS per annum.
The New Deposit Agreement is effective as of its date. However, as provided in the Prior Agreement, the amendments to the fees charged by the Depositary to ADS holders will not take effect until 30 days after notice of such amendments is given to ADS holders. The Depositary notified ADS holders that the Company and the Depositary intended to enter into the New Deposit Agreement on April 20, 2018. The Depositary's new charges will be effective with respect to the dividend that the Company expects to pay following the 2018 AGM, subject to shareholder approval of the dividend at the AGM. Under both the Prior Agreement and the New Deposit Agreement, ADS holders at the time the amendment becomes effective are deemed, by continuing to hold their ADSs or any interest therein, to consent and agree to such amendments and to be bound by the New Deposit Agreement.
The foregoing description of the amendments effected by the New Deposit Agreement is not complete and is qualified in its entirety by the complete text of the New Deposit Agreement, which has been filed as an exhibit to this report.
62
(1) Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant hereby undertakes to furnish supplemental copies of any of the omitted schedules and exhibits upon request by the Securities and Exchange Commission; provided, however, that confidential treatment may be requested pursuant to Rule 24b-2 of the Exchange Act for any schedule or exhibit so furnished.
63
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
DATE: May 3, 2018
FRESENIUS MEDICAL CARE AG & Co. KGaA
a partnership limited by shares, represented by: |
||||||
|
|
FRESENIUS MEDICAL CARE MANAGEMENT AG, its General Partner |
||||
|
|
By: |
|
/s/ RICE POWELL |
||
Name: | Rice Powell | |||||
Title: |
Chief Executive Officer and
Chairman of the Management Board of the General Partner |
|||||
|
|
By: |
|
/s/ MICHAEL BROSNAN |
||
Name: | Michael Brosnan | |||||
Title: |
Chief Financial Officer and
member of the Management Board of the General Partner |
64
|
FRESENIUS MEDICAL CARE AG & CO. KGaA
AND
THE BANK OF NEW YORK MELLON
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
Amended and Restated Deposit Agreement
(For Ordinary Bearer Shares)
Dated as of April 30, 2018
|
TABLE OF CONTENTS
ARTICLE 1. |
DEFINITIONS |
3 |
SECTION 1.01 |
American Depositary Shares |
3 |
SECTION 1.02 |
Commission |
3 |
SECTION 1.03 |
Company |
3 |
SECTION 1.04 |
Custodian |
3 |
SECTION 1.05 |
Deliver; Surrender |
4 |
SECTION 1.06 |
Deposit Agreement |
4 |
SECTION 1.07 |
Depositary; Corporate Trust Office |
4 |
SECTION 1.08 |
Deposited Securities |
5 |
SECTION 1.09 |
Dollars |
5 |
SECTION 1.10 |
Foreign Registrar |
5 |
SECTION 1.11 |
Owner |
5 |
SECTION 1.12 |
Receipts |
5 |
SECTION 1.13 |
Registrar |
5 |
SECTION 1.14 |
Restricted Securities |
5 |
SECTION 1.15 |
Securities Act of 1933 |
6 |
SECTION 1.16 |
Shares |
6 |
|
|
|
ARTICLE 2. |
FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES |
6 |
SECTION 2.01 |
Form of Receipts; Registration and Transferability of American Depositary Shares |
6 |
SECTION 2.02 |
Deposit of Shares |
7 |
SECTION 2.03 |
Delivery of American Depositary Shares |
8 |
SECTION 2.04 |
Registration of Transfer of American Depositary Shares; Combination and Split-up of Receipts; Interchange of Certificated and Uncertificated American Depositary Shares |
9 |
SECTION 2.05 |
Surrender of American Depositary Shares and Withdrawal of Deposited Securities |
10 |
SECTION 2.06 |
Limitations on Delivery, Transfer and Surrender of American Depositary Shares |
11 |
SECTION 2.07 |
Lost Receipts, etc. |
11 |
SECTION 2.08 |
Cancellation and Destruction of Surrendered Receipts |
12 |
SECTION 2.09 |
Pre-Release of American Depositary Shares |
12 |
SECTION 2.10 |
DTC Direct Registration System and Profile Modification System |
12 |
ARTICLE 3. |
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES |
13 |
SECTION 3.01 |
Filing Proofs, Certificates and Other Information |
13 |
SECTION 3.02 |
Liability of Owner for Taxes |
13 |
SECTION 3.03 |
Warranties on Deposit of Shares |
14 |
|
|
|
ARTICLE 4. |
THE DEPOSITED SECURITIES |
15 |
SECTION 4.01 |
Cash Distributions |
15 |
SECTION 4.02 |
Distributions Other Than Cash, Shares or Rights |
15 |
SECTION 4.03 |
Distributions in Shares |
16 |
SECTION 4.04 |
Rights |
16 |
SECTION 4.05 |
Conversion of Foreign Currency |
18 |
SECTION 4.06 |
Fixing of Record Date |
19 |
SECTION 4.07 |
Voting of Deposited Securities |
19 |
SECTION 4.08 |
Changes Affecting Deposited Securities |
21 |
SECTION 4.09 |
Reports |
21 |
SECTION 4.10 |
Lists of Owners |
22 |
SECTION 4.11 |
Withholding |
22 |
|
|
|
ARTICLE 5. |
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY |
22 |
SECTION 5.01 |
Maintenance of Office and Transfer Books by the Depositary |
22 |
SECTION 5.02 |
Prevention or Delay in Performance by the Depositary or the Company |
23 |
SECTION 5.03 |
Obligations of the Depositary, the Custodian and the Company |
23 |
SECTION 5.04 |
Resignation and Removal of the Depositary |
24 |
SECTION 5.05 |
The Custodians |
25 |
SECTION 5.06 |
Notices and Reports |
26 |
SECTION 5.07 |
Distribution of Additional Shares, Rights, etc. |
26 |
SECTION 5.08 |
Indemnification |
27 |
SECTION 5.09 |
Charges of Depositary |
27 |
SECTION 5.10 |
Retention of Depositary Documents |
28 |
SECTION 5.11 |
Exclusivity |
28 |
SECTION 5.12 |
List of Restricted Securities Owners |
29 |
|
|
|
ARTICLE 6. |
AMENDMENT AND TERMINATION |
29 |
SECTION 6.01 |
Amendment |
29 |
SECTION 6.02 |
Termination |
29 |
ARTICLE 7. |
MISCELLANEOUS |
30 |
SECTION 7.01 |
Counterparts |
30 |
SECTION 7.02 |
No Third Party Beneficiaries |
31 |
SECTION 7.03 |
Severability |
31 |
SECTION 7.04 |
Owners and Holders as Parties; Binding Effect |
31 |
SECTION 7.05 |
Notices |
31 |
SECTION 7.06 |
Submission to Jurisdiction; Appointment of Agent for Service of Process; Jury Trial Waiver |
32 |
SECTION 7.07 |
Waiver of Immunities |
33 |
SECTION 7.08 |
Governing Law |
33 |
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of April 30, 2018, among Fresenius Medical Care AG & Co. KGaA, a partnership limited by shares ( Kommanditgesellschaft auf Aktien) organized under the laws of the Federal Republic of Germany and registered with the commercial register of the local court ( Amtsgericht ) of Hof an der Saale, Germany under the registration number HRB 4019 (herein called the Company), THE BANK OF NEW YORK MELLON, a New York banking corporation (herein called the Depositary), and all Owners and holders from time to time of American Depositary Shares issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company, JPMorgan Chase Bank, N.A. (the Predecessor Depositary) and all holders from time to time of American Depositary Receipts entered into a deposit agreement for ordinary bearer shares dated as of February 10, 2006 (the Original Agreement).
WHEREAS, THE Company has removed the Predecessor Depositary as depositary under the Original Agreement pursuant to Section 13 of the Original Agreement and has appointed the Depositary as successor depositary under the Original Agreement and the Depositary has accepted that appointment;
WHEREAS, the Company and the Depositary entered into an amended and restated deposit agreement dated as of February 26, 2007 (the Prior Deposit Agreement);
WHEREAS, the Company and the Depositary now wish to amend and restate the Prior Deposit Agreement pursuant to Section 6.01 of the Prior Deposit Agreement in the form of this amended and restated Deposit Agreement; and
WHEREAS, the Company desires to provide, as hereinafter set forth in this Amended and Restated Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the Company from time to time with the Depositary or with the Custodian (as hereinafter defined) as agent of the Depositary for the purposes set forth in this Amended and Restated Deposit Agreement, for the creation of American Depositary Shares representing the Shares so deposited and for the execution and delivery of American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Amended and Restated Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and between the parties hereto that the Prior Deposit Agreement is hereby amended and restated as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares.
The term American Depositary Shares shall mean the securities created under this Deposit Agreement representing rights with respect to the Deposited Securities. American Depositary Shares may be certificated securities evidenced by Receipts or uncertificated securities but, unless otherwise requested by a person entitled to delivery of American Depositary Shares or an Owner thereof, shall be uncertificated securities. The form of Receipt annexed as Exhibit A to this Deposit Agreement shall be the prospectus required under the Securities Act of 1933 for sales of both certificated and uncertificated American Depositary Shares. Except for those provisions of this Deposit Agreement that refer specifically to Receipts, all the provisions of this Deposit Agreement shall apply to both certificated and uncertificated American Depositary Shares. Each American Depositary Share shall represent the number of Shares specified in Exhibit A to this Deposit Agreement, until there shall occur a distribution upon Deposited Securities covered by Section 4.03 or a change in Deposited Securities covered by Section 4.08 with respect to which additional American Depositary Shares are not delivered, and thereafter American Depositary Shares shall represent the amount of Shares or Deposited Securities specified in such Sections.
SECTION 1.02 Commission.
The term Commission shall mean the Securities and Exchange Commission of the United States or any successor governmental agency in the United States.
SECTION 1.03 Company.
The term Company shall mean Fresenius Medical Care AG & Co. KGaA, a partnership limited by shares ( Kommanditgesellschaft auf Aktien ), organized under the laws of Federal Republic of Germany, and its successors.
SECTION 1.04 Custodian.
The term Custodian shall mean the principal Frankfurt office of BHF Bank AG, as agent of the Depositary for the purposes of this Deposit Agreement, and any other firm or corporation which may hereafter be appointed by the Depositary pursuant to
the terms of Section 5.05, as substitute or additional custodian or custodians hereunder, as the context shall require and shall also mean all of them collectively.
SECTION 1.05 Deliver; Surrender.
(a) The term deliver, or its noun form, when used with respect to Shares or Deposited Securities, shall mean effecting one or more entries in an account or accounts maintained by an institution authorized under applicable law to effect transfers of such securities in the name of the person entitled to that delivery.
(b) The term deliver, or its noun form, when used with respect to American Depositary Shares, shall mean (i) if requested by the person entitled to that delivery, one or more book-entry transfers of American Depositary Shares to an account or accounts at The Depository Trust Company (DTC) designated by the person entitled to that delivery, (ii) if requested by the person entitled to that delivery, delivery at the Corporate Trust Office of the Depositary to the person entitled to that delivery of one or more Receipts evidencing American Depositary Shares registered in the name requested by that person or (iii) registration of American Depositary Shares not evidenced by a Receipt on the books of the Depositary in the name requested by the person entitled to that delivery and whereupon mailing will be made to that person of a statement confirming that registration.
(c) The term surrender, when used with respect to American Depositary Shares, shall mean (i) one or more book-entry transfers of American Depositary Shares to the DTC account of the Depositary, (ii) surrender to the Depositary at its Corporate Trust Office of one or more Receipts evidencing American Depositary Shares or (iii) delivery to the Depositary at its Corporate Trust Office of an instruction to surrender American Depositary Shares not evidenced by a Receipt.
SECTION 1.06 Deposit Agreement.
The term Deposit Agreement shall mean this amended and restated Agreement, as the same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.07 Depositary; Corporate Trust Office.
The term Depositary shall mean The Bank of New York Mellon, a New York banking corporation, and any successor as depositary hereunder. The term Corporate Trust Office, when used with respect to the Depositary, shall mean the office of the Depositary which at the date of this Deposit Agreement is 101 Barclay Street, New York, New York 10286.
SECTION 1.08 Deposited Securities.
The term Deposited Securities as of any time shall mean Shares at such time deposited or deemed to be deposited under this Deposit Agreement, including without limitation Shares that have not been successfully withdrawn or delivered upon surrender of American Depositary Shares or Receipts, and any and all other securities, property and cash received by the Depositary or the Custodian in respect thereof and at such time held hereunder, subject as to cash to the provisions of Section 4.05.
SECTION 1.09 Dollars.
The term Dollars shall mean United States dollars.
SECTION 1.10 Foreign Registrar.
The term Foreign Registrar shall mean the entity that presently carries out the duties of registrar for the Shares or any successor as registrar for the Shares and any other agent of the Company for the transfer and registration of Shares, including without limitation any securities depository for the Shares.
SECTION 1.11 Owner.
The term Owner shall mean the person in whose name American Depositary Shares are registered on the books of the Depositary maintained for such purpose.
SECTION 1.12 Receipts.
The term Receipts shall mean the American Depositary Receipts issued hereunder evidencing certificated American Depositary Shares, as the same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.13 Registrar.
The term Registrar shall mean any bank or trust company having an office in the Borough of Manhattan, The City of New York, which shall be appointed to register American Depositary Shares and transfers of American Depositary Shares as herein provided.
SECTION 1.14 Restricted Securities.
The term Restricted Securities shall mean Shares, or American Depositary Shares representing Shares, that are acquired directly or indirectly from the Company or its affiliates (as defined in Rule 144 under the Securities Act of 1933) in a transaction or chain of transactions not involving any public offering, or which are subject to resale limitations under Regulation D under the Securities Act of 1933 or both,
or which are held by an officer, director (or persons performing similar functions) or other affiliate of the Company, or which would require registration under the Securities Act of 1933 in connection with the offer and sale thereof in the United States, or which are subject to other restrictions on sale or deposit under the laws of the United States or the Federal Republic of Germany, or under a shareholder agreement or the Articles of Association ( Satzung ) of the Company.
SECTION 1.15 Securities Act of 1933.
The term Securities Act of 1933 shall mean the United States Securities Act of 1933, as from time to time amended.
SECTION 1.16 Shares.
The term Shares shall mean ordinary bearer shares of the Company, heretofore validly issued and outstanding and fully paid, nonassessable and free of any pre-emptive rights of the holders of outstanding Shares or hereafter validly issued and outstanding and fully paid, nonassessable and free of any pre-emptive rights of the holders of outstanding Shares or interim certificates representing such Shares; provided , however , that, if there shall occur any change in nominal value, a split-up or consolidation or any other reclassification or, upon the occurrence of an event described in Section 4.08, an exchange or conversion in respect of the Shares of the Company, the term Shares shall thereafter also mean the successor securities resulting from such change in nominal value, split-up or consolidation or such other reclassification or such exchange or conversion.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES
SECTION 2.01 Form of Receipts; Registration and Transferability of American Depositary Shares.
Definitive Receipts shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt shall have been executed by the Depositary by the manual signature of a duly authorized signatory of the Depositary; provided , however , that such signature may be a facsimile if a Registrar for the Receipts shall have been appointed and such Receipts are countersigned by the manual signature of a duly authorized officer of the Registrar. The Depositary shall maintain books on which (i) each Receipt so executed and delivered as hereinafter provided and the transfer of each such Receipt shall be registered and (ii) all American Depositary Shares delivered as hereinafter provided and all registrations of transfer of American Depositary Shares shall be registered. Receipts bearing the manual
or facsimile signature of a duly authorized signatory of the Depositary who was at any time a proper signatory of the Depositary shall bind the Depositary, notwithstanding that such signatory has ceased to hold such office prior to the execution and delivery of such Receipts by the Registrar or did not hold such office on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or modifications not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or regulations thereunder or with the rules and regulations of any securities exchange upon which American Depositary Shares may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject by reason of the date of issuance of the underlying Deposited Securities or otherwise.
American Depositary Shares evidenced by a Receipt, when properly endorsed or accompanied by proper instruments of transfer, shall be transferable as certificated registered securities under the laws of New York. American Depositary Shares not evidenced by Receipts shall be transferable as uncertificated registered securities under the laws of New York. The Depositary, notwithstanding any notice to the contrary, may treat the Owner of American Depositary Shares as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes, and neither the Depositary nor the Company shall have any obligation or be subject to any liability under this Deposit Agreement to any holder of a Receipt unless such holder is the Owner thereof.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or evidence of rights to receive Shares may be deposited by delivery thereof to any Custodian hereunder, accompanied by any appropriate instruments or instructions for transfer, or endorsement, in form satisfactory to the Custodian, together with all such certifications as may be required by the Depositary or the Custodian in accordance with the provisions of this Deposit Agreement, and, if the Depositary requires, together with a written order directing the Depositary to deliver to, or upon the written order of, the person or persons stated in such order, the number of American Depositary Shares representing such deposit.
No Share shall be accepted for deposit unless accompanied by evidence satisfactory to the Depositary that any necessary approval has been granted by any governmental body in the Federal Republic of Germany which is then performing the function of the regulation of currency exchange. If required by the Depositary, Shares presented for deposit at any time, whether or not the transfer books of the Company or the Foreign Registrar, if applicable, are closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary, which will provide for the prompt transfer to the Custodian of any dividend, or right to subscribe for additional Shares or to receive other property which any person in whose name the Shares are or have been recorded may thereafter receive upon or in respect of such deposited Shares, or in lieu thereof, such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to deposit Shares, and for the account of such person, if the Shares to be deposited are certificated, the Depositary may receive such certificates for Shares to be deposited, together with the other instruments herein specified, for the purpose of forwarding such Share certificates to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for Shares to be deposited hereunder, together with the other documents specified above, such Custodian shall, as soon as transfer and recordation can be accomplished, present such certificate or certificates to the Company or the Foreign Registrar, if applicable, for transfer and recordation of the Shares being deposited in the name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for the account and to the order of the Depositary or at such other place or places as the Depositary shall determine.
SECTION 2.03 Delivery of American Depositary Shares.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02 hereunder, together with the other documents required as specified above, such Custodian shall notify the Depositary of such deposit and the person or persons to whom or upon whose written order American Depositary Shares are deliverable in respect thereof and the number of American Depositary Shares to be so delivered. Such notification shall be made by letter or, at the request, risk and expense of the person making the deposit, by cable, telex or facsimile transmission (and in addition, if the transfer books of the Company or the Foreign Registrar, if applicable, are open, the Depositary may in its sole discretion require a proper acknowledgment or other evidence from the Company or the Foreign Registrar that any Deposited Securities have been recorded upon the books of the Company or the Foreign Registrar, if applicable, in the name of the Depositary or its nominee or such Custodian or its nominee). Upon receiving such notice from such Custodian, or upon the receipt of Shares or evidence of the right to receive Shares by the Depositary, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall deliver, to or upon the order of the person or persons entitled thereto, the number of American Depositary Shares issuable in respect of that deposit, but only upon payment to the Depositary of the fees and expenses of the Depositary for the delivery of such American Depositary Shares as provided in Section 5.09, and of all taxes
and governmental charges and fees payable in connection with such deposit and the transfer of the Deposited Securities.
SECTION 2.04 Registration of Transfer of American Depositary Shares; Combination and Split-up of Receipts; Interchange of Certificated and Uncertificated American Depositary Shares.
The Depositary, subject to the terms and conditions of this Deposit Agreement, shall register transfers of American Depositary Shares on its transfer books from time to time, upon any surrender of American Depositary Shares, by the Owner in person or by a duly authorized attorney, properly endorsed or accompanied by proper instruments of transfer or pursuant to a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10), as the case may be, and duly stamped as may be required by the laws of the State of New York and of the United States of America. Thereupon the Depositary shall deliver the number of American Depositary Shares surrendered to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose of effecting a split-up or combination of such Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of American Depositary Shares requested, evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered.
The Depositary, upon surrender of a Receipt for the purpose of exchanging for uncertificated American Depositary Shares, shall cancel that Receipt and send the Owner a statement confirming that the Owner is the owner of uncertificated American Depositary Shares. The Depositary, upon receipt of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10) from the Owner of uncertificated American Depositary Shares for the purpose of exchanging for certificated American Depositary Shares, shall execute and deliver to the Owner a Receipt evidencing those American Depositary Shares.
The Depositary, may appoint one or more co-transfer agents for the purpose of effecting registration of transfers of American Depositary Shares and combinations and split-ups of Receipts at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Owners or persons entitled to American Depositary Shares and will be entitled to protection and indemnity to the same extent as the Depositary.
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal of Deposited Securities.
Upon surrender at the Corporate Trust Office of the Depositary of American Depositary Shares for the purpose of withdrawal of the Deposited Securities represented thereby, and upon payment of the fee of the Depositary for the surrender of American Depositary Shares as provided in Section 5.09 and payment of all taxes and governmental charges payable in connection with such surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of this Deposit Agreement, the Owner of those American Depositary Shares shall be entitled to delivery, to him or as instructed, of the amount of Deposited Securities at the time represented by those American Depositary Shares. Delivery of such Deposited Securities may be made by the delivery of (a) certificates or account transfer in the name of such Owner or as ordered by him, with proper endorsement or accompanied by proper instruments or instructions of transfer to such Owner or pursuant to proper delivery instructions and (b) any other securities, property and cash to which such Owner is then entitled in respect of those American Depositary Shares to such Owner or such person or persons as instructed. Such delivery shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary to be properly endorsed in blank or accompanied by proper instruments of transfer in blank. The Depositary may require the surrendering Owner to execute and deliver to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be delivered to or upon the written order of a person or persons designated in such order in the manner provided in the preceding paragraph. Thereupon the Depositary shall direct the Custodian to deliver at the office of such Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this Deposit Agreement, to or upon the written order of the person or persons designated in the order delivered to the Depositary as above provided, the amount of Deposited Securities represented by the surrendered American Depositary Shares, except that the Depositary may make delivery to such person or persons at the Corporate Trust Office of the Depositary of any dividends or distributions with respect to the Deposited Securities represented by those American Depositary Shares, or of any proceeds of sale of any dividends, distributions or rights, which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering American Depositary Shares, and for the account of such Owner, the Depositary shall direct the Custodian to forward any cash or other property (other than rights) comprising, and forward a certificate or certificates, if applicable, and other proper documents of title for, the Deposited Securities represented by the American Depositary Shares (evidenced by such Receipt, if applicable) to the Depositary for delivery at the Corporate Trust Office of the Depositary. Such direction shall be given by letter or, at the request, risk and expense of such Owner, by cable, telex or facsimile transmission.
SECTION 2.06 Limitations on Delivery, Transfer and Surrender of American Depositary Shares.
As a condition precedent to the delivery, registration of transfer, or surrender of any American Depositary Shares or split-up or combination of any Receipt or withdrawal of any Deposited Securities, the Depositary, Custodian or Registrar may require payment from the depositor of Shares or the presenter of the Receipt or instruction for registration of transfer or surrender of American Depositary Shares not evidenced by a Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees as herein provided, may require the production of proof satisfactory to it as to the identity and genuineness of any signature and may also require compliance with any regulations the Depositary may establish consistent with the provisions of this Deposit Agreement, including, without limitation, this Section 2.06.
The delivery of American Depositary Shares against deposit of Shares generally or against deposit of particular Shares may be suspended, or the transfer of American Depositary Shares in particular instances may be refused, or the registration of transfer of outstanding American Depositary Shares generally may be suspended, during any period when the transfer books of the Depositary are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of this Deposit Agreement, or for any other reason, subject to the provisions of the following sentence. Notwithstanding anything to the contrary in this Deposit Agreement, the surrender of outstanding American Depositary Shares and withdrawal of Deposited Securities may not be suspended subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the Foreign Registrar, if applicable, or the deposit of Shares in connection with voting at a shareholders meeting, or the payment of dividends, (ii) the payment of fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the American Depositary Shares or to the withdrawal of the Deposited Securities. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under this Deposit Agreement any Shares which would be required to be registered under the provisions of the Securities Act of 1933, unless a registration statement is in effect as to such Shares or such Shares are exempt from registration thereunder.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a new Receipt of like tenor in exchange and substitution for such mutilated Receipt upon cancellation thereof, or in lieu of and in
substitution for such destroyed, lost or stolen Receipt. Before the Depositary shall execute and deliver a new Receipt in substitution for a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with the Depositary (i) a request for such execution and delivery before the Depositary has notice that the Receipt has been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of American Depositary Shares.
Notwithstanding Section 2.03 hereof, the Depositary may deliver American Depositary Shares prior to the receipt of Shares pursuant to Section 2.02 (a Pre-Release). The Depositary may, pursuant to Section 2.05, deliver Shares upon the surrender of American Depositary Shares that have been Pre-Released, whether or not such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such American Depositary Shares have been Pre-Released. The Depositary may receive American Depositary Shares in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written representation from the person to whom American Depositary Shares or Shares are to be delivered, that such person, or its customer, owns the Shares or American Depositary Shares to be remitted, as the case may be, (b) at all times fully collateralized with cash or such other collateral as the Depositary deems appropriate (but such collateral shall not constitute Deposited Securities),, (c) terminable by the Depositary on not more than five (5) business days notice, and (d) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The number of American Depositary Shares which are outstanding at any time as a result of Pre-Release will not normally exceed thirty percent (30%) of the Shares deposited hereunder; provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by it in connection with the foregoing.
SECTION 2.10 DTC Direct Registration System and Profile Modification System.
(a) Notwithstanding the provisions of Section 2.04, the parties acknowledge that the Direct Registration System (DRS) and Profile Modification System (Profile) shall apply to uncertificated American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant to which the Depositary may register the ownership of uncertificated American Depositary Shares, which ownership shall be evidenced by periodic statements issued by the
Depositary to the Owners entitled thereto. Profile is a required feature of DRS which allows a DTC participant, claiming to act on behalf of an Owner, to direct the Depositary to register a transfer of those American Depositary Shares to DTC or its nominee and to deliver those American Depositary Shares to the DTC account of that DTC participant without receipt by the Depositary of prior authorization from the Owner to register such transfer.
(b) In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties understand that the Depositary will not verify, determine or otherwise ascertain that the DTC participant which is claiming to be acting on behalf of an Owner in requesting registration of transfer and delivery described in subsection (a) has the actual authority to act on behalf of the Owner (notwithstanding any requirements under the Uniform Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03 and 5.08 shall apply to the matters arising from the use of the DRS. The parties agree that the Depositarys reliance on and compliance with instructions received by the Depositary through the DRS/Profile System and in accordance with this Deposit Agreement, shall not constitute negligence or bad faith on the part of the Depositary.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or holder may be required from time to time to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration of transfer of American Depositary Shares or the distribution of any dividend or sale or distribution of rights or of the proceeds thereof or the delivery of any Deposited Securities until such proof or other information is filed or such certificates are executed or such representations and warranties made.
SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the Custodian or the Depositary with respect to any American Depositary Shares or any Deposited Securities represented by any American Depositary Shares, such tax or other governmental charge shall be payable by the Owner of such American Depositary Shares to the Depositary. The Depositary may refuse to register any transfer of those American Depositary Shares or any withdrawal of Deposited Securities represented by those American Depositary Shares until such payment is made, and may withhold any dividends or other distributions, or may sell for the account of the Owner thereof any part
or all of the Deposited Securities represented by those American Depositary Shares, and may apply such dividends or other distributions or the proceeds of any such sale in payment of such tax or other governmental charge and the Owner of such American Depositary Shares shall remain liable for any deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be deemed thereby to represent and warrant that such Shares and each certificate therefor, if applicable, are validly issued, fully paid, nonassessable and free of any preemptive rights of the holders of outstanding Shares and that the person making such deposit is duly authorized so to do. Every such person shall also be deemed to represent that the deposit of such Shares and the sale of American Depositary Shares representing such Shares by that person are not restricted under the Securities Act of 1933. Such representations and warranties shall survive the deposit of Shares and delivery of American Depositary Shares.
SECTION 3.04 Disclosure of Interests
Each Owner of American Depositary Shares and all persons owning beneficial interests in American Depositary Shares agree to comply with all applicable provisions of German law and the Companys Articles of Association regarding the notification of such persons interest in the Shares, which provisions at the date of the Deposit Agreement include Sections 21 and 22 of the Securities Trading Act (Wertpapierhandelsgesetz). At the date of this Deposit Agreement, (i) the statutory notification obligations of the Securities Trading Act apply to anyone whose holding, either directly or by way of imputation pursuant to the provisions of Section 22 of the Securities Trading Act, of voting rights in the Company reaches or exceeds 5%, 10%, 25%, 50% or 75% or, after having reached or exceeded any such threshold, falls below that threshold. Effective as of January 20, 2007, the relevant thresholds will be 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% and 75% and the notification obligations will also apply to option agreements (excluding the 3% threshold). Each beneficial owner of American Depositary Shares acknowledges that failure to provide on a timely basis any required notification of an interest in Shares may result in withholding of certain rights, including voting and dividend rights, in respect of the Shares in which such beneficial owner of American Depositary Shares has an interest. In connection therewith, the Company reserves the right to instruct Owners to surrender their American Depositary Shares for the purpose of the withdrawal of the Deposited Securities so as to permit the Company to deal directly with the Owner thereof as an owner of Shares. The Depositary agrees to cooperate with the Company in its efforts to inform Owners of the Companys exercise of its rights under this Section and agrees to consult with, and provide reasonable assistance without risk, liability or expense on the part of the Depositary, to the Company on the manner or manners in which it may enforce such rights with respect to any Owner.
ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash distribution on any Deposited Securities, the Depositary shall, subject to the provisions of Section 4.05, convert such dividend or distribution into Dollars and shall distribute the amount thus received (net of the fees and expenses of the Depositary as provided in Section 5.09) to the Owners entitled thereto, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively; provided , however , that in the event that the Company or the Depositary shall be required to withhold and does withhold from such cash dividend or such other cash distribution an amount on account of taxes or other governmental charges, the amount distributed to the Owner of the American Depositary Shares representing such Deposited Securities shall be reduced accordingly. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Owner a fraction of one cent. Any such fractional amounts shall be rounded to the nearest whole cent and so distributed to Owners entitled thereto. The Company or its agent will remit to the appropriate governmental agency in the Federal Republic of Germany all amounts withheld and owing to such agency. The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with governmental agencies.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the Depositary shall receive any distribution other than a distribution described in Section 4.01, 4.03 or 4.04, the Depositary shall cause the securities or property received by it to be distributed to the Owners entitled thereto, after deduction or upon payment of any fees and expenses of the Depositary or any taxes or other governmental charges, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution; provided, however, that if in the opinion of the Depositary such distribution cannot be made proportionately among the Owners entitled thereto, or if for any other reason (including, but not limited to, any requirement that the Company or the Depositary withhold an amount on account of taxes or other governmental charges or that such securities must be registered under the Securities Act of 1933 in order to be distributed to Owners or holders) the Depositary deems such distribution not to be feasible, the Depositary may adopt such method as it may deem equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the public or private sale of the securities or property thus received, or any part thereof, and the net proceeds of any such sale (net of the fees and expenses of the Depositary as provided in Section 5.09) shall be distributed by the Depositary to the
Owners entitled thereto, all in the manner and subject to the conditions described in Section 4.01. The Depositary may sell, by public or private sale, an amount of securities or other property it would otherwise distribute under this Section 4.02 that is sufficient to pay it fees and expenses in respect of that distribution.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend in, or free distribution of, Shares, the Depositary may deliver to the Owners entitled thereto, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively, an aggregate number of American Depositary Shares representing the amount of Shares received as such dividend or free distribution, subject to the terms and conditions of the Deposit Agreement with respect to the deposit of Shares and after deduction or upon issuance of American Depositary Shares, including the withholding of any tax or other governmental charge as provided in Section 4.11 and the payment of the fees and expenses of the Depositary as provided in Section 5.09 (and the Depositary may sell, by public or private sale, an amount of the Shares received sufficient to pay its fees and expenses in respect of that distribution). The Depositary may withhold any such delivery of American Depositary Shares if it has not received satisfactory assurances from the Company that such distribution does not require registration under the Securities Act of 1933 or is exempt from registration under the provisions of such Act. In lieu of delivering fractional American Depositary Shares in any such case, the Depositary shall sell the amount of Shares represented by the aggregate of such fractions and distribute the net proceeds, all in the manner and subject to the conditions described in Section 4.01. If additional American Depositary Shares are not so delivered, each American Depositary Share shall thenceforth also represent the additional Shares distributed upon the Deposited Securities represented thereby.
SECTION 4.04 Rights.
In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason, the Depositary may not either make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner hereunder, the Depositary will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of this Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Section, such deposit shall be made, and Deposited Securities shall be delivered, under depositary arrangements which provide for issuance of Deposited Securities subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, it may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise.
The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are each either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided , that nothing in this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration
statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian receives foreign currency, by way of dividends or other distributions or the net proceeds from the sale of securities, property or rights, and if at the time of the receipt thereof the foreign currency so received can in the judgment of the Depositary be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the United States, the Depositary shall convert or cause to be converted by sale or in any other manner that it may determine that foreign currency into Dollars, and those Dollars shall be distributed to the Owners entitled thereto. A cash distribution may be made upon an averaged or other practicable basis without regard to any distinctions among Owners based on exchange restrictions, the date of delivery of any American Depositary Shares or otherwise and shall be net of any expenses of conversion into Dollars incurred by the Depositary as provided in Section 5.09.
If a conversion of foreign currency or the repatriation or distribution of Dollars can be effected only with the approval or license of any government or agency thereof, the Depositary may, but will not be required to, file an application for that approval or license.
If the Depositary determines that in its judgment any foreign currency received by the Depositary or the Custodian is not convertible on a reasonable basis into Dollars transferable to the United States, or if any approval or license of any government or agency thereof that is required for such conversion is not filed or sought by the Depositary or is not obtained within a reasonable period as determined by the Depositary, the Depositary may distribute the foreign currency received by the Depositary to, or in its discretion may hold such foreign currency uninvested and without liability for interest thereon for the respective accounts of, the Owners entitled to receive the same.
If any conversion of foreign currency, in whole or in part, cannot be effected for distribution to some of the Owners entitled thereto, the Depositary may in its discretion make that conversion and distribution in Dollars to the extent practicable and permissible to the Owners entitled thereto and may distribute the balance of the foreign
currency received by the Depositary to, or hold that balance uninvested and without liability for interest thereon for the account of, the Owners entitled thereto.
The Depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will retain for its own account. The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made under this Deposit Agreement and the rate that the Depositary or its affiliate receives when buying or selling foreign currency for its own account. The Depositary makes no representation that the exchange rate used or obtained in any currency conversion under this Deposit Agreement will be the most favorable rate that could be obtained at the time or that the method by which that rate will be determined will be the most favorable to Owners, subject to the Depositarys obligations under Section 5.03. The methodology used to determine exchange rates used in currency conversions is available upon request.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or whenever rights shall be issued with respect to the Deposited Securities, or whenever the Depositary shall receive notice of any meeting of holders of Shares or other Deposited Securities, or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each American Depositary Share, or whenever the Depositary shall find it necessary or convenient, the Depositary shall fix a record date (a) for the determination of the Owners who shall be (i) entitled to receive such dividend, distribution or rights or the net proceeds of the sale thereof, (ii) entitled to give instructions for the exercise of voting rights at any such meeting or (iii) responsible for any fee assessed by the Depositary pursuant to this Deposit Agreement, or (b) on or after which each American Depositary Share will represent the changed number of Shares. Subject to the provisions of Sections 4.01 through 4.05 and to the other terms and conditions of this Deposit Agreement, the Owners on such record date shall be entitled, as the case may be, to receive the amount distributable by the Depositary with respect to such dividend or other distribution or such rights or the net proceeds of sale thereof in proportion to the number of American Depositary Shares held by them respectively and to give voting instructions and to act in respect of any other such matter.
SECTION 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other Deposited Securities, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, mail to the Owners a notice, the form of which notice shall be in the sole discretion of the Depositary, which shall contain (a) such information as is contained in such notice of meeting received by the Depositary from the Company, (b) a
statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of the Federal Republic of Germany law and of the Articles of Association ( Satzung ) of the Company, to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the amount of Shares or other Deposited Securities represented by their respective American Depositary Shares and (c) a statement as to the manner in which such instructions may be given, including, if the Depositary has received a Recommendation (as defined below), an express indication that, if no specific voting instruction is received from an Owner prior to the date set by the Depositary for that purpose (the Instruction Date), that Owner shall be deemed to have instructed the Depositary to give a proxy to the Custodian, which will act as a proxy bank in accordance with Sections 128 and 135 of the German Stock Corporation Act ( Aktiengesetz ) (the Proxy Bank), to vote in accordance with its recommendation with regard to voting of the Shares pursuant to Section 128 (2) of the German Stock Corporation Act (the Recommendation) as to any matter concerning which the notice from the Company indicates that a vote is to be taken by holders of Shares and (d) containing any Recommendation. Upon the written request of an Owner of a number of American Depositary Shares on such record date, received on or before the Instruction Date, the Depositary shall endeavor, in so far as practicable, to vote or cause to be voted the amount of Shares or other Deposited Securities represented by that number of American Depositary Shares in accordance with the instructions set forth in such request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the Shares or other Deposited Securities, other than in accordance with such instructions or as provided below.
In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Deposited Securities, if the Company will request the Depositary to act under this Section 4.07, the Company shall notify the Depositary of a meeting of holders of Deposited Securities and of details concerning the matters to be voted upon not less than 45 days prior to the meeting date.
Subject to the following paragraph of this Section 4.07, if (i) the Company requested the Depositary to act under this Section 4.07 and complied with the immediately preceding paragraph, (ii) the Depositary received a Recommendation before it mailed a notice to Owners under this Section 4.07 and (iii) no specific voting instructions are received by the Depositary from an Owner (to whom a notice was sent by the Depositary) with respect to an amount of Deposited Securities represented by that Owners American Depositary Shares, such Owner shall be deemed, and the Depositary shall deem such Owner, to have instructed the Depositary to give a proxy to the Proxy Bank to vote that amount of Deposited Securities in accordance with Section 135 of the German Stock Corporation Act, except that no such deemed instruction shall be deemed given and no discretionary proxy shall be given with respect to any matter as to which the Company informs the Depositary (and the Company agrees to provide such information promptly in writing, if applicable) that (x) the Company does not wish such proxy given,
(y) substantial opposition exists or (z) the matter would materially affect the rights of holders of Shares.
Notwithstanding anything to the contrary contained herein, in the event that the Proxy Bank shall fail or decline to supply the Recommendation to the Depositary before the Depositary mails a notice to Owners under this Section 4.07, the Depositary shall deliver the above-referenced notice (which shall not contain the Recommendation or the indication concerning the proxy to be given to the Proxy Bank) to the Owners as hereinabove provided, and, thereafter, in any case in which no specific voting instructions are received by the Depositary from a Owner on or before the Instruction Date with respect to a number of Deposited Securities, no votes shall be cast at such meeting with respect to that number of Deposited Securities.
There can be no assurance that Owners generally or any Owner in particular will receive the notice described in the preceding paragraph sufficiently prior to the instruction date to ensure that the Depositary will vote the Shares or Deposited Securities in accordance with the provisions of this Section 4.07.
SECTION 4.08 Changes Affecting Deposited Securities.
Upon any change in nominal value, change in par value, split-up, consolidation or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger or consolidation or sale of assets affecting the Company or to which it is a party, or upon the redemption or cancellation by the Company of the Deposited Securities, any securities, cash or property which shall be received by the Depositary or a Custodian in exchange for, in conversion of, in lieu of or in respect of Deposited Securities, shall be treated as new Deposited Securities under this Deposit Agreement, and American Depositary Shares shall thenceforth represent, in addition to the existing Deposited Securities, the right to receive the new Deposited Securities so received, unless additional Receipts are delivered pursuant to the following sentence. In any such case the Depositary may, execute and deliver additional Receipts as in the case of a dividend in Shares, or call for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its Corporate Trust Office any reports and communications, including any proxy solicitation material, received from the Company which are both (a) received by the Depositary as the holder of the Deposited Securities and (b) made generally available to the holders of such Deposited Securities by the Company. The Depositary shall also, upon written request by the Company, send to the Owners copies of such reports when furnished by the Company pursuant to Section 5.06. Any such reports and communications, including
any such proxy soliciting material, furnished to the Depositary by the Company shall be furnished in English, to the extent such materials are required to be translated into English pursuant to any regulations of the Commission.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the expense of the Company, furnish to it a list, as of a recent date, of the names, addresses and holdings of American Depositary Shares by all persons in whose names American Depositary Shares are registered on the books of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes or charges and the Depositary shall distribute the net proceeds of any such sale after deduction of such taxes or charges to the Owners entitled thereto in proportion to the number of American Depositary Shares held by them respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall maintain in the Borough of Manhattan, The City of New York, facilities for the execution and delivery, registration, registration of transfers and surrender of Receipts in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the registration of American Depositary Shares and transfers of American Depositary Shares which at all reasonable times shall be open for inspection by the Owners, provided that such inspection shall not be for the purpose of communicating with Owners in the interest of a business or object other than the business of the Company or a matter related to this Deposit Agreement or the American Depositary Shares.
The Depositary may close the transfer books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder.
If any American Depositary Shares are listed on one or more stock exchanges in the United States, the Depositary shall act as Registrar or appoint a Registrar or one or more co-registrars for registry of such American Depositary Shares in accordance with any requirements of such exchange or exchanges.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the Company.
Neither the Depositary nor the Company nor any of their respective directors, employees, agents or affiliates shall incur any liability to any Owner or holder (i) if by reason of any provision of any present or future law or regulation of the United States or any other country, or of any governmental or regulatory authority or stock exchange, or by reason of any provision, present or future, of the Articles of Association ( Satzung ) of the Company, or by reason of any provision of any securities issued or distributed by the Company, or any offering or distribution thereof, or by reason of any act of God or war or terrorism or other circumstances beyond its control, the Depositary or the Company shall be prevented, delayed or forbidden from, or be subject to any civil or criminal penalty on account of, doing or performing any act or thing which by the terms of this Deposit Agreement or Deposited Securities it is provided shall be done or performed, (ii) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which by the terms of this Deposit Agreement it is provided shall or may be done or performed, (iii) by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement, (iv) for the inability of any Owner or holder to benefit from any distribution, offering, right or other benefit which is made available to holders of Deposited Securities but is not, under the terms of this Deposit Agreement, made available to Owners or holders, or (v) for any special, consequential or punitive damages for any breach of the terms of this Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to Section 4.04 of the Deposit Agreement, or for any other reason, such distribution or offering may not be made available to Owners, and the Depositary may not dispose of such distribution or offering on behalf of such Owners and make the net proceeds available to such Owners, then the Depositary shall not make such distribution or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to any Owner or holder, except that the Company agrees to perform its obligations specifically set forth in this Deposit Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to any Owner or holder (including, without
limitation, liability with respect to the validity or worth of the Deposited Securities), except that the Depositary agrees to perform its obligations specifically set forth in this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the American Depositary Shares on behalf of any Owner or holder or any person.
