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private issuer under the rules and regulations of the U.S. Securities and
Exchange Commission, Fresenius Medical Care AG & Co. KGaA (hereinafter also
referred to as FMC AG & Co. KGaA, the Company , we or our ) is not
presently subject to the SEC s Proxy Rules. However, under the stipulations of
the Pooling Agreement among us, Fresenius SE, our general partner and our
independent directors, FMC AG & Co. KGaA has agreed to provide information
to shareholders which is roughly comparable to that which would be provided by
a U.S. corporation, except that it agreed to provide the following information
as it would be provided by a foreign private issuer under the SEC s rules:
Ownership of Certain Beneficial Owners of Fresenius Medical Care AG & Co.
KGaA; (ii) Trading markets: (iii) Directors and Senior Management; (iv)
Compensation of our Management Board and our Supervisory Board; (v) Options to
Purchase Our Securities, and (vi) material transactions between FMC AG &
Co. KGaA and its subsidiaries and directors and officers of FMC AG & Co.
KGaA, controlling persons of FMC AG & Co. KGaA, and relatives or spouses of
such directors, officers and controlling persons. The above information
contained in this letter has been derived from our Annual Report on Form 20-F
for the year ended December 31, 2008 filed with the SEC (our 2008 20-F ). Our
2008 20-F is available on the web site maintained by the SEC at www.sec.gov and
on our web site at www.fmc-ag.com.
Ownership of Certain Beneficial Owners of Fresenius Medical Care AG & Co.
outstanding share capital consists of Ordinary shares and non-voting Preference shares
that are issued only in bearer form. Accordingly, unless we receive information regarding
acquisitions of our shares through a filing with the Securities and Exchange Commission or
through the German statutory requirements referred to below, or except as described below
with respect to our shares held in American Depository Receipt ( ADR ) form, we
face difficulties precisely determining who our shareholders are at any specified time or
how many shares any particular shareholder owns. Because we are a foreign private issuer
under the rules of the Securities and Exchange Commission, our directors and officers are
not required to report their ownership of our equity securities or their transactions in
our equity securities pursuant to Section 16 of the Exchange Act. However, persons who
become beneficial owners of more than 5% of our ordinary shares are required
to report their beneficial ownership pursuant to Section 13(d) of the Exchange act. In
addition, under the German Securities Trading Act (Wertpapierhandelsgesetz),
however, persons who discharge managerial responsibilities within an issuer of shares are
obliged to notify the issuer and the German Federal Financial Supervisory Authority of
their own transactions in shares of the issuer. This obligation also applies to persons
who are closely associated with the persons discharging managerial responsibility.
Additionally, holders of voting securities of a German company listed on the Regulated
Market (Regulierter Markt) of a German stock exchange or a corresponding trading
segment of a stock exchange within the European Union are obligated to notify the company
of the level of their holding whenever such holding reaches, exceeds or falls below
certain thresholds, which have been set at 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% and 75% of
a company s outstanding voting rights. Such notification obligations will also apply
to option agreements (excluding the 3% threshold).
have been informed that as of December 31, 2008, Fresenius SE owned approximately 36.3%,
of our Ordinary shares. In August 2008, an indirect wholly-owned subsidiary of Fresenius
SE issued 554.4 million aggregate principal amount of Mandatory Exchangeable Bonds
due 2011 with each bond having a nominal value of 50,000 (the FSE
Bonds ). Upon maturity or redemption prior to maturity, Fresenius SE may redeem the
FSE Bonds solely by delivery of our Ordinary shares. The actual number of ordinary shares
deliverable by Fresenius SE upon redemption of the FSE Bonds will depend upon the exchange
ratio for the FSE Bonds at the time of exchange, subject to a minimum exchange price of
33.00 and a maximum exchange price of 38.94. Upon maturity of the FSE Bonds,
Fresenius SE s holding of our Ordinary shares could decrease to between approximately
31.3% at the maximum exchange price and 30.3% at the minimum exchange price.
of our ordinary shares have the same voting rights. However, as the sole shareholder of
our general partner, Fresenius SE is barred from voting its ordinary shares on certain
matters. See Item 16G, Corporate Governance Supervisory Board in our
of New York Mellon, our ADR depositary, informed us, that as of December 31, 2008,
21,120,051 Ordinary ADSs, each representing one Ordinary share, were held of record by
5,070 U.S. holders and there were 87,091 Preference ADSs, each representing one Preference
share, held of record by 1 U.S. holder. We estimate that Ordinary shares and Preference
shares held directly by U.S. holders accounted for less than 8% of our Ordinary shares
outstanding and less than 1% of our Preference shares outstanding as of December 31, 2008.
For more information regarding ADRs and ADSs see Item 10.B. Memorandum and Articles
of Association Description of American Depositary Receipts in our 2008 20-F.
Share ownership by our
Supervisory Board and our Management Board
of December 31, 2008, no member of the Supervisory Board or the Management Board
beneficially owned 1% or more of our outstanding Ordinary shares or our outstanding
Preference shares. At December 31, 2008 Management Board members of the General Partner
held options to acquire 2,159,720 ordinary shares of which options to purchase 964,520
ordinary shares were exercisable at a weighted average exercise price of 18.20
($25.33) (see part (iv) below, Compensation of the Management Board and the
Supervisory Board . Those options expire at various dates between 2009 and 2015.
Ownership of Certain Beneficial Owners of Fresenius SE
SE s share capital consists of ordinary shares and non-voting preference shares. Both
classes of shares are issued only in bearer form. Accordingly, Fresenius SE has
difficulties precisely determining who its shareholders are at any specified time or how
many shares any particular shareholder owns. However, under the German Securities Trading
Act, holders of voting securities of a German company listed on the Regulated Market
(Regulierter Markt) of a German stock exchange or a corresponding trading segment
of a stock exchange within the European Union are obligated to notify the company of
certain levels of holdings, as described above.
on the most recent information available, Else-Kr ner-Fresenius Stiftung owns
approximately 58% of the Fresenius SE Ordinary shares. According to Allianz
Lebensversicherungs-AG, they hold between 5%-10% of the Fresenius SE Ordinary shares.
principal trading market for our ordinary shares and the preference shares is the
Frankfurt Stock Exchange. All ordinary shares and preference shares have been issued in
bearer form. Accordingly, we face difficulties determining precisely who our holders of
ordinary and preference shares are or how many shares any particular shareholder owns,
with the exception of the number of shares held in ADR form in the United States. For more
information regarding ADRs see Item 10.B. Memorandum and articles of association
Description of American Depositary Receipts in our 2008 20-F. However, under
the German Securities trading Act, holders of voting securities of a German company listed
on a stock exchange within the EU are obligated to notify the company of certain levels of
holdings as described above in part (i), Security Ownership of Certain Beneficial
Owners of Fresenius Medical Care AG & Co. KGaA and Fresenius SE. Additionally,
persons discharging managerial responsibilities and affiliated persons are obliged to