Neither the Depositary nor the Company shall be liable for any action or nonaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Owner or any other person believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any such vote is cast or the effect of any such vote, provided that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by any provision of this Deposit Agreement.
SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by written notice of its election so to do delivered to the Company, such resignation to take effect upon the earlier of (i) the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided or (ii) termination by the Depositary pursuant to Section 6.02 of the Deposit Agreement.
The Depositary may at any time be removed by the Company by 120 days prior written notice of such removal, to become effective upon the later of (i) the 120th day after delivery of the notice to the Depositary and (ii) the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, The City
of New York. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor; but such predecessor, nevertheless, upon payment of all sums due it and on the written request of the Company shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Deposited Securities to such successor and shall deliver to such successor a list of the Owners of all outstanding Receipts. Any such successor depositary shall promptly mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or consolidated shall be the successor of the Depositary without the execution or filing of any document or any further act.
SECTION 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to the directions of the Depositary and shall be responsible solely to it. Any Custodian may resign and be discharged from its duties hereunder by notice of such resignation delivered to the Depositary at least 30 days prior to the date on which such resignation is to become effective. If upon such resignation there shall be no Custodian acting hereunder, the Depositary shall, promptly after receiving such notice, appoint a substitute custodian or custodians, each of which shall thereafter be a Custodian hereunder. The Depositary in its discretion may appoint a substitute or additional custodian or custodians, each of which shall thereafter be one of the Custodians hereunder. Upon demand of the Depositary any Custodian shall deliver such of the Deposited Securities held by it as are requested of it to any other Custodian or such substitute or additional custodian or custodians. Each such substitute or additional custodian shall deliver to the Depositary, forthwith upon its appointment, an acceptance of such appointment satisfactory in form and substance to the Depositary. The Depositary shall notify the Company as promptly as practicable of any change in Custodians.
Upon the appointment of any successor depositary hereunder, each Custodian then acting hereunder shall forthwith become, without any further act or writing, the agent hereunder of such successor depositary and the appointment of such successor depositary shall in no way impair the authority of each Custodian hereunder; but the successor depositary so appointed shall, nevertheless, on the written request of any Custodian, execute and deliver to such Custodian all such instruments as may be proper to give to such Custodian full and complete power and authority as agent hereunder of such successor depositary.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by publication or otherwise, of any meeting of holders of Shares or other Deposited Securities, or of any adjourned meeting of such holders, or of the taking of any action in respect of any cash or other distributions or the offering of any rights, the Company agrees to transmit to the Depositary and the Custodian a copy of the notice thereof in the form given or to be given to holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English, if not already in English, to the extent required pursuant to any regulations of the Commission, and the prompt transmittal by the Company to the Depositary and the Custodian of such notices and any other reports and communications which are made generally available by the Company to holders of its Shares. If requested in writing by the Company, the Depositary will arrange for the mailing, at the Companys expense, of copies of such notices, reports and communications to all Owners. The Company will timely provide the Depositary with the quantity of such notices, reports, and communications, as requested by the Depositary from time to time, in order for the Depositary to effect such mailings.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities convertible into Shares, or (4) rights to subscribe for such securities (each a Distribution), the Company will promptly furnish to the Depositary, a written opinion from U.S. counsel for the Company which counsel shall be satisfactory to the Depositary, stating whether or not the Distribution requires a Registration Statement under the Securities Act of 1933 to be in effect prior to making such Distribution available to Owners entitled thereto. If in the opinion of such counsel a Registration Statement is required, such counsel shall furnish to the Depositary a written opinion as to whether or not there is a Registration Statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor any company controlled by, controlling or under common control with the Company will at any time deposit any Shares, either originally issued or previously issued and reacquired by the Company or any such affiliate, unless a Registration Statement is in effect as to such Shares under the Securities Act of 1933 or the Company delivers to the Depositary an opinion of United States counsel, satisfactory to the Depositary, to the effect that the issuance of such Shares is exempt from registration requirement of the Securities Act of 1933.
SECTION 5.08 Indemnification.
The Company agrees to indemnify (i) the Depositary, its directors, employees, agents and affiliates and any Custodian against, and hold each of them harmless from, any liability or expense (including, but not limited to any fees and expenses incurred in seeking, enforcing or collecting such indemnity and the fees and expenses of counsel) (Losses) which may arise out of or in connection with (a) any registration with the Commission of American Depositary Shares or Deposited Securities or the offer or sale thereof in the United States (other than any such liability or expense arising out of or incurred as a result of the inclusion in the registration statement or prospectus for such registration of any information supplied in writing by the Depositary specifically for inclusion therein containing an untrue statement of a material fact or omitting to state a material fact necessary to make the statements contained therein, under the circumstances under which they were made, not misleading) or (b) out of acts performed or omitted, pursuant to the provisions of this Deposit Agreement and of the Receipts, as the same may be amended, modified or supplemented from time to time, (i) by the Depositary or a Custodian or their respective directors, employees, agents and affiliates, except for any liability or expense arising out of the negligence or bad faith of either of them, or (ii) by the Company or any of its directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors, employees, agents and affiliates and hold them harmless from any liability or expense which may arise out of acts performed or omitted by the Depositary or its Custodian or their respective directors, employees, agents and affiliates due to their negligence or bad faith.
SECTION 5.09 Charges of Depositary.
The following charges shall be incurred by any party depositing or withdrawing Shares or by any party surrendering American Depositary Shares or to whom American Depositary Shares are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the American Depositary Shares or Deposited Securities or a delivery of American Depositary Shares pursuant to Section 4.03), or by Owners, as applicable: (1) taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares generally on the Share register of the Company or Foreign Registrar and applicable to transfers of Shares to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals hereunder, (3) such cable (including SWIFT) and facsimile transmission fees and expenses as are expressly provided in this Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the delivery of American Depositary Shares pursuant to Section
2.03, 4.03 or 4.04 and the surrender of American Depositary Shares pursuant to Section 2.05 or 6.02, (6) a fee of $.05 or less per American Depositary Share (or portion thereof) for any cash distribution made pursuant to this Deposit Agreement, including, but not limited to Sections 4.01 through 4.04, (7) a fee for the distribution of securities pursuant to Section 4.02 or of rights pursuant to Section 4.04 (where the Depositary will not exercise or sell those rights on behalf of Owners), such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities under this Deposit Agreement (for purposes of this item 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Owners, (8) in addition to any fee charged under item 6 above, a fee of $.05 or less per American Depositary Share (or portion thereof) per annum for depositary services, which will be payable as provided in item 9 below, and (9) any other charges payable by the Depositary or the Custodian, any of the Depositarys or Custodians agents or the agents of the Depositarys or Custodians agents, in connection with the servicing of Shares or other Deposited Securities (which charges shall be assessed against Owners as of the date or dates set by the Depositary in accordance with Section 4.06 and shall be payable at the sole discretion of the Depositary by billing those Owners for those charges or by deducting those charges from one or more cash dividends or other cash distributions).
The Depositary may collect any of its fees by deduction from any cash distribution payable, or by selling a portion of any securities to be distributed, to Owners that are obligated to pay those fees.
In performing its duties under this Deposit Agreement, the Depositary may use brokers, dealers, foreign currency dealers or other service providers that are owned by or affiliated with the Depositary and that may earn or share fees, spreads or commissions.
The Depositary, subject to Section 2.09, may own and deal in any class of securities of the Company and its affiliates and in American Depositary Shares.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills and other data compiled during the term of this Deposit Agreement at the times permitted by the laws or regulations governing the Depositary unless the Company requests that such papers be retained for a longer period or turned over to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
Without prejudice to the Companys rights under Section 5.04, the Company agrees not to appoint any other depositary for issuance of American or global
depositary shares or receipts so long as The Bank of New York Mellon is acting as Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list setting forth, to the actual knowledge of the Company, those persons or entities who beneficially own Restricted Securities and the Company shall update that list on a regular basis. The Company agrees to advise in writing each of the persons or entities so listed that such Restricted Securities are ineligible for deposit hereunder. The Depositary may rely on such a list or update but shall not be liable for any action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary without the consent of Owners or holders in any respect which they may deem necessary or desirable. Any amendment which shall impose or increase any fees or charges (other than taxes and other governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or which shall otherwise prejudice any substantial existing right of Owners, shall, however, not become effective as to outstanding American Depositary Shares until the expiration of 30 days after notice of such amendment shall have been given to the Owners of outstanding American Depositary Shares. Every Owner and holder, at the time any amendment so becomes effective, shall be deemed, by continuing to hold such American Depositary Shares or any interest therein, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the Owner to surrender American Depositary Shares and receive therefor the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.02 Termination.
The Company may at any time terminate this Deposit Agreement by instructing the Depositary to mail a notice of termination to the Owners of all American Depositary Shares then outstanding at least 30 days prior to the termination date included in such notice. The Depositary may likewise terminate this Deposit Agreement if at any time 60 days shall have expired after the Depositary delivered to the Company a written resignation notice and if a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.04; in such case the Depositary shall mail a notice of termination to the Owners of all American Depositary Shares then outstanding at least 30 days prior to the termination date. On and after the date of
termination, the Owner of American Depositary Shares will, upon (a) surrender of such American Depositary Shares, (b) payment of the fee of the Depositary for the surrender of American Depositary Shares referred to in Section 2.05, and (c) payment of any applicable taxes or governmental charges, be entitled to delivery, to him or upon his order, of the amount of Deposited Securities represented by those American Depositary Shares. If any American Depositary Shares shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue the registration of transfers of American Depositary Shares, shall suspend the distribution of dividends to the Owners thereof, and shall not give any further notices or perform any further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Deposited Securities, shall sell rights and other property as provided in this Deposit Agreement, and shall continue to deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights or other property, upon surrender of American Depositary Shares (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of this Deposit Agreement, and any applicable taxes or governmental charges).
At any time after the expiration of four months from the date of termination, the Depositary may sell the Deposited Securities then held hereunder and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it hereunder, unsegregated and without liability for interest, for the pro rata benefit of the Owners of American Depositary Shares that have not theretofore been surrendered, such Owners thereupon becoming general creditors of the Depositary with respect to such net proceeds. After making such sale, the Depositary shall be discharged from all obligations under this Deposit Agreement, except to account for such net proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of this Deposit Agreement, and any applicable taxes or governmental charges. Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7. MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of such counterparts shall constitute one and the same instrument. Copies of this Deposit Agreement shall be filed with the Depositary and the Custodians and shall be open to inspection by any Owner or holder during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04 Owners and Holders as Parties; Binding Effect.
The Owners and holders from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed to have been duly given if personally delivered or sent by mail or cable, telex or facsimile transmission confirmed by letter, addressed to Fresenius Medical Care AG & Co. KGaA, Else-Kröner-Strasse 1, 61352 Bad Homburg v.D.H., Germany, Attention: Investor Relations or any other place to which the Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have been duly given if in English and personally delivered or sent by mail or cable, telex or facsimile transmission confirmed by letter, addressed to The Bank of New York Mellon, 101 Barclay Street, New York, New York 10286, Attention: American Depositary Receipt Administration, or any other place to which the Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have been duly given if personally delivered or sent by mail or cable, telex or facsimile transmission confirmed by letter, addressed to such Owner at the address of such Owner as it appears on the transfer books for American Depositary Shares of the Depositary, or, if such Owner shall have filed with the Depositary a written request that notices intended for such Owner be mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile transmission shall be deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a cable, telex or facsimile transmission) is deposited, postage prepaid, in a post-office letter box. The Depositary or the Company may, however, act upon any cable, telex or facsimile transmission received by it, notwithstanding that such cable, telex or facsimile transmission shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service of Process; Jury Trial Waiver.
The Company hereby (i) irrevocably designates and appoints Fresenius Medical Care Holdings, Inc., 920 Winter Street, Waltham, MA 02451-1457, Attn: General Counsel, as the Companys authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Agreement, (ii) consents and submits to the jurisdiction of any state or federal court in the State of New York in which any such suit or proceeding may be instituted, and (iii) agrees that service of process upon said authorized agent shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company agrees to deliver, upon the execution and delivery of this Deposit Agreement, a written acceptance by such agent of its appointment as such agent. The Company further agrees to take any and all action, including the filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment in full force and effect for so long as any American Depositary Shares or Receipts remain outstanding or this Agreement remains in force. In the event the Company fails to continue such designation and appointment in full force and effect, the Company hereby waives personal service of process upon it and consents that any such service of process may be made by certified or registered mail, return receipt requested, directed to the Company at its address last specified for notices hereunder, and service so made shall be deemed completed five (5) days after the same shall have been so mailed.
EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
SECTION 7.07 Waiver of Immunities.
To the extent that the Company or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.
SECTION 7.08 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by the laws of the State of New York, except with respect to its authorization and execution by the Company, which shall be governed by the laws of the Federal Republic of Germany.
IN WITNESS WHEREOF, Fresenius Medical Care AG & Co. KGaA and THE BANK OF NEW YORK MELLON have duly executed this Deposit Agreement as of the day and year first set forth above and all Owners shall become parties hereto upon acceptance by them of American Depositary Shares issued in accordance with the terms hereof.
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FRESENIUS MEDICAL CARE AG & CO. KGaA, a partnership limited by shares represented by |
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FRESENIUS MEDICAL CARE MANAGEMENT AG, its general partner |
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/s/ Rice Powell |
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Rice Powell |
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Chief Exescutive Officer and Chairman of the Management Board of the General Partner |
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By: |
/s/ Michael Brosnan |
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Michael Brosnan |
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Chief Financial Officer and Member of the Management Board of the General Partner |
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THE BANK OF NEW YORK MELLON, |
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as Depositary |
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By: |
/s/ Lance Miller |
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Name: |
Lance Miller |
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Vice President |
EXHIBIT A
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AMERICAN DEPOSITARY SHARES |
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(Each American Depositary Share represents one-third of one deposited Share) |
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY BEARER SHARES OF
FRESENIUS MEDICAL CARE AG & CO. KGaA
(ORGANIZED UNDER THE LAWS OF THE
FEDERAL REPUBLIC OF GERMANY)
The Bank of New York Mellon, as depositary (hereinafter called the Depositary), hereby certifies that , or registered assigns IS THE OWNER OF
AMERICAN DEPOSITARY SHARES
representing deposited ordinary bearer shares (herein called Shares) of Fresenius Medical Care AG & Co. KGaA, a partnership limited by shares ( Kommanditgesellschaft auf Aktien) organized under the laws of the Federal Republic of Germany (herein called the Company). At the date hereof, each American Depositary Share represents one-third of one Share deposited or subject to deposit under the Deposit Agreement (as such term is hereinafter defined) at the principal Frankfurt office of BHF Bank AG (herein called the Custodian). The Depositarys Corporate Trust Office is located at a different address than its principal executive office. Its Corporate Trust Office is located at 101 Barclay Street, New York, N.Y. 10286, and its principal executive office is located at 225 Liberty Street, New York, N.Y. 10286.
THE DEPOSITARYS CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
1. THE DEPOSIT AGREEMENT .
This American Depositary Receipt is one of an issue (herein called Receipts), all issued and to be issued upon the terms and conditions set forth in the amended and restated deposit agreement, dated as of April 30, 2018 (the Deposit Agreement), by and among the Company, the Depositary, and all Owners and holders from time to time of American Depositary Shares issued thereunder, each of whom by accepting American Depositary Shares agrees to become a party thereto and become bound by all the terms and conditions thereof. The Deposit Agreement sets forth the rights of Owners and holders and the rights and duties of the Depositary in respect of the Shares deposited thereunder and any and all other securities, property and cash from time to time received in respect of such Shares and held thereunder (such Shares, securities, property, and cash are herein called Deposited Securities). Copies of the Deposit Agreement are on file at the Depositarys Corporate Trust Office in New York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of the Deposit Agreement, to which reference is hereby made. Capitalized terms defined in the Deposit Agreement and not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES .
Upon surrender at the Corporate Trust Office of the Depositary of American Depositary Shares, and upon payment of the fee of the Depositary provided in this Receipt, and subject to the terms and conditions of the Deposit Agreement, the Owner of those American Depositary Shares is entitled to delivery, to him or as instructed, of the amount of Deposited Securities at the time represented by those American Depositary Shares. Delivery of such Deposited Securities may be made by the delivery of (a) certificates or account transfer in the name of the Owner hereof or as ordered by him, with proper endorsement or accompanied by proper instruments or instructions of transfer and (b) any other securities, property and cash to which such Owner is then entitled in respect of this Receipt. Such delivery will be made at the option of the Owner hereof, either at the office of the Custodian or at the Corporate Trust Office of the Depositary, provided that the forwarding of certificates for Shares or other Deposited Securities for such delivery at the Corporate Trust Office of the Depositary shall be at the risk and expense of the Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS .
Transfers of American Depositary Shares may be registered on the books of the Depositary by the Owner in person or by a duly authorized attorney, upon surrender of those American Depositary Shares properly endorsed for transfer or accompanied by proper instruments of transfer, in the case of a Receipt, or pursuant to a proper instruction
(including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10 of the Deposit Agreement), in the case of uncertificated American Depositary Shares, and funds sufficient to pay any applicable transfer taxes and the expenses of the Depositary and upon compliance with such regulations, if any, as the Depositary may establish for such purpose. This Receipt may be split into other such Receipts, or may be combined with other such Receipts into one Receipt, evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered. The Depositary, upon surrender of a Receipt for the purpose of exchanging for uncertificated American Depositary Shares, shall cancel that Receipt and send the Owner a statement confirming that the Owner is the Owner of uncertificated American Depositary Shares. The Depositary, upon receipt of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10 of the Deposit Agreement) from the Owner of uncertificated American Depositary Shares for the purpose of exchanging for certificated American Depositary Shares, shall execute and deliver to the Owner a Receipt evidencing those American Depositary Shares. As a condition precedent to the delivery, registration of transfer, or surrender of any American Depositary Shares or split-up or combination of any Receipt or withdrawal of any Deposited Securities, the Depositary, the Custodian, or Registrar may require payment from the depositor of the Shares or the presenter of the Receipt or instruction for registration of transfer or surrender of American Depositary Shares not evidenced by a Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees as provided in the Deposit Agreement, may require the production of proof satisfactory to it as to the identity and genuineness of any signature and may also require compliance with any regulations the Depositary may establish consistent with the provisions of the Deposit Agreement.
The delivery of American Depositary Shares against deposit of Shares generally or against deposit of particular Shares may be suspended, or the transfer of American Depositary Shares in particular instances may be refused, or the registration of transfer of outstanding American Depositary Shares generally may be suspended, during any period when the transfer books of the Depositary are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of the Deposit Agreement, or for any other reason, subject to the provisions of the following sentence. Notwithstanding anything to the contrary in the Deposit Agreement or this Receipt, the surrender of outstanding American Depositary Shares and withdrawal of Deposited Securities may not be suspended subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the Foreign Registrar, if applicable, or the deposit of Shares in connection with voting at a shareholders meeting, or the payment of dividends, (ii) the payment of fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the American Depositary Shares or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under the Deposit Agreement any Shares which would be required to be registered under the provisions of the Securities Act of 1933, unless a registration statement is in effect as to such Shares or such Shares are exempt from registration thereunder.
4. LIABILITY OF OWNER FOR TAXES .
If any tax or other governmental charge shall become payable with respect to any American Depositary Shares or any Deposited Securities represented by any American Depositary Shares, such tax or other governmental charge shall be payable by the Owner to the Depositary. The Depositary may refuse to register any transfer of those American Depositary Shares or any withdrawal of Deposited Securities represented by those American Depositary Shares until such payment is made, and may withhold any dividends or other distributions, or may sell for the account of the Owner any part or all of the Deposited Securities represented by those American Depositary Shares, and may apply such dividends or other distributions or the proceeds of any such sale in payment of such tax or other governmental charge and the Owner shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES .
Every person depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant, that such Shares and each certificate therefor, if applicable, are validly issued, fully paid, nonassessable and free of any preemptive rights of the holders of outstanding Shares and that the person making such deposit is duly authorized so to do. Every such person shall also be deemed to represent that the deposit of such Shares and the sale of American Depositary Shares representing such Shares by that person are not restricted under the Securities Act of 1933. Such representations and warranties shall survive the deposit of Shares and delivery of American Depositary Shares.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION .
Any person presenting Shares for deposit or any Owner or holder may be required from time to time to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration of transfer of any American Depositary Shares or the distribution of any dividend or sale or distribution of rights or of the proceeds thereof or the delivery of any Deposited Securities until such proof or other information is filed or such certificates are executed or such representations and warranties made. No Share shall be accepted for deposit unless accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by any governmental body in the Federal Republic of Germany, which is then performing the function of the regulation of currency exchange.
7. CHARGES OF DEPOSITARY .
The following charges shall be incurred by any party depositing or withdrawing Shares or by any party surrendering American Depositary Shares or to whom American Depositary Shares are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the American Depositary Shares or Deposited Securities or a delivery of American Depositary Shares pursuant to Section 4.03 of the Deposit Agreement), or by Owners, as applicable: (1) taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares generally on the Share register of the Company or Foreign Registrar and applicable to transfers of Shares to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals hereunder, (3) such cable (including SWIFT) and facsimile transmission fees and expenses as are expressly provided in the Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the delivery of American Depositary Shares pursuant to Section 2.03, 4.03 or 4.04 of the Deposit Agreement and the surrender of American Depositary Shares pursuant to Section 2.05 or 6.02 of the Deposit Agreement, (6) a fee of $.05 or less per American Depositary Share (or portion thereof) for any cash distribution made pursuant to the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04 and 4.08 of the Deposit Agreement, (7) a fee for the distribution of securities pursuant to Section 4.02 of the Deposit Agreement or of rights pursuant to Section 4.4 of that Agreement (where the Depositary will not exercise or sell those rights on behalf of Owners), such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities under the Deposit Agreement (for purposes of this item 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Owners, (8) in addition to any fee charged under item 6, a fee of $.05 or less per American Depositary Share (or portion thereof) per annum for depositary services, which will be payable as provided in item 9 below, and (9) any other charges payable by the Depositary or the Custodian, any of the Depositarys or Custodians agents or the agents of the Depositarys or Custodians agents, in connection with the servicing of Shares or other Deposited Securities (which charges shall be assessed against Owners as of the date or dates set by the Depositary in accordance with Section 4.06 of the Deposit Agreement and shall be payable at the sole discretion of the Depositary by billing those Owners for those charges or by deducting those charges from one or more cash dividends or other cash distributions).
The Depositary may collect any of its fees by deduction from any cash distribution payable, or by selling a portion of any securities to be distributed, to Owners that are obligated to pay those fees.
The Depositary, subject to Article 8 hereof, may own and deal in any class of securities of the Company and its affiliates and in American Depositary Shares.
From time to time, the Depositary may make payments to the Company to reimburse the Company for costs and expenses generally arising out of establishment and maintenance of the American Depositary Shares program, waive fees and expenses for services provided by the Depositary or share revenue from the fees collected from Owners or Holders. In performing its duties under the Deposit Agreement, the Depositary may use brokers, dealers, foreign currency dealers or other service providers that are owned by or affiliated with the Depositary and that may earn or share fees, spreads or commissions.
8. PRE-RELEASE OF RECEIPTS .
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may deliver American Depositary Shares prior to the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (a Pre-Release). The Depositary may, pursuant to Section 2.05 of the Deposit Agreement, deliver Shares upon the surrender of American Depositary Shares that have been Pre-Released, whether or not such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such American Depositary Shares have been Pre-Released. The Depositary may receive American Depositary Shares in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written representation from the person to whom American Depositary Shares or Shares are to be delivered, that such person, or its customer, owns the Shares or American Depositary Shares to be remitted, as the case may be, (b) at all times fully collateralized with cash or such other collateral as the Depositary deems appropriate (but such collateral shall not constitute Deposited Securities), (c) terminable by the Depositary on not more than five (5) business days notice, and (d) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The number of American Depositary Shares which are outstanding at any time as a result of Pre-Release will not normally exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement; provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by it in connection with the foregoing.
9. TITLE TO RECEIPTS .
It is a condition of this Receipt and every successive Owner and holder of this Receipt by accepting or holding the same consents and agrees that when properly
endorsed or accompanied by proper instruments of transfer, shall be transferable as certificated registered securities under the laws of New York. American Depositary Shares not evidenced by Receipts shall be transferable as uncertificated registered securities under the laws of New York. The Depositary, notwithstanding any notice to the contrary, may treat the Owner of American Depositary Shares as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in the Deposit Agreement and for all other purposes, and neither the Depositary nor the Company shall have any obligation or be subject to any liability under the Deposit Agreement to any holder of a Receipt unless such holder is the Owner thereof.
10. VALIDITY OF RECEIPT .
This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt shall have been executed by the Depositary by the manual signature of a duly authorized signatory of the Depositary; provided , however that such signature may be a facsimile if a Registrar for the Receipts shall have been appointed and such Receipts are countersigned by the manual signature of a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS .
The Company is subject to the periodic reporting requirements of the Securities Exchange Act of 1934 and, accordingly, files certain reports with the Securities and Exchange Commission. Such reports and communications will be available for inspection and copying at the public reference facilities maintained by the Commission located at 100 F Street, N.E., Washington, D.C. 20549 and, so long as the Company files such reports electronically, on the World Wide Website of the Commission at http://www.sec.gov.
The Depositary will make available for inspection by Owners at its Corporate Trust Office any reports, notices and other communications, including any proxy soliciting material, received from the Company which are both (a) received by the Depositary as the holder of the Deposited Securities and (b) made generally available to the holders of such Deposited Securities by the Company. The Depositary will also, upon written request by the Company, send to Owners copies of such reports when furnished by the Company pursuant to the Deposit Agreement. Any such reports and communications, including any such proxy soliciting material, furnished to the Depositary by the Company shall be furnished in English to the extent such materials are required to be translated into English pursuant to any regulations of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the registration of American Depositary Shares and transfers of American Depositary Shares which at all reasonable times shall be open for inspection by the Owners, provided that such inspection shall not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company or a matter related to the Deposit Agreement or the American Depositary Shares.
12. DIVIDENDS AND DISTRIBUTIONS .
Whenever the Depositary receives any cash dividend or other cash distribution on any Deposited Securities, the Depositary will, if at the time of receipt thereof any amounts received in a foreign currency can in the judgment of the Depositary be converted on a reasonable basis into United States dollars transferable to the United States, and subject to the Deposit Agreement, convert such dividend or distribution into dollars and will distribute the amount thus received (net of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit Agreement) to the Owners entitled thereto; provided , however , that in the event that the Company or the Depositary is required to withhold and does withhold from any cash dividend or other cash distribution in respect of any Deposited Securities an amount on account of taxes or other governmental charges, the amount distributed to the Owners of the American Depositary Shares representing such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 and 5.09 of the Deposit Agreement, whenever the Depositary receives any distribution other than a distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement, the Depositary will cause the securities or property received by it to be distributed to the Owners entitled thereto, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution; provided , however , that if in the opinion of the Depositary such distribution cannot be made proportionately among the Owners of Receipts entitled thereto, or if for any other reason the Depositary deems such distribution not to be feasible, the Depositary may adopt such method as it may deem equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the public or private sale of the securities or property thus received, or any part thereof, and the net proceeds of any such sale (net of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit Agreement) will be distributed by the Depositary to the Owners of Receipts entitled thereto all in the manner and subject to the conditions described in Section 4.01 of the Deposit Agreement. The Depositary may sell, by public or private sale, an amount of securities or other property it would otherwise distribute under this Article that is sufficient to pay its fees and expenses in respect of that distribution.
If any distribution consists of a dividend in, or free distribution of, Shares, the Depositary may deliver to the Owners entitled thereto, an aggregate number of American Depositary Shares representing the amount of Shares received as such dividend or free distribution, subject to the terms and conditions of the Deposit Agreement with respect to the deposit of Shares and after deduction or upon issuance of American Depositary Shares, including the withholding of any tax or other governmental charge as provided in Section 4.11 of the Deposit Agreement and the payment of the fees and expenses of the
Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit Agreement (and the Depositary may sell, by public or private sale, an amount of Shares received sufficient to pay its fees and expenses in respect of that distribution. In lieu of delivering fractional American Depositary Shares in any such case, the Depositary will sell the amount of Shares represented by the aggregate of such fractions and distribute the net proceeds, all in the manner and subject to the conditions described in Section 4.01of the Deposit Agreement. If additional American Depositary Shares are not so delivered, each American Depositary Share shall thenceforth also represent the additional Shares distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary deems necessary and practicable to pay any such taxes or charges, and the Depositary shall distribute the net proceeds of any such sale after deduction of such taxes or charges to the Owners of Receipts entitled thereto.
13. RIGHTS .
In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason, the Depositary may not either make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and Deposited Securities shall be delivered, under depositary arrangements which provide for issuance of Deposited Securities subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, it may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise.
The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY .
Whenever the Depositary or the Custodian receives foreign currency, by way of dividends or other distributions or the net proceeds from the sale of securities, property or rights, and if at the time of the receipt thereof the foreign currency so received can in the judgment of the Depositary be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the United States, the Depositary shall convert or cause to be converted by sale or in any other manner that it may determine that foreign currency into Dollars, and those Dollars shall be distributed to the Owners entitled thereto. A cash distribution may be made upon an averaged or other practicable basis without regard to any distinctions among Owners based on exchange restrictions, the date of delivery of any American Depositary Shares or otherwise and shall be net of any expenses of conversion into Dollars incurred by the Depositary as provided in Section 5.09 of the Deposit Agreement.
If a conversion of foreign currency or the repatriation or distribution of Dollars can be effected only with the approval or license of any government or agency thereof, the Depositary may, but will not be required to, file an application for that approval or license.
If the Depositary determines that in its judgment any foreign currency received by the Depositary or the Custodian is not convertible on a reasonable basis into Dollars transferable to the United States, or if any approval or license of any government or agency thereof that is required for such conversion is not filed or sought by the Depositary or is not obtained within a reasonable period as determined by the Depositary, the Depositary may distribute the foreign currency received by the Depositary to, or in its discretion may hold such foreign currency uninvested and without liability for interest thereon for the respective accounts of, the Owners entitled to receive the same.
If any conversion of foreign currency, in whole or in part, cannot be effected for distribution to some of the Owners entitled thereto, the Depositary may in its discretion make that conversion and distribution in Dollars to the extent practicable and permissible to the Owners entitled thereto and may distribute the balance of the foreign currency received by the Depositary to, or hold that balance uninvested and without liability for interest thereon for the account of, the Owners entitled thereto.
The Depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will retain for its own account. The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made under the Deposit Agreement and the rate that the Depositary or its affiliate receives when buying or selling foreign currency for its own account. The Depositary makes no representation that the exchange rate used or obtained in any currency conversion under the Deposit Agreement will be the most favorable rate that
could be obtained at the time or that the method by which that rate will be determined will be the most favorable to Owners, subject to the Depositarys obligations under Section 5.03 of that Agreement. The methodology used to determine exchange rates used in currency conversions is available upon request
15. RECORD DATES .
Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or whenever rights shall be issued with respect to the Deposited Securities, or whenever the Depositary shall receive notice of any meeting of holders of Shares or other Deposited Securities, or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each American Depositary Share, or whenever the Depositary shall find it necessary or convenient, the Depositary shall fix a record date (a) for the determination of the Owners who shall be (i) entitled to receive such dividend, distribution or rights or the net proceeds of the sale thereof, (ii) entitled to give instructions for the exercise of voting rights at any such meeting or (iii) responsible for any fee assessed by the Depositary pursuant to the Deposit Agreement, or (b) on or after which each American Depositary Share will represent the changed number of Shares, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES .
Upon receipt of notice of any meeting of holders of Shares or other Deposited Securities, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, mail to the Owners a notice, the form of which notice shall be in the sole discretion of the Depositary, which shall contain (a) such information as is contained in such notice of meeting received by the Depositary from the Company, (b) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of the Federal Republic of Germany law and of the Articles of Association ( Satzung ) of the Company, to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the amount of Shares or other Deposited Securities represented by their respective American Depositary Shares and (c) a statement as to the manner in which such instructions may be given, including, if the Depositary has received a Recommendation (as defined below), an express indication that, if no specific voting instruction is received from an Owner prior to the date set by the Depositary for that purpose (the Instruction Date), that Owner shall be deemed to have instructed the Depositary to give a proxy to the Custodian, which will act as a proxy bank in accordance with Sections 128 and 135 of the German Stock Corporation Act ( Aktiengesetz ) (the Proxy Bank), to vote in accordance with its recommendation with regard to voting of the Shares pursuant to Section 128 (2) of the German Stock Corporation Act (the Recommendation) as to any matter concerning which the notice from the Company indicates that a vote is to be taken by holders of Shares and (d) containing any Recommendation. Upon the written request of an Owner of a number of
American Depositary Shares on such record date, received on or before the Instruction Date, the Depositary shall endeavor, in so far as practicable, to vote or cause to be voted the amount of Shares or other Deposited Securities represented by that number of American Depositary Shares in accordance with the instructions set forth in such request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the Shares or other Deposited Securities, other than in accordance with such instructions or as provided below.
In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Deposited Securities, if the Company will request the Depositary to act under Section 4.07 of the Deposit Agreement, the Company shall notify the Depositary of a meeting of holders of Deposited Securities and of details concerning the matters to be voted upon not less than 45 days prior to the meeting date.
Subject to the following paragraph, if (i) the Company requested the Depositary to act under Section 4.07 of the Deposit Agreement and complied with the immediately preceding paragraph, (ii) the Depositary received a Recommendation before it mailed a notice to Owners under that Section 4.07 and (iii) no specific voting instructions are received by the Depositary from an Owner (to whom a notice was sent by the Depositary) with respect to an amount of Deposited Securities represented by that Owners American Depositary Shares, such Owner shall be deemed, and the Depositary shall deem such Owner, to have instructed the Depositary to give a proxy to the Proxy Bank to vote that amount of Deposited Securities in accordance with Section 135 of the German Stock Corporation Act, except that no such deemed instruction shall be deemed given and no discretionary proxy shall be given with respect to any matter as to which the Company informs the Depositary (and the Company agrees to provide such information promptly in writing, if applicable) that (x) the Company does not wish such proxy given, (y) substantial opposition exists or (z) the matter would materially affect the rights of holders of Shares.
Notwithstanding anything to the contrary contained herein, in the event that the Proxy Bank shall fail or decline to supply the Recommendation to the Depositary before the Depositary mails a notice to Owners under Section 4.07 of the Deposit Agreement, the Depositary shall deliver the above-referenced notice (which shall not contain the Recommendation or the indication concerning the proxy to be given to the Proxy Bank) to the Owners as hereinabove provided, and, thereafter, in any case in which no specific voting instructions are received by the Depositary from a Owner on or before the Instruction Date with respect to a number of Deposited Securities, no votes shall be cast at such meeting with respect to that number of Deposited Securities.
There can be no assurance that Owners generally or any Owner in particular will receive the notice described in the preceding paragraph sufficiently prior to
the instruction date to ensure that the Depositary will vote the Shares or Deposited Securities in accordance with the provisions of Section 4.07 of the Deposit Agreement.
17. CHANGES AFFECTING DEPOSITED SECURITIES .
Upon any change in nominal value, change in par value, split-up, consolidation, or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger or consolidation, or sale of assets affecting the Company or to which it is a party, or upon the redemption or cancellation by the Company of the Deposited Securities, any securities, cash or property which shall be received by the Depositary or a Custodian in exchange for, in conversion of, in lieu of or in respect of Deposited Securities shall be treated as new Deposited Securities under the Deposit Agreement, and American Depositary Shares shall thenceforth represent, in addition to the existing Deposited Securities, the right to receive the new Deposited Securities so received, unless additional Receipts are delivered pursuant to the following sentence. In any such case the Depositary may execute and deliver additional Receipts as in the case of a dividend in Shares, or call for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY .
Neither the Depositary nor the Company nor any of their respective directors, employees, agents or affiliates shall incur any liability to any Owner or holder, (i) if by reason of any provision of any present or future law or regulation of the United States or any other country, or of any governmental or regulatory authority, or by reason of any provision, present or future, of the Articles of Association ( Satzung ) of the Company, or by reason of any provision of any securities issued or distributed by the Company, or any offering or distribution thereof, or by reason of any act of God or war or terrorism or other circumstances beyond its control, the Depositary or the Company shall be prevented, delayed or forbidden from or be subject to any civil or criminal penalty on account of doing or performing any act or thing which by the terms of the Deposit Agreement or Deposited Securities it is provided shall be done or performed, (ii) by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing which by the terms of the Deposit Agreement it is provided shall or may be done or performed, (iii) by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement, (iv) for the inability of any Owner or holder to benefit from any distribution, offering, right or other benefit which is made available to holders of Deposited Securities but is not, under the terms of the Deposit Agreement, made available to Owners or holders, or (v) for any special, consequential or punitive damages for any breach of the terms of the Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to Section 4.04 of the Deposit Agreement, such distribution or offering may not be made available to Owners of Receipts, and the Depositary may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not make such distribution or offering, and shall allow any rights, if applicable, to lapse. Neither the Company nor the Depositary assumes any obligation or shall be subject to any liability under the Deposit Agreement to Owners or holders, except that they agree to perform their obligations specifically set forth in the Deposit Agreement without negligence or bad faith. The Depositary shall not be subject to any liability with respect to the validity or worth of the Deposited Securities. Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit, or other proceeding in respect of any Deposited Securities or in respect of the American Depositary Shares, on behalf of any Owner or holder or other person. Neither the Depositary nor the Company shall be liable for any action or nonaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Owner or holder, or any other person believed by it in good faith to be competent to give such advice or information. The Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities or for the manner in which any such vote is cast or the effect of any such vote, provided that any such action or nonaction is in good faith. The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with a matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises, the Depositary performed its obligations without negligence or bad faith while it acted as Depositary. No disclaimer of liability under the Securities Act of 1933 is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR CUSTODIAN .
The Depositary may at any time resign as Depositary under the Deposit Agreement by written notice of its election so to do delivered to the Company, such resignation to take effect upon the earlier of (i) the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement or (ii) termination by the Depositary pursuant to Section 6.02 of the Deposit Agreement. The Depositary may at any time be removed by the Company by 120 days prior written notice of such removal, to become effective upon the later of (i) the 120th day after delivery of the notice to the Depositary and (ii) the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. The Depositary in its discretion may appoint a substitute or additional custodian or custodians.
20. AMENDMENT .
The form of the Receipts and any provisions of the Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary without the consent of Owners or holders in any respect which they may
deem necessary or desirable. Any amendment which shall impose or increase any fees or charges (other than taxes and other governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or which shall otherwise prejudice any substantial existing right of Owners, shall, however, not become effective as to outstanding American Depositary Shares until the expiration of 30 days after notice of such amendment shall have been given to the Owners of outstanding American Depositary Shares. Every Owner and holder of American Depositary Shares, at the time any amendment so becomes effective, shall be deemed, by continuing to hold such American Depositary Shares or any interest therein, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the Owner to surrender American Depositary Shares and receive therefor the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT .
The Company may terminate the Deposit Agreement by instructing the Depositary to mail notice of termination to the Owners of all American Depositary Shares then outstanding at least 30 days prior to the termination date included in such notice. The Depositary may likewise terminate the Deposit Agreement, if at any time 60 days shall have expired after the Depositary delivered to the Company a written resignation notice and if a successor depositary shall not have been appointed and accepted its appointment as provided in the Deposit Agreement; in such case the Depositary shall mail a notice of termination to the Owners of all American Depositary Shares then outstanding at least 30 days prior to the termination date. On and after the date of termination, the Owner of American Depositary Shares will, upon (a) surrender of such American Depositary Shares, (b) payment of the fee of the Depositary for the surrender of American Depositary Shares referred to in Section 2.05, and (c) payment of any applicable taxes or governmental charges, be entitled to delivery, to him or upon his order, of the amount of Deposited Securities represented by those American Depositary Shares. If any American Depositary Shares shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue the registration of transfers of American Depositary Shares, shall suspend the distribution of dividends to the Owners thereof, and shall not give any further notices or perform any further acts under the Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Deposited Securities, shall sell rights and other property as provided in the Deposit Agreement, and shall continue to deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights or other property, upon surrender of American Depositary Shares (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of the Deposit Agreement, and any applicable taxes or governmental charges). At any time after the expiration of four months from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it thereunder, unsegregated and without liability for interest, for the pro rata benefit of the Owners of American Depositary Shares that have not theretofore been surrendered, such Owners thereupon becoming general creditors of the Depositary with respect to such net proceeds. After making such sale, the Depositary shall be discharged from all obligations under the Deposit Agreement, except to account for such net proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of the Deposit Agreement, and any applicable taxes or governmental charges). Upon the termination of the Deposit Agreement, the Company shall be discharged from all obligations under the Deposit Agreement except for its obligations to the Depositary with respect to indemnification, charges, and expenses.
22. DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION SYSTEM .
(a) Notwithstanding the provisions of Section 2.04 of the Deposit Agreement, the parties acknowledge that the Direct Registration System (DRS) and Profile Modification System (Profile) shall apply to uncertificated American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant to which the Depositary may register the ownership of uncertificated American Depositary Shares, which ownership shall be evidenced by periodic statements issued by the Depositary to the Owners entitled thereto. Profile is a required feature of DRS which allows a DTC participant, claiming to act on behalf of an Owner, to direct the Depositary to register a transfer of those American Depositary Shares to DTC or its nominee and to deliver those American Depositary Shares to the DTC account of that DTC participant without receipt by the Depositary of prior authorization from the Owner to register such transfer.
(b) In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties understand that the Depositary will not verify, determine or otherwise ascertain that the DTC participant which is claiming to be acting on behalf of an Owner in requesting registration of transfer and delivery described in subsection (a) has the actual authority to act on behalf of the Owner (notwithstanding any requirements under the Uniform Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03 and 5.08 of the Deposit Agreement shall apply to the matters arising from the use of the DRS. The parties agree that the Depositarys reliance on and compliance with instructions received by the Depositary through the DRS/Profile System and in accordance with the Deposit Agreement, shall not constitute negligence or bad faith on the part of the Depositary.
23. SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVER OF IMMUNITIES .
In the Deposit Agreement, the Company has (i) appointed, Fresenius Medical Care Holdings, Inc., 920 Winter Street, Waltham, MA 02451-1457, Attn: General Counsel, as the Companys authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Agreement, (ii) consented and submitted to the jurisdiction of any state or federal court in the State of New York in which any such suit or proceeding may be instituted, and (iii) agreed that service of process upon said authorized agent shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding.
EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
To the extent that the Company or any of its properties, assets or revenues may have or hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the Shares or Deposited Securities, the American Depositary Shares, the Receipts or the Deposit Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.
24. DISCLOSURE OF INTERESTS
Each Owner of American Depositary Shares and all persons owning beneficial interests in American Depositary Shares agree to comply with all applicable provisions of
German law and the Companys Articles of Association regarding the notification of such persons interest in the Shares, which provisions at the date of the Deposit Agreement include Sections 21 and 22 of the Securities Trading Act ( Wertpapierhandelsgesetz ). At the date of the Deposit Agreement, (i) the statutory notification obligations of the Securities Trading Act apply to anyone whose holding, either directly or by way of imputation pursuant to the provisions of Section 22 of the Securities Trading Act, of voting rights in the Company reaches or exceeds 5%, 10%, 25%, 50% or 75% or, after having reached or exceeded any such threshold, falls below that threshold. Effective as of January 20, 2007, the relevant thresholds will be 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% and 75% and the notification obligations will also apply to option agreements (excluding the 3% threshold). Each beneficial owner of American Depositary Shares acknowledges that failure to provide on a timely basis any required notification of an interest in Shares may result in withholding of certain rights, including voting and dividend rights, in respect of the Shares in which such beneficial owner of American Depositary Shares has an interest. In connection therewith, the Company reserves the right to instruct Owners to surrender their American Depositary Shares for the purpose of withdrawal of the Deposited Securities so as to permit the Company to deal directly with the Owner thereof as an owner of Shares. The Depositary agrees to cooperate with the Company in its efforts to inform Owners of the Companys exercise of its rights under this Section 3.04 of the Deposit Agreement and agrees to consult with, and provide reasonable assistance without risk, liability or expense on the part of the Depositary, to the Company on the manner or manners in which it may enforce such rights with respect to any Owner.
Execution Version
AGREEMENT AND PLAN OF MERGER
among
IRONMAN HOLDCO, INC.,
IRONMAN INTERMEDIATE HOLDCO, LLC,
IRONMAN HOLDCO II, LLC,
IRONMAN MERGER SUB, LLC,
IRONMAN MERGER SUB II, INC.,
SOUND INPATIENT PHYSICIANS HOLDINGS, LLC,
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
CERTAIN FRESENIUS MANAGERS NAMED HEREIN
and
THE SELLERS REPRESENTATIVE NAMED HEREIN
Dated as of April 20, 2018
TABLE OF CONTENTS
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Page |
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1. |
DEFINITIONS; CERTAIN RULES OF CONSTRUCTION |
2 |
|
2. |
CONTEMPLATED TRANSACTIONS |
20 |
|
|
2.1. |
The Mergers |
20 |
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2.2. |
Closing |
21 |
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2.3. |
Effective Times |
21 |
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2.4. |
Effects of Mergers |
21 |
|
2.5. |
Conversion of Equity Interests of the Company and Merger Sub I |
22 |
|
2.6. |
Conversion of Equity Interests of Holdco I and Merger Sub II |
23 |
|
2.7. |
Seller Payments Schedule |
24 |
|
2.8. |
Letters of Transmittal |
24 |
|
2.9. |
Holdco I Closing Payments |
25 |
|
2.10. |
Payments to Class B Unitholders |
27 |
|
2.11. |
Private Placement |
27 |
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2.12. |
Purchase Price Adjustment |
28 |
|
2.13. |
Withholding Rights |
31 |
3. |
REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES AND THE AFFILIATED PRACTICES |
32 |
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|
3.1. |
Organization |
32 |
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3.2. |
Power and Authorization |
32 |
|
3.3. |
Authorization of Governmental Authorities |
32 |
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3.4. |
Noncontravention |
32 |
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3.5. |
Capitalization of the Group Companies |
33 |
|
3.6. |
Financial Matters |
34 |
|
3.7. |
Absence of Undisclosed Liabilities |
35 |
|
3.8. |
Absence of Certain Developments |
35 |
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3.9. |
Debt |
37 |
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3.10. |
Ownership of Assets; Sufficiency |
37 |
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3.11. |
Real Property |
38 |
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3.12. |
Intellectual Property |
39 |
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3.13. |
Legal Compliance; Healthcare Matters |
42 |
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11.12. |
Jurisdiction; Venue; Service of Process |
95 |
|
11.13. |
Specific Performance |
97 |
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11.14. |
Waiver of Jury Trial |
98 |
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11.15. |
Provisions Concerning the Sellers Representative |
98 |
|
11.16. |
Representation of Fresenius and its Affiliates |
100 |
|
11.17. |
Non-Recourse |
100 |
Exhibits
Exhibit A |
Form of Escrow Agreement |
Exhibit B |
Form of Joinder |
Exhibit C |
Net Working Capital Calculation Schedule |
Exhibit D |
Form of Paying Agent Agreement |
Exhibit E |
Distribution Waterfall |
Exhibit F |
Form of Letter of Transmittal |
Exhibit G |
Form of Unitholder Consent |
Exhibit H |
Form of Repurchase Agreement |
Exhibit I-1 |
Form of Company Compliance Certificate |
Exhibit I-2 |
Form of Sellers Representative Compliance Certificate |
Exhibit J |
Form of Buyer Parties Compliance Certificate |
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of April 20, 2018 (as amended or otherwise modified, this Agreement ), is by and among Ironman Holdco, Inc., a Delaware corporation ( Holdco I ), Ironman Intermediate Holdco, LLC, a Delaware limited liability company ( Intermediate Holdco ), Ironman Merger Sub, LLC, a Delaware limited liability company and an indirect wholly-owned Subsidiary of Holdco I ( Merger Sub I ), Ironman Holdco II, LLC, a Delaware limited liability company ( Holdco II ), Ironman Merger Sub II, Inc., a Delaware corporation and a wholly-owned Subsidiary of Holdco II ( Merger Sub II and, together with Holdco I, Holdco II, Intermediate Holdco and Merger Sub I, the Buyer Parties ), Sound Inpatient Physicians Holdings, LLC, a Delaware limited liability company (the Company ), Fresenius Medical Care Holdings, Inc., a New York corporation ( Fresenius ), the Fresenius Managers (as hereinafter defined) who execute this Agreement on the date hereof and each Person who executes a Joinder following the date hereof (each, a Joinder Party ), Fresenius in its capacity as the Sellers Representative (the Sellers Representative ) and the Fresenius Managers (as defined below) party hereto.
RECITALS
WHEREAS, the Boards of Managers or applicable governing bodies of each of Holdco I, Holdco II, Intermediate Holdco, Merger Sub I, Merger Sub II and the Company (a) have determined that this Agreement and the transactions contemplated hereby, including (i) the repurchase by the Company of all Class B Units owned by Fresenius and the Fresenius Managers immediately prior to the Closing (the Pre-Closing Repurchase ), (ii) the merger of Merger Sub I with and into the Company ( Merger I ) with the Company surviving, intended to qualify under Section 351 of the Code, and (iii) the merger of Merger Sub II with and into Holdco I with Holdco I surviving, intended to qualify under Section 721 of the Code ( Merger II and, together with Merger I, the Mergers ), are advisable and in the best interests of their respective equityholders and (b) have approved and adopted this Agreement and the Mergers upon the terms and subject to the conditions set forth in this Agreement and pursuant to the applicable provisions of the Limited Liability Company Act of the State of Delaware (as amended, the DLLCA ) and the General Corporation Law of the State of Delaware (as amended, the DGCL );
WHEREAS, the Board of Managers of the Company has recommended the approval and adoption of this Agreement and the transactions contemplated hereby (including Merger I) by all of the holders of Equity Interests of the Company entitled to vote on Merger I pursuant to the DLLCA and the LLC Agreement (the Voting Unitholders );
WHEREAS, following the execution of this Agreement, the Company will obtain, in accordance with Section 18-302(d) of the DLLCA, a written consent of a majority in interest of the Voting Unitholders approving this Agreement, Merger I and the other transactions contemplated hereby in accordance with Section 18-209(b) of the DLLCA and the LLC Agreement (the Unitholder Consent );
WHEREAS, Intermediate Holdco, in its capacity as the sole holder of Equity Interests of Merger Sub I, has approved this Agreement, Merger I and the other transactions contemplated
hereby in accordance with Section 18-209(b) of the DLLCA and the limited liability company agreement of Merger Sub I;
WHEREAS, the Board of Directors of Holdco I has recommended the approval and adoption of this Agreement and the transactions contemplated hereby (including Merger II) by all of the holders of Equity Interests of Holdco I entitled to vote on Merger II pursuant to the DGCL and the organizational documents of Holdco I (the Voting Stockholders );
WHEREAS, following the execution of this Agreement, Holdco I will obtain, in accordance with Section 228 of the DGCL, a written consent of a majority in interest of the Voting Stockholders approving this Agreement, Merger II and the other transactions contemplated hereby in accordance with Section 251(c) of the DGCL and the organizational documents of Holdco I;
WHEREAS, Holdco II, in its capacity as the sole holder of Equity Interests of Merger Sub II, has approved this Agreement, Merger II and the other transactions contemplated hereby in accordance with Section 251(c) of the DGCL and the organizational documents of Merger Sub II;
WHEREAS, as a condition and material inducement to the Buyer Parties willingness to enter into this Agreement, the Rollover Sellers have entered into (or, with respect to any Rollover Sellers who become party to this Agreement following the date hereof, will enter into) a Rollover Commitment Agreement with the Buyer Parties pursuant to which each Rollover Seller has agreed to contribute to Holdco I, on the Closing Date and immediately prior to the Closing, certain of the outstanding Units of the Company held by it (the Rollover Units ) in exchange for certain equity of Holdco I on the terms and subject to the conditions set forth therein in an exchange intended to qualify under Section 351 of the Code (the Rollover Agreements ); and
WHEREAS, as a condition and material inducement to the Companys willingness to enter into this Agreement, simultaneously with the execution of this Agreement each Guarantor has duly executed and delivered a Limited Guarantee to the Company.
AGREEMENT
NOW THEREFORE, in consideration of the premises and mutual promises herein made, and in consideration of the representations, warranties, covenants and agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS; CERTAIN RULES OF CONSTRUCTION.
As used herein, the following terms will have the following meanings:
1933 Act means the Securities Act of 1933.
Accounting Firm is defined in Section 2.12.4 .
Accounting Principles means GAAP as in effect on the Most Recent Balance Sheet Date and, to the extent consistent with GAAP, using the same the accounting methods,
principles, practices, procedures and estimation methodologies utilized in the preparation of the Most Recent Balance Sheet.
Acquired Business is defined in Section 5.15.1 .
Acquired Companies means the Company and its Subsidiaries.
Action means any claim, dispute, action, cause of action, suit (whether in contract or tort or otherwise) or audit, litigation (whether at law or in equity, whether civil or criminal), controversy, assessment, grievance, arbitration, investigation, opposition, interference, hearing, mediation, charge, complaint, demand, notice or proceeding to, from, by or before any Governmental Authority.
Additional Consideration means the amount, if any, payable to the Sellers pursuant to Section 2.12.5 of this Agreement and any other amounts paid or payable to the Sellers following the Closing pursuant to this Agreement.
Affiliate means, with respect to any specified Person at any time, (a) each Person directly or indirectly controlling, controlled by or under direct or indirect common control with such specified Person at such time and (b) if such specified Person is an individual, the members of the immediate family of such Person. For purposes of clause (a) of this definition, a Person will be deemed to control a specified Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such specified Person, whether through the ownership of voting securities, by Contract or otherwise.
Affiliated Practices means the professional medical organizations and entities listed on Schedule 1(a) .
Agreement is defined in the Preamble.
Ancillary Agreements means the Joinders, the Letters of Transmittal, the Escrow Agreement, the Rollover Agreements, the Contribution Agreements, the Paying Agent Agreement and the Repurchase Agreements.
Assets means, with respect to each Group Company, such Group Companys properties, rights and assets, whether real or personal and whether tangible or intangible, including all assets reflected in the Most Recent Balance Sheet or acquired after the Most Recent Balance Sheet Date (except for such assets which have been sold or otherwise disposed of since the Most Recent Balance Sheet Date in the Ordinary Course of Business).
Audited Balance Sheet is defined in Section 3.6.1(a) .
Audited Balance Sheet Date is defined in Section 3.6.1(a) .
Audited Financials is defined in Section 3.6.1(a) .
Borrowed Debt means Debt other than Debt of the type referred to in clauses (f) and (i) of the definition of Debt.
Business means the businesses of (i) hiring or retaining hospitalists, intensivists and/or emergency physicians, nurses, physician assistants and/or other healthcare professionals and providing the services of such physicians, nurses, physician assistants and/or other healthcare professionals to third party medical facilities, or (ii) providing administrative, management or clinical advisory services to a division of a third party medical facility that employs or retains hospitalists, intensivists and/or emergency physicians, nurses, physician assistants and/or other healthcare professionals.
Business Day means any weekday other than a weekday on which banks in New York, New York are authorized or required to be closed.
Buyer Parties is defined in the Preamble.
Buyer Related Parties is defined in Section 8.3.4 .
Buyer Termination Fee is defined in Section 8.3.2 .
Cash and Cash Equivalents means the Group Companies combined amount of (a) cash, (b) marketable U.S. government securities, including U.S. Treasury bills, notes and bonds and (c) investment grade money market securities and bank certificates of deposit having original or remaining maturities of three months or less at date of purchase and which are carried at cost, in each case determined in accordance with the Accounting Principles, but net of (i) all cut but uncleared checks issued by any of the Group Companies, (ii) Restricted Cash and (iii) any amounts included in or derived from current assets to the extent such current assets were included in the calculation of Net Working Capital.
Chosen Courts is defined in Section 11.12 .
Class B Unitholder means a holder of Class B Units of the Company.
Class B Unitholder Rollover Amount means, with respect to the Class B Unitholders in the aggregate, or any Class B Unitholder individually (in each case, other than Fresenius and the Fresenius Managers), an amount equal to twenty percent (20%) of the applicable portion of the Closing Consideration that would be payable to the Class B Unitholders collectively, or such Class B Unitholder individually, as applicable (without regard to required withholding, if any, or other Tax imposed on such Class B Unitholders proceeds), in respect of their Class B Units in accordance with the Distribution Waterfall as if such payments were made in all cash.
Closing is defined in Section 2.2 .
Closing Cash and Cash Equivalents means the Cash and Cash Equivalents of the Group Companies as of the Designated Time.
Closing Cash Consideration means the Closing Consideration minus the Rollover Amount.
Closing Consideration means an amount equal to (a) the Consideration (as estimated in accordance with Section 2.12.1 ) minus (b) the Working Capital Escrow Amount minus (c) the Sellers Representative Expense Funds.
Closing Date means the date on which the Closing actually occurs.
Closing Debt Amount means the Debt of the Group Companies as of the Designated Time.
Closing Net Working Capital means the Net Working Capital of the Group Companies as of the Designated Time.
Code means the U.S. Internal Revenue Code of 1986.
Commitment Letters is defined in Section 4.5 .
Company is defined in the Preamble.
Company Plan is defined in Section 3.15.2 .
Company Related Parties is defined in Section 8.3.4 .
Company Termination Fee is defined in Section 8.3.1 .
Company Transaction Expenses means the aggregate amount of all out-of-pocket costs, fees and expenses (including legal, accounting, advisory and other costs, fees and expenses) incurred by the Group Companies in connection with the negotiation, documentation and consummation of the Contemplated Transactions, and any severance, change of control payments, stay bonuses, retention bonuses, transaction bonuses, and other Compensation or similar Liabilities due or arising as a result of the execution of this Agreement or the consummation of the Contemplated Transactions, including the employer portion of Taxes related thereto, as well as the employer portion of Taxes incurred with respect to any Class B Units treated as compensation for Tax purposes; provided , that Company Transaction Expenses will not include any fees or expenses paid or payable by any Group Company in connection with the Financing or any other debt or equity financing for the Contemplated Transactions (other than fees or expenses that are not Debt paid or payable by any Group Company in connection with the payoff of any Borrowed Debt, which will be included in Company Transaction Expenses).
Companys Knowledge (or similar phrase) means the knowledge, after reasonable investigation, of any of Robert Bessler, Jess Parks, Peter Brink, Steven McCarty, Nicholas Cook, Julie Seitz, Matt Knox and Debbie Faulkner.
Compensation means, with respect to any Person, all wages, salaries, commissions, consulting fees, compensation, remuneration, bonuses or benefits of any kind or character whatever (including, for the avoidance of doubt, issuances or grants of Equity Interests and any compensatory distributions with respect to such Equity Interests), required to be made or that have been made directly or indirectly by a Group Company to such Person or Affiliates of such
Person; provided , that Compensation does not include the Consideration payable to holders of Class B Units hereunder.
Compliant means, with respect to the Required Bank Information, that (a) such Required Bank Information does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make such Required Bank Information not misleading, (b) any consolidated balance sheets, statements of income, cash flow and changes in stockholders equity of the Group Companies included in the Required Bank Information have been prepared in accordance with GAAP, consistently applied (subject, in the case of unaudited financial statements, to normal year-end audit adjustments, the effect of which will not, individually or in the aggregate, be materially adverse and the absence of notes that, if presented, would not, individually or in the aggregate, be materially adverse), and (c) (i) for any Marketing Period that has not been completed on or prior to May 29, 2018, such Required Bank Information must include the unaudited consolidated balance sheet of the Group Companies as of March 31, 2018 and the related unaudited consolidated statements of income and cash flow of the Group Companies for the three (3) months then ended, (ii) for any Marketing Period that has not been completed on or prior to August 28, 2018, such Required Bank Information must include the unaudited consolidated balance sheets of the Group Companies as of March 31, 2018 and June 30, 2018 and the related unaudited consolidated statements of income and cash flow of the Group Companies for the three (3) and six (6) months then ended and (iii) for any Marketing Period that has not been completed on or prior to November 28, 2018, such Required Bank Information must include the unaudited consolidated balance sheets of the Group Companies as of March 31, 2018, June 30, 2018 and September 30, 2018 and the related unaudited consolidated statements of income and cash flow of the Group Companies for the three (3), six (6) and nine (9) months then ended.
Confidentiality Agreement is defined in Section 5.10 .
Consideration means (a) $2,150,000,000 plus (b) Closing Cash and Cash Equivalents minus (c) the Closing Debt Amount minus (d) the Company Transaction Expenses plus (e) the amount, if any, by which the Closing Net Working Capital exceeds the Net Working Capital Target minus (f) the amount, if any, by which the Net Working Capital Target exceeds the Closing Net Working Capital.
Contemplated Transactions means, collectively, the transactions contemplated by this Agreement, including (a) the Rollover Contributions, (b) the Pre-Closing Repurchase, (c) the Mergers and the other transactions described in the recitals to this Agreement, (d) the execution, delivery and performance of this Agreement, (e) the execution and delivery of the Ancillary Agreements and (f) the payment of fees and expenses relating to such transactions.
Continuing Employees is defined in Section 5.17.1 .
Contract means, with respect to any Person, any contract, agreement, deed, mortgage, lease, sublease, license, indenture, note, bond, loan, guaranty, sales order, purchase order or other legally enforceable commitment, promise, undertaking, arrangement or understanding, in each case whether written or oral, to which or by which such Person is a party or is otherwise bound.
Contribution Agreements is defined in Section 6.11.1 .
Corporate Integrity Agreement or CIA means that certain Corporate Integrity Agreement, effective as of June 27, 2013, by and among the Company, its Subsidiaries and Affiliates, the Affiliated Practices and the Office of Inspector General of the Department of Health and Human Services.
Data Handling is defined in Section 3.12.8 .
Data Site means the online data room hosted by Intralinks and maintained by the Company with respect to the Contemplated Transactions.
Debt means, with respect to any Person, all obligations (including all obligations in respect of principal, accrued interest, penalties, fees and premiums) of such Person (a) for borrowed money owed to any third party (including overdraft facilities) or in respect of loans or advances (including, in any case, any prepayment penalties, breakage costs or premiums due or arising as a result of the consummation of the Contemplated Transactions), (b) evidenced by notes, bonds, debentures or similar Contracts, (c) (i) for deferred rent, (ii) for deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the Ordinary Course of Business, but including any deferred purchase price Liabilities, earnouts, contingency payments, installment payments, seller notes, promissory notes, or similar Liabilities solely to the extent (A) such obligation was required to be listed on Schedule 3.9.3 , but was not, or (B) (x) listed on Schedule 1(b) , (y) not paid prior to Closing and (z) not included in Net Working Capital and (iii) with respect to any conditional sale, title retention, consignment or similar arrangements, (d) under capital leases (in accordance with the Accounting Principles), (e) in respect of then current payment obligations pursuant to letters of credit, bankers acceptances, performance bonds, surety bonds and similar arrangements, (f) in respect of Compensation for services performed prior to the Closing Date to the extent not included in Net Working Capital or Company Transaction Expenses or in respect of any deferred compensation plan (net of any cash set aside with the Charles Schwab Trust Company to satisfy such obligations) to the extent not included in Net Working Capital or Company Transaction Expenses, (g) for Contracts relating to interest rate protection, swap agreements, collar agreements, currency hedging agreements or other similar arrangements, (h) secured, in whole or in part, by an Encumbrance on such Persons assets or property, whether or not the secured obligation is one that has been incurred by such Person, (i) Pre-Closing Taxes and (j) in the nature of guarantees of the obligations described in clauses (a) through (h) above of any other Person (other than a Group Company); provided , that, except as specifically provided in the preceding clause (c), Debt will not include any earn-out payments or other similar contingent obligations to pay the deferred purchase price of assets or Equity Interests acquired in connection with the acquisition of a business.
Debt Commitment Letter is defined in Section 4.5 .
Debt Financing is defined in Section 4.5 .
Debt Financing Sources means the entities that have committed to provide or arrange or otherwise entered into agreements in connection with all or any part of the Debt Financing or
other financing (other than the Rollover Amount and the financing contemplated by the Equity Commitment Letters) in connection with the transactions contemplated hereby, including the parties to any joinder agreements or credit agreements entered into pursuant thereto or relating thereto, together with their respective Affiliates, and their and their respective Affiliates officers, directors, employees, agents and Representatives and their respective successors and assigns.
Designated Time means 11:59 p.m. (Eastern Time) on the day immediately prior to the Closing Date; provided , however , that for purposes of calculating any Taxes, such term means 11:59 p.m. (Eastern Time) on the Closing Date.
Disclosed Contract is defined in Section 3.17.2 .
Dispute Notice is defined in Section 2.12.3 .
Dispute Submission Notice is defined in Section 2.12.4 .
Distribution Waterfall is defined in Section 2.5.1 .
DLLCA is defined in the Recitals.
DGCL is defined in the Recitals.
DOJ is defined in Section 5.5.3 .
Employee Plan is defined in Section 3.15.1 .
Encumbrance means any charge, claim, community or other marital property interest, condition, equitable interest, lien, license, option, pledge, security interest, mortgage, deed of trust, right of way, easement, encroachment, servitude, right of first offer or first refusal, buy/sell agreement and any other restriction, encumbrance or covenant with respect to, or condition governing the use, construction, voting (in the case of any security or equity interest), transfer, receipt of income or exercise of, any other attribute of ownership.
Enforceability Exceptions is defined in Section 3.2 .
Environmental Laws means any Legal Requirement relating to (a) releases or threatened releases of Hazardous Substances, (b) pollution or protection of public health or the environment or worker safety or worker health or (c) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances.
Equity Commitment Letters is defined in Section 4.5 .
Equity Financing is defined in Section 4.5 .
Equity Financing Sources means the Persons set forth on Schedule 1(c) .
Equity Interests means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation and any and all ownership interests in a Person (other than a corporation), including membership interests, partnership interests, joint venture interests and beneficial interests (including phantom interests), and any and all warrants, options or rights to purchase or otherwise acquire any of the foregoing.
ERISA means the Employee Retirement Income Security Act of 1974.
Escrow Agent means SunTrust Bank.
Escrow Agreement means an escrow agreement between Holdco I, the Sellers Representative and the Escrow Agent, in substantially the form attached hereto as Exhibit A .
Estimated Closing Balance Sheet is defined in Section 2.12.1 .
Estimated Closing Statement is defined in Section 2.12.1 .
Extension Period is defined in Section 8.1.2 .
Facilities means any buildings, plants, improvements or structures located on the Leased Real Property.
Federal Health Care Program is defined in Section 3.13.1(c) .
Final Closing Balance Sheet is defined in Section 2.12.4 .
Final Closing Statement is defined in Section 2.12.4 .
Final Consideration is defined in Section 2.12.5 .
Final Outside Date means the date to which the Outside Date is ultimately extended in compliance with Section 8.1.2 .
Financials is defined in Section 3.6.1(b) .
Financing is defined in Section 4.5 .
Fraud means an act committed by a party hereto with intent to deceive another party hereto or to induce such other party to enter into this Agreement or any other Ancillary Agreement or otherwise act or refrain from acting and requires: (a) a breach of the representations or warranties made by such party in this Agreement (as modified by the Schedules), a certificate delivered hereunder or an Ancillary Agreement; (b) with knowledge that such representation is false or the Person making such representation believes it is false; (c) that will cause that party, in reliance upon such false representation, to take or refrain from taking action; and (d) that will cause such party to suffer damage by reason of such reliance.
Fresenius is defined in the Preamble.
Fresenius Class B Units means all of the Class B Units of the Company owned by Fresenius or the Fresenius Managers immediately prior to the Closing.
Fresenius Managers means the Persons set forth on Schedule 1(d) .
FTC is defined Section 5.5.3 .
GAAP means generally accepted accounting principles in the United States as in effect as of the date hereof.
Government Order means any order, writ, judgment, injunction, decree, stipulation, ruling, determination, agreement or award entered by or with any Governmental Authority.
Governmental Authority means any United States federal, state or local or any foreign government, or political subdivision thereof, or any multinational organization or authority or any authority, agency or commission entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, any court or tribunal (or any department, bureau or division thereof), or any mediator, arbitrator or arbitral body. For the avoidance of doubt, Governmental Authority includes federal program integrity, recovery audit and administrative contractors.
Group Companies means the Acquired Companies and the Affiliated Practices collectively.
Guarantors means the Persons set forth on Schedule 1(e) .
Hazardous Substance means any waste, pollutant, contaminant, hazardous substance, toxic or corrosive substance, hazardous waste, hazardous material, special waste, industrial substance, by-product, petroleum or petroleum-derived substance or waste, chemical liquids or solids, liquid or gaseous products, or any constituent of any such substance or waste, that is listed or otherwise regulated under Environmental Law.
Healthcare Professional is defined in Section 3.13.4(a) .
HIPAA means the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, and as otherwise may be amended through the date hereof, and any and all implementing regulations, as in effect from time to time through the date hereof, including, but not limited to, the Privacy Standards (45 C.F.R. Parts 160 and 164), the Electronic Transactions Standards (45 C.F.R. Parts 160 and 162), and the Security Standards (45 C.F.R. Parts 160, 162 and 164) promulgated under the Administrative Simplifications subtitle of the Health Insurance Portability and Accountability Act of 1996, and as amended by the HIPAA Omnibus Rule (45 C.F.R. Parts 160, 162 and 164).
Holdco I is defined in the Preamble.
Holdco II is defined in the Preamble.
Hospitalist Business means the businesses of (i) hiring or retaining hospitalists and healthcare professionals providing hospitalist services and providing the services of such physicians and healthcare professionals to third party medical facilities, or (ii) administering or managing hospitalists and healthcare professionals providing hospitalist services for a hospital that is not an Affiliate.
HSR Act means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
Identified Equity Financing Source is defined in Section 5.5.4 .
Inbound IP Contracts is defined in Section 3.12.3 .
Indemnified Person is defined in Section 10.1 .
Indemnity Claim means a claim for indemnity under Section 10.1 .
Initial Outside Date is defined in Section 8.1.2 .
Intellectual Property Rights means the entire right, title, and interest in and to all proprietary rights of every kind and nature however denominated, throughout the world, including: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and patent applications, patents and patent disclosures, together with all reissuances, provisional, revisions, substitutions, and reexaminations relating thereto and all patents issuing from any of the foregoing, copyrights and registrations and applications therefor, works, works of authorship, mask work rights, confidential information, trade secrets, computer software programs (including all implementations of algorithms, models and methodologies, information systems, data files, databases and compilations whether machine readable or otherwise, libraries, binaries, source and object codes and user interfaces) and all other proprietary rights and intellectual property rights in Technology; (b) trademarks, trade names, service marks, service names, brands, designs, corporate names and other source or business identifiers, trade dress and logos, and the goodwill and activities associated therewith; (c) domain names, websites, webpages, rights of privacy and publicity, and moral rights; (d) any and all registrations, applications, recordings, copies, tangible embodiments, licenses, common-law rights, statutory rights, and contractual rights relating to any of the foregoing (in whatever form or medium); and (e) all Actions and rights to sue at law or in equity for any past or future infringement or other impairment of any of the foregoing, including the right to receive all proceeds and damages therefrom, and all rights to obtain renewals, continuations, divisions, or other extensions of legal protections pertaining thereto.
Interim Financials is defined in Section 3.6.1(a) .
Intermediate Holdco is defined in the Preamble.
IP Contracts is defined in Section 3.12.3 .
IRO is defined in Section 3.13.9 .
Joinder means a joinder in the form attached hereto as Exhibit B .
Joinder Party is defined in the Preamble.
Joinder Party Rollover Amount means the aggregate amount of all Rollover Commitment Amounts (as such term is defined in the Rollover Agreements) under all Rollover Agreements executed by Joinder Parties.
Leased Real Property is defined in Section 3.11.1 .
Legal Requirement means any United States federal, state or local or any foreign constitution, law, statute, ordinance, code, rule, regulation, or any Government Order, or any license, franchise, permit or similar right granted under any of the foregoing, or any similar provision having the force or effect of law.
LEIE is defined in Section 3.13.4(c) .
Letter of Transmittal is defined in Section 2.8.1 .
Liability means, with respect to any Person, any liability, obligation or Taxes of such Person whether known or unknown, whether asserted or unasserted, whether determined, determinable or otherwise, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether incurred or consequential, whether due or to become due and whether or not required under GAAP to be accrued on the financial statements of such Person.
Limited Guarantee is defined in Section 4.6 .
LLC Agreement means the limited liability company agreement of the Company as amended from time to time.
Losses is defined in Section 10.1 .
Management Rollover Amount means the amount set forth on Schedule 1(f) .
Marketing Period means the first period of eighteen (18) consecutive Business Days after the date hereof (inclusive of each day starting with the first day and through and ending with the last day of such period) in which the Company will have made available to Holdco I the Required Bank Information and such Required Bank Information is Compliant (for the avoidance of doubt, if at any time during the Marketing Period or during the period ending on the third full Business Day following the end of the Marketing Period the Required Bank Information provided at the commencement of the Marketing Period ceases to be Compliant, then the Marketing Period will be deemed not to have occurred); provided , that the Marketing Period will not commence prior to the later of (x) May 21, 2018 and (y) the date that is ten (10) Business Days immediately following the date on which the applicable waiting period under the HSR Act will have expired or been terminated; provided , further , that (A) each of July 4, 2018, November 22, 2018 and November 23, 2018 shall not be a Business Day for purposes of the Marketing Period, (B) if the Marketing Period has not ended on or prior to August 17, 2018 it shall not commence earlier than September 4, 2018 and (C) if the Marketing Period has not ended on or prior to December 18, 2018, it shall not commence earlier than January 2, 2019; and
provided , further , that the Marketing Period will be deemed not to have commenced if, prior to the completion of such eighteen (18) consecutive Business Day period, (i) KPMG LLP will have withdrawn its audit opinion with respect to any financial information or financial statements included in the Required Bank Information, in which case the Marketing Period may not commence unless and until a new unqualified audit opinion is issued with respect to the financial statements of the Group Companies for the applicable periods by KPMG LLP or another independent public accounting firm of recognized national standing reasonably acceptable to Holdco I, or (ii) the Company or any of its Affiliates will have publicly announced any intention to, or determined that it must, restate any financial information or financial statements included in the Required Bank Information or any such restatement is under consideration or is a possibility, in which case the Marketing Period may not commence unless and until such restatement has been completed or the Company has determined and announced that no such restatement is required in accordance with GAAP. If the Company in good faith reasonably believes that it has made available all of the Required Bank Information, it may deliver to Holdco I a written notice to that effect (stating when it believes it made available all of the Required Bank Information), in which case the Required Bank Information will be deemed to have been delivered as of the date of delivery set forth in such notice, unless Holdco I in good faith reasonably believes the Company has not made available all of the Required Bank Information and, within four (4) Business Days following receipt of such notice from the Company, delivers a written notice to the Company to that effect (stating with specificity which Required Bank Information Holdco I reasonably believes the Company has not made available).
Material Adverse Effect means any change in, or effect on, the Business, operations, Assets or condition (financial or otherwise) of the Group Companies which, when considered either individually or in the aggregate together with all other adverse changes or effects with respect to which such phrase is used in this Agreement, is, or is reasonably likely to be, materially adverse (a) to the Business, operations, Assets or condition (financial or otherwise) of the Group Companies, taken as a whole, or (b) to the ability of the Seller Parties or the Group Companies to perform their respective obligations under this Agreement or consummate the Contemplated Transactions; provided , however , that, for purposes of the foregoing clause (a), any adverse change, effect, event or occurrence arising from or related to (i) conditions (including business, operating, legislative and regulatory) that are generally applicable to the industries in which the Group Companies operate, (ii) general economic, business or regulatory conditions, (iii) any political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (iv) financial, banking or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (v) changes in GAAP or any interpretations thereof, (vi) changes in any laws, rules, regulations, orders or other binding directives issued by any Governmental Authority, (vii) any failure by the Group Companies to meet any internal or published projections, forecasts or revenue or earnings predictions for any period ending on or after the date of this Agreement as distinct from the underlying cause of such failure or (viii) the taking of any action contemplated by this Agreement (other than with respect to the obligation to conduct the Business in the Ordinary Course of Business in accordance with Section 5.2 ) and the Ancillary Agreements, including the consummation of the Contemplated Transactions (provided that this clause (viii) will not
diminish the effect of, and will be disregarded for purposes of, the representations and warranties contained in Section 3.3 or 3.4 and any other representations and warranties relating to required consents or approvals, change in control provisions or similar provisions granting rights of acceleration, termination, modification or waiver based upon the entering into of this Agreement or the consummation of the Contemplated Transactions), in each case will not be taken into account in determining whether a Material Adverse Effect has occurred; provided , further , that any matter described in any of the foregoing clauses (i)-(vi) will be taken into account in determining whether there has been a Material Adverse Effect solely to the extent such matter has a materially disproportionate effect on the Group Companies, taken as a whole, relative to other participants in the industries or markets in which the Group Companies operate.
Merger I is defined in the Recitals.
Merger I Certificate of Merger is defined in Section 2.3.1 .
Merger I Effective Time is defined in Section 2.3.1 .
Merger II is defined in the Recitals.
Merger II Certificate of Merger is defined in Section 2.3.2 .
Merger II Effective Time is defined in Section 2.3.2 .
Merger Sellers means the holders of Class A Units and Class B Units of the Company immediately prior to the Merger I Effective Time (following the consummation of the Rollover Contributions and the Pre-Closing Repurchase).
Mergers is defined in the Recitals.
Merger Sub I is defined in the Preamble.
Merger Sub II is defined in the Preamble.
Most Recent Balance Sheet is defined in Section 3.6.1(b) .
Most Recent Balance Sheet Date is defined in Section 3.6.1(b) .
Net Working Capital means the remainder of (a) the combined current assets of the Group Companies reflected in the line items included in the Net Working Capital Calculation Schedule minus (b) the combined current liabilities of the Group Companies reflected in the line items included in the Net Working Capital Calculation Schedule, in each case, calculated as of the Designated Time in accordance the Accounting Principles; provided , that Net Working Capital will not take into account any amounts in respect of current or deferred Tax assets or liabilities, any intercompany assets or liabilities between the Group Companies, any amounts in respect of Closing Cash and Cash Equivalents, any amounts in respect of Restricted Cash, any liabilities of the Group Companies for which the Group Companies are holding Restricted Cash that is available to satisfy such liabilities, the current portions of any amounts reflected in the Closing Debt Amount or any accrued liabilities that constitute Company Transaction Expenses.
Net Working Capital Calculation Schedule means the calculation of Net Working Capital attached as Exhibit C hereto.
Net Working Capital Target means $186,000,000.00.
New Plans is defined in Section 5.17.2 .
Non-Party is defined in Section 11.17 .
Off-the-Shelf Software is defined in Section 3.12.3 .
OIG is defined in Section 3.13.3(b) .
OIG Notice is defined in Section 5.4.1 .
Ordinary Course of Business means an action taken by any Person in the ordinary course of such Persons business which is consistent with the past customs and practices of such Person in the normal day-to-day operations of such Person.
Outbound IP Contracts is defined in Section 3.12.3 .
Outside Date is defined in Section 8.1.2 .
Paying Agent means Acquiom Financial LLC, a Colorado limited liability company.
Paying Agent Agreement means a payments administration agreement between Holdco I, the Sellers Representative and the Paying Agent, in substantially the form attached hereto as Exhibit D .
Payment Programs means any payment or reimbursement program, including Federal Health Care Programs, any state health care programs, and any programs sponsored by any other third party payor, including workers compensation programs, health maintenance organizations, preferred provider organizations, managed care organizations, health benefit plans, health insurance plans and other third party reimbursement and payment programs.
Payoff Letters is defined in Section 6.9 .
Permits means, with respect to any Person, any license, accreditation, bond, franchise, permit, consent, approval, right, privilege, certificate or other similar authorization issued by, or otherwise granted by, any Governmental Authority or any other Person to which or by which such Person is subject or bound or to which or by which any property, business, operation or right of such Person is subject or bound.
Permitted Encumbrance means (a) statutory liens for current Taxes, special assessments or other governmental charges not yet due and payable, (b) mechanics, materialmens, carriers, workers, repairers and similar statutory liens arising or incurred in the Ordinary Course of Business and relating to amounts that are not yet due and payable, and the existence of which would not constitute an event of default under, or breach of, a Real Property
Lease, (c) zoning, entitlement, building and other land use regulations imposed by Governmental Authorities having jurisdiction over any Leased Real Property which are not violated in any material respect by the current use and operation of the Leased Real Property and do not adversely affect the value of the Leased Real Property in any material respect, (d) covenants, conditions, restrictions, easements, Encumbrances and other similar matters of record affecting title to but not adversely affecting the value of, or the current occupancy or use of the Leased Real Property in any material respect, (e) restrictions on the transfer of securities arising under federal and state securities laws, (f) Encumbrances arising under the organizational documents of any Group Company and (g) any purchase money Encumbrance to the extent related to the assets (excluding real property) purchased or leased (to the extent the applicable Group Company is not in default under such financing agreement or lease).
Person means any individual or corporation, association, partnership, limited liability company, joint venture, joint stock or other company, business trust, trust, organization, Union, Governmental Authority or other entity of any kind.
Pre-Closing Tax Period means all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any Straddle Period.
Pre-Closing Taxes means (a) all Taxes of, or attributable to the activities of, the Group Companies for any Pre-Closing Tax Period, including, for the avoidance of doubt, any Taxes with respect to a Pre-Closing Tax Period (or portion thereof) attributable to an adjustment under Section 481(a) of the Code (or any corresponding or similar provision of a state, local or foreign Tax Legal Requirement) by reason of a change in method of accounting made (or required to be made) with respect to any taxable period beginning prior to the Closing Date, including pursuant to Section 451(b) of the Code, (b) all Taxes of any Seller for any taxable period for which any Group Company has any Liability, (c) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which any Group Company is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or foreign law or regulation for any taxable period for which any Group Company has any Liability, (d) any and all Taxes of any Person imposed on a Group Company as a result of any Tax sharing or Tax allocation agreement, arrangement, or understanding for a Pre-Closing Tax Period, (e) any and all Taxes of any Person imposed on a Group Company as a transferee or successor, by contract, or otherwise for a Pre-Closing Tax Period, (f) any Taxes imposed on the Company under Section 1446(f) of the Code in connection with the Contemplated Transactions, or (g) the Companys portion of certain Taxes described in Section 9.3 .
Predecessor means (a) any Person that has merged with or into a Group Company, (b) any Person a majority of whose Equity Interests has been acquired by a Group Company or (c) any Person all or substantially all of whose assets has been acquired by a Group Company.
Proposed Final Closing Balance Sheet is defined in Section 2.12.2 .
Proposed Final Closing Statement is defined in Section 2.12.2 .
Pro Rata Portion means, with respect to any Seller, an amount equal to the quotient of (a) the portion of the Consideration that would be payable to such Seller (without regard to required withholding, if any, or other Tax imposed on such Sellers proceeds) in respect of the Class A Units and Class B Units of the Company held by such Seller (assuming the vesting of all Class B Units of the Company) in accordance with the Distribution Waterfall if (i) the Rollover Amount with respect to such Seller (if any) were zero, (ii) the Pre-Closing Repurchase had not occurred and (iii) the consideration payable to such Seller were paid entirely in cash divided by (b) the Consideration. For the avoidance of doubt, the Sellers who are selling Class B Units in the Pre-Closing Repurchase will be entitled to their Pro Rata Portion of Additional Consideration with respect to such Class B Units.
Real Property Leases is defined in Section 3.11.1 .
Releasing Party is defined in Section 5.14 .
Representative means, with respect to any Person, any director, officer, employee, agent, independent contractor, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.
Repurchase Agreement is defined in Section 5.22 .
Required Bank Information means (a) all financial and other information with respect to the Group Companies referred to in paragraph 4 contained in Exhibit D to the Debt Commitment Letter and (b) such other information with respect to the Group Companies as is necessary to complete a customary confidential information memorandum to be used in connection with the syndication of the Debt Financing.
Restricted Cash means any cash which is held by a Group Company for the benefit of a Person other than another Group Company, whether held in trust, in escrow or otherwise.
Restricted Financing Commitment Amendments is defined in Section 5.12.1 .
Restricted Period means: (i) with respect to the Seller Parties and the Sellers set forth on Schedule 1(g)(i) , a period of five (5) years that will commence on the Closing Date; and (ii) with respect to the Sellers set forth on Schedule 1(g)(ii) , a period of three (3) years that will commence on the Closing Date.
Rollover Agreements is defined in the Recitals.
Rollover Amount means an amount equal to the sum of the Management Rollover Amount plus the Class B Unitholder Rollover Amount plus the Joinder Party Rollover Amount.
Rollover Contributions is defined in Section 6.11.1 .
Rollover Sellers means Robert Bessler, Jess Parks and each other Seller who executes a Joinder following the date hereof agreeing to be bound as a Rollover Seller hereunder.
Rollover Units is defined in the Recitals.
SAM is defined in Section 3.13.4(c) .
Section 280G is defined in Section 5.21 .
Section 280G Payments is defined in Section 5.21 .
Seller Parties means Fresenius and each other Seller who executes a Joinder following the date hereof agreeing to be bound as a Seller Party hereunder.
Seller Payments Schedule is defined in Section 2.7 .
Sellers means the holders of Class A Units and Class B Units of the Company immediately prior to the consummation of the Rollover Contributions and the Pre-Closing Repurchase. For the avoidance of doubt, Sellers will include the Seller Parties, the Merger Sellers and the Rollover Sellers.
Sellers Representative is defined in the Preamble.
Sellers Representative Expense Funds means $2,500,000.00.
Sensitive Data means:
(a) individually identifiable health information, as defined under HIPAA;
(b) information required by any applicable law or industry standard or requirement to be encrypted, masked or otherwise protected from disclosure;
(c) government identifiers, such as social security or other tax identification numbers, drivers license numbers and other government-issued identification numbers;
(d) account, credit or debit card numbers, with or without any required security code, access code, personal identification number or password that would permit access to an individuals financial account, and account information, including balances and transaction data;
(e) passwords or other credentials for accessing accounts; and
(f) any other sensitive information regarding individuals or their employment, family, health or financial status, such as salary, benefits, marital status, geo location data and DNA information.
SIP is defined in Section 3.1 .
Sound Confidential Information is defined in Section 5.10 .
Specified Representations is defined in Section 6.1 .
Straddle Period is defined in Section 9.1 .
Strategic Investor means the Person set forth on Schedule 1(h) .
Subsidiary means, with respect to any specified Person, any other Person of which such specified Person will, at the time, directly or indirectly through one or more Subsidiaries, (a) own at least 50% of the outstanding capital stock (or other shares of beneficial interest) entitled to vote generally, (b) hold at least 50% of the partnership, limited liability company, joint venture or similar interests or (c) be a general partner or managing member.
Surviving Corporation is defined in Section 2.1.2 .
Surviving LLC is defined in Section 2.1.1 .
Surviving LLC Operating Agreement is defined in Section 2.4 .
Systems is defined in Section 3.12.6 .
Tax or Taxes means any and all federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, hospital, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar, including FICA), unemployment, disability, real property, personal property, escheat or unclaimed property, ad valorem, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind or any charge of any kind in the nature of (or similar to) taxes whatsoever, including any interest, penalty, or addition thereto (including, for the avoidance of doubt, any interest, penalty or addition to tax relating to the reporting or failure to report a tax of any kind on any Tax Return), in each case whether disputed or not.
Tax Return means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule, supporting information or attachment thereto, and including any amendment thereof.
Technology means all inventions, works, discoveries, innovations, know-how, information (including ideas, research and development, formulas, algorithms, compositions, processes and techniques, data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, business and marketing plans and proposals, graphics, illustrations, artwork, documentation, and manuals), databases, computer software, firmware, computer hardware, integrated circuits and integrated circuit masks, electronic, electrical, and mechanical equipment, and all other forms of technology, including improvements, modifications, works in process, derivatives, or changes, whether tangible or intangible, embodied in any form, whether or not protectable or protected by patent, copyright, mask work right, trade secret law, or otherwise, and all documents and other materials recording any of the foregoing.
Termination Date is defined in Section 8.1 .
Third Party Claim is defined in Section 10.3 .
Treasury Regulations means the regulations promulgated under the Code.
Union means a labor union, labor organization or other employee representative body.
Unitholder Consent is defined in the Recitals.
Update Financials is defined in Section 5.6.2 .
Voting Stockholders is defined in the Recitals.
Voting Unitholders is defined in the Recitals.
Working Capital Escrow Account means the escrow account to be maintained by the Escrow Agent in which the Working Capital Escrow Amount is deposited at Closing pursuant to the Escrow Agreement.
Working Capital Escrow Amount means $25,000,000.00.
Except as otherwise explicitly specified to the contrary, (a) references to a Section, Article, Exhibit or Schedule means a Section or Article of, or Schedule or Exhibit to, this Agreement, unless another agreement is specified, (b) the word including will be construed as including without limitation, (c) the word or will not be exclusive (i.e., or will mean and/or) unless the context clearly requires otherwise, (d) references to employees of the Company or its Subsidiaries or the Affiliated Practices will be construed to include any individual members, partners or other holders of Equity Interests of the Company or its Subsidiaries or the Affiliated Practices who provide services to the Company or its Subsidiaries or the Affiliated Practices and references to such individuals employment will be construed to refer to their services to the Company or its Subsidiaries or the Affiliated Practices, as applicable, (e) references to a particular statute or regulation include all rules and regulations thereunder and any predecessor or successor statute, rules or regulation, in each case as amended or otherwise modified through the date hereof, (f) words in the singular or plural form include the plural and singular form, respectively and (g) references to a particular Person include such Persons successors and assigns to the extent not prohibited by this Agreement. Whenever this Agreement indicates that the Company has made available any document to the Buyer Parties, such statement will be deemed to be a statement that such document was (i) delivered to the Buyer Parties or their Representatives or (ii) made available for viewing online on the Data Site, in each case at least two (2) Business Days prior to the date hereof; provided , that the documents delivered to Ropes & Gray LLP in the emails listed in Schedule 1(i) shall also be deemed to have been made available.
2. CONTEMPLATED TRANSACTIONS.
2.1. The Mergers .
2.1.1. Upon the terms and subject to the conditions set forth in this Agreement and under the DLLCA, at the Merger I Effective Time, Merger Sub I will be merged with and into the Company, and the separate existence of Merger Sub I will thereupon cease to exist, and the Company will be the surviving limited liability company in Merger I (the Surviving LLC ) as a direct, wholly-owned subsidiary of Holdco I.
2.1.2. Upon the terms and subject to the conditions set forth in this Agreement and under the DGCL, immediately following the Merger I Effective Time, Merger Sub II
will be merged with and into Holdco I, and the separate existence of Merger Sub II will thereupon cease to exist, and Holdco I will be the surviving corporation in Merger II (the Surviving Corporation ).
2.2. Closing . The closing of the Mergers (the Closing ) will take place at the offices of Ropes & Gray LLP at 800 Boylston Street, Boston, MA 02199 as soon as practicable, but, subject to the last sentence of this Section 2.2 , in no event later than 10:00 a.m. Eastern Time on the second (2 nd ) Business Day after the date on which each of the conditions set forth in Article 6 and Article 7 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction of such conditions) has been satisfied or waived in accordance with Section 11.4 , or at such other place, at such other time or on such other date as the Buyer Parties and the Sellers Representative may mutually agree. Notwithstanding the foregoing, the Closing will not occur prior to the third (3 rd ) full Business Day immediately following the final day of the Marketing Period (unless otherwise agreed by the Buyer Parties in writing). The Closing may take place via the electronic exchange of execution versions of this Agreement and any other agreements contemplated hereunder and the signature pages thereto via facsimile or via email by .pdf.
2.3. Effective Times .
2.3.1. At the Closing, Merger Sub I and the Company will duly execute a certificate of merger (the Merger I Certificate of Merger ) and file such Merger I Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DLLCA. Merger I will become effective at such time as the Merger I Certificate of Merger, accompanied by payment of the filing fee (as provided in the DLLCA) by Holdco I, has been duly filed with, examined by and received the endorsed approval of the Secretary of State of the State of Delaware or at such subsequent time as specified in the Merger I Certificate of Merger (the Merger I Effective Time ).
2.3.2. At the Merger I Effective Time, Merger Sub II and Holdco I will duly execute a certificate of merger (the Merger II Certificate of Merger ) and file such Merger II Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL. Merger II will become effective at such time as the Merger II Certificate of Merger, accompanied by payment of the filing fee (as provided in the DGCL) by Holdco II, has been duly filed with, examined by and received the endorsed approval of the Secretary of State of the State of Delaware or at such subsequent time as specified in the Merger II Certificate of Merger (the Merger II Effective Time ).
2.4. Effects of Mergers
2.4.1. Limited Liability Company Agreement of the Surviving LLC . Immediately after the Merger I Effective Time, and without any further action on the part of the Company or Merger Sub I, the LLC Agreement will be amended to be in the form of the limited liability company agreement of Merger Sub I as in effect immediately prior to the Merger I Effective Time and, as so amended, will become the limited liability company agreement of the Surviving LLC (the Surviving LLC Operating Agreement )
until thereafter changed or amended as provided therein or by applicable Legal Requirements.
2.4.2. Managers and Officers of the Surviving LLC . The managers of Merger Sub I immediately prior to the Merger I Effective Time will, from and after the Merger I Effective Time, be the initial managers of the Surviving LLC until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. The officers of the Company immediately prior to the Merger I Effective Time will, from and after the Merger I Effective Time, be the initial officers of the Surviving LLC, each to hold office until the earlier of his or her resignation or removal or until his or her successor is duly appointed and qualified, as the case may be.
2.4.3. Certificate of Incorporation and Bylaws of the Surviving Corporation . Immediately after the Merger II Effective Time, and without any further action on the part of Holdco I or Merger Sub II, (a) the Certificate of Incorporation of Holdco I will be amended to be in the form of the Certificate of Incorporation of Merger Sub II as in effect immediately prior to the Merger II Effective Time and, as so amended, will become the Certificate of Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Legal Requirements, and (b) the Bylaws of Holdco I will be amended to be in the form of the Bylaws of Merger Sub II as in effect immediately prior to the Merger II Effective Time and, as so amended, will become the Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Legal Requirements.
2.4.4. Directors and Officers of the Surviving Corporation . The directors of Merger Sub II immediately prior to the Merger II Effective Time will, from and after the Merger II Effective Time, be the initial directors of the Surviving Corporation until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. The officers of Merger Sub II immediately prior to the Merger II Effective Time will, from and after the Merger II Effective Time, be the initial officers of the Surviving Corporation, each to hold office until the earlier of his or her resignation or removal or until his or her successor is duly appointed and qualified, as the case may be.
2.5. Conversion of Equity Interests of the Company and Merger Sub I . At the Merger I Effective Time, by virtue of Merger I, and without any further action on the part of any member of the Company, Holdco I, Intermediate Holdco or Merger Sub I:
2.5.1. Class A Units . Subject to Section 2.5.6 , each Class A Unit of the Company that is issued and outstanding immediately prior to the Merger I Effective Time (other than any Class A Unit that is a Rollover Unit) will be canceled and extinguished and will be converted into the right to receive, subject to the terms of this Agreement, an amount in cash (without interest) equal to the applicable portion of the Closing Consideration and the Additional Consideration (if any) payable in respect of such Class A Unit in accordance with the distribution waterfall as set forth on Exhibit E (the Distribution Waterfall ), calculated without regard to the Rollover Contribution or Pre-Closing Repurchase.
2.5.2. Class B Units . Subject to Section 2.5.6 , each Class B Unit of the Company that is issued and outstanding immediately prior to the Merger I Effective Time (other than any Class B Unit that is a Rollover Unit and, for the avoidance of doubt, the Fresenius Class B Units) will be canceled and extinguished and will be converted into the right to receive, subject to the terms of this Agreement (including Section 2.11 ), (a) an amount in cash (without interest) equal to eighty percent (80%) of the applicable portion of the Closing Consideration and the Additional Consideration (if any) payable in respect of such Class B Unit in accordance with the Distribution Waterfall and (b) an amount of shares of Common Stock of Holdco I with an aggregate value equal to twenty (20%) of the applicable portion of the Closing Consideration and the Additional Consideration (if any) payable in respect of such Class B Unit in accordance with the Distribution Waterfall.
2.5.3. Aggregate Cash Consideration . Notwithstanding anything to the contrary set forth herein or otherwise, in no event will the aggregate amount payable at the Closing pursuant to Sections 2.5.1 and 2.5.2 and pursuant to the Repurchase Agreements exceed the Closing Cash Consideration (subject to Section 2.11 ).
2.5.4. Conversion of Merger Sub I Equity Interests . All Equity Interests of Merger Sub I that are issued and outstanding immediately prior to the Merger I Effective Time will be converted into the outstanding membership interest in the Surviving LLC, as such membership interest is provided for by the Surviving LLC Operating Agreement. As of the Merger I Effective Time, all of the Equity Interests of Merger Sub I will no longer be outstanding and will automatically be canceled and will cease to exist, and the holder of such Equity Interests will cease to have any rights with respect thereto, except the right to receive the membership interest of the Surviving LLC. As of the Merger I Effective Time, Holdco I will be the sole holder of all of the issued and outstanding Equity Interests of the Surviving LLC.
2.5.5. Rollover Units . Each Rollover Unit that is outstanding as of immediately prior to the Merger I Effective Time will by virtue of Merger I and without any action on the part of the Company, the holder of such Rollover Unit, or any other Person, be canceled and extinguished without any right to receive any portion of the Closing Consideration or Additional Consideration.
2.5.6. Company-Owned Stock . Each Unit owned by the Company immediately prior to the Merger I Effective Time (including the Fresenius Class B Units) will by virtue of Merger I and without any action on the part of the Company or any other Person be canceled and extinguished without any right to receive any portion of the Closing Consideration or Additional Consideration.
2.6. Conversion of Equity Interests of Holdco I and Merger Sub II .
2.6.1. Shares of Common Stock . Each share of Common Stock of Holdco I that is issued and outstanding immediately prior to the Merger II Effective Time will be canceled and extinguished and will be converted into the right to receive, subject to the
terms of this Agreement, one validly issued, fully paid and nonassessable Class A Unit of Holdco II.
2.6.2. Conversion of Merger Sub II Equity Interests . Each share of common stock of Merger Sub II that is outstanding immediately prior to the Merger II Effective Time will be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. As of the Merger II Effective Time, all of the shares of common stock of Merger Sub II will no longer be outstanding and will automatically be canceled and will cease to exist, and the holder of such shares of common stock will cease to have any rights with respect thereto, except the right to receive the shares of common stock of the Surviving Corporation. As of the Merger II Effective Time, Holdco II will be the sole holder of all of the issued and outstanding Equity Interests of the Surviving Corporation.
2.7. Seller Payments Schedule . The Sellers Representative will calculate and prepare in accordance with the terms of this Agreement, the Distribution Waterfall and the LLC Agreement and deliver to the Buyer Parties at least five (5) Business Days prior to the Closing Date a schedule, certified by the Chief Financial Officer of the Sellers Representative, setting forth (a) a revised version of Schedule 3.5.1 that has been updated to reflect the capitalization of the Group Companies as of immediately prior to the consummation of the Rollover Contributions and the Pre-Closing Repurchase, (b) the portion of the Closing Consideration payable to each Seller in cash, (c) the portion of the Closing Consideration payable to each Seller in shares of Common Stock of Holdco I (if applicable), and (d) each Sellers Pro Rata Portion, in each case subject to Section 2.11 (the Seller Payments Schedule ). In no event will the aggregate amount of the cash payments contemplated by clause (b) of the preceding sentence exceed the Closing Cash Consideration (subject to Section 2.11) . The Sellers Representative covenants and agrees that the Seller Payments Schedule will comply with this Agreement, the Distribution Waterfall and the LLC Agreement with respect to the amounts required to be paid to the Sellers as a result of the consummation of the Contemplated Transactions. Each of the Company, the Sellers Representative and each Seller (by executing this Agreement (or a Joinder), such Sellers Rollover Agreement and Contribution Agreement and/or such Sellers Letter of Transmittal) acknowledges, covenants and agrees that the Buyer Parties will be entitled to rely on the information set forth in the Seller Payments Schedule in satisfying their payment obligations pursuant to Section 2.8.4 , that if any Buyer Party makes or causes to be made the payments contemplated by this Agreement in the amounts set forth on the Seller Payments Schedule it will have discharged the Buyer Parties obligations with respect to such payments hereunder in full, and that, notwithstanding anything to the contrary set forth herein or otherwise, neither the Buyer Parties, nor the Surviving LLC nor the Surviving Corporation nor any of the Buyer Related Parties will have any Liability to any Person for any error or inaccuracy in the Seller Payments Schedule.
2.8. Letters of Transmittal .
2.8.1. Within five (5) Business Days following the date of this Agreement, the Company will distribute to each Merger Seller a Letter of Transmittal in the form attached hereto as Exhibit F (each, a Letter of Transmittal ). The Company and the Sellers Representative will use their commercially reasonable efforts to cause each
Merger Seller to execute and deliver a properly completed and duly executed Letter of Transmittal to the Company, and the Company will promptly deliver copies thereof to Holdco I (and will deliver original copies thereof to Holdco I at Holdco Is written request) at least three (3) Business Days prior to the Closing Date. If a Merger Seller delivers a properly completed and duly executed Letter of Transmittal to the Company at least three (3) Business Days prior to the Closing Date, at the Closing (or, in the case of the holders of Class B Units, as promptly as practicable following the Closing), such Merger Seller will be paid the amount of the Closing Consideration due to such Merger Seller as set forth on the Seller Payments Schedule, subject to any applicable withholding, including under Section 1446(f) of the Code.
2.8.2. After the Closing Date, upon delivery by any Merger Seller who did not deliver a properly completed and duly executed Letter of Transmittal to the Company at least three (3) Business Days prior to the Closing Date in accordance with Section 2.8.1 , such Merger Seller will promptly, but in any event within three (3) Business Days (or, in the case of the holders of Class B Units, as promptly as practicable following delivery of a properly completed and duly executed Letter of Transmittal to the Company), be paid (including through the issuance of securities as contemplated by this Agreement) the amount of the Closing Consideration due to such Merger Seller as set forth on the Seller Payments Schedule, subject to any applicable withholding, including under Section 1446(f) of the Code.
2.8.3. To the extent permitted by applicable Legal Requirements, neither Holdco I nor the Surviving LLC will have any Liability to any Person in respect of any amount payable in consideration for the cancellation of Units as contemplated by Section 2.5 that is properly delivered to a Governmental Authority pursuant to applicable abandoned property, escheat or similar Legal Requirement.
2.8.4. For the avoidance of doubt, the Letter of Transmittal will include (a) an accredited investor questionnaire (an Accredited Investor Questionnaire ), (b) IRS Forms W-9 and applicable IRS Forms W-8, and (c) an affidavit, complying with Section 1446(f)(2) of the Code, stating, under the penalties of perjury, that the applicable Merger Seller is not a foreign person. To the extent a Merger Seller does not certify its non-foreign status as provided by Section 1446(f) of the Code, the Buyer Parties will withhold applicable amounts with respect to such Merger Seller.
2.9. Holdco I Closing Payments . Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Holdco I will pay, or cause to be paid:
2.9.1. on behalf of the Company, to the Paying Agent, by wire transfer of immediately available funds to an account designated in writing to Holdco I by the Company not less than three (3) Business Days prior to the Closing Date, an amount in cash equal to the aggregate amount of the Closing Purchase Prices (as such term is defined in each of the Repurchase Agreements) payable under the Repurchase Agreements, subject to and in accordance with the terms and conditions of the Repurchase Agreements (and without duplication of the payment obligations set forth in such Repurchase Agreement); provided, that any compensatory payments will be paid in
accordance with the regular payroll of the Group Companies (or, with respect to Fresenius Managers, the Fresenius Affiliate that employs such Fresenius Manager), and for the avoidance of doubt, will not be made through the Paying Agent;
2.9.2. to each holder of Class A Units, by wire transfer of immediately available funds, to the account designated in such holders Letter of Transmittal, an amount in cash equal to such holders portion of the Closing Consideration in respect of all Class A Units owned by such holder (other than any Class A Unit that is a Rollover Unit) as set forth on the Seller Payments Schedule ( provided , that Holdco I will have no obligation to make the payment to such holder contemplated by this Section 2.9.2 until Holdco I has received a properly completed and duly executed Letter of Transmittal from such holder in accordance with Section 2.8 );
2.9.3. to the Paying Agent, by wire transfer of immediately available funds to an account designated in writing by the Company to Holdco I not less than three (3) Business Days prior to the Closing Date, an amount in cash equal to the aggregate portion of the Closing Consideration payable in cash in respect of the Class B Units of the Company outstanding immediately prior to the Merger I Effective Time (which, for the avoidance of doubt, will not include any Rollover Units or the Fresenius Class B Units) as set forth on the Seller Payments Schedule; provided, that any compensatory payments will be paid in accordance with the regular payroll of the Group Companies, and for the avoidance of doubt, will not be made through the Paying Agent;
2.9.4. to the Escrow Agent, by wire transfer of immediately available funds, the Working Capital Escrow Amount;
2.9.5. to the Sellers Representative, by wire transfer of immediately available funds to an account designated in writing by the Sellers Representative to Holdco I not less than three (3) Business Days prior to the Closing Date, the Sellers Representative Expense Funds;
2.9.6. on behalf of the Group Companies, the amount of cash required to discharge fully the balance of all Debt outstanding as of the Closing, in accordance with the Payoff Letters delivered pursuant to Section 6.9 , to the account(s) designated in the Payoff Letters; provided , however , that such Debt will not include Taxes, which will be paid in accordance with applicable Legal Requirements; and
2.9.7. to the Company, the amount of cash required to discharge fully the then outstanding balance of all Company Transaction Expenses, to the account designated in writing by the Company to Holdco I not less than five (5) Business Days prior to the Closing Date; provided , that any compensatory payments will be paid in accordance with the regular payroll of the Group Companies (or, with respect to Fresenius Managers, the Fresenius Affiliate that employs such Fresenius Manager).
2.10. Payments to Class B Unitholders .
2.10.1. Upon receipt of the amounts specified in Section 2.9.1 and in accordance with the provisions thereof and the terms and conditions of Fresenius or such Fresenius Managers Repurchase Agreement (and without duplication of the payment obligations set forth in such Repurchase Agreement), the Paying Agent will pay or cause to be paid to Fresenius and each Fresenius Manager in respect of their Fresenius Class B Units an amount equal to the Closing Purchase Price (as such term is defined in Fresenius or such Fresenius Managers Repurchase Agreement). Any payment with respect to the Fresenius Class B Units treated as compensatory for U.S. federal income tax purposes will be made in accordance with the regular payroll of the Group Companies (or, with respect to Fresenius Managers, the Fresenius Affiliate that employs such Fresenius Manager), and for the avoidance of doubt, will not be made through the Paying Agent.
2.10.2. Upon receipt of the amounts specified in Section 2.9.3 and in accordance with the provisions thereof, the Paying Agent will pay or cause to be paid to each Class B Unitholder (which, for the avoidance of doubt, will not include Fresenius or the Fresenius Managers) in respect of Class B Units (other than Rollover Units) held by such Class B Unitholder who delivers a properly completed and duly executed Letter of Transmittal to the Company in accordance with Section 2.8 the amount of cash due to such Class B Unitholder in respect of Class B Units (other than Rollover Units) held by such Class B Unitholder pursuant to Section 2.5.2 and as set forth on the Seller Payments Schedule, subject to any applicable withholding, including under Section 1446(f) of the Code. Any payment with respect to Class B Units treated as compensatory for U.S. federal income tax purposes will be made in accordance with the regular payroll of the Group Companies, and for the avoidance of doubt, will not be made through the Paying Agent.
2.10.3. Subject to Section 2.11 , Holdco I will issue or cause to be issued to each Class B Unitholder (which, for the avoidance of doubt, will not include Fresenius or the Fresenius Managers) who delivers a properly completed and duly executed Letter of Transmittal to the Company in accordance with Section 2.8 the number of shares of Common Stock of Holdco I with an aggregate value as set forth on the Seller Payments Schedule and due to such Class B Unitholder pursuant to Section 2.5.2 . Each share of Common Stock of Holdco I issued pursuant to this Section 2.10.3 will, at the Merger II Effective Time, be canceled and extinguished and will be converted into the right to receive, subject to the terms of this Agreement, one validly issued, fully paid and nonassessable Class A Unit of Holdco II in accordance with Section 2.6.1 .
2.11. Private Placement . Holdco I intends to issue shares of Common Stock of Holdco I hereunder and Holdco II intends to issue Class A Units of Holdco II in reliance on the exemption from the registration requirements of the 1933 Act provided by Rule 506 of Regulation D under the 1933 Act, or Section 4(a)(2) of the 1933 Act, and in reliance on exemptions from the registration or qualification requirements of state securities or blue sky laws. Notwithstanding any provision of this Agreement or any other document to the contrary, Holdco I will not be required to issue any shares of Common Stock of Holdco I, and Holdco II will not be required to issue any Class A Units of Holdco II, to any Seller, and no Seller will be entitled to receive any shares of Common Stock of Holdco I or Class A Units of Holdco II, if the Buyer Parties will not have received a completed Accredited Investor Questionnaire in respect of such Seller confirming that such Seller is an accredited investor within the meaning of Rule
501(a) of Regulation D under the 1933 Act, or the Buyer Parties are not otherwise satisfied, in their reasonable discretion, that such Seller is an accredited investor as so defined or that the issuance of shares of Common Stock of Holdco I or the issuance of Class A Units of Holdco II to such Seller is otherwise lawful. If the Buyer Parties have not received a completed Accredited Investor Questionnaire in respect of a Seller confirming that such Seller is an accredited investor within the meaning of Rule 501(a) of Regulation D under the 1933 Act, and is otherwise unable to satisfy itself, in its reasonable discretion, that a Seller is an accredited investor as so defined, or that the issuance of shares of Common Stock of Holdco I or the issuance of Class A Units of Holdco II to such Seller is otherwise lawful, then such Seller will be entitled to receive the portion of the Consideration attributable to the Class B Units of the Company held by such Seller that would have been paid in Common Stock of Holdco I solely in cash in lieu of such Common Stock of Holdco I.
2.12. Purchase Price Adjustment .
2.12.1. The Company will prepare in good faith and will provide to the Buyer Parties no later than five (5) Business Days prior to the Closing Date an estimated consolidated balance sheet of the Group Companies as of the Designated Time (as the same may be adjusted in response to any comments of the Buyer Parties provided prior to the Closing, the Estimated Closing Balance Sheet ), together with a written statement setting forth in reasonable detail its good faith estimates of the Closing Cash and Cash Equivalents, Closing Debt Amount, and Closing Net Working Capital, each as derived from the Estimated Closing Balance Sheet, and the Company Transaction Expenses (as the same may be adjusted in response to any comments of the Buyer Parties provided prior to the Closing, the Estimated Closing Statement ). The Estimated Closing Balance Sheet and the good faith estimate of Closing Net Working Capital contained in the Estimated Closing Statement will be prepared in accordance with the Accounting Principles, other than with respect to Taxes, which will be determined in accordance with applicable Legal Requirements and, for the avoidance of doubt, will take into account the Contemplated Transactions. The good faith estimate of Closing Net Working Capital will consist solely of the line items set forth in the Net Working Capital Calculation Schedule and no assets or liabilities included in the Net Working Capital Calculation Schedule will be reclassified to a different line item in the good faith estimate of Closing Net Working Capital. Following the delivery of the Estimated Closing Balance Sheet and the Estimated Closing Statement, the Company will provide the Buyer Parties and their respective Representatives reasonable access to the work papers and other books and records of the Group Companies for purposes of assisting the Buyer Parties and their respective Representatives in their review of the Estimated Closing Balance Sheet and the Estimated Closing Statement. Prior to Closing, the parties will cooperate in good faith to answer any questions and resolve any issues raised by the Buyer Parties and their respective Representatives in connection with their review of the Estimated Closing Balance Sheet and the Estimated Closing Statement.
2.12.2. As promptly as possible and in any event within ninety (90) calendar days after the Closing Date, the Surviving Corporation will prepare or cause to be prepared, and will provide to the Sellers Representative, a consolidated balance sheet of the Group Companies as of the Designated Time (the Proposed Final Closing Balance Sheet ),
together with a written statement setting forth in reasonable detail its proposed final determination of the Closing Cash and Cash Equivalents, Closing Debt Amount, Closing Net Working Capital, and Company Transaction Expenses (the Proposed Final Closing Statement ). The Proposed Final Closing Balance Sheet and the determination of the Closing Cash and Cash Equivalents, Closing Debt Amount, Company Transaction Expenses and Closing Net Working Capital reflected on the Proposed Final Closing Statement will be prepared in accordance with the Accounting Principles, other than with respect to Taxes, which will be determined in accordance with applicable Legal Requirements and, for the avoidance of doubt, will take into account the Contemplated Transactions. The Sellers Representative and its Representatives will have reasonable access to the work papers and other books and records of the Group Companies for purposes of assisting the Sellers Representative and its Representatives in their review of the Proposed Final Closing Balance Sheet and the Proposed Final Closing Statement.
2.12.3. The Proposed Final Closing Balance Sheet and the Proposed Final Closing Statement (and the proposed final determinations of the Closing Cash and Cash Equivalents, Closing Debt Amount, Closing Net Working Capital, and Company Transaction Expenses reflected thereon) will be final, conclusive and binding on the parties unless the Sellers Representative provides a written notice (a Dispute Notice ) to the Surviving Corporation no later than the twentieth (20th) Business Day after the delivery to the Sellers Representative of the Proposed Final Closing Balance Sheet and the Proposed Final Closing Statement. Any Dispute Notice must set forth in reasonable detail (i) any item on the Proposed Final Closing Balance Sheet or the Proposed Final Closing Statement which the Sellers Representative believes has not been prepared in accordance with this Agreement and the correct amount of such item and (ii) the Sellers Representatives alternative calculation of the Closing Cash and Cash Equivalents, Closing Debt Amount, Closing Net Working Capital, and Company Transaction Expenses, as the case may be. Any item or amount to which no dispute is raised in the Dispute Notice will be final, conclusive and binding on the parties on such twentieth (20th) Business Day.
2.12.4. The Surviving Corporation and the Sellers Representative will attempt to promptly resolve the matters raised in any Dispute Notice in good faith. Beginning ten (10) Business Days after delivery of any Dispute Notice pursuant to Section 2.12.3 , either the Surviving Corporation or the Sellers Representative may provide written notice to the other (the Dispute Submission Notice ) that it elects to submit the disputed items to RSM US LLP (unless at such time such firm has a material conflict of interest with respect to the parties hereto) or another nationally recognized independent accounting firm chosen jointly by the Surviving Corporation and the Sellers Representative (the Accounting Firm ). In the event that RSM US LLP has not agreed to act as the Accounting Firm and an alternative Accounting Firm has not been selected by mutual agreement of the Surviving Corporation and the Sellers Representative within ten (10) Business Days following the giving of the Dispute Submission Notice, each of the Surviving Corporation and the Sellers Representative will promptly select an accounting firm and promptly cause such two accounting firms to mutually select a third independent accounting firm to act as the Accounting Firm within twenty (20) Business Days of the giving of the Dispute Submission Notice. The Accounting Firm will promptly, in
accordance with the rules set forth in the Accounting Firms engagement letter and its customary practices, review only those unresolved items and amounts specifically set forth and objected to in the Dispute Notice and resolve the dispute with respect to each such specific unresolved item and amount in accordance with this Agreement. In any such case, a single partner of the Accounting Firm selected by such Accounting Firm in accordance with its normal procedures and having expertise with respect to settlement of such disputes will act for the Accounting Firm in the determination proceeding, and the Accounting Firm will render a written decision as to each disputed matter, including a statement in reasonable detail of the basis for its decision. In no event will the decision of the Accounting Firm (i) provide for a calculation of any item of Closing Cash and Cash Equivalents or Closing Net Working Capital that is less than the calculation thereof shown in the Proposed Final Closing Statement or greater than the Sellers Representatives alternative calculation thereof shown in the Dispute Notice or (ii) provide for a determination of any item of Debt reflected in the Closing Debt Amount or any Company Transaction Expense that is greater in amount than the amount thereof shown in the Proposed Final Closing Statement or less in amount than the Sellers Representatives alternative calculation thereof shown in the Dispute Notice. The fees, costs and expenses of the Accounting Firm will be allocated between the parties based on the relative extent to which the positions of the Sellers Representative and the Surviving Corporation are upheld by the Accounting Firm. The relative extent to which such positions are upheld will be determined by comparing (a) the difference between (x) the aggregate net amount that would have been payable under Section 2.12.5 if the positions of the Surviving Corporation had been upheld in their entirety by the Accounting Firm and (y) the actual final aggregate net amount payable under such Section 2.12.5 and (b) the difference between (x) the aggregate net amount that would have been payable under Section 2.12.5 if the positions of the Sellers Representative had been upheld in their entirety by the Accounting Firm and (y) the actual final aggregate net amount payable under such Section 2.12.5 . The Accounting Firm will not have the power to modify or amend any term or provision of this Agreement and any dispute among the parties hereto regarding the interpretation of this Agreement and the terms hereof will be resolved, including through appropriate judicial resolution if necessary, prior to the submission of the unresolved disputed items to the Accounting Firm. The decision of the Accounting Firm with respect to the disputed items of the Proposed Final Closing Balance Sheet and the Proposed Final Closing Statement submitted to it will be final, conclusive and binding on the parties. As used herein, the Proposed Final Closing Balance Sheet and the Proposed Final Closing Statement, as adjusted to reflect any changes agreed to by the parties and the decision of the Accounting Firm, in each case, pursuant to this Section 2.12.4 , are referred to herein as the Final Closing Balance Sheet and the Final Closing Statement , respectively. Each of the parties to this Agreement agrees to use its commercially reasonable efforts to cooperate with the Accounting Firm (including by executing a customary engagement letter reasonably acceptable to it) and to cause the Accounting Firm to resolve any such dispute as soon as practicable after the commencement of the Accounting Firms engagement.
2.12.5. If any of the Closing Cash and Cash Equivalents, Closing Debt Amount, Closing Net Working Capital, or Company Transaction Expenses (as finally determined pursuant to this Section 2.10 and as set forth in the Final Closing Balance Sheet and the
Final Closing Statement) differs from the estimated amounts thereof set forth in the Estimated Closing Statement, the Consideration will be recalculated using such final figures in lieu of such estimated figures and within five (5) Business Days following the date on which the Consideration is finally determined (as finally determined in accordance with this Section 2.10 , the Final Consideration ):
(a) The Surviving Corporation will deposit, or cause to be deposited, with the Paying Agent, by wire transfer of immediately available funds, the amount, if any, by which the Final Consideration exceeds the Closing Consideration, for further payment to the Sellers in accordance with each Sellers Pro Rata Portion thereof; or
(b) The Surviving Corporation and the Sellers Representative will deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to release and promptly pay to the Surviving Corporation, by wire transfer of immediately available funds to the bank account designated in such joint written instruction, from the Working Capital Escrow Account the amount by which, if any, the Closing Consideration exceeds the Final Consideration; provided , that if such amount is greater than the Working Capital Escrow Amount, the Sellers will pay to the Surviving Corporation an amount equal to such shortfall by wire transfer of immediately available funds, with each Seller paying such Sellers Pro Rata Portion of such shortfall.
Immediately following payment of all amounts determined to be owed pursuant to Section 2.12.5(a) or Section 2.12.5(b) , the Surviving Corporation and the Sellers Representative will deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to release and promptly pay to the Paying Agent, by wire transfer of immediately available funds to the bank account(s) designated in such joint written instruction, any funds remaining in the Working Capital Escrow Account, for further payment to the Sellers in accordance each Sellers Pro Rata Portion thereof.
2.13. Withholding Rights . The Buyer Parties, the Company, the Escrow Agent and each other applicable withholding agent will be entitled to deduct and withhold from the consideration otherwise payable to, or for the benefit of, any Person in connection with the Contemplated Transactions, such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign tax Legal Requirement. Any amounts so deducted or withheld will be treated for all purposes of this Agreement and any other agreement entered into in connection with the Contemplated Transactions as having been paid to the Person in respect of which such deduction and withholding was made. Notwithstanding anything to the contrary herein, compensatory payments to be made pursuant to this Agreement will be made through the payroll system of the applicable Group Company (or, with respect to Fresenius Managers, the Fresenius Affiliate that employs such Fresenius Manager), subject to applicable withholding.
3. REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES AND THE AFFILIATED PRACTICES.
In order to induce the Buyer Parties to enter into and perform this Agreement and to consummate the Contemplated Transactions, the Company hereby represents and warrants to the Buyer Parties as of the date hereof and as of the Closing Date, as follows:
3.1. Organization . Schedule 3.1 sets forth for each Group Company its name, jurisdiction of organization and any jurisdictions in which such Group Company is qualified to do business. Each Group Company is (a) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (b) duly qualified to do business and in good standing in each jurisdiction where such qualification is required, except where the failure to so qualify has not had, and is not reasonably likely to have, a Material Adverse Effect. The Company has made available to the Buyer Parties true, accurate and complete copies of the organizational documents of each Group Company and the minute books of the Company and Sound Inpatient Physicians, Inc., a Delaware corporation ( SIP ), for each of the last three years which contain records of all meetings held of, and other actions taken by, the stockholders, members or other holders of Equity Interests in the Company or SIP and the boards of directors (or equivalent) of the Company and SIP.
3.2. Power and Authorization . The execution, delivery and performance by the Company of this Agreement and each Ancillary Agreement to which it is (or will be) a party and the consummation of the Contemplated Transactions are within the power and authority of the Company and have been duly authorized by all necessary action on the part of the Company. This Agreement and each Ancillary Agreement to which the Company is (or will be) a party (a) has been (or, in the case of Ancillary Agreements to be entered into at or prior to the Closing, will be) duly executed and delivered by the Company and (b) is (or, in the case of Ancillary Agreements to be entered into at or prior to the Closing, will be) a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Legal Requirements affecting creditors rights and remedies generally, including the effect of Legal Requirements regarding fraudulent conveyances and preferential transfers and subject to the limitations imposed by general principles of equity (regardless whether such enforceability in considered in a proceeding at law or in equity) (such exceptions collectively, the Enforceability Exceptions ). Each Ancillary Agreement to be entered into at or prior to the Closing to which any other Group Company will be a party (i) will be duly executed and delivered by such Group Company and (ii) will be a legal, valid and binding obligation of such Group Company, enforceable against such Group Company in accordance with its terms, subject to the Enforceability Exceptions. Each Group Company has the full power and authority necessary to own and use its material Assets and carry on the Business.
3.3. Authorization of Governmental Authorities . Except as disclosed on Schedule 3.3 , no action by (including any authorization, consent or approval), or in respect of, or filing with, or notice to, any Governmental Authority is required for, or in connection with, the valid and lawful (a) authorization, execution, delivery and performance by any Group Company of this Agreement and each Ancillary Agreement to which it is (or will be) a party or (b) consummation of the Contemplated Transactions by each Group Company.
3.4. Noncontravention . Except as disclosed on Schedule 3.4 , none of the execution, delivery or performance by a Group Company of this Agreement or any Ancillary Agreement to
which it is (or will be) a party nor the consummation of the Contemplated Transactions will: (a) assuming the taking of any action by (including any authorization, consent or approval), or in respect of, or any filing with, any Governmental Authority, in each case, as disclosed on Schedule 3.3 , violate any Legal Requirement applicable to a Group Company; (b) result in the modification, acceleration, termination, breach or violation of, or default under, or give rise to any right of acceleration or termination under any Contract of any Group Company, except where such modification, acceleration, termination, breach, violation, default or other event has not had and would not reasonably be expected to have a Material Adverse Effect; (c) require any action by (including any authorization, consent or approval) or in respect of (including notice to) any Person under any Contract of any Group Company, except where the failure to take such action has not had and would not reasonably be expected to have a Material Adverse Effect; (d) result in the creation or imposition of an Encumbrance upon, or the forfeiture of, any Asset, except where such result has not had and would not reasonably be expected to have a Material Adverse Effect; or (e) result in a breach or violation of, or default under, the organizational documents of any Group Company. The Unitholder Consent satisfies all authorization, consent and approval requirements under the LLC Agreement and the DLLCA and no other authorization, consent or approval is required under the LLC Agreement or the DLLCA in connection with the execution, delivery or performance by the Company of this Agreement or any Ancillary Agreement to which it is (or will be) a party.
3.5. Capitalization of the Group Companies .
3.5.1. Schedule 3.5.1 sets forth as of the date hereof, (a) all of the outstanding Equity Interests of the Company and SIP, including, for all such Equity Interests issued or granted in respect of services, (i) the number and type or class of Equity Interests, (ii) the holder thereof, (iii) the date of grant, (iv) the distribution threshold or exercise price (if any), (v) the vesting schedule and/or other vesting provisions, including any accelerated vesting conditions, and (vi) whether a so-called 83(b) election was made with respect to the Equity Interest, and (b) the record and beneficial holders of all of the Equity Interests and the percentage owned by each such holder for each of the other Group Companies. None of the Group Companies has violated (x) the 1933 Act, any state blue sky or securities laws, any other similar Legal Requirement or (y) any preemptive or other similar rights of any Person in connection with the issuance or redemption of any of its Equity Interests. No Group Company holds any Equity Interests in treasury other than the Class B Units to be acquired by the Company in the Pre-Closing Repurchase. All of the outstanding Equity Interests of the Group Companies (A) as of the date hereof, are held of record and beneficially owned by the Persons and in the respective amounts or percentages set forth in Schedule 3.5.1 and (B) as of immediately prior to the Closing, will be held of record and beneficially owned by the Persons and in the respective amounts or percentages set forth in the updated version of Schedule 3.5.1 delivered to the Buyer Parties in accordance with Section 2.7 .
3.5.2. All of the outstanding Equity Interests of each Group Company have been duly authorized and validly issued subject to the disclosure set forth in Schedule 3.5.2 .
3.5.3. Except as set forth in Schedule 3.5.3 , all Equity Interests of the Group Companies qualify for the Tax and accounting treatment afforded to such Equity Interests in the Group Companies Tax Returns and financial statements, respectively.
3.5.4. Except as disclosed on Schedule 3.5.4 : (a) there are no preemptive rights or other similar rights in respect of any Equity Interests in any Group Company, (b) except as imposed by applicable securities laws, there are no Encumbrances on, or other Contracts relating to, the ownership, transfer or voting of any Equity Interests in any Group Company, or otherwise affecting the rights of any holder of the Equity Interests in any Group Company, (c) except for the Contemplated Transactions, there is no Contract, or provision in the organizational documents of any Group Company which (i) obligates it to purchase, redeem or otherwise acquire, or make any payment (including any dividend or distribution) in respect of or based on the value of, any Equity Interests in any Group Company or (ii) obligates it to purchase, redeem or otherwise acquire, or to sell or dispose of, any Equity Interests of any Person, (d) there are no existing rights with respect to registration under the 1933 Act of any Equity Interests in any Group Company and (e) there are no appraisal rights, dissenters rights or similar rights with respect to the Equity Interests of any Group Company that will be implicated by the Contemplated Transactions.
3.5.5. Except as disclosed on Schedule 3.5.5 , no Group Company directly or indirectly owns or controls any Equity Interest in any other Person (other than another Group Company).
3.6. Financial Matters .
3.6.1. Financial Statements . Attached to Schedule 3.6.1 are copies of each of the following:
(a) the audited consolidated balance sheets of the Company and its subsidiaries as of December 31, 2017 (the Audited Balance Sheet and the date thereof, the Audited Balance Sheet Date ), December 31, 2016, December 31, 2015 and December 31, 2014, and the related audited consolidated statements of income, cash flow and changes in stockholders equity of the Company and its subsidiaries for the fiscal years then ended, accompanied by any notes thereto and the reports of the Companys independent accountants with respect thereto (collectively, the Audited Financials ); provided , that the Audited Financials for the year ended December 31, 2014 are for the period from July 1, 2014 to December 31, 2014; and
(b) the unaudited consolidated balance sheet of the Company and its subsidiaries as of February 28, 2018 (the Most Recent Balance Sheet and the date thereof, the Most Recent Balance Sheet Date ), and the related unaudited consolidated statement of income and cash flow of the Company and its subsidiaries for the two (2) month period then ended (the financial statements referred to in this subsection (b), collectively, the Interim Financials and, together with the Audited Financials and the Update Financials furnished to the Buyer Parties pursuant to Section 5.6.2 , the Financials ).
3.6.2. Compliance with GAAP, etc . Except as disclosed on Schedule 3.6.2 , the Financials (including any notes thereto) (a) are accurate and complete in all material respects and were prepared in accordance with the books and records of the Group Companies (which books and records are accurate and complete in all material respects and represent actual, bona fide transactions), (b) have been prepared in accordance with GAAP, consistently applied (subject, in the case of the Interim Financials and Update Financials, to normal year-end audit adjustments, the effect of which will not, individually or in the aggregate, be materially adverse and the absence of notes that, if presented, would not, individually or in the aggregate, be materially adverse) and (c) fairly present in all material respects the consolidated financial position of the Group Companies as at the respective dates thereof and the consolidated results of the operations of the Group Companies and changes in financial position for the respective periods covered thereby.
3.7. Absence of Undisclosed Liabilities . No Group Company has any material Liabilities except for (a) Liabilities set forth on the face of the Audited Balance Sheet, (b) Liabilities incurred in the Ordinary Course of Business since the Audited Balance Sheet Date (none of which results from, arises out of, or relates to any tort or infringement or breach or violation of, or default under, a Contract or Legal Requirement) and (c) Liabilities set forth on Schedule 3.7 .
3.8. Absence of Certain Developments . Since the Audited Balance Sheet Date through the date hereof, the Business has been conducted in the Ordinary Course of Business and, except for the matters disclosed on Schedule 3.8 :
3.8.1. no Group Company has (a) amended its organizational documents, (b) amended any term of its Equity Interests or (c) except for the issuances or grants of Equity Interests of the Company set forth on Schedule 3.5.1 , issued, sold, granted, or otherwise disposed of or entered into a Contract for the disposition of, any Equity Interests;
3.8.2. no Group Company has become liable in respect of any guarantee or has incurred, assumed or otherwise become liable in respect of any Borrowed Debt, except for borrowings in the Ordinary Course of Business under credit facilities in existence on the Most Recent Balance Sheet Date;
3.8.3. no Group Company has permitted any of its Assets to become subject to an Encumbrance other than a Permitted Encumbrance or sold, leased, licensed or otherwise disposed of any of its material Assets, or failed to take necessary action to maintain any of its material Assets, except for the sale of inventory in the Ordinary Course of Business;
3.8.4. no Group Company has (a) made any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption or other acquisition of, any of its Equity Interests, (b) purchased, redeemed or otherwise acquired any of its Equity Interests or (c) entered into, or performed, any transaction with
a Seller Party or any Affiliate of a Seller Party (other than Compensation payments and issuances of Class B Units made in the Ordinary Course of Business);
3.8.5. no Group Company has directly or indirectly increased the Compensation payable, paid or owed, whether conditionally or otherwise, to: (a) any current or former (i) non-executive employee or (ii) independent contractor, in each case other than in the Ordinary Course of Business with respect to (A) physicians, to the extent such increase is not, individually or in the aggregate, material or (B) any of the foregoing individuals in clauses (i) and (ii) whose annualized Compensation does not exceed $250,000 after giving effect to such increase; (b) any current or former (i) executive employee, (ii) officer, or (iii) director; or (c) any Affiliate of a Seller Party;
3.8.6. no Group Company has made any loan or advance to, or guarantee for the benefit of, any Person (other than another Group Company and other than payroll, relocation or sign-on advances to an employee in the Ordinary Course of Business);
3.8.7. no Group Company has hired, engaged, or terminated the employment or engagement of, any officer, director, employee or independent contractor who earns or will earn (or prior to such termination, did earn) annualized Compensation in excess of $250,000, other than (i) at will engagements that may be terminated by any Group Company upon 30 days or less advance notice without incurring any Liability or (ii) any hiring or termination in the Ordinary Course of Business of a physician serving primarily in the role of a clinician or as a regional medical officer, regional medical director or chief hospitalist;
3.8.8. no Group Company has negotiated, entered into, amended or extended any Contract with a Union;
3.8.9. no Group Company has made any material change in any method of accounting or accounting practices or policies or reversed any material accruals or reserves (whether or not in the Ordinary Course of Business);
3.8.10. no Group Company has experienced the occurrence of any material, physical loss, destruction, damage or eminent domain taking (in each case, whether or not insured) affecting the Business or any material Asset or has terminated or closed any Facility, business or operation;
3.8.11. no Group Company has adopted, established, amended, modified or terminated any Company Plan (or plan, program, agreement, policy or arrangement that would be a Company Plan if in effect on the date hereof), except as required by the terms of any Company Plan or applicable Legal Requirements;
3.8.12. there has not been any amendment or other modification (or agreement to do so), material breach, or material violation of the terms of, any of the IP Contracts, other than amendments or modifications that are in the Ordinary Course of Business or that are not material;
3.8.13. except as reflected in the Financials, no Group Company has paid, discharged, settled, satisfied, waived, released, assigned or compromised any material Action or any material Debt, other than trade payables and overpayments in the Ordinary Course of Business;
3.8.14. no Group Company has entered into any agreement or commitment relating to capital expenditures exceeding $250,000 individually or $1,000,000 in the aggregate;
3.8.15. no Group Company has terminated any Contract that, if not so terminated, would be a Disclosed Contract;
3.8.16. no Group Company has acquired (including by merger, consolidation, or acquisition of stock or assets) any Equity Interest in any Person or any division thereof or any material assets, other than acquisitions of assets in the Ordinary Course of Business;
3.8.17. no Group Company has received notice from applicable regulators of restrictions on its ability to participate in any Federal Health Care Program;
3.8.18. no Group Company has entered into any commitment to do any of the things referred to elsewhere in this Section 3.8 ; and
3.8.19. no event or circumstance has occurred which has had, or is reasonably likely to have, a Material Adverse Effect.
3.9. Debt .
3.9.1. None of the Group Companies has any Liabilities in respect of Borrowed Debt except as set forth on Schedule 3.9.1 . For each item of Borrowed Debt, Schedule 3.9.1 correctly sets forth the debtor, the outstanding principal amount of the Borrowed Debt as of the date hereof, the creditor, the maturity date, and the collateral, if any, securing the Borrowed Debt. Except as set forth on Schedule 3.9.1 , no Group Company has any Liability in respect of a guarantee of any Liability of any other Person (other than another Group Company).
3.9.2. None of the Group Companies has any Liabilities in respect of Compensation for services performed or in respect of any deferred compensation plan, in each case, except as set forth on Schedule 3.9.2 or as included in Net Working Capital.
3.9.3. None of the Group Companies has any Liabilities in respect of the deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the Ordinary Course of Business, but including any deferred purchase price Liabilities, earnouts, contingency payments, installment payments, seller notes, promissory notes, or similar Liabilities), in each case, except as set forth on Schedule 3.9.3 or pursuant to agreements permitted by Section 5.1.2 .
3.10. Ownership of Assets; Sufficiency . The Group Companies have sole and exclusive, good and marketable title to, or, in the case of property held under a lease or other
Contract, a sole and exclusive, enforceable leasehold interest in, or right to use, all of the material tangible personal property used in the Business. The Assets comprise all of the assets, properties and rights of every type and description used in or necessary to the conduct of the Business as conducted by the Group Companies and are adequate and sufficient to conduct the Business as conducted by the Group Companies. All material tangible assets of the Group Companies are adequate and fit to be used for the purposes for which they are currently used in the manner they are currently used, are in adequate operational working order, operating condition and state of repair (ordinary wear and tear excepted), and have been installed, serviced and maintained in accordance with industry standards and in a manner that would not void or limit the coverage of any warranty thereon. Except as disclosed on Schedule 3.10 , none of the real or personal property of the Group Companies is subject to any Encumbrance other than any Permitted Encumbrance.
3.11. Real Property .
3.11.1. The Group Companies do not currently own any real property and any real property previously owned by the Group Companies is set forth on Schedule 3.11.1 . Schedule 3.11.1 sets forth a true, correct and complete list, including addresses, of each leasehold interest in real property leased, subleased, or licensed by, or for which a right to use or occupy has been granted to, any of the Group Companies, other than rights to use space in hospitals under a services agreement with the hospital (the Leased Real Property ). Schedule 3.11.1 also identifies with respect to each Leased Real Property, each lease, sublease, license or other Contract under which such Leased Real Property is occupied or used, including the date of and legal name of each of the parties to such lease, sublease, license or other Contract (the Real Property Leases ). Schedule 3.11.1 will be deemed to include any such real property leases, subleases, licenses or rights to use or occupy that are entered into by a Group Company between the date hereof and the Closing in compliance with Section 5.1 for which the foregoing information is delivered by the Company to the Buyer Parties.
3.11.2. Except as set forth on Schedule 3.11.2 , the Group Companies have a valid and enforceable leasehold interest in and to each of the Leased Real Properties, free and clear of all Encumbrances created by a Group Company other than Permitted Encumbrances. The Company has made available to the Buyer Parties accurate and complete copies of the Real Property Leases, in each case as amended or otherwise modified and in effect, together with extensions related thereto.
3.11.3. The current use of the Leased Real Property is, in all material respects, in accordance with the certificates of occupancy relating thereto and the terms of any Permits relating thereto. The Leased Real Property and its current use, occupancy and operation by the Group Companies and the Facilities located thereon do not (a) constitute a nonconforming use or structure under, and are not in material breach or violation of, or default under, any applicable building, zoning, subdivision or other land use or similar Legal Requirements, or (b) otherwise violate or conflict, in any material respect, with any covenants, conditions, restrictions or other Contracts, including the requirements of any applicable Encumbrances thereto.
3.11.4. There is no pending or, to the Companys Knowledge, threatened appropriation, condemnation or similar Action affecting the Leased Real Property.
3.11.5. Each Facility on the Leased Real Property is supplied with utilities and other services necessary for the operation of such Facility as the same is currently operated or currently proposed to be operated.
3.11.6. The Facilities, including all buildings, structures, equipment and improvements that are located on or constitute part of the Leased Real Property, are in adequate operating condition and repair (subject to normal wear and tear), and are suitable, adequate and sufficient in all material respects for the purposes for which such Facilities are used.
3.11.7. Except as set forth on Schedule 3.11.7 , no Group Company is obligated under any outstanding options, rights of first offer or rights of first refusal to purchase any Leased Real Property or any portion thereof or interest therein and no Group Company has guaranteed the obligations of any tenant or subtenant under any Real Property Lease or sublease.
3.12. Intellectual Property .
3.12.1. Company IP . Schedule 3.12.1 sets forth a list of all registered, or applications to register, Intellectual Property Rights owned by the Group Companies and except as disclosed on Schedule 3.12.1 , the Group Companies are the exclusive owners of and possess all right, title and interest in such Intellectual Property Rights, free and clear of all Encumbrances (other than Permitted Encumbrances), and all such Intellectual Property Rights are valid, subsisting and enforceable and are not subject to any title, validity or enforceability challenge. Except for the Intellectual Property Rights licensed by the Group Companies under the Outbound IP Contracts identified on Schedule 3.12.3 and to the extent provided in such Outbound IP Contracts, no Person has any right or license to use the material Intellectual Property Rights owned by the Group Companies and no material Technology owned by the Group Companies is outside the Group Companies possession, custody or control.
3.12.2. Infringement . Except as disclosed on Schedule 3.12.2 , the conduct of the Business and the use of any Intellectual Property Rights of the Group Companies has not infringed, misappropriated, or otherwise conflicted with any other Persons Intellectual Property Rights. Except as disclosed on Schedule 3.12.2 , to the Companys Knowledge, (a) none of the Group Companies nor any Predecessor has been alleged to or accused of interfering with, infringing upon, diluting, misappropriating, or otherwise violating any Intellectual Property Rights of any Person or has received any charge, complaint, claim, demand, or notice alleging interference, infringement, dilution, misappropriation, or violation of the Intellectual Property Rights of any Person (including any invitation to license or request or demand to refrain from using any Intellectual Property Rights of any Person) and (b) no Person is or has interfered with, infringed upon, diluted, misappropriated, or violated any Intellectual Property Rights of any Group Company.
3.12.3. IP Contracts . Schedule 3.12.3 identifies each agreement (a) under which a Group Company uses or licenses an item of Technology or Intellectual Property Rights that any Person besides a Group Company owns other than standard nondisclosure agreements entered into in the ordinary course of the Group Companys business (the Inbound IP Contracts ) other than Off-the-Shelf Software, (b) under which a Group Company has granted any Person any right or interest in Intellectual Property Rights of any Group Company including any right to use any item of any Group Companys Technology, other than standard nondisclosure agreements entered into in the ordinary course of the Group Companys business (the Outbound IP Contracts ) and (c) that otherwise affects, in any material respect, any Group Companys use of or rights in Intellectual Property Rights other than standard nondisclosure agreements entered into in the ordinary course of the Group Companys business (such contracts, together with the Inbound IP Contracts and the Outbound IP Contracts, the IP Contracts ). Schedule 3.12.3 will be deemed to include any such agreements that are entered into by a Group Company between the date hereof and the Closing in compliance with Section 5.1 and a copy of which has been delivered by the Company to the Buyer Parties. For the purposes of the foregoing, Off-the-Shelf Software means software, other than open source software, obtained from a third party (i) on general commercial terms and that continues to be widely available on such commercial terms, (ii) that is not distributed with or incorporated in any product or services of any Group Company, (iii) that is used for business infrastructure or other internal purposes and (iv) that was licensed for annual payments of less than $100,000 per year.
3.12.4. Source Code . The Group Companies are in actual possession of (a) the source and object code for all material software owned by the Group Companies and material to the Business, (b) the object code for all licensed software, and (c) all documentation and know-how required for the use and revision of the software used by the Group Companies, or that is being designed or developed for use, in the Business. Except as set forth in Schedule 3.12.4 , the Group Companies have not disclosed the source code to any material software owned by any of the Group Companies to any third party, and no Person (other than the Group Companies) is in possession of, or has the right to obtain possession of, any source code for any material software owned by the Group Companies.
3.12.5. Open Source Software . No Intellectual Property Rights are used by any Group Company in a manner that would require any portion of the Group Companys Intellectual Property Rights to be disclosed, delivered, distributed, licensed or otherwise made available in source code form.
3.12.6. Information Technology . The Group Companies have sufficient rights to use all computer systems, network connectivity, communication equipment, and other Technology necessary for the operations of the Business (its Systems ). The systems are sufficient in all material respects for the operation of the Business. In the past twenty-four (24) months, there has been no material failure or other material substandard performance of any Systems. The Group Companies have taken commercially reasonable steps to provide for the backup and recovery of data and information and commercially reasonable disaster recovery plans, procedures and facilities and, as
applicable, have taken commercially reasonable steps to implement such plans and procedures. None of the Group Companies is in material breach of any of its agreements relating to the Systems. The consummation of the transactions contemplated hereby will not result in the material loss or impairment of any Group Companys rights in any Intellectual Property Rights or Systems.
3.12.7. Confidentiality and Invention Assignments . The Group Companies have maintained commercially reasonable practices to protect the confidentiality of the Group Companies confidential information and trade secrets and, except as disclosed on Schedule 3.12.7 , have required any employee, independent contractor or other third party with access to a Group Companys confidential information to execute enforceable contracts requiring them to maintain the confidentiality of such information and use such information only for the benefit of the Group Companies. Except as disclosed on Schedule 3.12.7 , all current and former employees and independent contractors of the Group Companies who contributed to the development of the Intellectual Property Rights owned or purported to be owned by the Group Companies, have executed agreements that assign to a Group Company all such Persons respective rights to any Technology relating to the Business, including all Intellectual Property Rights.
3.12.8. Privacy and Data Security .
(a) The Group Companies use, collection, disclosure, access, maintenance, transmission, protection, dissemination, processing and destruction (collectively, Data Handling ) of any Sensitive Data is and has been in material compliance with all applicable Legal Requirements, except as provided in Schedule 3.12.8 , and Contracts applicable to any Group Company or to which any Group Company is bound, and is, in any event, reasonable. Each Group Company has all necessary authority, consents and authorizations relating to its Data Handling of any Sensitive Data in its possession or under its control in connection with the operation of such Group Company. The Group Companies maintain policies and procedures regarding data security, privacy and the use of data, and maintain administrative, technical, and physical safeguards to protect personally-identifiable information in material compliance with all applicable Legal Requirements and Contracts applicable to any Group Company or to which any Group Company is bound. Except as provided in Schedule 3.12.8 , all transmission, disclosure and dissemination of Sensitive Data by the Group Companies occurs in an encrypted manner. Sensitive Data are not transmitted or otherwise provided to a third party by the Group Companies except by a secure, encrypted means and subject to a requirement that the recipient treat any such Sensitive Data securely as required by Legal Requirements.
(b) Except as provided in Schedule 3.12.8(b) , during the prior six (6) years, Data Handling of Sensitive Data by the Group Companies has not resulted in, and any Sensitive Data in the custody, possession or control of the Group Companies has not been, lost, inappropriately accessed, misappropriated, misused or compromised. Except as provided in Schedule 3.12.8(b) , during the prior six (6) years, there have been no material breaches of or lapses in the security of any software, Systems or facilities of the Group Companies or of any communications means or interface with any products,
services or information technology systems of the Group Companies, and those products, services and Systems have not experienced any material unpermitted intrusions or been adversely affected by any denial-of-services attacks. No Actions are pending, or to the Companys Knowledge, threatened, against any of the Group Companies as of the date hereof with respect to data security or data privacy practices.
(c) To the Companys Knowledge, (i) no Group Company is engaging in or has engaged in unfair competition or trade practices or any false, deceptive, unfair or misleading advertising or promotional practices under the Legal Requirements of any jurisdiction in which such Group Company operates, and (ii) no Group Company has received any notification, or to the Companys Knowledge, has been subject to any investigation by the United States Federal Trade Commission or any other government authority regarding such Group Companys services, advertising or promotional practices.
(d) Except as set forth on Schedule 3.12.8(d) , during the prior six (6) years, none of the Group Companies has been subject to a Breach of Unsecured Protected Health Information as such terms are defined at 45 C.F.R. § 164.402 or any state data breach notification laws. To the Companys Knowledge, the Group Companies have not received any written or oral claim or notice from any Governmental Authority, alleging or referencing the investigation of any breach, violation of its Information Systems, as defined under HIPAA, or the improper use, disclosure or access to any personally-identifiable information in its possession, custody or control. Except as set forth on Schedule 3.12.8(d) , none of the Group Companies, to the Companys Knowledge, are under investigation by any Governmental Authority for a violation of Legal Requirements relating to privacy and data security or other applicable federal or state personal information privacy and security laws, including receiving any notices from the United States Department of Health and Human Services Office for Civil Rights, relating to any such violations.
(e) True and complete copies of all template Business Associate Agreements used by any Group Company or Affiliated Practice have been made available to the Buyer Parties along with a list of all of the Group Companies Business Associates, as defined under HIPAA. Except as provided on Schedule 3.12.8(e) , the Group Companies are not now and have not in any of the prior three (3) years been in material breach of any Business Associate Agreement, and to the Companys Knowledge, no Business Associate is or has been in material breach of any Business Associate Agreement during the prior three (3) years.
3.13. Legal Compliance; Healthcare Matters .
3.13.1. Except as set forth on Schedule 3.13.1 : (a) each Group Company is in compliance with and no Group Company is in breach or violation of, or default under, and has not at any time during the previous three (3) years been in breach or violation of, or default under (i) its organizational documents in any respect or (ii) any Government Orders applicable to a Group Company or any Assets owned by any Group Company in any respect; and (b) each Group Company is in material compliance with and no Group
Company is in material breach or violation of, or default under, and has not at any time during the previous three (3) years been in material breach or violation of, or default under any Legal Requirement which regulates its operations, activities, or services or relates to the employment or engagement of its service providers, in each case, nor, to the Companys Knowledge, is there a reasonable basis which would constitute such a breach, violation or default, including:
(a) making or causing to be made a false statement or representation of a material fact in any application for any benefit or payment;
(b) making or causing to be made a false statement or representation of a material fact for use in determining rights to any benefit or payment;
(c) soliciting or receiving any remuneration (including any kickback, bribe, rebate, payoff, influence payment or inducement) by the Group Companies or any of their respective owners, directors, officers, employees or independent contractors (in their capacity as such with respect to the Business), directly or indirectly, overtly or covertly, in cash or kind (i) in return for referring an individual to a Person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under any federal health care program, as such term is defined in 42 U.S.C. § 1320a-7b(f) and as amended from time to time through the date hereof, including Medicare, state Medicaid programs, and TRICARE (each a Federal Health Care Program and, collectively, Federal Health Care Programs ) or any state health care program; or (ii) in return for purchasing, leasing, ordering, arranging or arranging for or recommending purchasing, leasing or ordering any good, facility, service or item for which payment may be made in whole or in part under any Federal Health Care Program or any state health care program or to obtain or maintain favorable treatment in securing business in violation of any applicable Legal Requirement;
(d) offering or paying any remuneration (including any kickback, bribe, rebate, payoff, influence payment or inducement) by the Group Companies or any of their respective owners, directors, officers, employees or independent contractors (in their capacities as such with respect to the Business), directly or indirectly, overtly or covertly, in cash or in kind, to any Person to induce such Person (i) to refer an individual to a Person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal Health Care Program or any state health care program, or (ii) to purchase, lease, order, arrange for or recommend purchasing, leasing or ordering any good, facility, service or item for which payment may be made in whole or in part under a Federal Health Care Program or any state health care program or to obtain or maintain favorable treatment in securing business in violation of any applicable Legal Requirement, unless such offer or payment fully complies with applicable statutory or regulatory safe harbors;
(e) entering into any impermissible financial relationship in violation of the Federal Physician Self-Referral (Stark) Law (42 U.S.C. § 1395nn) or similar state statues or regulations or accepting referrals from physicians that do not otherwise comply with the Federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) or
similar state statues or regulations. For purposes of this 3.13.1(e), the term financial relationship has the meaning given in 42 U.S.C. §1395nn(a)(2) of the Federal Physician Self-Referral Law; or
(f) any other activity that violates in any material respect any state or federal Legal Requirement relating to prohibiting fraudulent or abusive practices connected with the provision of health care items or services or the billing for such items or services provided to a beneficiary of any Federal Health Care Program or state health care program.
3.13.2. Notices and Filings. Each Group Company has timely filed during the past three (3) years all material reports, statements, documents, registrations, filings, and submissions required to be filed by it under applicable Legal Requirements. Each of such filings were materially complete, correct and in compliance with applicable Legal Requirements and no material deficiencies or material Liabilities exist or have been asserted by any Governmental Authority with respect thereto. In the past three (3) years, no written notices have been received by, and no claims have been filed against, any Group Company alleging a material violation of any Legal Requirement, and, to the Companys Knowledge, except as set forth on Schedule 3.13.2 , no Group Company has been subject to any material adverse inspection, finding, investigation, penalty assessment, audit or other compliance or enforcement action.
3.13.3. Compliance Program .
(a) The Company has made available to the Buyer Parties a true and complete copy of the Group Companies material current compliance program materials, including all material program descriptions, compliance officer and committee descriptions, ethics and risk area policy materials, training and education materials, billing and coding policies and procedures, auditing and monitoring protocols, reporting mechanisms and disciplinary policies. Each Group Company has conducted its operations in the past three (3) years in accordance with its respective compliance programs in all material respects during the applicable period for which such compliance program was in effect. Any and all material issues brought to the attention of the compliance officer and/or the appropriate committees of the Group Companies in the past three (3) years have been investigated and corrective actions taken in material compliance with applicable Legal Requirements and the Group Companies compliance programs.
(b) Except as set forth on Schedule 3.13.3(b) , none of the Group Companies or any direct owner, officer or director of the Group Companies (in each case in their capacity as such in connection with the Business), (i) is a party to, or bound by, any order, individual integrity agreement, corporate integrity agreement, deferred prosecution agreement, consent decree, settlement agreement, written corrective action plan or similar agreement or consent order with the Office of Inspector General of the Department of Health and Human Services (the OIG ) or any other Governmental Authority concerning compliance with any Legal Requirements, (ii) has reporting obligations pursuant to any settlement agreement entered into with any Governmental Authority, (iii) to the Companys Knowledge, is or has been within the past three (3)
years the subject of any Federal Health Care Program or any state health care program investigation conducted by any federal or state enforcement agency, (iv) is or has been a defendant or named party in any legal proceeding under any federal or state whistleblower statute, including under the False Claims Act of 1863 (31 U.S.C. § 3729 et seq.) (other than by reason of a sealed complaint of which such Group Company may have no knowledge), (v) within the past three (3) years has been served with or received any search warrant, subpoena, civil investigation demand, contact letter, or, to the Companys Knowledge, telephone or personal contact (solely with respect to any such telephone or personal contact, outside the Ordinary Course of Business) by or from any federal or state enforcement agency (except in connection with medical services provided to third parties who may be defendants or the subject of investigation into conduct unrelated to the Business) or (vi) within the past three (3) years has received any complaints through any Group Company compliance hotline from employees, independent contractors, vendors, physicians, customer patients, or any other Persons that would reasonably be considered to indicate that any Group Company or any of its Affiliates has violated, or is currently in violation of, in any material respect, any applicable laws, rules, regulations, codes, ordinances, and applicable orders of any Governmental Authority.
(c) For purposes of this Agreement, the term compliance program refers to provider programs of the type described in the compliance guidance published by the OIG.
3.13.4. Healthcare Professionals .
(a) For the three (3) years immediately preceding the Closing Date or, if shorter, since such Person was hired by or began providing services on behalf of a Group Company, through and including the Closing Date, each physician, physician assistant, registered nurse or similar person employed by or providing services on behalf of the Group Companies (each, a Healthcare Professional ), during the term of their employment or engagement by the Group Companies, has been duly licensed or certified and credentialed, as applicable, pursuant to applicable Legal Requirements and has held such medical staff privileges as required by any hospital or other healthcare entity (in each case for any periods in which services were provided by such Healthcare Professionals on behalf of the Group Companies) and such licenses, certifications or medical staff privileges have not been suspended, revoked or restricted in any material manner.
(b) Except as set forth on Schedule 3.13.4 , no Healthcare Professional during the period described in Section 3.13.4(a) above and while providing services on behalf of a Group Company (i) has been convicted, under federal or state Legal Requirements, of a criminal offense related to (A) the neglect or abuse of a customers patient in connection with the delivery of a healthcare item or service; or (B) a health care item or service under the Payment Programs; (ii) is currently, or has ever been, found to have, either civilly (in any material respect) or criminally, violated any Legal Requirements governing Federal Health Care Programs; (iii) has been excluded or suspended from participation in any Federal Health Care Program; (iv) has been party to
any material Action instituted by any hospital or other healthcare entity, licensure board or Governmental Authority; (v) to the Companys Knowledge, has had any dependency on controlled substances or any dependency on alcohol or any participation in any rehabilitation or treatment program related to any of the foregoing; or (vi) failed to comply in any material respect with any Payment Program requirements.
(c) No Group Company nor any of their respective directors, officers, employees or independent contractors is currently, or in the past five (5) years has been, listed on the OIGs List of Excluded Individuals/Entities ( LEIE ) database or the General Services Administrations System for Award Management ( SAM ) as being excluded or debarred from participation in any Federal Health Care Program. The Group Companies have and do maintain procedures to screen all directors, officers, employees and independent contractors against the LEIE and SAM databases no less frequently than once per calendar quarter.
3.13.5. Illegal Payments, etc . In the conduct of the Business, no Group Company nor any Representatives acting on behalf of a Group Company have (a) directly or indirectly, given, or agreed to give, any illegal gift, contribution, payment or similar benefit to any supplier, customer, governmental official or employee or other Person who was, is or may be in a position to help or hinder a Group Company (or assist in connection with any actual or proposed transaction) or made, or agreed to make, any illegal contribution, or reimbursed any illegal political gift or contribution made by any other Person, to any candidate for federal, state, local or foreign public office or (b) established or maintained any unrecorded fund or asset or made any false entries on any books or records for any purpose.
3.13.6. Permits and Licenses . Each Group Company has been duly granted all material Permits under all Legal Requirements necessary for the conduct of the Business, including active approvals to bill Federal Health Care Programs and the lawful occupancy, use and operation of the Leased Real Property. Schedule 3.13.6 describes each such Permit affecting, or relating to, the Assets or the Business together with the Governmental Authority or other Person responsible for issuing such Permit and the expiration date of each such Permit. Except for any Permits marked with an asterisk (*) on Schedule 3.13.6 , (a) such Permits are valid and in full force and effect, (b) no Group Company is in material breach or violation of, or material default under, any such Permit, and, to the Companys Knowledge, no basis exists which, with notice or lapse of time or both, would constitute any such breach, violation or default or give any Governmental Authority grounds to suspend, revoke or terminate any such Permit and (c) such Permits will continue to be valid and in full force and effect on identical terms immediately following the consummation of the Contemplated Transactions. Except as disclosed on Schedule 3.13.6 , no Group Company has received any written notice or communication from any Governmental Authority regarding any violation of any Permit listed on Schedule 3.13.6 . There has never been any material Action by or from any Governmental Authority against any of the Group Companies or involving any Permit listed on Schedule 3.13.6 and, to the Companys Knowledge, no such material Action is threatened.
3.13.7. Compliance with Federal Health Care Programs .
(a) Except as set forth on Schedule 3.13.7(a) , each Group Company is, and for the past three (3) years has been, in compliance in all material respects with applicable requirements of all Payment Programs in which such Group Company participates. Except as set forth in Schedule 3.13.7(a) , there are no pending or, to the Companys Knowledge, threatened actions relating to any of the Group Companies participation in any Payment Program, other than the settlement of overpayments that are not material and that do not threaten any Group Companys participation in any Payment Program. Except as set forth in Schedule 3.13.7(a) , within the last three (3) years there has been no material pending or, to the Companys Knowledge, threatened (a) audit, claims review, recoupment, refund, set-off, challenge, suit or other penalty action or proceeding against any of the Group Companies pursuant to any Payment Program or any Legal Requirement related thereto, other than in the Ordinary Course of Business, or (b) voluntary disclosure or repayment to any Governmental Authority or Payment Program other than repayments occurring in the Ordinary Course of Business which are not material in nature. Except as set forth in Schedule 3.13.7(a) , no Governmental Authority or Payment Program has imposed a fine, penalty or other sanction on any of the Group Companies at any time during the past three (3) years, and none of the Group Companies or any of their Affiliates has been excluded or suspended from participation in any Payment Program.
(b) Except as set forth in Schedule 3.13.7(b) and except for overpayments received that are not material, no Group Company has received an overpayment from any Governmental Authority or third party payor, including any intermediary or carrier of any Payment Program, which has not been repaid or is not in the process of being repaid in accordance with all applicable requirements, including Legal Requirements, to such Governmental Authority or third party payor. Except as set forth in Schedule 3.13.7(a) , each Group Company is, and for the past three (3) years has been, in compliance, in all material respects, with the rules and policies of each Payment Program in which such Group Company participates, including all rules and policies pertaining to billing, coding, reimbursement and documentation requirements. Each Group Company is, and for the past three (3) years has been, in material compliance with its respective patient grievance programs and no balance billing has been done by any Group Company unless explicitly permitted by Contract or other Legal Requirements ( i.e., no billing of patients for balances due in excess of payments by Payment Programs where such billing is prohibited by the terms of Payment Program contracts of any Group Company or applicable Legal Requirement).
(c) The Company has made available to the Buyer Parties true and complete copies of all material surveys, reviews or audits of any Group Company that are in the possession of a Group Company, including any surveys, reviews or audits conducted by any Governmental Authority or third party payor, during the past three (3) years, including any written statements of deficiencies and plans of correction.
3.13.8. Violations .
(a) None of the Group Companies or, while associated or affiliated with the Group Companies, any direct owner, officer, director or employee of the Group Companies (in each case in their capacity as such with respect to the Business): (i) in the past three (3) years has been charged with or convicted of any criminal offense relating to the delivery of an item or service under any Federal Health Care Program or state health care program; (ii) in the past three (3) years has been debarred, excluded or suspended from or otherwise rendered ineligible for participation in any Federal Health Care Program or state health care program (with respect to employees, for any period while providing services on behalf of a Group Company); (iii) in the past three (3) years has had a civil monetary penalty assessed against it, him or her under Section 1128A of the Social Security Act; (iv) is currently listed on the General Services Administrations SAM list of parties excluded from federal procurement programs and non-procurement programs or on the OIGs LEIE-database; or (v) to the Companys Knowledge, is the target or subject of any current investigation by any Governmental Authority that has resulted in or could result in such debarment, exclusion or suspension; nor have any of the Group Companies or any of their respective owners, directors, officers, employees or independent contractors (in each case in their capacity as such with respect to the Business) received notice of any impending or potential exclusion or listing; nor have any of the Group Companies or any of their respective owners, directors, officers, employees or independent contractors (in each case in their capacity as such with respect to the Business) committed any act, nor has the Business been conducted in a way, that would reasonably be expected to result in exclusion or listing. Except as set forth on Schedule 3.13.8 , none of the Group Companies has been subject to sanction pursuant to 15 U.S.C. § 41 et seq . or 42 U.S.C. § 1320a-7a or 1320a-8, or been charged with or convicted of a crime described at 42 U.S.C. § 1320a-7b, and no such sanction or proceeding is pending or, to the Companys Knowledge, threatened. There are no restrictions imposed by any Governmental Authority upon the Business, or any activities or services of any Group Company that would prevent such Group Company from operating as it currently operates. To the Companys Knowledge, no Group Company is a defendant or named party in any unsealed qui tam/False Claims Act litigation.
3.13.9. The Group Companies have complied with their respective obligations and reporting requirements under the CIA, including with respect to the Independent Review Organization ( IRO ), and no fines or penalties have been imposed, or have been threatened to be imposed, by the OIG in connection with compliance by the Group Companies with the CIA. The Company has made available to the Buyer Parties true and complete copies of the Implementation Report and all Annual Reports, Claims Review Reports, Unallowable Cost Review Report and Systems Review Reports and any other material notification or correspondence received by the OIG or IRO related to compliance with the CIA.
3.14. Tax Matters .
3.14.1. Each Group Company has timely filed, or has caused to be timely filed on its behalf, all material Tax Returns required to be filed by it in accordance with all Legal Requirements. All such Tax Returns were true, correct and complete in all material respects. All material amounts of Taxes owed by each Group Company (whether or not
shown on any Tax Return) have been timely paid in full. Except as set forth on Schedule 3.14.1 , all claims older than three (3) years have been resolved. No claim has been made within the prior three (3) years by an authority in a jurisdiction where a Group Company does not file Tax Returns that such Group Company is or may be subject to taxation by or be required to file Tax Returns in that jurisdiction, and, to the Companys Knowledge, there is no basis for any such claim to be made. Except as set forth on Schedule 3.14.1 , there are no material liens with respect to Taxes upon any Asset other than liens for current Taxes not yet due and payable.
3.14.2. Each Group Company has deducted, withheld and timely paid to the appropriate Governmental Authority all material amounts of Taxes required to be deducted, withheld or paid in connection with amounts paid, owing or allocable to any employee, independent contractor, creditor, stockholder or other third party, and each Group Company has complied with all reporting and recordkeeping requirements in all material respects.
3.14.3. Except as set forth on Schedule 3.14.3 , there is no Action for deficiency, assessment or Tax adjustment concerning any material amounts of Tax Liability of any Group Company pending, being conducted, claimed or raised by a Governmental Authority. The Company has provided or made available to the Buyer Parties true, correct and complete copies of all material Tax Returns, examination reports, and statements of deficiencies filed, assessed against, or agreed to by any Group Company since December 31, 2014.
3.14.4. No Group Company has waived, extended, or consent to extend the time in which any Tax may be assessed or collected by any Governmental Authority, which extension is still in effect (other than in connection with routine automatic extensions of time to file a Tax Return). No Group Company has executed any power of attorney with respect to any material amounts of Tax, other than powers of attorney that are no longer in force. Except as set forth on Schedule 3.14.4 , no closing agreements, private letter rulings, technical advice memoranda or similar agreements or rulings relating to Taxes have been entered into or issued by any Governmental Authority with or in respect of any Group Company.
3.14.5. The unpaid Taxes of any Group Company (a) did not as of the Most Recent Balance Sheet Date exceed the reserve for Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) and (b) will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of any Group Company in filings its Tax Returns. The Pre-Closing Taxes do not, and will not, as of the Closing Date, exceed the amount of Pre-Closing Taxes taken into account in the Closing Debt Amount and Final Closing Statement, as applicable, as finally determined pursuant to Section 2.10 .
3.14.6. Except as set forth on Schedule 3.14.6 , no Group Company has made any payments or provided any benefits, or has been or is a party to any agreement, contract,
arrangement, program or plan that could result in it making payments or providing benefits, that have resulted or could result, individually or in combination with any other payment or benefit, in the payment of any excess parachute payment within the meaning of Section 280G of the Code or in the imposition of an excise Tax under Section 4999 of the Code (or any corresponding provisions of a state, local or foreign Tax Legal Requirement) or that were not or would not be deductible under Sections 162 or 404 of the Code or that were or will be required to be included in gross income under Section 409A(a)(1)(A) of the Code or Section 457(f) of the Code. No current or former officer, employee, member, independent contractor or other service provider of a Group Company is entitled to a gross-up, reimbursement or other payment in respect of any Taxes, including those imposed under Sections 409A or 4999 of the Code.
3.14.7. Except as set forth in Schedule 3.14.7 , no Group Company has ever been a member of an affiliated, consolidated, combined or unitary group, other than a group the common parent of which is Sound Inpatient Physicians, Inc. No Group Company is a party to, or bound by, or has any obligation under, any Contract relating to Tax sharing, allocation, indemnity, or any similar agreement or arrangement (other than any agreement entered into in the Ordinary Course of Business and not primarily concerning Taxes). No Group Company has any Liability for the Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise, other than a group the common parent of which is SIP.
3.14.8. Except as provided in Schedule 3.14.8 , no Group Company is or has been required to make any material amounts of adjustment pursuant to Section 481(a) of the Code (or any predecessor provision) or any similar provision (including of state, local or foreign Tax law) by reason of any change in any accounting methods, or will be required to make such an adjustment as a result of the Contemplated Transactions or to include any item in taxable income post-Closing (or exclude any item of deduction or loss post-Closing) as a result of such section, any similar provision, or any change in accounting methods for Tax purposes, and there is no application pending with any Governmental Authority requesting permission for any changes in any of its accounting methods for Tax purposes. To the Companys Knowledge, no Governmental Authority has proposed any such adjustment or change in accounting method.
3.14.9. No Group Company will be required to include any material amount in taxable income or exclude any item of deduction or loss from taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (a) any closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date, (b) except as set forth on Schedule 3.14.9 , any deferred intercompany gain or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision or administrative rule of federal, state, local or foreign income Tax law), (c) installment sale or open transaction disposition made on or prior to the Closing Date, (d) any prepaid amount received on or prior to the Closing Date or (e) any Taxes imposed by Section 965(a) of the Code as in effect on the Closing Date.
3.14.10. No Group Company owns any property of a character, the indirect transfer of which, pursuant to this Agreement, would give rise to any documentary, stamp, or other transfer Tax.
3.14.11. No Group Company has participated in or is currently participating in any reportable transaction within the meaning of Treasury Regulation Section 1.6011-4 or any tax shelter within the meaning of Section 6662 of the Code.
3.14.12. Without regard to Section 7704(c) of the Code, the Company is, and at all times since its formation has been, treated as a partnership (that is not a publicly traded partnership) for U.S. federal income tax purposes and for state-level income tax purposes.
3.14.13. Except as set forth on Schedule 3.14.13 , since the Audited Balance Sheet Date, no Group Company has made, changed or revoked any Tax election, elected or changed any method of accounting for Tax purposes, amended any Tax Return, surrendered any right to claim a refund of Taxes, settled or compromised any Action in respect of Taxes, entered into any Contract in respect of material amounts of Taxes with any Governmental Authority, or taken any action that could increase the Taxes of any Group Company for any period ending after the Closing Date or decrease any material Tax attribute of any Group Company existing on the Closing Date.
3.14.14. No Group Company that is treated as a partnership (or other pass-through entity) for U.S. federal income Tax purposes has any unpaid liability to any of its members or beneficial owners for unpaid Tax or other distributions.
3.14.15. No Group Company has constituted a distributing corporation or a controlled corporation (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code (a) in the two (2) years prior to the date of this Agreement or (b) in a distribution that could otherwise constitute part of a plan or series of related transactions (within the meaning of Section 355(e) of the Code) in conjunction with this acquisition.
3.14.16. The interests in the Company are not treated under Section 864(c)(8) of the Code as effectively connected with the conduct of a trade or business within the United States and no withholding is required on the disposition of the interests in the Company under Section 1446(f) of the Code.
3.15. Employee Benefit Plans .
3.15.1. For purposes of this Agreement, Employee Plan means any plan, program, agreement, policy or arrangement, whether or not reduced to writing, whether or not subject to ERISA and whether covering a single individual or a group of individuals, that is (a) an employee welfare benefit plan within the meaning of Section 3(1) of ERISA, (b) an employee pension benefit plan within the meaning of Section 3(2) of ERISA, (c) a profits interest, equity purchase, option to purchase equity, restricted equity, phantom equity, or other equity or equity-based plan, program, agreement or
arrangement or (d) any other employment, consulting, independent contractor, termination, severance, deferred-compensation, retirement, welfare-benefit, bonus, commission or other cash incentive compensation, profit-sharing, savings, retention, change-of-control, fringe-benefit, cafeteria, vacation or other paid time-off, disability, death benefit, hospitalization, medical, life insurance or other similar plan, program, agreement, policy or arrangement.
3.15.2. Schedule 3.15.2 lists all Employee Plans (other than Contracts providing for the employment or engagement of any Person not required to be scheduled pursuant to Section 3.17.1(k) ) as to which a Group Company sponsors, maintains, contributes or is obligated to contribute and which covers any current or former employee, officer, director, member, or independent contractor of a Group Company or any beneficiary or dependent of any such Person, or with respect to which a Group Company has or may have any Liability (each a Company Plan ). Schedule 3.15.2 will be deemed to include any such Company Plans that are entered into by a Group Company between the date hereof and the Closing in compliance with Section 5.1 and copies of which have been delivered by the Company to the Buyer Parties. With respect to each Company Plan, the Company has made available to the Buyer Parties true, accurate and complete copies of each of the following: (a) if the plan has been reduced to writing, the plan documents governing such Company Plan document together with all amendments thereto; (b) if the plan has not been reduced to writing, a written summary of all material plan terms; (c) if applicable, copies of any trust agreements, custodial agreements, insurance policies, administrative agreements and similar agreements, and investment management or investment advisory agreements; (d) copies of any summary plan descriptions (including any summary of material modifications), employee handbooks or similar employee communications; (e) in the case of any plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination or opinion letter from the IRS and any related correspondence, and a copy of any pending request for such determination; (f) in the case of any plan for which Forms 5500 are required to be filed, a copy of the three most recently filed Forms 5500, including all schedules and attachments; (g) if applicable, the most recent financial statements of such plan; and (h) all material correspondence with (including any applications or submissions under any voluntary correction programs) with any Governmental Authority relating to such plan within the preceding three (3) years.
3.15.3. No Group Company has ever sponsored, maintained, contributed to or been required to contribute to, or has any Liability in respect of, (a) a plan that is or was subject to Title IV of ERISA, (b) a plan that is or was subject to the minimum funding rules of Section 302 of ERISA or Section 412 of the Code, (c) a multiemployer plan within the meaning of Section 3(37) of ERISA, (d) a multiple employer plan within the meaning of Section 210 of ERISA or Section 413(c) of the Code, or (e) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA. No employer, trade or business (whether or not incorporated) which could at any time be treated with any Group Company as a single employer under Section 414 of the Code or Section 4001(b)(1) of ERISA has ever sponsored, maintained, contributed to or been required to contributed to, or has any Liability in respect of any plan described in clauses
(a) through (e) of the immediately preceding sentence, except as to which no Group Company has or could have any Liability.
3.15.4. Each Company Plan that is intended to be qualified under Section 401(a) of the Code is covered by a favorable IRS determination or opinion letter as to the tax qualified status of the plan and trust and no fact or event has occurred since the date of such determination or opinion letter that could reasonably be expected to adversely affect such qualification or otherwise result in material Liability to any Group Company. Each Company Plan, including any associated trust or fund, has been established, maintained, operated, funded and administered in material compliance with its terms and with applicable Legal Requirements. No Group Company, nor to the Companys Knowledge, any fiduciary, trustee or administrator of any Company Plan, has engaged in any transaction with respect to any Company Plan that could subject any such Company Plan, or any Group Company, to any material Liability for a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code.
3.15.5. Except as set forth in Schedule 3.15.5 , all required contributions to, and premium or other payments on account of, each Company Plan have been made on a timely basis as required by the terms of such Company Plan and other applicable Legal Requirement and have been accrued in the applicable Group Companys financial statements in accordance with GAAP.
3.15.6. There is no pending or, to the Companys Knowledge, threatened Action relating to a Company Plan, other than routine claims in the Ordinary Course of Business for benefits provided for by the Company Plans and claims by employees or independent contractors that would be covered by Section 3.20.3 . Except as set forth on Schedule 3.15.6 , no Company Plan is or, within the last six (6) years, has been the subject of an examination or audit by a Governmental Authority, is the subject of an application or filing under, or is a participant in, a government-sponsored amnesty, voluntary compliance, self-correction or similar program.
3.15.7. Except as required under Section 601 et seq . of ERISA (or any corresponding provision of state law) at the sole expense of the applicable participant and except for employment agreements that provide that a Group Company will pay the employees COBRA costs for a period of three (3) to twelve (12) months following termination of employment, no Company Plan provides benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment.
3.15.8. Each Company Plan that is a nonqualified deferred compensation plan (as defined in Section 409A(d)(1) of the Code and applicable Treasury Regulations) has complied at all relevant times in form and has been at all relevant times operated in compliance with the applicable requirements of Section 409A of the Code and the Treasury Regulations and guidance promulgated thereunder.
3.15.9. The Group Companies have at all relevant times properly classified each provider of services to the Group Companies as an employee, partner or independent
contractor, as the case may be, for all purposes relating to Taxes and each Company Plan for which such classification could be relevant. No Group Company has incurred within the past three (3) years, and no circumstances exist under which any Group Company could reasonably be expected to incur, any Liability arising from the misclassification of employees as independent contractors, from the misclassification of partners or members as employees or independent contractors, from the misclassification of employees as exempt from the overtime pay requirements of the Fair Labor Standards Act or analogous state laws, and/or from the failure to pay wages (including overtime wages).
3.15.10. Except for the vesting of unvested Class B Units and except as set forth on Schedule 3.15.10 , neither the execution and delivery of this Agreement nor the consummation of the Contemplated Transactions could (whether alone or in conjunction with any other event) (a) cause or result in the acceleration of vesting or payment of, or increase the amount of, any Compensation payable under, or the required funding of, any Company Plan, or (b) limit or restrict the ability of the Group Companies, the Buyer Parties or any of their respective Affiliates to merge, amend or terminate any of the Company Plans or any related Contract.
3.16. Environmental Matters . Except as set forth in Schedule 3.16 :
3.16.1. The Group Companies and their Predecessors are, and have been since January 1, 2015, in material compliance with all Environmental Laws and the Group Companies hold and are in compliance with all material permits, licenses and other authorizations required pursuant to Environmental Laws for the lawful conduct of the Business as presently conducted.
3.16.2. No Group Company has received notice of (a) any violation (including requests for information) or (b) liability or investigatory, corrective or remedial obligation under any Environmental Laws that in the case of (a) or (b) remains unresolved or for which any of the Group Companies have a continuing obligation.
3.16.3. There has been no release or threatened release of any Hazardous Substance on, upon, into or from any site currently or heretofore owned, leased or otherwise used by a Group Company or a Predecessor that could reasonably be expected to result in material Liability to any Group Company.
3.16.4. There have been no material Hazardous Substances generated by a Group Company or a Predecessor that have been disposed of or come to rest at any site that has been included in any published U.S. federal, state or local superfund site list or any other similar list of hazardous or toxic waste sites published by any Governmental Authority in the United States.
3.16.5. There are no underground storage tanks located on, no PCBs (polychlorinated biphenyls) or PCB-containing equipment used or stored on, and no hazardous waste as defined by the Resource Conservation and Recovery Act stored on, any site owned or operated by a Group Company or a Predecessor, except for the storage of hazardous waste in compliance with Environmental Laws.
3.16.6. The Company has made available to the Buyer Parties true, accurate and complete copies of all material environmental records, reports, notifications, permits, pending permit applications, correspondence, engineering studies, and environmental studies or assessments in its possession or control and relating to matters arising under Environmental Law, in each case as amended and in effect.
3.17. Contracts .
3.17.1. Contracts . Except as disclosed on Schedule 3.17.1 (with specific notation as to the applicable subsection or subsections) or as entered into by a Group Company between the date hereof and the Closing in compliance with Section 5.1 (which will be deemed to be set forth on Schedule 3.17.1 ), no Group Company is bound by or a party to:
(a) any Contract (or group of related Contracts) for the purchase or sale of inventory, raw materials, commodities, supplies, goods, products, equipment or other personal property, or for the furnishing or receipt of services, in each case, which is not otherwise required to be scheduled in Schedule 3.17.1 and provides for aggregate payments to or by the Group Companies in excess of $500,000;
(b) (i) any capital lease or (ii) any other lease or other Contract relating to tangible property (other than real property) providing for aggregate rental payments in excess of $250,000 per year, under which any such tangible property is held or used by the Group Companies;
(c) any Contract to which any Group Company is party relating to any (i) future acquisition or disposition (other than nondisclosure agreements) or (ii) acquisition or disposition that closed within the preceding four (4) years, in each case, of (A) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (B) any material asset other than in the Ordinary Course of Business;
(d) any Contract under which a Group Company is, or may become, obligated to pay any amount in respect of purchase price adjustments or other material purchase price payments (whether or not contingent) in connection with any (i) acquisition or disposition of all or substantially all of the assets or securities of a business, (ii) merger, consolidation or other business combination or (iii) series or group of related transactions or events of the type specified in clauses (i) and (ii) above;
(e) any Contract concerning or consisting of a management services contract pursuant to which a Group Company provides management services to another Group Company, a partnership agreement, a limited liability company agreement or a joint venture agreement;
(f) any Contract pursuant to which any Group Company provides management services or physician services to a hospital;
(g) any Contract that grants, or agrees to grant, any customer a right to most favored nation pricing terms;
(h) any Contract (or group of related Contracts) (i) under which a Group Company has created, incurred, assumed or guaranteed any Borrowed Debt, (ii) under which a material Encumbrance has been placed on any Asset or (iii) under which any other Person has guaranteed any Borrowed Debt of a Group Company;
(i) any Contract containing non-competition restrictions binding upon a Group Company or any of their respective Affiliates or that otherwise restricts the conduct of the Business by any Group Company or any of their respective Affiliates or limits the freedom of any Group Company of any of their respective Affiliates to sell any product or provide any service, to engage in any line of business or to compete with any Person in any geographic area or to hire, solicit or retain any Person;
(j) any Contract under which a Group Company is, or may become, obligated to any investment bank, broker, financial advisor, finder or other similar Person (including an obligation to pay any brokerage, finders, or similar fees or expenses in connection with this Agreement or the Contemplated Transactions);
(k) any Contract providing for the employment or engagement of any Person on a full-time, part-time, temporary, independent contractor or other basis with annual base salary in excess of $250,000 or providing severance or change of control benefits, to any officer, director, employee or independent contractor, in each case other than (i) at will contracts that may be terminated by any Group Company upon 30 days or less advance notice without incurring any Liability or (ii) any contract with a physician serving primarily in the role of a clinician or any regional medical officer, regional medical director or chief hospitalist that is entered into in the Ordinary Course of Business and that does not materially deviate from any of the forms of employment and independent contractor agreements listed on Schedule (k)(ii) ;
(l) any collective bargaining agreement or other Contract with any Union;
(m) any agency, dealer, distributor, sales representative, marketing or other similar agreement;
(n) any Contract under which a Group Company has advanced or loaned an amount to any Person (other than to any of its employees in the Ordinary Course of Business);
(o) any Contract with any of the twenty (20) largest third-party payors (based on collections) of the Group Companies on a consolidated basis for the twelve (12) month period ended December 31, 2017;
(p) any Contract with third-party payors that includes risk-based payment arrangements or performance incentive payments; and
(q) any Contract with any Governmental Authority (other than a hospital).
3.17.2. Enforceability; Breach . Except as set forth on Schedule 3.17.2 , each Contract required to be disclosed (and each Contract entered into after the date hereof but, if entered into prior to the date hereof, that would have been required to be disclosed) on Schedule 3.9 (Debt), Schedule 3.11 (Real Property), Schedule 3.12.3 (IP Contracts), Schedule 3.15.2 (Employee Benefit Plans), Schedule 3.17.1 (Contracts) or Schedule 3.22 (Insurance) or with a customer or supplier required to be disclosed on Schedule 3.19 (each, a Disclosed Contract ) is enforceable against each party to such Contract, and is in full force and effect, and, subject to obtaining any necessary consents disclosed on Schedule 3.4 (Noncontravention) and terminations of any such Disclosed Contract in accordance with its terms after the date hereof, will continue to be so enforceable and in full force and effect on identical terms immediately following the consummation of the Contemplated Transactions, in each case subject to the Enforceability Exceptions. Except as set forth on Schedule 3.17.2 , no Group Company or, to the Companys Knowledge, any other party to any Disclosed Contract has been or is currently in material breach or material violation of, or material default under, or has repudiated any provision of, any Disclosed Contract nor has any event occurred that with the lapse of time, or the giving of notice, or both, would constitute a material default under any Disclosed Contract. The Company has made available to the Buyer Parties true, accurate and complete copies of each written Disclosed Contract, in each case, as amended or otherwise modified and in effect. The Company has made available to the Buyer Parties a written summary setting forth the terms and conditions of each oral Disclosed Contract.
3.18. Affiliate Transactions . Schedule 3.18 lists each Person who is an independent contractor, creditor, debtor, customer, distributor, service provider, supplier or vendor of, or a party to any Contract with, a Group Company or has any interest in any of the Assets used in, or necessary to, the Business, with respect to which (a) any of Fresenius or any member of senior management of the Company or any of their respective Affiliates (other than any Group Company) owns a non-de minimis Equity Interest, (b) to the Companys Knowledge, any Seller owns a non-de minimis Equity Interest, or (c) to the Companys Knowledge, any individual related by blood, marriage or adoption to any of the foregoing individuals described in clauses (a) or (b) owns a non-de minimis Equity Interest.
3.19. Customers and Suppliers . Schedule 3.19 sets forth a list of the Group Companies top twenty (20) hospital customers and top twenty (20) suppliers (excluding any payors) for (a) the fiscal year ended December 31, 2017 and (b) the three (3) month period ended March 31, 2018 (determined on a consolidated basis based on, in the case of customers, the amount of revenues recognized by the Group Companies and, in the case of suppliers, the dollar amount of payments made by the Group Companies). Except as described on Schedule 3.19 , no Group Company has received any indication, and the Company has no Knowledge, that (i) any such hospital customer or supplier plans to stop or materially decrease the amount of business done with any Group Company, (ii) any such hospital customer has requested or received a decrease in the prices paid to any Group Company that is inconsistent with the terms of its existing agreement or order with any Group Company or (iii) any such supplier has requested or received an increase in the prices charged to any Group Company that is inconsistent with the terms of its existing supply agreement with any Group Company. In addition, except as described on Schedule 3.19 , no Group Company is involved in any material claim or dispute with any such hospital customer or supplier of a Group Company.
3.20. Employees .
3.20.1. Except as disclosed on Schedule 3.20.1 , there are no labor troubles (including any arbitration, grievance, work slowdown, lockout, stoppage, picketing or strike) pending, or to the Companys Knowledge, threatened between a Group Company, on the one hand, and any group of employees, on the other hand, and there have been no such troubles at any time during the past three (3) years. Except as disclosed on Schedule 3.20.1 , (a) no employee of a Group Company is represented by a Union, (b) no Group Company is a party to, or otherwise subject to, any collective bargaining agreement or other Contract with a Union, and no such Contract is being negotiated, (c) no petition has been filed or proceedings instituted by or on behalf of an employee or group of employees of any Group Company with any Governmental Authority seeking recognition of a bargaining representative, (d) to the Companys Knowledge, there is no effort being made or threatened by, or on behalf of, any Union to organize employees of any Group Company, and there have been no such efforts during the past three years, and (e) no notice, consultation and/or consent requirements with respect to any employees of a Group Company, or with respect to any Union, will be incurred in connection with the execution of this Agreement or the Contemplated Transactions.
3.20.2. As of April 19, 2018, true and complete information as to the name, compensation and current job title of all employees and individual independent contractors of the Group Companies has been made available to the Buyer Parties. Except as set forth on Schedule 3.20.2 , to the Companys Knowledge, no current executive, key employee, key independent contractor, or group of employees or independent contractors has given notice of termination of employment or engagement or otherwise disclosed plans to terminate employment or engagement with any Group Company within the next twelve (12) months. No executive or key employee of any Group Company is employed under a non-immigrant work visa or other work authorization that is limited in duration.
3.20.3. There is, and for the past three (3) years has been, no Action pending (or, to the Companys Knowledge, threatened) by or before any Governmental Authority with respect to a Group Company concerning employment- or independent contractor-related matters, and no current or former applicant, employee, temporary employee or independent contractor of a Group Company has brought (or to the Companys Knowledge, threatened to bring) any Action against or affecting a Group Company within such period, in each case, that, if determined adversely to such Group Company, would be material to the Group Companies, taken as a whole.
3.21. Litigation; Government Orders . Except as set forth on Schedule 3.21 , since January 1, 2016 there have been no Actions (a) pending, or, to the Companys Knowledge, threatened against or affecting, or pending or threatened by, any Group Company, or (b) pending, or, to the Companys Knowledge, threatened against or affecting, any Group Companys officers, directors, employees or independent contractors (in their capacities as such with respect to the Business), in each case, that, if determined adversely to such Group Company would be material to the Group Companies, taken as a whole, and, to the Companys Knowledge, there are no facts making the commencement of any such Action described in the
foregoing clauses (a) or (b) reasonably likely. Except as set forth on Schedule 3.21 , none of the Group Companies (i) is the subject of any judgment, decree, injunction or Government Order or (ii) plans to initiate any Action. The Group Companies are fully insured with respect to each of the Actions and Government Orders set forth on Schedule 3.21 except as set forth on such schedule.
3.22. Insurance . Schedule 3.22 sets forth, as of the date hereof, a true and complete list of all insurance policies in force with respect to the Group Companies. The list includes for each insurance policy the type of insurance policy, form of coverage, policy number, name of insurer, period (term), limits, deductibles and premiums. All such policies are in full force and effect, all premiums due with respect thereto have been paid, no Group Company is in material default thereunder, and no notice of cancellation or termination has been received by any Group Company with respect to any such insurance policy. Schedule 3.22 also describes any self-insurance or co-insurance arrangements by or affecting any Group Company, including any reserves established thereunder and any stop-loss insurance obtained with respect to obligations that may become payable thereto. No insurer has (a) denied or disputed (or otherwise reserved its rights with respect to) the coverage of any material claim pending under any insurance policy or (b) to the Companys Knowledge, threatened to cancel any insurance policy. Except as disclosed on Schedule 3.22 , immediately after the Closing the Group Companies will continue to have coverage under all such insurance policies. To the Companys Knowledge, there is no claim which, individually or in the aggregate with other claims, could reasonably be expected to impair any current or historical limits of insurance available to any Group Company.
3.23. No Brokers . Except as set forth on Schedule 3.23 , no Group Company has any Liability of any kind to, or is subject to any claim of, any broker, finder or agent in connection with the Contemplated Transactions other than those which will be borne by the Sellers, and the Sellers covenant and agree to satisfy in full any Liability required to be disclosed on Schedule 3.23 .
3.24. Anti-Bribery . The representations made in this Section 3.24 do not cover any healthcare regulatory matters.
3.24.1. No Group Company, and no director, officer or employee of any Group Company, and no consultant, independent contractor or other agent of any Group Company (in each case in their capacity as such with respect to the Business), is or has been the subject of any action (by any private right of action of any Person or by any Governmental Authority), suit, litigation, claim, grievance, charge, audit, investigation, inquiry or other proceeding (including any administrative, criminal or arbitration or mediation proceedings) regarding any actual offense or alleged offense under any anti-bribery, anti-corruption or anti-fraud Legal Requirement. No such action, suit, litigation, claim, grievance, charge, audit, investigation, inquiry or other proceeding has been threatened in writing (or, to the Companys Knowledge, other than in writing), and no event has occurred or circumstance exists that is likely to give rise to any such action, suit, litigation, claim, grievance, charge, audit, investigation, inquiry or other proceeding.
3.24.2. No Group Company is ineligible to be awarded any contract or business under subpart 9.4 of the U.S. Federal Acquisition Regulation 2005, any Legal
Requirement enacted pursuant to Article 45 of the Public Sector Procurement Directive (Directive 2004/18/EC) or any similar Legal Requirement governing eligibility for public procurement contracts in any jurisdiction.
3.24.3. No Group Company, and no director, officer or employee of any Group Company, and no consultant, independent contractor or other agent of any Group Company (in each case in their capacity as such with respect to the Business), has in furtherance of or in connection with the Business: (a) offered, promised or given any financial or other advantage or inducement to any Person with the intention of influencing a Person (whether or not such Person is the recipient of the advantage or inducement) to perform his, her or its function improperly, or where the acceptance of such advantage or inducement would itself be improper; (b) requested, agreed to receive or accepted any financial or other advantage or inducement where such request, agreement to receive or acceptance would be improper or likely to influence such Person in the performance of his, her or its role; or (c) offered, promised or given any financial or other advantage or inducement to any public official or other representative of a Governmental Authority (or to any other Person at the request of, or with the acquiescence of, any public official or other representative of a Governmental Authority) with the intention of influencing that Person in the performance of his, her or its public functions (whether or not that performance would be improper).
3.24.4. A true, correct and complete copy of the anti-bribery and anti-corruption policies and procedures adopted by the Group Companies is set forth on Schedule 3.24.4 .
3.25. No Other Representations or Warranties . EXCEPT (A) IN THE CASE OF FRAUD (AS DEFINED HEREIN) OR (B) FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, ANY CERTIFICATE DELIVERED PURSUANT HERETO, THE SCHEDULES OR IN ANY OTHER ANCILLARY AGREEMENTS, THE COMPANY AND EACH OF THE SELLER PARTIES SPECIFICALLY DISCLAIM ANY OTHER REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES.
In order to induce the Company to enter into and perform this Agreement and to consummate the Contemplated Transactions, the Buyer Parties represent and warrant to the Company, as of the date hereof and as of the Closing Date, that:
4.1. Organization . The Buyer Parties are each duly organized, validly existing and in good standing under the laws of the State of Delaware.
4.2. Power and Authorization . The execution, delivery and performance by each of the Buyer Parties of this Agreement and each Ancillary Agreement to which it is (or will be) a party and the consummation of the Contemplated Transactions are within the power and authority of the Buyer Parties and have been duly authorized by all necessary action on the part of each Buyer Party. This Agreement and each Ancillary Agreement to which each Buyer Party is (or will be) a party (a) has been (or, in the case of Ancillary Agreements to be entered into at
or prior to the Closing, will be) duly executed and delivered by such Buyer Party and (b) is (or, in the case of Ancillary Agreements to be entered into at or prior to the Closing, will be) a legal, valid and binding obligation of such Buyer Party, enforceable against such Buyer Party in accordance with its terms, subject to the Enforceability Exceptions.
4.3. Authorization of Governmental Authorities . Except as disclosed on Schedule 4.3 , no action by (including any authorization, consent or approval), or in respect of, or filing with, any Governmental Authority is required for, or in connection with, the valid and lawful (a) authorization, execution, delivery and performance by each Buyer Party of this Agreement and each Ancillary Agreement to which it is (or will be) a party or (b) consummation of the Contemplated Transactions by each Buyer Party.
4.4. Noncontravention . Neither the execution, delivery and performance by any Buyer Party of this Agreement or any Ancillary Agreement to which it is (or will be) a party nor the consummation of the Contemplated Transactions will: (a) assuming the taking of any action by (including any authorization, consent or approval) or in respect of, or any filing with, any Governmental Authority, in each case, as disclosed on Schedule 4.3 , violate any provision of any Legal Requirement applicable to such Buyer Party; (b) result in a breach or violation of, or default under, any Contract of such Buyer Party; (c) require any action by (including any authorization, consent or approval) or in respect of (including notice to), any Person under any Contract; or (d) result in a breach or violation of, or default under, such Buyer Partys organizational documents.
4.5. Commitment Letters . Holdco I has delivered to the Company true and complete copies of (a) executed equity commitment letters, dated as of the date hereof (the Equity Commitment Letters ), pursuant to which the Equity Financing Sources have committed, upon the terms and subject to the conditions thereof, to invest in Holdco I (directly or indirectly) the cash amount set forth therein (the Equity Financing ), and (b) an executed debt commitment letter, dated as of the date hereof, between Holdco I and the Debt Financing Sources party thereto (the Debt Commitment Letter and, together with the Equity Commitment Letters, the Commitment Letters ), pursuant to which the Debt Financing Sources party thereto have agreed, upon the terms and subject to the conditions thereof, to lend the amounts set forth therein for the purposes of financing the Contemplated Transactions and related fees and expenses (the Debt Financing and, together with the Equity Financing, the Financing ). The Commitment Letters have not been amended, restated or otherwise modified or waived prior to the date of this Agreement. The respective commitments contained in the Commitment Letters have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date hereof, the Commitment Letters are in full force and effect and constitute the legal, valid and binding obligation of Holdco I and, to the knowledge of Holdco I, each of the other parties thereto, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general application relating to or affecting creditors rights and to general equity principles. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Financing contemplated by the Commitment Letters to be funded on the Closing Date other than as expressly set forth in the Commitment Letters. Subject to the terms and conditions of the Commitment Letters, the satisfaction of the conditions contained in Article 6 hereof and the completion of the Marketing Period, the net proceeds contemplated from the Financing, will, in the aggregate, be sufficient for the satisfaction of all of Holdco Is obligations
under this Agreement required to be paid on the Closing Date, including the payment of (i) the Closing Consideration and any other amounts required to be paid by or on behalf of Holdco I pursuant to this Agreement on the Closing Date and (ii) all fees and expenses and other payment obligations required to be paid or satisfied by Holdco I on the Closing Date in connection with the Contemplated Transactions and the Financing. As of the date of this Agreement, (x) subject to the accuracy in all material respects of the representations and warranties set forth in Article 3 , no event has occurred that would constitute a breach or default (or an event which with notice or lapse of time or both could constitute a breach or default) on the part of Holdco I under the Commitment Letters or, to the knowledge of Holdco I, any other party to the Commitment Letters, and (y) subject to the satisfaction of the conditions contained in Article 6 hereof and the completion of the Marketing Period, Holdco I does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing or any other funds necessary for the satisfaction of all of Holdco Is obligations under this Agreement on the Closing Date will not be available to Holdco I at the Closing. Holdco I has fully paid all commitment fees or other fees (if any) required to be paid prior to the date hereof pursuant to the Commitment Letters.
4.6. Limited Guarantee . Each Guarantor has duly executed and delivered to the Company a limited guarantee, dated as of the date hereof (each, a Limited Guarantee and, collectively, the Limited Guarantees ). The Limited Guarantees have not been amended, modified, terminated or withdrawn as of the date hereof and, to the knowledge of Holdco I, the Limited Guarantees are in full force and effect as of the date hereof.
4.7. Litigation; Government Orders . As of the date hereof, there is no Action pending that relates to this Agreement or the Contemplated Transactions or, to the knowledge of the Buyer Parties, threatened against or affecting any Buyer Party or any of their Affiliates that challenges the validity or enforceability of this Agreement or seeks to enjoin or prohibit consummation of, or seeks other material equitable relief with respect to, the Contemplated Transactions or that would reasonably be expected to impair or prohibit the Buyer Parties ability to consummate the Contemplated Transactions. As of the date hereof, no Buyer Party has received written notice that it is subject to any Government Order that would, individually or in the aggregate, be reasonably likely to prevent, or make illegal or otherwise materially interfere with any of the Contemplated Transactions.
4.8. No Brokers . The Buyer Parties have no Liability of any kind to any broker, finder or agent with respect to the Contemplated Transactions for which the Company could be liable.
4.9. Solvency . Immediately after giving effect to the Contemplated Transactions (including the consummation of the Financing), assuming that the representations and warranties set forth in Article 3 are true and correct in all material respects, assuming that the financial information for, and projections of, the Group Companies are true and correct in all material respects, and assuming that the Group Companies and the Sellers have complied, in all material respects, with their respective obligations hereunder, the Group Companies (on a consolidated basis) will not (a) be insolvent or left with unreasonably small capital, (b) have incurred debts beyond their ability to pay such debts as they mature, or (c) have liabilities in excess of the reasonable market value of their assets.
4.10. Investment Purpose . The Buyer Parties are acquiring the Equity Interests in the Company solely for their own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Each Buyer Party acknowledges that the Equity Interests of the Company are not registered under the 1933 Act, as amended, or any state securities laws, and that the Equity Interests of the Company may not be transferred or sold except pursuant to the registration provisions of the 1933 Act, as amended or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable. Each Buyer Party is able to bear the economic risk of holding the Equity Interests of the Company for an indefinite period (including total loss of its investment), and has (either alone or together with its advisors) sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment.
4.11. No Reliance . In connection with its investment decision, each Buyer Party and/or its Representatives have inspected and conducted such reasonable independent review, investigation and analysis (financial and otherwise) of the Group Companies as desired by the Buyer Parties. The consummation of the transactions contemplated hereby by the Buyer Parties is not done in reliance upon any representation or warranty by any Seller, any Group Company or any of their respective Affiliates, employees or representatives, whether oral or written, express or implied, including any implied warranty of merchantability or of fitness for a particular purpose, except for the representations and warranties of the Sellers specifically and expressly set forth in Article 3 (as modified by the Schedules) or in any Ancillary Agreement or certificate delivered pursuant hereto or thereto, and each Buyer Party acknowledges that the Group Companies and Sellers expressly disclaim any other representations and warranties. Such consummation is instead done entirely on the basis of each Buyer Partys own investigation, analysis, judgment and assessment of the Company, as well as those representations and warranties by the Company, specifically and expressly set forth in Article 3 (as modified by the Schedules) or in any Ancillary Agreement or certificate delivered pursuant hereto or thereto, and each Buyer Party acknowledges and agrees that such Buyer Party is sophisticated in both financial matters and with respect to the industry in which the Group Companies operate. Notwithstanding anything to contrary contained herein, the parties agree that no provision in this Agreement is intended to eliminate or limit the Buyer Parties available remedies with respect to Fraud.
4.12. No Other Representations or Warranties . EXCEPT (A) IN THE CASE OF FRAUD (AS DEFINED HEREIN) OR (B) FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, ANY CERTIFICATE DELIVERED PURSUANT HERETO, THE SCHEDULES OR IN ANY OTHER ANCILLARY AGREEMENTS, THE BUYER PARTIES SPECIFICALLY DISCLAIM ANY OTHER REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS.
5. COVENANTS.
5.1. Operation of Business .
5.1.1. Except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth on Schedule 5.1.1 , (iii) as required by applicable Legal Requirements or (iv)
with the prior written consent of Holdco I (which consent will not be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the Closing, the Company will, and the Company will cause the Group Companies to: (a) conduct the Business, in all material respects, only in the Ordinary Course of Business; (b) use commercially reasonable efforts to maintain the value of the Business as a going concern; and (c) use commercially reasonable efforts to preserve intact, in all material respects, the Group Companies business organization and material relationships with third parties (including suppliers and customers), independent contractors, members and employees.
5.1.2. Without limiting the generality of Section 5.1.1 , except (i) as otherwise expressly contemplated by this Agreement, (ii) as set forth on Schedule 5.1.2 , (iii) as required by applicable Legal Requirements (provided that the Company will deliver prompt written notice to Holdco I of any such actions required to be taken pursuant to applicable Legal Requirements) or (iv) with the prior written consent of Holdco I (which consent will not be unreasonably withheld, conditioned or delayed), the Company will not, and the Company will cause the Group Companies not to take any of the following actions:
(a) amend its organizational documents, amend any term of its Equity Interests or issue, sell, grant, or otherwise dispose of, or enter into a Contract for the disposition of, any Equity Interests;
(b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any Borrowed Debt, except for borrowings and guarantees in the Ordinary Course of Business under credit facilities in existence on the Most Recent Balance Sheet Date;
(c) grant an Encumbrance on any of its material Assets other than a Permitted Encumbrance or sell, lease, license or otherwise dispose of any of its material Assets, or fail to take necessary action to maintain any of its material Assets, except for the sales of inventory or licenses in the Ordinary Course of Business;
(d) make any declaration, setting aside or payment of any dividend or other distribution (other than cash distributions) with respect to, or any repurchase, redemption or other acquisition of, any of its Equity Interests, (b) purchase, redeem or otherwise acquire any of its Equity Interests or (c) enter into, or perform, any transaction with a Seller Party or any Affiliate of a Seller Party (other than as disclosed on Schedule 3.18 );
(e) increase the Compensation of (a) any current (i) non-executive employee or (ii) independent contractor, in each case other than in the Ordinary Course of Business with respect to (A) physicians, to the extent that such increase is not, individually or in the aggregate, material or (B) any of the foregoing individuals in clauses (i) and (ii) whose annualized Compensation does not exceed $250,000 after giving effect to such increase; (b) any current (i) executive employee, (ii) officer, or (iii) director; or (c) any Affiliate of a Seller Party;
(f) make any loan or advance to, or guarantee for the benefit of, any Person (other than another Group Company and other than payroll, relocation or sign-on advances to an employee in the Ordinary Course of Business);
(g) hire, engage or terminate any officer, director, employee or independent contractor who earns or will earn annualized Compensation in excess of $250,000, other than (i) any hiring or termination in the Ordinary Course of Business of any physician serving primarily in the role of a clinician or as a regional medical officer, regional medical director or chief hospitalist or (ii) any termination in the Ordinary Course of Business of any independent contractor so long as such termination would not have or reasonably be expected to adversely affect any of the Group Companies in any material respect;
(h) negotiate, enter into, amend or extend any Contract with a Union;
(i) make any material change in any method of accounting or accounting practices or policies;
(j) adopt, establish, amend, modify or terminate any Company Plan (or plan, program, agreement, policy or arrangement that would be a Company Plan if in effect on the date hereof), except for (i) employment agreements and independent contractor agreements with any physician serving primarily in the role of a clinician or any regional medical officer, regional medical director or chief hospitalist that is entered into in the Ordinary Course of Business and that does not materially deviate from any of the forms of employment and independent contractor agreements listed on Schedule 3.17.1(k)(i) or (ii) as required by the terms of any Company Plan or applicable Legal Requirements;
(k) amend or modify (or agree to amend or modify), in any material respect, any of the IP Contracts, other than amendments or modifications in the Ordinary Course of Business;
(l) pay, discharge, settle, satisfy, waive, release, assign or compromise any material Action, other than trade payables and overpayments in the Ordinary Course of Business and the settlement, in the Ordinary Course of Business, of (i) medical malpractice and (ii) employment claims in amounts not exceeding applicable insurance policy limits and without imposing any material ongoing obligations on any of the Group Companies;
(m) enter into any agreement or commitment relating to capital expenditures exceeding $250,000 individually or $1,000,000 in the aggregate;
(n) terminate any Disclosed Contract;
(o) acquire (including by merger, consolidation, or acquisition of stock or assets) any Equity Interest in any Person or any division thereof or any material assets, other than acquisitions of assets in the Ordinary Course of Business and the acquisition
by the Company of the Class B Units of the Company held by Fresenius and the Fresenius Managers;
(p) take, or omit from taking, any action, or omission, as described in Section 3.14.13 ; or
(q) enter into any commitment (or agree to enter into any commitment) to do any of the things prohibited by this Section 5.1.2 .
5.2. Closing . The Company will, and the Company will cause the Group Companies to, cooperate with the Buyer Parties, and the Buyer Parties will cooperate with the Company to, take all of the actions and deliver all the various certificates, documents and instruments described in Article 6 and Article 7 as being performed or delivered by such parties, as applicable.
5.3. Unitholder Consent . No later than one (1) day following the execution of this Agreement, the Company will deliver to the Buyer Parties the Unitholder Consent, which will be in the form attached hereto as Exhibit G .
5.4. OIG Notice .
5.4.1. Within five (5) Business Days following the date of this Agreement, the Company will notify the OIG and its designees of the results of the ZPIC audits of the Wyoming locations of Sound Physicians of Wyoming, LLC, and promptly thereafter, the Company will notify the OIG and its designees of the parties entry into this Agreement and the transactions contemplated hereby in accordance with the notification contemplated by the Corporate Integrity Agreement (the OIG Notice ). As promptly as practicable thereafter, the parties will provide all required submissions to the OIG in connection with the transactions contemplated hereby and as otherwise required by the CIA and will use their respective reasonable best efforts to ensure that the OIG does not object to the transactions as currently structured.
5.4.2. Prior to a party submitting any notifications, filings or other materials described in Section 5.4.1 to the OIG, the submitting party will provide copies thereof to the other parties for review and comment, will reasonably consider any comments received from the other parties thereon, and will otherwise work together in good faith with the other parties in connection with all such actions and communications with the OIG. No party may engage in ex parte communications with the OIG regarding the Contemplated Transactions without the prior written consent of the other parties hereto.
5.5. Notices and Consents .
5.5.1. Subject to the terms and conditions of this Agreement, from the date of this Agreement until the Closing Date, each of the parties will use its reasonable best efforts to take or cause to be taken all actions, to file or cause to be filed all documents, to give or cause to be given all notices to Governmental Authorities or other Persons, to obtain or cause to be obtained all authorizations, consents, waivers, approvals, permits or orders from Governmental Authorities or other Persons, and to do or cause to be done all
other things necessary, proper or advisable, in order to consummate and make effective the Contemplated Transactions (including satisfaction, but not waiver, of the closing conditions set forth in Article 6 and Article 7 ).
5.5.2. In furtherance and not in limitation of the foregoing, each of the parties will prepare and file, or cause to be prepared and filed, any required notification pursuant to the HSR Act that is required to be made by such party or its ultimate parent with respect to the Contemplated Transactions no later than six (6) Business Days following the date hereof and will prepare and file, or cause to be prepared and filed, all other filings, submissions and registrations required to be made by such party and its Affiliates under applicable Legal Requirements, in each case, as promptly as reasonably practicable.
5.5.3. The parties will furnish each other with all necessary information and cooperate with each other in connection with the preparation of such filings, submissions and registrations and seek to secure the expiration or termination of all applicable waiting periods under the HSR Act and to obtain all such authorizations, consents, waivers, approvals, permits and orders as soon as reasonably practicable following the date of this Agreement. The parties will provide each other reasonable opportunity to review and comment on any filing, submission, registration or other written communication to be given to, and consult with each other in advance of any meeting or conference with, the Federal Trade Commission (the FTC ), the Antitrust Division of the Department of Justice (the DOJ ) or any other Governmental Authority in connection with the efforts taken pursuant to this Section 5.5 ; provided , however , that, subject to applicable Legal Requirements relating to the exchange of information, the Buyer Parties will have the right to direct all matters with any Governmental Authorities. If any investigation, inquiry or other Action, whether initiated by a Governmental Authority or a private party, arising out of or relating to any such filing, submission or registration or otherwise relating to the Contemplated Transactions is initiated or threatened, the parties will keep each other reasonably informed of any material communications and developments in connection therewith, and, to the extent permitted by the FTC, the DOJ and other relevant Persons, give the other party the opportunity to attend and participate in any meetings and conferences relating to such filings, submissions, registrations and Actions, provided , however , that, subject to applicable Legal Requirements relating to the exchange of information, the Buyer Parties will have the right to direct all matters with any Governmental Authorities. The parties will reasonably promptly respond to all inquiries made by the FTC, DOJ and any other applicable Governmental Authorities in connection with such filings, submissions or registrations or otherwise in connection with the Contemplated Transactions, and reasonably promptly provide to such Governmental Authorities any additional information and documentary material requested under applicable Legal Requirements. Each party further agrees that it will not extend any waiting period under the HSR Act or other applicable Legal Requirement, or enter into any agreement with the FTC, the DOJ or any other Governmental Authority, or any other party to delay or not to consummate the Contemplated Transactions, except with the prior written consent of the other parties hereto; provided , however , that, notwithstanding the foregoing, the Buyer Parties (or their ultimate parent) may unilaterally extend the waiting period under the HSR Act (which may include pursuant to an election by the Buyer
Parties to pull and refile the notification required under the HSR Act) by a period not to exceed thirty-five (35) days following the waiting period associated with the initial notification provided under the HSR Act and the Sellers, Sellers Representative and the Company will cooperate therewith consistent with its obligations hereunder.
5.5.4. If any objections are raised or asserted with respect to the Contemplated Transactions under any Legal Requirement or if any Action is instituted (or threatened to be instituted) by the FTC, the DOJ or any other applicable Governmental Authority or any private party challenging any of the Contemplated Transactions as being in violation of any applicable Legal Requirement or which would otherwise prevent, impede or delay the consummation of the Contemplated Transactions, the Buyer Parties will use their reasonable best efforts to resolve any such objections or Actions so as to permit consummation of the Contemplated Transactions as soon as reasonably practicable. The Buyer Parties expressly agree that, if necessary to obtain approval of the Contemplated Transactions under the HSR Act, the Buyer Parties will: (i) contest and resist any such Actions and seek to have vacated, lifted, reversed or overturned any Government Order that is in effect that prohibits, prevents or restricts the consummation of the Contemplated Transactions; and (ii) agree to sell, hold separate or otherwise dispose of assets (including assets of any Subsidiaries of the Buyer Parties) or agree to conduct their businesses (including the businesses of any Subsidiaries of the Buyer Parties) in such a manner as would resolve such objections or Actions.
5.6. The Buyer Parties Access to Premises; Information .
5.6.1. From the date of this Agreement until the Closing Date, the Company will, and the Company will cause the Group Companies to, permit the Buyer Parties and their respective Representatives to have reasonable access (at reasonable times and upon reasonable notice) to all officers of the Company and to all premises, properties, books, records (including Tax records), Contracts, financial and operating data and information and documents pertaining to the Group Companies and to make copies of such books, records, Contracts, data, information and documents as the Buyer Parties and their respective Representatives may reasonably request. Notwithstanding anything herein to the contrary, the Buyer Parties are not permitted to have access to such materials to the extent that it would require the Group Companies to disclose information in a manner that would cause forfeiture of attorney-client privilege or conflict with any confidentiality obligations to which any Group Company is bound. No Group Company or Seller makes any representation or warranty as to the accuracy of any information (if any) provided pursuant to this Section 5.6.1 , and no Buyer Party will rely on the accuracy of any such information, in each case, other than as expressly set forth in the Companys representations and warranties contained in Article 3 (as modified by the Schedules), in any certificate delivered pursuant to this Agreement or in any Ancillary Agreements. For the avoidance of doubt, the information provided pursuant to this Section 5.6.1 will be subject to the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary herein, no Buyer Party will contact any employees (other than officers of the Company), customers, business partners, suppliers or any other Persons with whom any Group Company transacts business (directly or indirectly) without the Companys prior written consent.
5.6.2. The Company will prepare and furnish to the Buyer Parties, promptly after becoming available and in any event within thirty (30) days of the end of each calendar month, the unaudited consolidated balance sheet of the Group Companies, and the related unaudited consolidated statement of income, cash flow and changes in unitholders equity of the Group Companies (the Update Financials ) for each month following the Most Recent Balance Sheet Date through the Closing Date.
5.7. Notice of Developments . From the date of the Agreement until the Closing Date, the Company will give the Buyer Parties reasonably prompt written notice upon becoming aware of, to the Companys Knowledge, any event or circumstance that would reasonably be expected to result in a material breach of, or material inaccuracy in, any of the Companys representations, warranties, covenants or agreements under this Agreement.
5.8. Exclusivity . From the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with the terms hereof, neither the Seller Parties nor the Company will (and the Seller Parties and the Company will not permit their respective Affiliates to, and will use commercially reasonable efforts to cause their and their Affiliates Representatives not to) directly or indirectly: (a) solicit, initiate or encourage the submission of any proposal or offer from any Person relating to, or enter into or consummate any transaction relating to, the acquisition of any equity interests in any Group Company or any merger, recapitalization, leveraged dividend, share exchange, sale of substantial Assets (other than sales of inventory in the Ordinary Course of Business) or any similar transaction or alternative to the Contemplated Transactions or (b) participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner, any effort or attempt by any Person to do or seek any of the foregoing. Neither of the Seller Parties will vote its respective equity securities in favor of any such acquisition structured as a merger, consolidation, share exchange or otherwise. The Seller Parties and the Company will notify the Buyer Parties immediately if any Person makes any proposal, offer, inquiry or contact with respect to any of the foregoing (whether solicited or unsolicited). Notwithstanding anything to the contrary in this Section 5.8 , the Company may issue Equity Interests to, and discuss issuing Equity Interests to, employees and independent contractors of the Group Companies, in each case in the Ordinary Course of Business, and Fresenius may acquire Class B Units pursuant to the terms of the Equity Grant Agreements outstanding on the date hereof; provided , however , that any such issuances of Equity Interests of the Company or acquisitions of Class B Units by Fresenius are made in compliance with the provisions of Section 5.1 .
5.9. Expenses; HSR Act Filing Fees . Except as otherwise provided in this Agreement, each party will bear its own costs and expenses in connection with this Agreement and the Contemplated Transactions; provided , however that all Company Transaction Expenses will be borne by the Sellers as contemplated by Section 2.9.7 . At or prior to the Closing, the Company will cause to be paid and satisfied in full any consent or similar fee required to be paid in connection with obtaining any consent required to be set forth on Schedule 3.3 or Schedule 3.4 . Any fees or expenses incurred in connection with the filings made pursuant to the HSR Act and under any other applicable antitrust, competition, or trade regulation will be borne 50% by Holdco I and 50% by the Company.
5.10. Confidentiality . The Buyer Parties acknowledge that the information provided to it in connection with this Agreement and the Contemplated Transactions is subject to the terms of the Mutual Non-Disclosure Agreement between Summit Partners, L.P. and Sound Inpatient Physicians, Inc., dated November 16, 2017 (as modified by the Letter of Intent among Summit Partners, L.P., the Company and Fresenius dated as of January 13, 2018, as amended, the Confidentiality Agreement ), the terms of which are incorporated herein by reference, except that such information may be disclosed in connection with the marketing and syndication of the Debt Financing subject to customary confidentiality arrangements. Effective upon, and only upon, the Closing, the Confidentiality Agreement will terminate. By executing this Agreement and/or such Sellers Letter of Transmittal, each Seller hereby agrees with the Buyer Parties that for a period of five (5) years following the Closing Date, such Seller will not, and that such Seller will cause their respective Affiliates not to, directly or indirectly, without the prior written consent of Holdco II, disclose or use any Sound Confidential Information; provided , that this restriction will not apply to (a) disclosures made by a then-current employee of a Group Company in the performance of such employees employment duties in the Ordinary Course of Business, (b) disclosures required by applicable Legal Requirements so long as the applicable Seller, to the extent permitted by applicable Legal Requirements, gives Holdco II prior written notice of such disclosure and minimizes the disclosure to only that portion of the Sound Confidential Information that is legally required to be disclosed and (c) disclosures made in connection with the enforcement of any right or remedy relating to this Agreement or the Contemplated Transactions. For purposes of this Section 5.10 , Sound Confidential Information means proprietary or confidential information of a Group Company involving or relating to the Business, excluding any information that is or becomes publicly available other than as a result of a violation of this Section 5.10 .
5.11. Publicity . No public announcement or disclosure will be made by any party with respect to the subject matter of this Agreement or the Contemplated Transactions without the prior written consent of the Buyer Parties and the Sellers Representative (which in each case will not be unreasonably withheld or delayed); provided , however , that the provisions of this Section 5.11 will not prohibit (a) any private disclosure by any prospective provider of the Financing in the ordinary course to any such Persons representatives, potential investors or participants, so long as each such recipient is under an obligation to keep such disclosed information confidential, (b) any disclosure required by any applicable Legal Requirements (in which case the disclosing party will provide the other parties with the opportunity to review in advance the disclosure), (c) any disclosure made in connection with the enforcement of any right or remedy relating to this Agreement or the Contemplated Transactions and (d) any disclosure by a Buyer Party to report and disclose the status of this Agreement and the Contemplated Transactions in the Ordinary Course of Business to its Affiliates and/or their respective investors; provided , that each Buyer Party and its respective Affiliates and their respective affiliated funds may provide general information about the subject matter of this Agreement and the Group Companies (including its and their performance and improvements, but not the price paid for the Group Companies unless the recipients are subject to a confidentiality agreement) in connection with the Buyer Parties or their respective Affiliates or their respective affiliated funds fund raising, marketing, informational or reporting activities.
5.12. Financing Activities .
5.12.1. Subject to the other provisions of this Agreement, and taking into account the anticipated timing of the Marketing Period, Holdco I will use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to (a) arrange and consummate the Financing as promptly as reasonably practicable on the terms and conditions described in the Commitment Letters (including, as necessary, any flex terms contained in the Debt Commitment Letter or any related fee letter), (b) maintain in effect the commitment for the Financing set forth in the Commitment Letters, subject to amendments, modifications and replacements permitted hereunder, (c) negotiate, execute and deliver definitive agreements with respect to the Debt Financing on the terms and conditions contemplated by the Debt Commitment Letter (including, as necessary, any flex terms contained in the Commitment Letters or any related fee letter) and on other terms and conditions that are not less favorable to Holdco I (as determined by Holdco I in good faith) than the terms contemplated by the Debt Commitment Letter in effect on the date hereof and that would not (i) reduce the aggregate amount of the Debt Financing to be funded on the Closing Date unless the Equity Financing is increased by a corresponding amount or (ii) impose new or additional conditions precedent, or otherwise amend, modify or expand any conditions precedent, to the receipt of the Debt Financing in a manner that would reasonably be expected to (A) cause all or any portion of the Debt Financing to be unavailable on a date on which the Closing is otherwise required to occur pursuant to Section 2.2 , (B) prevent the funding of the Debt Financing at the Closing or (C) adversely affect the ability of Holdco I to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (the items described in the preceding clauses (i) and (ii), collectively, the Restricted Financing Commitment Amendments ) ( provided that (x) the existence or exercise of any flex terms will not constitute a Restricted Financing Commitment Amendment and (y) Holdco I may amend or modify, or waive any provision or remedy under, the Debt Commitment Letter if such amendment, modification or waiver is not a Restricted Financing Commitment Amendment, it being understood and agreed that any amendment or modification to add lenders, lead arrangers, bookrunners, syndication agents and similar entities will not be a Restricted Financing Commitment Amendment), (d) satisfy and cause to be satisfied, on a timely basis, all conditions applicable to, and within the control of, Holdco I in the Commitment Letters, and (e) enforce its rights under the Debt Commitment Letter or, in the event that the Debt Financing is unavailable, solely at Holdco Is option, arrange for the Strategic Investor or one of its Affiliates to provide the Debt Financing (provided that such alternative Debt Financing by the Strategic Investor or one of its Affiliates will be completed (i) on the same terms as the terms set forth in the Debt Commitment Letter (without giving effect to any flex provisions) and (ii) within five (5) Business Days of receipt by the Buyer Parties of the written notice contemplated by Section 8.1.6(c) ), if and to the extent necessary to obtain the Debt Financing contemplated thereby. Promptly after receipt thereof, Holdco I will provide the Sellers Representative with copies of any amendment or modification of the Commitment Letters.
5.12.2. In the event that all conditions to the Debt Financing have been satisfied (other than the availability of the Equity Financing), Holdco I will use reasonable best efforts to cause the Debt Financing Sources to fund, on or prior to the date on which the
Closing is required to occur pursuant to Section 2.2 , the Debt Financing required to consummate the Closing.
5.12.3. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable flex terms contained in Debt Commitment Letter or any related fee letter) contemplated in the Debt Commitment Letter, Holdco I will use reasonable best efforts to arrange and obtain in replacement thereof, and to negotiate and enter into definitive agreements with respect to, alternative debt financing from alternative debt financing sources, in an amount sufficient to pay all obligations of Holdco I hereunder that are required to be paid on the Closing Date and on terms and conditions (including any flex provisions applicable thereto) that are not less favorable (in the aggregate) to Holdco I (as determined by Holdco I in good faith) than the terms contemplated by the Debt Commitment Letter in effect on the date hereof, as promptly as practicable following the occurrence of such event, but in no event later than the date the Buyer Parties are required to consummate the Closing pursuant to Section 2.2 . Holdco I will promptly provide the Sellers Representative with a copy of any such new financing commitment letters with respect to any alternative debt financing. For purposes of this Agreement, after the date hereof, (a) references to the Debt Financing will include the financing contemplated by the Debt Commitment Letter as permitted to be amended, modified or replaced by Section 5.12.1 or this Section 5.12.3 , and (b) references to the Debt Commitment Letter will include such documents as permitted to be amended, modified or replaced by Section 5.12.1 or this Section 5.12.3 .
5.12.4. Holdco I will not permit any amendment, modification or waiver, in each case, constituting a Restricted Financing Commitment Amendment to be made to the Debt Commitment Letter without obtaining the prior written consent of the Sellers Representative.
5.12.5. Upon the request of the Sellers Representative, Holdco I will keep the Sellers Representative reasonably informed with respect to material activity concerning the status of the Debt Financing. Without limiting the foregoing, Holdco I will notify the Sellers Representative promptly if at any time prior to the Closing Date: (a) the Commitment Letters expire or are validly terminated or repudiated for any reason; (b) Holdco I obtains knowledge of any material breach or material default, or any threatened (in writing) material breach or material default, by any party to the Commitment Letters or any definitive document related to the Financing of any provisions of the Commitment Letters or any definitive document related to the Financing; or (c) Holdco I no longer believes in good faith that it will be able to obtain all or any portion of the Financing on substantially the terms and conditions contemplated by the Commitment Letters.
5.12.6. Nothing in this Section 5.12 or any other provision of this Agreement will require, and in no event will the reasonable best efforts of Holdco I be deemed or construed to require, Holdco I to (a) seek or accept Debt Financing on terms materially less favorable in the aggregate to Holdco I than those set forth in the Debt Commitment Letter (including, if necessary, any related flex terms set forth in the Debt Commitment Letter or any related fee letter) provided on the date of this Agreement, or (b) waive any term or condition of this Agreement. In the event Holdco I is required
pursuant to this Section 5.12 to provide any information that is subject to any legal privilege, Holdco I may withhold disclosure of such information.
5.12.7. While the parties hereto acknowledge and agree that obtaining the Debt Financing is not a condition to the Buyer Parties obligations hereunder, from the date hereof until the Closing (or the earlier termination of this Agreement pursuant to Article 8 ), subject to the limitations set forth below, the Company will, and the Company will cause the Group Companies to, and will instruct their Representatives to, cooperate with Holdco I as reasonably requested by Holdco I in connection with Holdco Is arrangement of the Debt Financing; provided , that nothing herein will require such cooperation to the extent that it would unreasonably interfere with the business or operations of the Group Companies. Such cooperation will include: (a) making appropriate Representatives of the Group Companies reasonably available, with appropriate advance notice, for participation in rating agency meetings and bank meetings and other meetings with the Debt Financing Sources and any actual or prospective lenders in connection with the Debt Financing; (b) providing reasonable assistance in the preparation of confidential information memoranda, materials for rating agency presentations and lender presentations, business projections or other marketing documents necessary for, or customarily used to arrange, transactions similar to the Debt Financing, and identifying any portion of the information included in the foregoing that constitutes material, non-public information; (c) providing a customary authorization letter with respect to confidential information memoranda and consents of accountants for use of their reports in any materials relating to the Debt Financing; (d) facilitating (i) the granting of a security interest (and perfection thereof) in collateral and (ii) the preparation, execution and delivery of any definitive financing documents and certificates, as may be reasonably requested by Holdco I or the Debt Financing Sources, including obtaining releases of existing encumbrances; provided , that any obligations and releases of encumbrances contained in all such documents and certificates will be subject to the occurrence of the Closing; (e) furnishing all documentation and other information required by any Governmental Authority under applicable know your customer and anti-money laundering rules and regulations requested in writing at least eight (8) Business Days prior to the Closing at least four (4) Business Days prior to the Closing, but in each case, solely as relating to the Group Companies; (f) cooperating in satisfying the conditions precedent set forth in the Debt Commitment Letter or any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies; (g) obtaining a certificate of the chief financial officer or person performing similar functions of the Company in the form attached to the Debt Commitment Letter with respect to solvency matters; and (h) obtaining copies of such other pertinent financial and operating data, and other customary information, with respect to the Group Companies as is reasonably requested by Holdco I or the Debt Financing Sources and is customarily required for completion of debt financings similar to the Debt Financing, including the Required Bank Information. The Company hereby consents to the use of logos used by the Group Companies in connection with the Debt Financing; provided , that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Group Companies or the reputation or goodwill of the Group Companies. Nothing in this Section 5.12 will require (A) any Representative of the Group Companies to deliver any
certificate, other than any authorization letters delivered pursuant to clause (c) above (unless such Representative is only required to sign in his or her capacity as a Representative and not in any individual capacity) or opinion or take any other action that could reasonably be expected to result in personal liability to such Representative or (B) Persons who are directors (or equivalent) of the Group Companies prior to the Closing (in their capacity as such) to pass resolutions or consents to approve or authorize the Debt Financing (other than any Person who is continuing as a director (or equivalent) of the Group Companies following the Closing, who will not be required to execute, deliver or enter into or perform any agreement, document or instrument, or adopt any resolutions approving the agreements, documents and instruments, pursuant to which the Debt Financing is obtained that is not contingent upon the Closing or that would be effective prior to the Closing).
5.12.8. Notwithstanding Section 5.12.7 or anything else in this Agreement, whether or not the Closing occurs:
(a) except to the extent subject to reimbursement by Holdco I pursuant to Section 5.12.8(b) , in no event will the Company or Sellers Representative be required to bear any cost or expense, pay any fee or incur any liability in connection with the Financing prior to the Closing; and
(b) Holdco I will promptly, upon request by the Company or Sellers Representative, reimburse the Company and Sellers Representative for all reasonable and documented out-of-pocket fees, costs and expenses (including reasonable and documented out-of-pocket fees, costs and expenses of counsel) incurred by the Group Companies and their respective Affiliates and Representatives in connection with their cooperation in arranging the Debt Financing, and except to the extent arising from the willful misconduct, gross negligence, fraud or intentional misrepresentation of the Group Companies or their respective Affiliates or Representatives, Holdco I will indemnify and hold harmless the Group Companies and their respective Affiliates and Representatives from and against all losses, damages, claims, or out-of-pocket costs or expenses incurred by the Company in connection with their cooperation in arranging the Debt Financing and any information (other than historical information relating to the Group Companies or other information furnished in writing by or on behalf of the Group Companies) used in connection therewith.
5.13. Further Assurances . From and after the Closing Date, upon the request of either the Sellers Representative or a Buyer Party, each of the parties hereto will use commercially reasonable efforts to do, execute, acknowledge and deliver all such further acts, assurances, deeds, assignments, transfers, conveyances and other instruments and papers as may be reasonably required or appropriate to carry out and/or evidence the Contemplated Transactions.
5.14. Releases . Effective as of the Closing, each Seller Party and each other Seller who executes a Letter of Transmittal (each, a Releasing Party ) hereby releases, remises and forever discharges any and all claims that it has had, now has or might have against the Group Companies or the Buyer Parties and their respective Affiliates (to the extent related to the Business or to the Buyer Parties ownership of the Group Companies), and each of the current
and former managers, directors, officers, employees, partners, members, successors and assigns of the foregoing, arising prior to the Closing, except for (a) claims pursuant to this Agreement or the Ancillary Agreements, (b) any right to or claim for indemnification that such Releasing Party may have under the organizational documents of the Group Companies, or otherwise arising under applicable Legal Requirements or the Contracts set forth on Schedule 5.16.1 , (c) any right to or claim for benefits that such Releasing Party may have under the terms of any Company Plans or any of the agreements described in Section 3.17.1(k)(i) or (ii) or (d) any unpaid Compensation. Nothing contained in this Agreement will be construed to prohibit a Releasing Party from filing a charge with or participating in any investigation or proceeding conducted by the Federal Equal Employment Opportunity Commission or a comparable state or local agency; provided , however , that each Releasing Party hereby agrees to waive its right to recover monetary damages or other individual relief in any such charge, investigation or proceeding or any related complaint or lawsuit filed by such Releasing Party or by anyone else on such Releasing Partys behalf. Effective as of the Closing, the Surviving LLC hereby releases, remises and forever discharges, and will cause each Group Company to release, remise and forever discharge, any and all claims that is has had, now has or might have against the Sellers arising prior to the Closing, except for (i) claims pursuant to this Agreement or the Ancillary Agreements, including claims for indemnification pursuant to Article 10 and (ii) claims related to intentional fraud, embezzlement, larceny or other criminal activity.
5.15. Non-Competition and Non-Solicitation .
5.15.1. Each Seller Party and each other Seller listed on Schedule 1(g)(i) or Schedule 1(g)(ii) who executes a Letter of Transmittal agrees that, during the Restricted Period, such Seller will not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, engage in (except on behalf of the Group Companies) or compete with, or undertake any planning to engage in or compete with, all or any portion of the Hospitalist Business, within twenty-five miles of any medical facility at which any Group Company currently provides, or is in active planning to provide as of the Closing Date, services in connection with the Hospitalist Business. Notwithstanding anything to the contrary in Section 5.15 , the following will not constitute, solely by reason thereof, a violation on the part of such Seller of Section 5.15 : (a) a Sellers passive ownership of three percent (3%) or less of the equity securities of a publicly traded company; (b) any acquisition by a Seller of a business (the Acquired Business ), and continued operation of such Acquired Business, a portion of which consists of the Hospitalist Business, as long as the Acquired Business, at the time it was acquired by the applicable Seller, earned less than ten percent (10%) of its aggregate revenue from the Hospitalist Business; and (c) any conduct of the Hospitalist Business by a Seller at any time to the extent the Hospitalist Business services are being provided solely to Affiliates of such Seller; provided , that with respect to the foregoing clause (b), if Fresenius or any of its Affiliates acquires any business during the Restricted Period that, at the closing of the acquisition of such Acquired Business, derives more than ten percent (15)% of its aggregate revenue from the Hospitalist Business, Fresenius (or its Affiliate) will promptly divest such business and, in any event, no more than one (1) year after such acquisition, and the Group Companies will have a right of first refusal to purchase such divested business on substantially the same terms and conditions as the proposed divestiture. Fresenius will provide written notice to Holdco II stating the
material terms and conditions of the proposed divestiture, including proposed purchase price, and Holdco II will have a period of up to fifteen (15) Business Days to indicate its interest in acquiring such divested business which will remain subject to customary diligence and negotiation and execution of transaction documents in relation thereto. If Holdco II elects in writing not to pursue the purchase of such divested business or otherwise fails to respond to the written notice delivered pursuant hereto after fifteen (15) Business Days, Fresenius may sell such divested business at any time within nine (9) months following such period to a third party on terms and conditions no more favorable to the third party than those specified in the notice delivered by Fresenius to Holdco II and thereafter Fresenius may not sell such divested business without first following the procedures set forth in this Section 5.15.1 .
5.15.2. Each Seller Party and each other Seller listed on Schedule 1(g)(i) or Schedule 1(g)(ii) who executes a Letter of Transmittal agrees that, during the Restricted Period, such Seller will not, directly or indirectly, (a) solicit or encourage any Person who has been a customer, vendor, supplier, independent contractor or other business partner of any of the Group Companies at any time within the twelve (12)-month period immediately preceding the Closing Date to terminate or diminish its, his or her relationship with any of the Group Companies, (b) seek to persuade any Person who has been a prospective customer or client of any of the Group Companies at any time within the twelve (12) month period immediately preceding the Closing Date to obtain the services of the Hospitalist Business from anyone else other than the Group Companies or (c) hire or engage, or solicit for hiring or engagement, any employee of any of the Group Companies who was such at any time within the twelve (12)-month period immediately preceding the Closing Date, or seek to persuade any such employee to discontinue employment with any of the Group Companies or with the Buyer Parties or any of their respective Affiliates. Notwithstanding the foregoing, none of the following will constitute a violation on the part of a Seller of this Section 5.15.2 : (i) a general solicitation by a Seller that is not directed at any of the Persons described in this Section 5.15.2 ; (ii) hiring an employee of a Group Company who responds to a permitted general solicitation; and (iii) hiring an employee of a Group Company at least six (6) months after such employee ceased to be an employee of a Group Company; provided that the actions in the preceding clauses (ii) and (iii) will not be permitted with respect to any employee of the Group Companies set forth on Schedule 5.15.2 .
5.15.3. Each Seller Party and each other Seller listed on Schedule 1(g)(i) or Schedule 1(g)(ii) who executes a Letter of Transmittal agrees that (a) his, her or its agreement to the covenants contained in this Section 5.15 is a material condition of the Buyer Parties willingness to enter into this Agreement and consummate the Contemplated Transactions, (b) the covenants contained in this Section 5.15 are necessary to protect the good will, confidential information, trade secrets and other legitimate interests of the Group Companies and the Buyer Parties, (c) in addition and not in the alternative to any other remedies available to it, the Buyer Parties will be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by such Seller of any such covenants, without having to post bond, together with an award of its reasonable attorneys fees incurred in enforcing its rights hereunder, (d) the Restricted Period applicable to such Seller will be tolled, and will not run, during the
period of any breach by such Seller of any such covenants, (e) no claimed breach of this Agreement or any of the Ancillary Agreements will operate to extinguish such Sellers obligation to comply with this Section 5.15 , and (f) in the event that the final judgment of any court of competent jurisdiction declares any term or provision of this Section 5.15 to be invalid or unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, that provision will be deemed to be modified to permit its enforcement to the maximum extent permitted by law.
5.16. Indemnification; Directors and Officers Insurance .
5.16.1. The Buyer Parties agree that all rights to indemnification or exculpation now existing in favor of the directors and officers of each Group Company, as provided in any Group Companys organizational documents or otherwise in effect as of the date hereof and set forth on Schedule 5.16.1 , with respect to any matters occurring prior to the Closing Date, will survive the Contemplated Transactions and will continue in full force and effect, and the Group Companies will advance expenses in connection with such indemnification, in each case, to the extent provided, as of the date hereof, in such Group Companys organizational documents or other applicable agreements otherwise in effect as of the date hereof and set forth on Schedule 5.16.1 . The indemnification and liability limitation or exculpation provisions of the Group Companies organizational documents will not be amended, repealed or otherwise modified after the Closing Date in any manner that would adversely affect the rights thereunder of individuals who, as of the Closing Date or at any time prior to the Closing Date, were directors or officers of any Group Company, unless such modification is required by applicable Legal Requirements.
5.16.2. Prior to the Closing, the Seller Parties will cause the Company to, and the Company will, at the Sellers expense, purchase and maintain in effect, without any lapses in coverage, a tail policy providing directors and officers liability insurance coverage for the benefit of those Persons who are covered by any Group Companys directors and officers liability insurance policies as of the date hereof or at the Closing, for a period of six (6) years following the Closing Date with respect to matters occurring prior to the Closing that is at least substantially equal to the coverage provided under the Group Companies current directors and officers liability insurance policies; provided , that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous to the beneficiaries thereof so long as such substitution does not result in gaps or lapses in coverage with respect to matters occurring prior to the Closing Date.
5.16.3. The directors and officers of each Group Company entitled to the indemnification, liability limitation, exculpation and insurance set forth in this Section 5.16 are intended to be third party beneficiaries of this Section 5.16 . This Section 5.16 will survive the consummation of the Contemplated Transactions and will be binding on all successors and assigns of the Buyer Parties and the Group Companies.
5.16.4. If any of the Buyer Parties, the Group Companies or any of their successors or assigns (a) consolidates with or merges into any other Person and will not be the continuing or surviving corporation or entity of such consolidation or merger, or
(b) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision will be made so that the successors and assigns of such Buyer Party or the Group Companies will assume the obligations set forth in this Section 5.16 .
5.17. Employee Benefits .
5.17.1. For a period of twelve (12) months following the Closing Date, the Buyer Parties will, or will cause the applicable Group Company to, provide those employees who are employed by the Group Companies on the Closing Date (the Continuing Employees ), while employed by a Buyer Party or any of the Group Companies, with (a) base compensation that is no less favorable to that provided to the Continuing Employee immediately prior to the Closing and (b) retirement, health and welfare and paid time-off benefits that are substantially similar in the aggregate to those being provided to such Continuing Employees immediately prior to the Closing.
5.17.2. The Buyer Parties agree that, from and after the Closing Date, the Buyer Parties will grant (or cause to be granted) to each Continuing Employee credit for any service with the Group Companies earned prior to the Closing Date (a) for eligibility and vesting purposes and (b) for purposes of determining the level of vacation benefits under any benefit plan, program or arrangement established or maintained by a Buyer Party or its Subsidiaries or any of the Affiliated Practices in which Continuing Employees participate (other than any equity or equity-based compensation, change-in-control or similar plan, program, or arrangement) (the New Plans ) unless duplication of benefits would result. In addition, the Buyer Parties will use commercially reasonable efforts to (i) waive or cause to be waived all pre-existing condition exclusion and actively-at-work requirements and similar limitations, eligibility waiting periods and evidence of insurability requirements under any New Plans and (ii) cause any deductible, coinsurance and maximum out-of-pocket expenses paid on or before the Closing Date by any Continuing Employee (or dependent or beneficiary thereof) under any Company Plan in the plan year in which the Closing Date occurs to be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket expenses after the Closing Date under any New Plan for the plan year in which the Closing Date occurs. The Group Companies will provide to the Buyer Parties such information as is reasonably requested by the Buyer Parties in order to comply with their obligations under this Section 5.17 , including information relating to each employees years of service with the Group Companies as of the Closing Date and a schedule of the amount paid in respect of deductible, coinsurance and maximum out-of-pocket expenses by each employee of the Group Companies for the plan year in which the Closing Date occurs.
5.17.3. Nothing in this Section 5.17 or otherwise in this Agreement is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.17 . Without limiting the foregoing, no provision of this Agreement will create any third party beneficiary rights in any current or former director, officer, employee, independent contractor or other service provider of any of the Group Companies in respect of continued employment or service or any other matter. This Agreement does not (a) establish, amend, modify or terminate any Employee Plan or any
benefit plan, program or arrangement of any Buyer Party or any of its Subsidiaries or Affiliates or any Affiliated Practice, (b) require any Buyer Party, any of its Subsidiaries or Affiliates, or any of the Group Companies to continue any Company Plan, (c) prevent the amendment, modification or termination of any employee benefit plan, or (d) limit or restrict the ability of any Buyer Party, any of its Subsidiaries or Affiliates, or any of the Group Companies to terminate the employment or engagement of any director, officer, employee, independent contractor or other service provider at any time.
5.18. Records . With respect to the financial and other books and records and minute books of the Group Companies relating to matters on or prior to the Closing Date: (a) for a period of seven (7) years after the Closing Date, no Buyer Party or Group Company will cause or permit their destruction or disposal without first offering to surrender them to the Sellers Representative; and (b) if reasonably requested by Sellers Representative, Holdco II will allow Sellers Representative and its Representatives reasonable access to such books and records during regular business hours upon reasonable advance written notice to Holdco II, except to the extent that giving access to Sellers Representative to particular records would (i) violate applicable Legal Requirements or (ii) violate the attorney-client privilege, other legal privilege or contractual confidentiality obligations.
5.19. Release of Guaranties . After the Closing, the Buyer Parties will (i) cause SIP to perform its obligations under its lease of its Tacoma office space as described in more detail in Schedule 5.19 and (ii) use commercially reasonable efforts to have Fresenius released from the guaranty described in Schedule 5.19 .
5.20. Put Unit Purchase Agreements . The Buyer Parties will cause the Group Companies to provide copies of the consolidated audited financial statements of the Group Companies for the years ending December 31, 2017 and December 31, 2018 to Fresenius as soon as such financial statements are available. In addition, the Buyer Parties will cause the Group Companies to promptly provide to Fresenius such additional financial information about the Group Companies for those years as Fresenius may reasonably request in order to be able to comply, and Fresenius will use such information solely for the purposes of complying, with its obligations to calculate the amounts needed for the Put-True-Up Certificates contemplated by the Put Purchase Agreements listed in Schedule 5.20 . For the avoidance of doubt, the consolidated audited financial statements of the Group Companies and any additional financial information provided to Fresenius under this Section 5.20 is Sound Confidential Information and Fresenius will be bound by the confidentiality obligations set forth in Section 5.10 with respect to such information.
5.21. Section 280G . The Group Companies will, prior to the Closing Date, use commercially reasonable efforts to obtain stockholder approval (in accordance with the requirements of Section 280G(b) of the Code and the regulations thereunder ( Section 280G )) of any payments or benefits paid or payable by any of the Group Companies or any of their respective Affiliates that would, absent stockholder approval, reasonably be expected to be excess parachute payments within the meaning of Section 280G ( Section 280G Payments ). Prior to such stockholder approval, the Group Companies will use commercially reasonable efforts to obtain waivers from any disqualified individuals (within the meaning of Section 280G), such that unless such payments and benefits to such individuals are approved by
the stockholders to the extent and in the manner required under Section 280G, no such payments and benefits will be paid or provided. Prior to the Closing Date, the Group Companies will deliver to the Buyer Parties written certification that (a) the requisite stockholder approval was obtained with respect to any Section 280G Payments that were subject to the stockholder vote, (b) the stockholder approval of Section 280G Payments was not obtained and, as a consequence, that such payments and benefits will not be paid or provided to any affected individual who had duly executed a waiver of those payments and benefits to the extent that such payments and benefits would cause any amounts to constitute Section 280G Payments, and/or (c) commercially reasonable efforts were used, however, the Group Companies were unable to obtain waivers or the requisite stockholder approval. Copies of all disclosures, waivers, consents, and stockholder voting materials used in connection with the foregoing will be provided to the Buyer Parties at least ten (10) days in advance of distribution to stockholders or the disqualified individuals, as applicable, for the Buyer Parties review and approval.
5.22. Joinders and Pre-Closing Repurchase . Prior to the Closing, Fresenius will cause each of the Fresenius Managers to execute and deliver a Joinder to the Company and the Buyer Parties. Prior to the Closing, Fresenius will, and will cause each of the Fresenius Managers who have not executed this Agreement to (following such Fresenius Mangers execution of a Joinder), enter into a unit repurchase agreement in the form attached hereto as Exhibit H (each, a Repurchase Agreement and collectively, the Repurchase Agreements ) pursuant to which the Company will repurchase from Fresenius and each of the Fresenius Managers immediately prior to the Closing all of the Fresenius Class B Units, free and clear of all Encumbrances except as are imposed by applicable securities laws or arising under the organizational documents of the Company.
5.23. Invention Assignment Agreements . Prior to Closing, the Group Companies shall use commercially reasonable efforts to obtain agreements, in form and substance reasonably satisfactory to the Buyer Parties, from all employees of the Group Companies who have developed Group Company Technology and Intellectual Property Rights that assign to a Group Company all such employees respective rights to such Group Company Technology and such Intellectual Property Rights.
6. CONDITIONS TO THE BUYER PARTIES OBLIGATIONS AT THE CLOSING.
The obligations of the Buyer Parties to consummate the Closing are subject to the fulfillment of each of the following conditions (unless waived by Holdco I in accordance with Section 11.4 ):
6.1. Representations and Warranties . Each of the representations and warranties of the Company contained in this Agreement and in any document, instrument or certificate delivered hereunder will be true and correct (disregarding all qualifications or limitations as to materiality or Material Adverse Effect and words of similar import set forth therein) at and as of the Closing (other than those representations and warranties that address matters as of a particular date, which will be true and correct as set forth herein as of such specified date) as though then made, except where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; provided, that the representations and warranties set forth in the
second sentence of Section 3.1 (Organization), 3.2 (Power and Authorization), 3.4(e) (Noncontravention of Organizational Documents) and 3.23 (No Brokers) will be true and correct in all respects (disregarding all qualifications or limitations as to materiality or Material Adverse Effect and words of similar import set forth therein, other than the Material Adverse Effect qualifier in Section 3.1 ) at and as of the Closing (other than those representations and warranties that address matters of a particular date, which will be true and correct as set forth herein as of such specified date) as though then made; provided, further, that the representation set forth in Section 3.8.19 will be true and correct in all respects both when made and at and as of the Closing as though then made; provided, further, that the representations and warranties set forth in Section 3.5 (Capitalization) (other than clause (x) of the second sentence of Section 3.5.1 and Section 3.5.3 ) will be true and correct in all respects (disregarding all qualifications or limitations as to materiality or Material Adverse Effect and words of similar import set forth therein) at and as of the Closing (other than those representations and warranties that address matters of a particular date, which will be true and correct in all respects as set forth herein as of such specified date) as though then made, in each case other than de minimis errors; provided, further, that the representation set forth in clause (x) of the second sentence of Section 3.5.1 will be true and correct in all respects at and as of the Closing as though then made, other than errors that individually or in the aggregate would not be expected to have a material impact on the Company; and provided, further, that the representation set forth in Section 3.5.3 will be true and correct in all respects at and as of the Closing as though then made, other than errors that individually or in the aggregate would not be expected to have a material impact on the Company (after giving effect to the indemnification arrangements pursuant to Section 10.1 and any additional indemnification protections the Sellers may choose to make available to the Buyer Parties when such errors are identified).
6.2. Performance . Each Seller Party and the Company will have performed and complied in all material respects with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by them at or prior to the Closing.
6.3. Compliance Certificates . The Company will have delivered to the Buyer Parties a certificate substantially in the form of Exhibit I-1 , dated as of the Closing Date and signed by a duly authorized Representative of the Company. The Sellers Representative will have delivered to the Buyer Parties a certificate substantially in the form of Exhibit I-2 , dated as of the Closing Date and signed by a duly authorized Representative of the Sellers Representative.
6.4. Qualifications . Any applicable waiting periods (and any extensions thereof) under the HSR Act will have expired or otherwise been terminated. No provision of any applicable Legal Requirement or Government Order will be in effect, in each case, (a) which would prevent consummation of any of the Contemplated Transactions or (b) which would result in any of the Contemplated Transactions being rescinded following consummation.
6.5. Consents, etc . All actions by (including any authorization, consent or approval) or in respect of (including notice to), or filings with, (a) any Governmental Authority that are required to consummate the Contemplated Transactions, as disclosed or required to be disclosed on Schedule 3.3 , and (b) any other Person, as set forth on Schedule 6.5 , will have been obtained or made in form and substance reasonably satisfactory to the Buyer Parties, and no such authorization, consent or approval will have been revoked.
6.6. FIRPTA Certificate . The Company will have delivered to the Buyer Parties a certificate to the effect that the Company (a) is not a partnership with respect to which fifty percent (50%) or more of the value of the gross assets consist of U.S. real property interests and (b) is not a partnership with respect to which ninety percent (90%) or more of the value of the gross assets consist of U.S. real property interests plus any cash or cash equivalents, within the meaning of Regulations Section 1.1445-11T(d).
6.7. Ancillary Agreements . Each of the Ancillary Agreements will have been executed and delivered to the Buyer Parties by the Company and each of the Seller Parties party thereto.
6.8. No Material Adverse Effect . Since the date hereof, there will have occurred no event nor will there exist any circumstance which, singly or in the aggregate with all other events and circumstances, has resulted or would reasonably be expected to result in a Material Adverse Effect.
6.9. Payoff Letters and Lien Releases . The Company will have delivered to the Buyer Parties, at least three (3) Business Days prior to Closing, payoff letters relating to Borrowed Debt of the Group Companies as set forth on Schedule 6.9 and any additional Borrowed Debt incurred after the date hereof pursuant to Section 5.1.2(a) , which payoff letters will provide for the release of all related Encumbrances upon receipt of the payoff amounts specified therein (the Payoff Letters ).
6.10. OIG Notice . The Company will have delivered the OIG Notice at least thirty (30) days prior to the Closing Date.
6.11. Pre-Closing Transactions .
6.11.1. Each of the Rollover Sellers will have executed and delivered to the Buyer Parties a contribution agreement in substantially the form attached to such Rollover Sellers Rollover Agreement (the Contribution Agreements ) pursuant to which the Rollover Sellers will have contributed to Holdco I the Rollover Units in exchange for certain equity of Holdco I (the Rollover Contributions ).
6.11.2. Each of the Fresenius Managers not party to this Agreement will have executed and delivered to the Buyer Parties a Joinder pursuant to which each Fresenius Manager will have agreed to become party to and be bound by this Agreement.
6.11.3. Fresenius, the Fresenius Managers and the Company will have executed and delivered to the Buyer Parties the Repurchase Agreements and the Company will own all of the Fresenius Class B Units free and clear of all Encumbrances except as are imposed by applicable securities laws as of the Closing or arising under the organizational documents of the Company.
7. CONDITIONS TO THE COMPANYS OBLIGATIONS AT THE CLOSING.
The obligations the Company to consummate the Closing are subject to the fulfillment of each of the following conditions (unless waived by the Company in accordance with Section 11.4 ):
7.1. Representations and Warranties . Each of the representations and warranties of the Buyer Parties contained in this Agreement and in any document, instrument or certificate delivered hereunder will be true and correct in all material respects (disregarding all qualifications or limitations as to materiality and words of similar import set forth therein) at and as of the Closing (other than those representations and warranties that address matters as of a particular date, which will be true and correct as set forth herein as of such specified date) as though then made.
7.2. Performance . The Buyer Parties will have performed and complied in all material respects with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyer Parties at or prior to the Closing.
7.3. Compliance Certificate . The Buyer Parties will have delivered to the Company a certificate in the form of Exhibit J , dated as of the Closing Date and signed by a duly authorized Representative of each of the Buyer Parties.
7.4. Qualifications . Any applicable waiting periods (and any extensions thereof) under the HSR Act will have expired or otherwise been terminated. No provision of any applicable Legal Requirement or Government Order will be in effect, in each case, (a) which would prevent consummation of any of the Contemplated Transactions or (b) which would result in any of the Contemplated Transactions being rescinded following consummation.
7.5. Consents, etc . All actions by (including any authorization, consent or approval) or in respect of (including notice to), or filings with, any Governmental Authority that are disclosed in Schedule 4.3 will have been obtained or made and no such authorization, consent or approval will have been revoked.
7.6. Ancillary Agreements . Each of the Ancillary Agreements will have been executed and delivered to the Company by each of the Buyer Parties thereto.
8. TERMINATION.
8.1. Termination of Agreement . This Agreement may be terminated (the date on which the Agreement is terminated, the Termination Date ) at any time prior to the Closing:
8.1.1. by mutual written consent of the Buyer Parties and the Company;
8.1.2. by either the Buyer Parties or the Company by providing written notice to the other if the Closing has not occurred on or prior to October 17, 2018 (the Initial Outside Date ) by reason of the failure of any condition set forth in Article 6 , in the case of the Buyer Parties, or Article 7 , in the case of the Company, to be satisfied; provided , that if as of the Initial Outside Date, (a) the conditions set forth in Section 6.4 or Section
7.4 (in each case, solely as it relates to expiration or termination of the waiting periods under the HSR Act or Legal Requirements or Government Orders relating to antitrust matters) have not been satisfied or waived (but remain capable of being satisfied) and (b) the Debt Commitment Letter remains in effect at such time in accordance with its terms, then the Initial Outside Date will be automatically extended for up to four (4) successive one (1) month periods (each, an Extension Period ); and such extended date will become the Outside Date for all purposes under this Agreement; provided , further , that the right to terminate this Agreement under this Section 8.1.2 will not be available to a party whose failure to fulfill any obligation under this Agreement materially contributed to the failure of the Closing to occur on or before such date (other than, in the case of the Buyer Parties, its failure to consummate the Contemplated Transactions in accordance with the terms of this Agreement solely as a result of the Debt Financing Sources being unwilling or unable to provide the Debt Financing at or prior to the time the Closing was required to occur pursuant to the terms of this Agreement in circumstances under which the Buyer Parties complied with their obligations under Section 5.12 );
8.1.3. by either the Buyer Parties or the Company if a final, non-appealable Government Order (other than a Government Order relating to antitrust matters) permanently enjoining, restraining or otherwise prohibiting the Closing has been issued by a Governmental Authority of competent jurisdiction, provided , that the right to terminate this Agreement pursuant to this Section 8.1.3 will not be available to any party whose failure to fulfill any obligation under this Agreement will have been a material cause of, or resulted in, the occurrence of such Government Order;
8.1.4. by the Buyer Parties if either (a) there will have been a breach of, or inaccuracy in, any representation or warranty of the Company contained in this Agreement as of the date of this Agreement or as of any subsequent date (other than representations or warranties that expressly speak only as of a specific date or time, with respect to which the Buyer Parties right to terminate will arise only in the event of a breach of, or inaccuracy in, such representation or warranty as of such specified date or time), or (b) the Seller Parties or the Company will have breached or violated in any material respect any of their respective covenants and agreements contained in this Agreement, in each case, which breach or violation would give rise, or could reasonably be expected to give rise, to a failure of a condition set forth in Article 6 and cannot be or has not been cured by the earlier of (i) twenty (20) Business Days after the Buyer Parties notify the Sellers Representative or the Company, as applicable, of such breach or violation and (ii) the Outside Date;
8.1.5. by the Company if either (a) there will have been a breach of, or inaccuracy in, any representation or warranty of the Buyer Parties contained in this Agreement as of the date of this Agreement or as of any subsequent date (other than representations or warranties that expressly speak only as of a specific date or time, with respect to which the Companys right to terminate will arise only in the event of a breach of, or inaccuracy in, such representation or warranty as of such specified date or time), or (b) the Buyer Parties will have breached or violated in any material respect any of their covenants and agreements contained in this Agreement; in each case which breach or violation would give rise, or could reasonably be expected to give rise, to a failure of a
condition set forth in Article 7 and cannot be or has not been cured by the earlier of (i) twenty (20) Business Days after the Company notifies the Buyer Parties of such breach or violation and (ii) the Outside Date;
8.1.6. by the Company, if (a) all of the conditions in Article 6 have been satisfied (other than those that, by their nature, are to be satisfied at the Closing or the failure of which to be satisfied is due in any material part to a breach by a Buyer Party of any of its representations, warranties, agreements, obligations or covenants contained in this Agreement), (b) the Marketing Period has been completed and at least three (3) full Business Days have elapsed since the completion thereof, (c) the Company has confirmed by written notice to the Buyer Parties that (i) all conditions set forth in Article 7 have been satisfied (other than those that, by their nature, are to be satisfied at the Closing but subject to the satisfaction thereof) or that they would be willing to waive any unsatisfied conditions in Article 7 , and (ii) it is ready, willing, and able to consummate the Contemplated Transactions and (d) the Buyer Parties fail to consummate the Contemplated Transactions within five (5) Business Days following the delivery of such notice;
8.1.7. by the Buyer Parties if the Company does not obtain and deliver to the Buyer Parties (in form and substance reasonably satisfactory to the Buyer Parties) the Unitholder Consent within one (1) day of the date of this Agreement; or
8.1.8. by the Company, on or after the Final Outside Date if (a) the conditions in Section 6.4 or Section 7.4 have not been satisfied (solely as it relates to expiration or termination of the waiting periods under the HSR Act or Legal Requirements or Government Orders relating to antitrust matters) and the failure to satisfy such conditions is not the result of a breach by the Company or the Sellers of their respective obligations pursuant to Section 5.5 , (b) all of the other conditions in Article 6 have been satisfied (other than those that, by their nature, are to be satisfied at the Closing or the failure of which to be satisfied is due in any material part to a breach by a Buyer Party of any of its representations, warranties, agreements, obligations or covenants contained in this Agreement), (c) the Company has confirmed by written notice to the Buyer Parties that (i) all conditions set forth in Article 7 (other than Section 7.4 ) have been satisfied (other than those that, by their nature, are to be satisfied at the Closing but subject to the satisfaction thereof) or that they would be willing to waive any unsatisfied conditions in Article 7 (other than Section 7.4 ), and (ii) it is ready, willing, and able to consummate the Contemplated Transactions and (d) the Buyer Parties fail to satisfy the conditions in Section 7.4 and consummate the Contemplated Transactions by the Final Outside Date.
8.2. Effect of Termination . In the event of the termination of this Agreement pursuant to Section 8.1 , this Agreement (other than the provisions (and related definitions) of Sections 5.10 (Confidentiality), 5.9 (Expenses; HSR Act Filing Fees), 5.11 (Publicity), 5.12.8(b) (Financing Activities), 11.11 (Governing Law), 11.12 (Jurisdiction; Venue; Service of Process), 11.13 (Waiver of Jury Trial) and this Section 8.2 (Effect of Termination)) will then be null and void and have no further force and effect and all other rights and Liabilities of the parties hereunder will terminate without any Liability of any party (and, for the avoidance of doubt, such partys Affiliates, officers, directors, shareholders and representatives) to any other party;
provided , that the termination of this Agreement will not relieve (a) any party hereto from any Liability for Fraud, (b) the Company from any Liability for any willful and material breach of this Agreement or (c) any party hereto from any Liability in accordance with the provisions of (and subject to the limitations of) Section 8.3 .
8.3. Fees and Expenses Following Termination .
8.3.1. If this Agreement is terminated by the Buyer Parties pursuant to Section 8.1.7 , then the Company will pay, or cause to be paid, to the Buyer Parties or a designee thereof an amount equal to $26,875,000.00 (the Company Termination Fee ), such payment to be made by wire transfer of immediately available funds within five (5) Business Days following such termination and it being understood that in no event will the Company be required to pay the Company Termination Fee on more than one occasion.
8.3.2. If this Agreement is terminated by the Company pursuant to Section 8.1.5 , Section 8.1.6 or Section 8.1.8 (or in any situation in which this Agreement could have been terminated by the Company pursuant to Section 8.1.5 , Section 8.1.6 or Section 8.1.8 ), then the Buyer Parties will pay, or cause to be paid, to the Company or a designee thereof an amount equal to $86,000,000.00 (the Buyer Termination Fee ), such payment to be made by wire transfer of immediately available funds within five (5) Business Days following such termination and it being understood that in no event will the Buyer Parties be required to pay the Buyer Termination Fee on more than one occasion. The Buyer Termination Fee will increase by an amount equal to $6,450,000.00 automatically upon the occurrence of each Extension Period if the Closing has not occurred by the time such Extension Period begins.
8.3.3. The parties acknowledge and agree that (a) the fees and other provisions of this Section 8.3.3 are an integral part of the Contemplated Transactions, (b) the Buyer Termination Fee will constitute liquidated damages and not a penalty and (c) without these agreements, the parties would not enter into this Agreement.
8.3.4. Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 11.13 , each of the parties expressly acknowledges and agrees that the Companys right to receive payment of the Buyer Termination Fee pursuant to Section 8.3.2 will, in a circumstance in which the Company has terminated this Agreement pursuant to Section 8.1.5 , Section 8.1.6 or Section 8.1.8 and the Company (or its designee) has been paid the Buyer Termination Fee pursuant to Section 8.3.2 , constitute the sole and exclusive remedy of the Sellers (including the Seller Parties), the Company and its Subsidiaries and their respective Affiliates and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents or Affiliates (collectively, the Company Related Parties ) against the Buyer Parties and their Affiliates and any of their respective former, current or future direct or indirect general or limited partners, stockholders, members, managers, directors, officers, employees, agents or Affiliates (collectively, the Buyer Related Parties ) or the Debt Financing Sources for any loss or damages directly or indirectly resulting from, arising out of or in respect of this Agreement, the Limited Guarantees, the
Contemplated Transactions and the other agreements contemplated hereby and thereby (and the termination thereof), or the Contemplated Transactions and, upon payment of the Buyer Termination Fee to the Company pursuant to Section 8.3.2 , none of the Buyer Related Parties or Debt Financing Sources will have any further liability or obligation to any of the Company Related Parties relating to or arising out of this Agreement, the Limited Guarantees and the other agreements contemplated hereby (and the termination thereof), or the Contemplated Transactions (except pursuant to the Confidentiality Agreement); provided , however , that nothing in this Section 8.3.4 will relieve any Buyer Party of its indemnification obligations under Section 5.12.8(b) . For the avoidance of doubt, while the Company may pursue both specific performance as and to the extent permitted by Section 11.13 and the payment of the Buyer Termination Fee in accordance with Section 8.3.2 , under no circumstances will the Company be permitted or entitled to receive both a grant of specific performance that results in the Closing and the Buyer Termination Fee.
9. TAX MATTERS
9.1. Straddle Period . For each Group Company, in the case of any Taxable period that includes (but does not end on) the Closing Date (a Straddle Period ), (a) the amount of any Taxes of such Group Company based upon or measured by income, gain, activities, events, the level of any item, receipts, proceeds, profits or other similar items, or any withholding Taxes, for the Pre-Closing Tax Period will be determined based on an interim closing of the books as of the close of business on the Closing Date (and for such purpose, the Taxable period of any partnership or other pass-through entity in which such Group Company holds a beneficial interest will be deemed to terminate at such time); provided , that any item determined on an annual or periodic basis (such as deductions for depreciation or real estate Taxes) will be apportioned on a daily basis, and (b) the amount of Taxes other than those described in clause (a) that relate to the Pre-Closing Tax Period will be deemed to be the amount of such Taxes for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period.
9.2. Tax Sharing Agreements . All Tax sharing agreements, Tax allocation agreements or similar agreements and all powers of attorney with respect to or involving any Group Company will be terminated prior to the Closing Date and, after the Closing, the Group Companies will not be bound thereby or have any Liability thereunder.
9.3. Certain Taxes and Fees . All transfer, documentary, sales, use, stamp, registration and other such Taxes, and any conveyance fees or recording charges incurred in connection with the Contemplated Transactions, will be borne 50% by Holdco I and 50% by the Company. The Company will file or cause to be filed all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges and, if required by applicable law, the Buyer Parties will (and will cause its Affiliates to) join in the execution of any such Tax Returns and other documentation.
9.4. Cooperation on Tax Matters . The Sellers Representative and the Sellers will cooperate reasonably promptly with the Buyer Parties and the Group Companies, as and to the
extent reasonably requested by any such parties, in connection with any Tax matters relating to the Group Companies (including by the provision of reasonably relevant records or information).
9.5. Company Pre-Closing Tax Returns . The Sellers Representative (on behalf of the Sellers) will prepare or cause to be prepared, and timely file or cause to be timely filed, all income Tax Returns of the Company for Pre-Closing Tax Periods (such Tax Returns, the Company Returns ). The Sellers Representative will provide a copy of any Company Returns filed after Closing to Holdco I within twenty (20) days of filing. Except to the extent required by Legal Requirements, the Buyer Parties will not amend or otherwise modify any Company Return. The Buyer Parties will cause the Group Companies to cooperate reasonably promptly with the Sellers Representative with respect to Company Returns and any related Tax matters (including by the provision of reasonably relevant records or information). The Sellers Representative will have the sole right to control any audit of any Company Return for all taxable periods beginning before January 1, 2018.
10. INDEMNIFICATION
10.1. Indemnification by the Sellers . Subject to the limitations set forth in this Article 10 , each Seller will jointly and severally (in accordance with its Pro Rata Portion) indemnify, defend and hold harmless each of the Buyer Parties and each of their respective Affiliates (including, following the Closing, each Group Company), and the Representatives, Affiliates, successors and assigns of each of the foregoing Persons (each, an Indemnified Person ), from, against and in respect of any and all Actions, Liabilities, Government Orders, Encumbrances, losses, damages, bonds, dues, assessments, fines, penalties, Taxes, fees, costs (including costs of investigation, defense and enforcement of this Agreement), expenses or amounts paid in settlement or satisfaction of potential claims (in each case, including reasonable attorneys and experts fees and expenses), whether or not involving a Third Party Claim and whether paid voluntarily or otherwise (collectively, Losses ), incurred or suffered by the Indemnified Persons or any of them as a result of, arising out of or relating to, directly or indirectly the matters set forth on Schedule 10.1 .
10.2. Time for Claims; Notice of Claims; Monetary Limitations .
10.2.1. Time for Claims . No claim may be made or suit instituted seeking indemnification pursuant to Section 10.1 unless a written notice is provided to the Sellers Representative at any time prior to the third anniversary of the Closing Date.
10.2.2. Written Notice of Indemnification Claims . In the event that any Indemnified Person wishes to make a claim for indemnification under this Article 10 , the Indemnified Person will give written notice of such claim to the Sellers Representative within the time limitations contained in Section 10.2.1 . Any such notice will describe the material facts and circumstances upon which such claim is based and the estimated amount of Losses involved, in each case, in reasonable detail in light of the facts then known to the Indemnified Person; provided , that no defect in the information contained in such notice from the Indemnified Person to the Sellers Representative will relieve the Sellers from any obligation under this Article 10 except to the extent such failure to include information actually and materially prejudices the Sellers.
10.2.3. Monetary Limitations . The Sellers aggregate liability in respect of claims for indemnification pursuant to Section 10.1 for Losses resulting from, arising out of, or relating to, directly or indirectly, the matters set forth on Schedule 10.1 will not exceed $30,000,000.
10.3. Third Party Claims . Promptly after receipt by an Indemnified Person of written notice of the assertion of a claim by any Person who is not a party to this Agreement (a Third Party Claim ) that would reasonably be expected to give rise to an Indemnity Claim against the Sellers under this Article 10 , the Indemnified Person will give written notice thereof to the Sellers Representative; provided , that no delay on the part of the Indemnified Person in notifying the Sellers Representative will relieve the Sellers from any obligation under this Article 10 , except to the extent such delay actually and materially prejudices the Sellers.
10.3.1. Assumption of Defense . If a Third Party Claim is made against an Indemnified Person, the Sellers Representative will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Sellers Representative by written notice to the Indemnified Person delivered to the Indemnified Party within fifteen (15) days following the delivery of the notice of the Third Party Claim; provided , however , that the Sellers Representative will not have the right to assume the defense of a Third Party Claim on behalf of an Indemnified Person and such Indemnified Person will have the right to retain, at the Sellers expense (each Seller to be responsible for its Pro Rata Portion of such expense), one separate law firm to defend such Third Party Claim on behalf of such Indemnified Person if (a) the Indemnified Person reasonably concludes upon the advice of counsel that there exists any actual or potential conflict of interest between the Sellers Representative and the Indemnified Person with respect to the defense of the Third Party Claim, (b) the Third Party Claim seeks an injunction or other equitable relief against the Indemnified Person or involves damages other than money damages, (c) the Third Party Claim relates to or otherwise arises in connection with Taxes or any criminal or regulatory enforcement Action or (d) the Sellers Representative fails to conduct the defense of the Third Party Claim actively and diligently. Subject to the immediately preceding proviso, should the Sellers Representative so elect to assume the defense of a Third Party Claim, the Indemnified Person will have the right to participate in the defense thereof and to employ counsel, in each case at its own expense, separate from the counsel employed by the Sellers Representative, it being understood that the Sellers Representative will control such defense. If the Sellers Representative chooses to defend a Third Party Claim, the Indemnified Persons will cooperate in the defense or prosecution thereof to the extent reasonably requested to do so. Notwithstanding anything in this Agreement to the contrary, if a Third Party Claim is subject to indemnification hereunder with respect to item 5 or 6 on Schedule 10.1 (the Earn-out Claims ), (i) the Sellers Representative shall have the unrestricted right to assume the defense of such Earn-Out Claim as long as it is actively and diligently conducting such defense, (ii) without the consent of the Sellers Representative, no Group Company or Buyer Party shall become involved in discussions with, or correspond with, the applicable third party about any Earn-out Claim, and (iii) the Indemnified Person with respect to such Earn-out Claim shall not have the right to participate in the defense thereof; provided , however , that the Sellers Representative is not permitted to enter into a settlement of any Earn-out Claim if such settlement (x)
involves an admission of wrongdoing by any Group Company or Buyer Party, (y) includes dollar amounts not paid entirely by the Sellers or (z) involves relief other than monetary damages, in each case, without the prior written consent of the Indemnified Person. If there is a non-incidental breach of the provisions in the preceding sentence, the Sellers obligation to indemnify the Indemnified Persons for the applicable Earn-out Claim under this Agreement shall terminate and be of no further force or effect.
10.3.2. Limitations on Control . If the Sellers Representative assumes the defense of a Third Party Claim in accordance with Section 10.3.1 , (a) the Indemnified Person will not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Sellers Representatives prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), (b) the Indemnified Person will agree to any settlement, compromise or discharge of a Third Party Claim consisting solely of monetary damages and that (i) by its terms obligates the Sellers to pay the full amount of the liability arising out of, relating to, or in connection with, such Third-Party Claim and the Sellers make such payment in full (irrespective of any limitations contained herein), (ii) unconditionally and fully releases the Indemnified Person from and against all liabilities and obligations arising out of, relating to, or in connection with, such Third Party Claim and (iii) does not impose any injunctive or other equitable relief against the Indemnified Person nor require any admission or acknowledgment of liability or fault of the Indemnified Person.
10.4. No Circular Recovery . Each Seller Party hereby agrees, and each of the Sellers by executing such Sellers Letter of Transmittal agrees, that it will not make any claim for indemnification, contribution or advancement of expenses against any of the Buyer Parties or any Group Company by reason of the fact that such Seller was a controlling person, director, employee or Representative of a Group Company or was serving as such for another Person at the request of a Group Company (whether such claim is for Losses of any kind or otherwise and whether such claim is pursuant to any Legal Requirement, organizational document, Contract or otherwise) with respect to any claim brought by an Indemnified Person against any Seller under this Agreement or the facts and circumstances underlying any such claim brought by an Indemnified Party or otherwise relating to this Agreement, any Ancillary Agreement or any of the Contemplated Transactions. With respect to any claim brought by an Indemnified Person against any Seller under this Agreement or otherwise relating to this Agreement, any Ancillary Agreement or any of the Contemplated Transactions, each Seller expressly waives any right of subrogation, contribution, advancement, indemnification or other claim against any Group Company with respect to any amounts owed by such Seller pursuant to this Article 10 or otherwise.
10.5. Knowledge and Investigation . The right of any Indemnified Person to indemnification pursuant to this Article 10 will not be affected by any investigation conducted or knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing.
10.6. Remedies Cumulative . The rights of each Indemnified Person under this Article 10 are cumulative, and each Indemnified Person will have the right in any particular
circumstance, in its sole discretion, to enforce any provision of this Article 10 without regard to the availability of a remedy under any other provision of this Article 10 or otherwise.
11. MISCELLANEOUS
11.1. Survival . None of the representations and warranties of any party contained in this Agreement, any Ancillary Agreement or in any certificate to be delivered under Article 6 or Article 7 will survive the Closing. None of the agreements, obligations or covenants of any party required to be performed by such party before the Closing will survive the Closing. Following the Closing, except for (a) Fraud, (b) claims for indemnification pursuant to Article 10 and (c) claims relating to the covenants described in the next sentence or covenants under any Ancillary Agreement to be performed after Closing, each party hereto waives and releases any remedies or claims that it may have against the other parties with respect to the matters arising out of or in connection with this Agreement or relating to the Contemplated Transactions. Unless otherwise indicated, agreements, obligations and covenants set forth in this Agreement which by their terms are required to be performed after the Closing will survive the Closing until they have been performed or satisfied.
11.2. Notices . All notices, requests, demands, claims and other communications required or permitted to be delivered, given or otherwise provided under this Agreement must be in writing and must be delivered, given or otherwise provided: (a) by hand (in which case, it will be effective upon delivery); (b) by facsimile (in which case, it will be effective upon receipt of confirmation of good transmission provided that a copy is also sent by certified mail or by overnight courier); (c) by electronic mail (in which case, it will be effective upon being sent provided that a copy is also sent by certified mail or by overnight courier) or (d) by overnight delivery by a nationally recognized courier service (in which case, it will be effective on the Business Day after being deposited with such courier service), in each case, to the address (or facsimile number) listed below:
If to the Company (prior to the Closing), to:
Sound Inpatient Physicians Holdings, LLC
1498 Pacific Avenue, Suite 400
Tacoma, Washington 98402
Facsimile number: 253-682-6128
Email: smccarty@soundphysicians.com
Attention: Steven M. McCarty, Esq.
with a copy to (which will not constitute notice to the Company):
Fresenius Medical Care North America
920 Winter Street
Waltham, Massachusetts 02451
Facsimile number: 781-209-4604
Email: karen.gledhill@fmc-na.com
Attention: Karen A. Gledhill
with a copy to (which will not constitute notice to the Company):
Robinson, Bradshaw & Hinson, P.A.
101 N. Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Facsimile number: 704-373-3991
Email: sdove@robinsonbradshaw.com
Attention: W. Scott Dove
If to any of the Seller Parties, to such Seller Party in care of the Sellers Representative, and if to the Sellers Representative, to:
Fresenius Medical Care North America
920 Winter Street
Waltham, Massachusetts 02451
Facsimile number: 781-209-4604
Email: karen.gledhill@fmc-na.com
Attention: Karen A. Gledhill
with a copy to (which will not constitute notice to the Seller Parties or the Sellers Representative):
Robinson, Bradshaw & Hinson, P.A.
101 N. Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Facsimile number: 704-373-3991
Email: sdove@robinsonbradshaw.com
Attention: W. Scott Dove
If to any of the Buyer Parties or, following the Closing, to the Company, to:
c/o Summit Partners
222 Berkeley Street, 18
th
Floor
Boston, MA 02116
Facsimile number: (617) 824-1100
Email: dblack@summitpartners.com
Attention: Darren M. Black
with a copy to (which will not constitute notice to the Buyer Parties or the Company):
Ropes & Gray LLP
Prudential Tower
800 Boylston Street
Boston, Massachusetts 02199
Facsimile number: (617) 235-0620
Email: amanda.morrison@ropesgray.com
Attention: Amanda McGrady Morrison
Each of the parties to this Agreement may specify a different address or facsimile number by giving notice in accordance with this Section 11.1 to each of the other parties hereto.
11.3. Succession and Assignment; No Third-Party Beneficiary . Subject to the immediately following sentence, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, each of which such successors and permitted assigns will be deemed to be a party hereto for all purposes hereof. No party may assign, delegate or otherwise transfer either this Agreement or any of his, her or its rights, interests, or obligations hereunder without the prior written approval of the other parties (with the Sellers Representative acting for all of the Seller Parties); provided , however , that either of the Buyer Parties may (a) assign any or all of its rights and interests hereunder to one or more of its Affiliates or (b) designate one or more of its Affiliates to perform its obligations hereunder; provided , further , that no such assignment will relieve the assigning party of its obligations hereunder. Except as expressly provided herein, this Agreement is for the sole benefit of the parties hereto and their successors and permitted assignees and nothing herein expressed or implied will give or be construed to give any Person, other than the parties hereto and such successors and assignees, any legal or equitable rights hereunder, including any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment. Notwithstanding anything to the contrary contained in this Agreement, no provision of this Agreement is intended to, or does, constitute the establishment of, or an amendment to, any Company Plan or any other employee benefit plan, program, policy, agreement or other arrangement of any of the Group Companies, the Buyer Parties or any of their Affiliates. Notwithstanding the foregoing, each Debt Financing Source is an express third party beneficiary of Section 8.3.4 , the last two sentences of this Section 11.3 , the last sentence of Section 11.4 , the proviso contained in the last sentence of Section 11.11 , Section 11.12.3 and Section 11.17 . In addition, the Company Related Parties agree that no Debt Financing Source will be subject to liability or claims (whether legal or equitable, arising under contract, tort or otherwise) by Company Related Parties arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or the transactions contemplated hereby or in connection with the Debt Financing, or the performance of services by such Debt Financing Sources with respect to the foregoing; provided , however , that this sentence will not apply, for avoidance of doubt, to any Buyer Related Party and their respective rights and remedies under the Debt Commitment Letter or the definitive documents related to the Debt Financing; provided , further , that nothing in this Agreement will limit the liability or obligations of the Debt Financing Sources to any Buyer Party and its Affiliates under the Debt Commitment Letter or any definitive documents related to the Debt Financing.
11.4. Amendments and Waivers . No amendment or waiver of any provision of this Agreement will be valid and binding unless it is in writing and signed, in the case of an amendment, by Holdco I (acting on behalf of the Buyer Parties), the Company and the Sellers Representative (acting on behalf of all of the Sellers), or, in the case of a waiver, by the party (or in the case of any or all of the Seller Parties, by the Sellers Representative) against whom the waiver is to be effective. No waiver by any party of any breach or violation of, default under or inaccuracy in any representation, warranty or covenant hereunder, whether intentional or not, will be deemed to extend to any prior or subsequent breach, violation, default of, or inaccuracy in, any such representation, warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No delay or omission on the part of
any party in exercising any right, power or remedy under this Agreement will operate as a waiver thereof. Notwithstanding the foregoing, Section 8.3.4 , the last two sentences of Section 11.3 , the last sentence of this Section 11.4 , the proviso contained in the last sentence of Section 11.11 , Section 11.12.3 and Section 11.17 (and any other provision of this Agreement to the extent an amendment, waiver or other modification thereto would modify the substance of Section 8.3.4 , the last two sentences of Section 11.3 , the last sentence of this Section 11.4 , the proviso contained in the last sentence of Section 11.11 , Section 11.12.3 or Section 11.17 ) will not be amended or waived in a manner that is material and adverse to any Debt Financing Source (in its capacity as such) unless the Debt Financing Sources party to the Debt Commitment Letter that have consent rights over amendments to this Agreement pursuant to the terms of the Debt Commitment Letter have consented thereto.
11.5. Entire Agreement . This Agreement, together with the Confidentiality Agreement and the Ancillary Agreements and any documents, instruments and certificates explicitly referred to herein, constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede any and all prior discussions, negotiations, proposals, undertakings, understandings and agreements (including any draft agreements) with respect thereto, whether written or oral, none of which will be used as evidence of the parties intent. In addition, each party hereto acknowledges and agrees that all prior drafts of this Agreement contain attorney work product and will in all respects be subject to the foregoing sentence.
11.6. Schedules . Nothing in any Schedule attached hereto will be adequate to modify, qualify or disclose an exception to a representation or warranty made in this Agreement unless such Schedule identifies the modification, qualification or exception and describes the relevant facts in reasonable detail. No modifications, qualifications or exceptions to any representations or warranties disclosed on one Schedule will constitute a modification, qualification or exception to any other representations or warranties made in this Agreement unless the substance of such also is disclosed as provided herein on each such other applicable Schedule, a specific cross-reference to a disclosure on another Schedule is made or the relevance of such disclosure is reasonably apparent on its face. The parties acknowledge and agree that (a) the Schedules may include certain items and information solely for informational purposes for the convenience of the Buyer Parties, (b) the disclosure by the Company of any matter in the Schedules will not be deemed to constitute an acknowledgment by the Company that the matter is required to be disclosed by the terms of this Agreement or that the matter is material and (c) the disclosure by the Company of any matter in the Schedules will not be deemed to constitute an admission to any third party concerning such matter or an admission of default or breach under any agreement or document.
11.7. Counterparts . This Agreement may be executed and delivered (including by facsimile transmission, pdf or other means of electronic signature) in any number of counterparts, each of which will be deemed an original, but all of which together will constitute but one and the same instrument.
11.8. Severability . Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. In the event that any provision
hereof would, under applicable Legal Requirements, be invalid or unenforceable in any respect, each party hereto intends that such provision will be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable Legal Requirements and to otherwise give effect to the intent of the parties.
11.9. Headings . The headings contained in this Agreement are for convenience purposes only and will not in any way affect the meaning or interpretation hereof.
11.10. Construction . The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. The parties hereto intend that each representation, warranty, covenant and agreement contained herein will have independent significance. If any party hereto has breached or violated, or if there is an inaccuracy in, any representation, warranty, covenant or agreement contained herein in any respect, the fact that there exists another representation, warranty, covenant or agreement relating to the same subject matter (regardless of the relative levels of specificity) which the party has not breached or violated, or in respect of which there is not an inaccuracy, will not detract from or mitigate the fact that the party has breached or violated, or there is an inaccuracy in, the first representation, warranty, covenant or agreement.
11.11. Governing Law . This Agreement, the negotiation, terms and performance of this Agreement, the rights of the parties under this Agreement, and all Actions arising in whole or in part under or in connection with this Agreement, will be governed by and construed in accordance with the domestic substantive laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction; provided , however , that except as expressly set forth in the Debt Commitment Letter, any suit, action, litigation, proceeding or claim against any Debt Financing Source (whether in law or equity or in contract, tort or otherwise) will be governed, including as to validity, interpretation, and effect, by the laws of the State of New York.
11.12. Jurisdiction; Venue; Service of Process .
11.12.1. Jurisdiction . Each party to this Agreement, by its execution hereof, (a) hereby irrevocably submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware located in Wilmington, Delaware, or if (but only if) such court does not have subject matter jurisdiction, the state or federal courts located in the State of Delaware (the Chosen Courts ) for the purpose of any Action between any of the parties hereto arising in whole or in part under or in connection with this Agreement, any Ancillary Agreement, the Contemplated Transactions or the negotiation, terms or performance hereof or thereof, (b) hereby waives to the extent not prohibited by applicable Legal Requirements, and agrees not to assert, by way of motion, as a defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the Chosen Courts, that venue in any Chosen Court is improper, that his, her or its property is exempt or immune from attachment or execution, that any such Action brought in one of the Chosen Courts should be dismissed on grounds of forum
non conveniens or improper venue, that such Action should be transferred or removed to any court other than one of the Chosen Courts, that such Action should be stayed by reason of the pendency of some other Action in any other court other than one of the Chosen Courts or that this Agreement or the subject matter hereof may not be enforced in or by such Chosen Court and (c) hereby agrees not to commence or prosecute any such Action other than before one of the Chosen Courts. Notwithstanding the previous sentence, a party hereto may commence any Action in a court other than the Chosen Courts solely for the purpose of enforcing an order or judgment issued by one of the Chosen Courts.
11.12.2. Service of Process . Each party hereto hereby (a) consents to service of process in any Action between any of the parties hereto arising in whole or in part under or in connection with this Agreement, any Ancillary Agreement, the Contemplated Transactions or the negotiation, terms or performance hereof or thereof, in any manner permitted by Delaware law, (b) agrees that service of process made in accordance with clause (a) or made by overnight delivery by a nationally recognized courier service at his, her or its address specified pursuant to Section 11.1 will constitute good and valid service of process in any such Action and (c) waives and agrees not to assert (by way of motion, as a defense or otherwise) in any such Action any claim that service of process made in accordance with clause (a) or (b) does not constitute good and valid service of process
11.12.3. Financing Sources (Disputes) . Notwithstanding anything herein to the contrary, each party hereto acknowledges and irrevocably agrees (a) that any suit, action, litigation, claim or proceeding, whether at law or in equity, whether in contract or in tort or otherwise, involving any Debt Financing Source arising out of, or relating to, the Contemplated Transactions, the Debt Financing, the Debt Commitment Letter or the performance of services thereunder or related thereto will be subject to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in the Borough of Manhattan in the county of New York, and any appellate court thereof, (b) not to bring or permit any of their Affiliates to bring or support anyone else in bringing any such suit, action or proceeding in any other court, (c) that service of process, summons, notice or document by registered mail addressed to them at their respective addresses provided in Section 11.1 will be effective service of process against it for any such suit, action or proceeding brought in any such court, (d) to waive and hereby waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of, and the defense of an inconvenient forum to the maintenance of, any such suit, action or proceeding in any such court, (e) TO WAIVE AND HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN RESPECT OF ANY SUCH SUIT, ACTION, LITIGATION, CLAIM OR PROCEEDING and (f) that a final judgment in any such suit, action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Nothing in this paragraph will affect or eliminate any right to serve process in any other manner permitted by applicable law.
11.13. Specific Performance .
11.13.1. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with, and not exclusive of, any other remedies conferred hereby or by law or equity upon a party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or legal remedies would not be an adequate remedy for any such damages. Therefore, it is accordingly agreed that, prior to the termination of this Agreement in accordance with Section 8.1 , each party will be entitled to an injunction or injunctions to prevent or restrain any breach or threatened breach of this Agreement by any other party and to enforce specifically the terms and provisions of this Agreement, to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of any other party, in any court of competent jurisdiction, and appropriate injunctive relief will be granted in connection therewith.
11.13.2. Notwithstanding anything in this Agreement to the contrary, the parties hereby agree that the Company will be entitled to specific performance of the Buyer Parties obligations to cause the Equity Financing to be funded and to consummate the Contemplated Transactions (including via enforcement of the Equity Commitment Letters) and effect the Closing if, and only if, (a) all conditions in Article 6 have been satisfied (other than those that, by their nature, are to be satisfied at the Closing, each of which is capable of being satisfied and is satisfied at the Closing) at the time the Closing is required to have occurred pursuant to Section 2.2 , (b) the Debt Financing has been funded in accordance with the terms thereof or will be funded in accordance with the terms thereof at the Closing and (c) the Company has irrevocably confirmed that if specific performance is granted and the Financing is funded, then it would take such actions that are required of it by this Agreement to cause the Closing to occur.
11.13.3. Each party agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that (a) the other party has an adequate remedy at law or (b) an award of specific performance is not an appropriate remedy for any reason at law or in equity. For the avoidance of doubt, in no event will the exercise of the Companys right to seek specific performance pursuant to this Section 11.13 reduce, restrict or otherwise limit the Companys right to terminate this Agreement pursuant to Section 8.1.2 , Section 8.1.5 , Section 8.1.6 or Section 8.1.8 and, if applicable, be paid the applicable amounts set forth in Section 8.3 ; provided , however , that under no circumstances will the Company be permitted or entitled to receive both a grant of specific performance that results in the Closing and the Buyer Termination Fee.
11.13.4. Each of the parties hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under applicable Legal Requirements to post a bond or other security as a prerequisite to obtaining equitable relief.
11.13.5. Notwithstanding anything in this Agreement to the contrary, it is explicitly agreed that, prior to the earlier of (a) the Closing and (b) the valid termination of this Agreement pursuant to Section 8.1 , specific performance, injunctive and/or other
equitable relief, to the extent expressly permitted by this Section 11.13 , will provide the sole and exclusive remedy arising out of or in connection with any breach or alleged breach by any party under this Agreement.
11.14. Waiver of Jury Trial . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LEGAL REQUIREMENTS THAT CANNOT BE WAIVED, THE PARTIES HERETO HEREBY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY ANCILLARY AGREEMENT, THE CONTEMPLATED TRANSACTIONS OR THE NEGOTIATION, TERMS OR PERFORMANCE HEREOF OR THEREOF, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES HERETO AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES HERETO. THE PARTIES HERETO FURTHER AGREE TO IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING AND ANY SUCH PROCEEDING WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
11.15. Provisions Concerning the Sellers Representative .
11.15.1. Appointment . By executing this Agreement and/or such Sellers Letter of Transmittal, each Seller hereby irrevocably appoints Fresenius as the sole and exclusive agent, proxy and attorney-in-fact for such Seller for all purposes of this Agreement, the Escrow Agreement and the Contemplated Transactions, with full and exclusive power and authority to act on such Sellers behalf. The appointment of the Sellers Representative hereunder is coupled with an interest, will be irrevocable and will not be affected by the death, incapacity, insolvency, bankruptcy, illness or other inability to act of any Seller. Without limiting the generality of the foregoing, the Sellers Representative is hereby authorized, on behalf of the Sellers, to:
(a) in connection with the Closing, execute and receive all documents, instruments, certificates, statements and agreements on behalf of and in the name of each Seller necessary to effectuate the Closing and consummate the Contemplated Transactions;
(b) receive and give all notices and service of process, make all filings, enter into all Contracts, make all decisions, bring, prosecute, defend, settle, compromise or otherwise resolve all claims, disputes and Actions, authorize payments in respect of any such claims, disputes or Actions, and take all other actions, in each case, with respect to the matters set forth in Section 2.10 or Article 9 or any other Actions directly or indirectly arising out of or relating to this Agreement or the Contemplated Transactions;
(c) execute and deliver, should it elect to do so in its good faith discretion, on behalf of the Sellers, any amendment to, or waiver of, any term or
provision of this Agreement, or any consent, acknowledgment or release relating to this Agreement; and
(d) take all other actions permitted or required to be taken by or on behalf of the Sellers under this Agreement and exercise any and all rights that the Sellers or the Sellers Representative are permitted or required to do or exercise under this Agreement.
11.15.2. Liability . The Sellers Representative will not be held liable by any of the Sellers for actions or omissions in exercising or failing to exercise all or any of the power and authority of the Sellers Representative pursuant to this Agreement, except in the case of the Sellers Representatives gross negligence, bad faith or willful misconduct. The Sellers Representative will be entitled to rely on the advice of counsel, public accountants or other independent experts that it reasonably determines to be experienced in the matter at issue, and will not be liable to any Seller for any action taken or omitted to be taken in good faith based on such advice. The Sellers will severally indemnify (in accordance with their Pro Rata Portions) the Sellers Representative from any losses arising out of its serving as the Sellers Representative hereunder, except for losses arising out of or caused by the Sellers Representatives gross negligence, bad faith or willful misconduct. The Sellers Representative is serving in its capacity as such solely for purposes of administrative convenience, and is not personally liable in such capacity for any of the obligations of the Sellers hereunder, and the Buyer Parties agree that they will not look to the personal assets of the Sellers Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the Sellers hereunder.
11.15.3. Reliance on Appointment; Successor Sellers Representative . The Buyer Parties may rely on the appointment and authority of the Sellers Representative granted pursuant to this Section 11.15 until receipt of written notice of the appointment of a successor Sellers Representative made in accordance with this Section 11.15 . In so doing, the Buyer Parties may rely on any and all actions taken by and decisions of the Sellers Representative under this Agreement notwithstanding any dispute or disagreement among any of the Seller Parties, the other Sellers, or the Sellers Representative with respect to any such action or decision without any Liability to, or obligation to inquire of, the Seller Parties, any other Seller, the Sellers Representative or any other Person. Any decision, act, consent or instruction of the Sellers Representative will constitute a decision of all the Sellers and will be final and binding upon each of the Sellers. At any time after the Closing, with or without cause, by a written instrument that is signed in writing by holders of at least a majority of the Class A Units and Class B Units immediately prior to the Closing and delivered to the Buyer Parties, the Sellers may remove and designate a successor Sellers Representative; provided , that such successor Sellers Representative must be reasonably acceptable to the Buyer Parties. If the Sellers Representative will at any time resign or otherwise cease to function in its capacity as such for any reason whatsoever, and no successor that is reasonably acceptable to the Buyer Parties is appointed by such Sellers within ten (10) Business Days, then the Buyer Parties will have the right to appoint another Seller to act as the replacement Sellers Representative who will serve as described in this Agreement and,
under such circumstances, the Buyer Parties will be entitled to rely on any and all actions taken and decisions made by such replacement Sellers Representative.
11.15.4. Sellers Representative Expense Funds . The Sellers Representative Expense Funds will be used to pay costs, fees and expenses incurred by or for the benefit of the Sellers on or after the Closing Date. The Sellers will not receive any interest or earnings on the Sellers Representative Expense Funds. The Sellers Representative will hold the Sellers Representative Expense Funds separate from its corporate funds, will not use such funds for its operating expenses or any other corporate purposes and will not make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Sellers Representative Expense Funds will be treated as having been received and voluntarily set aside by the Sellers at the time of the Closing. In the event that any amount is owed by the Sellers Representative, whether for fees, expense reimbursement or otherwise, that is in excess of the Sellers Representative Expense Funds (or after any or all of the Sellers Representative Expense Funds have been dispersed to the Sellers), the Sellers Representative will be entitled to be reimbursed by the Sellers, pro rata, for any such reimbursement obligation.
11.16. Representation of Fresenius and its Affiliates . Each Buyer Party agrees that, following the Closing, Robinson, Bradshaw & Hinson, P.A. may serve as counsel to Fresenius and its Affiliates in connection with any matters related to this Agreement and the transactions contemplated hereby, including any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated by this Agreement notwithstanding any representation by Robinson, Bradshaw & Hinson, P.A. prior to the Closing of any Group Company. Each Buyer Party and the Company hereby (a) waive any claim they have or may have that Robinson, Bradshaw & Hinson, P.A. has a conflict of interest or is otherwise prohibited from engaging in such representation (with such waiver applying solely with respect to Robinson, Bradshaw & Hinson, P.A. having served as counsel to Fresenius and its Affiliates prior to the Closing including in connection with matters related to this Agreement and the transactions contemplated hereby) and (b) agree that, in the event that a dispute arises after the Closing between any Buyer Party or any Group Company and Fresenius or any of its Affiliates, Robinson, Bradshaw & Hinson, P.A. may represent Fresenius or any of its Affiliates in such dispute even though the interests of such Person(s) may be directly adverse to a Buyer Party or a Group Company and even though Robinson, Bradshaw & Hinson, P.A. may have represented a Group Company in a matter substantially related to such dispute. Each Buyer Party and the Company also further agree that, as to all communications among Robinson, Bradshaw & Hinson, P.A. and the Company and Fresenius or any of Fresenius Affiliates and representatives, that relate in any way to the Contemplated Transactions, the attorney-client privilege and the expectation of client confidence belongs to Fresenius and may be controlled by Fresenius and will not pass to or be claimed by any Buyer Party or Group Company. In addition, all of the client files and records in the possession of Robinson, Bradshaw & Hinson, P.A. related to this Agreement and the transactions contemplated hereby will continue to be property of (and be controlled by) Fresenius, and the Company will not retain any copies of such records or have any access to them.
11.17. Non-Recourse . Except in the case of Fraud, notwithstanding anything to the contrary contained herein or otherwise but subject to the final sentence of this Section 11.17 , this
Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement or the Contemplated Transactions, may only be made against, the Persons that are expressly identified as parties in their capacities as parties to this Agreement, and no former, current or future stockholders, equity holders, controlling persons, Debt Financing Source, directors, officers, employees, general or limited partners, members, managers, agents or Affiliates of any party, or any former, current or future direct or indirect stockholder, equity holder, controlling person, director, officer, employee, general or limited partner, member, manager, agent or Affiliate of any of the foregoing (each, a Non-Party ) will have any liability for any obligations or liabilities of the parties or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the Contemplated Transactions (including the Debt Financing) or in respect of any representations made or alleged to be made in connection herewith. Except in the case of Fraud, without limiting the rights of any party against the other parties, in no event will any party or any of its Affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover damages from, or exercise remedies against, any Non-Party, in each case, subject to the final sentence of this Section 11.17 . Notwithstanding the foregoing, nothing in this Section 11.17 will (a) preclude any party to another Ancillary Agreement, the Equity Commitment Letters, the Limited Guarantees or the Confidentiality Agreement from making any claim thereunder, to the extent permitted therein or (b) limit (i) the liability or obligations of the Debt Financing Sources to any Buyer Party and its Affiliates under the Debt Commitment Letter or any definitive documents related to the Debt Financing or (ii) any Buyer Related Partys rights and remedies under the Debt Commitment Letter or the definitive documents related to the Debt Financing.
[ Remainder of the page intentionally left blank signature pages follow .]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement and Plan of Merger as an agreement under seal as of the date first above written.
HOLDCO I: |
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IRONMAN HOLDCO, INC. |
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By: |
s/ Darren Black |
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Name: Darren Black |
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Title: President, Secretary and Treasurer |
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INTERMEDIATE HOLDCO: |
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IRONMAN INTERMEDIATE HOLDCO, LLC |
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By: |
s/ Darren Black |
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Name: Darren Black |
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Title: President, Secretary and Treasurer |
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HOLDCO II: |
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IRONMAN HOLDCO II, LLC |
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By: |
s/ Darren Black |
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Name: Darren Black |
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Title: President, Secretary and Treasurer |
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MERGER SUB I: |
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IRONMAN MERGER SUB, LLC |
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By: |
s/ Darren Black |
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Name: Darren Black |
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Title: President, Secretary and Treasurer |
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MERGER SUB II: |
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IRONMAN MERGER SUB II, INC. |
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By: |
s/ Darren Black |
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Name: Darren Black |
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Title: President, Secretary and Treasurer |
[Signature Page to Agreement and Plan of Merger]
COMPANY: |
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SOUND INPATIENT PHYSICIANS HOLDINGS, LLC |
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By: |
s/ Robert A. Bessler, M.D. |
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Name: Robert A. Bessler, M.D. |
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Title: CEO |
[Signature Page to Agreement and Plan of Merger]
SELLER PARTY: |
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FRESENIUS MEDICAL CARE HOLDINGS, INC. |
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By: |
s/ William J. Valle |
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Name: William J. Valle |
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Title: CEO |
[Signature Page to Agreement and Plan of Merger]
SELLERS REPRESENTATIVE: |
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FRESENIUS MEDICAL CARE HOLDINGS, INC. |
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By: |
s/ William J. Valle |
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Name: William J. Valle |
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Title: CEO |
[Signature Page to Agreement and Plan of Merger]
SELLERS: |
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s/ Frank Maddux, M.D. |
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Frank Maddux, M.D. |
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s/ Mark Caputo |
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Mark Caputo |
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s/ Ryan Pardo |
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Ryan Pardo |
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s/ Eric Shuey |
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Eric Shuey |
[Signature Page to Agreement and Plan of Merger]
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s/ Thomas Brouillard |
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Thomas Brouillard |
[Signature Page to Agreement and Plan of Merger]
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s/ Brian Gauger |
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Brian Gauger |
[Signature Page to Agreement and Plan of Merger]
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s/ Karen Gledhill |
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Karen Gledhill |
[Signature Page to Agreement and Plan of Merger]
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s/ Thomas Spellman |
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Thomas Spellman |
[Signature Page to Agreement and Plan of Merger]
CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Rice Powell, certify that:
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Date: May 3, 2018 | ||||
By: |
/s/ RICE POWELL
Rice Powell Chief Executive Officer and Chairman of the Management Board of the General Partner |
CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Michael Brosnan, certify that:
Date: May 3, 2018
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By: |
/s/ MICHAEL BROSNAN
Michael Brosnan Chief Financial Officer and member of the Management Board of the General Partner |
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the report of Fresenius Medical Care AG & Co. KGaA (the "Company") on Form 6-K furnished for the month of May 2018 containing its unaudited financial statements as of March 31, 2018 and for the three-months periods ending March 31, 2018 and 2017, as submitted to the Securities and Exchange Commission on the date hereof (the "Report"), the undersigned, Rice Powell, Chief Executive Officer and Michael Brosnan, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
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By: |
/s/ RICE POWELL
Rice Powell Chief Executive Officer and Chairman of the Management Board of the General Partner |
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May 3, 2018 |
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By: |
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/s/ MICHAEL BROSNAN Michael Brosnan Chief Financial Officer and member of the Management Board of the General Partner |
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May 3, 2018 |