Capital, shareholders, articles of association

The summary below shows the subscribed capital of Fresenius SE & Co. KGaA (as of December 31, 2010 of Fresenius SE). The shares of Fresenius SE & Co. KGaA are non-par-value bearer shares. Shareholders’ rights are regulated by the German Stock Corporation Act (AktG – Aktiengesetz). The change of legal form to a KGaA was registered with the commercial register on January 28, 2011, and thereby became effective. In accordance with the resolution of the General Meeting and the articles of association of Fresenius SE & Co. KGaA, all the ordinary shares of Fresenius SE thereby became ordinary shares of Fresenius SE & Co. KGaA. At the same time, all nonvoting preference shares of Fresenius SE were mandatorily converted at a 1:1 exchange ratio into voting ordinary shares of Fresenius SE & Co. KGaA. The Company’s total share capital remained unchanged. Accordingly, the listing of the two classes of Fresenius SE share was discontinued on January 28, 2011. The ordinary shares of Fresenius SE & Co. KGaA commenced trading on January 31.


  January 28, 2011 December 31, 2010 December 31, 2009
  Number of shares Subscribed capital € Number of shares Subscribed capital € Number of shares Subscribed capital €
Ordinary shares/capital 162,450,090 162,450,090.00 81,225,045 81,225,045.00 80,657,688 80,657,688.00
Preference shares/capital 0 0 81,225,045 81,225,045.00 80,657,688 80,657,688.00
Total 162,450,090 162,450,090.00 162,450,090 162,450,090.00 161,315,376 161,315,376.00

  January 28, 2011 December 31, 2010 December 31, 2009
  Number of shares Subscribed capital € Number of shares Subscribed capital € Number of shares Subscribed capital €
Ordinary shares/capital 162,450,090 162,450,090.00 81,225,045 81,225,045.00 80,657,688 80,657,688.00
Preference shares/capital 0 0 81,225,045 81,225,045.00 80,657,688 80,657,688.00
Total 162,450,090 162,450,090.00 162,450,090 162,450,090.00 161,315,376 161,315,376.00

At the Annual General Meeting on May 12, 2010, the articles of association of Fresenius SE & Co. KGaA were adopted with the following Authorized Capitals. Authorized Capitals I and II correspond in their scope to the Authorized Capitals of the former Fresenius SE. Authorized Capitals III to V for servicing the 1998, 2003, and 2008 stock option plans are to be used only as an alternative to the Conditional Capitals. Accordingly, Fresenius Management SE, as General Partner, is authorized, subject to the consent of the Supervisory Board of Fresenius SE & Co. KGaA:

  • to increase the subscribed capital by a total amount of up to €12,800,000.00 by May 7, 2014, through a single or multiple issuance of bearer ordinary shares against cash contributions (Authorized Capital I), and
  • to increase the subscribed capital by a total amount of up to €6,400,000.00 by May 7, 2014, through a single or multiple issuance of bearer ordinary shares against cash contributions and/or contributions in kind (Authorized Capital II). Shareholders’ pre-emptive rights of subscription can be excluded.
  • to increase the subscribed capital by a total amount of up to €1,313,000.00 by May 11, 2015, through a single or multiple issuance of bearer ordinary shares against cash contributions (Authorized Capital III). Shareholders’ preemptive rights of subscription are excluded. Authorized Capital III may only be executed to the extent that subscription rights to bearer ordinary shares were issued under the 1998 Stock Option Plan, the holders of these subscription rights exercise their rights, and the subscription rights are not serviced from Conditional Capital.
  • to increase the subscribed capital by a total amount of up to €4,298,442.00 by May 11, 2015, through a single or multiple issuance of bearer ordinary shares against cash contributions and/or contributions in kind (Authorized Capital IV). Shareholders’ pre-emptive rights of subscription are excluded. Authorized Capital IV may only be executed to the extent that convertible bonds for bearer ordinary shares were issued under the 2003 Stock Option Plan, the holders of these convertible bonds exercise their conversion rights, and the conversion rights are not serviced from Conditional Capital.
  • to increase the subscribed capital by a total amount of up to €6,200,000.00 by May 11, 2015, through a single or multiple issuance of bearer ordinary shares against cash contributions (Authorized Capital V). Shareholders’ preemptive rights of subscription are excluded. Authorized Capital V may only be executed to the extent that subscription rights to bearer ordinary shares were or will be issued under the 2008 Stock Option Plan, the holders of these subscription rights exercise their rights, the Company does not use its own treasury shares to service the subscription rights or does not exercise its right to make payment in cash, and the subscription rights are not serviced from Conditional Capital.

In addition, there are the following Conditional Capitals, which correspond in their scope to the conditional capitals of the former Fresenius SE, adjusted for stock options that have been exercised in the meantime:

  • The subscribed capital is conditionally increased by up to €990,510.00 through the issuance of new bearer ordinary shares (Conditional Capital I). The conditional capital increase will only be executed to the extent that subscription rights have been issued under the 1998 Stock Option Plan and the holders of these subscription rights exercise their rights.
  • The subscribed capital is conditionally increased by up to €3,486,318.00 through the issuance of new bearer ordinary shares (Conditional Capital II). The conditional capital increase will only be executed to the extent that convertible bonds for ordinary shares have been issued under the 2003 Stock Option Plan and the holders of these convertible bonds exercise their conversion rights.
  • The subscribed capital is conditionally increased by up to €6,200,000.00 through the issuance of new bearer ordinary shares (Conditional Capital III). The conditional capital increase will only be executed to the extent that subscription rights have been or will be issued under the 2008 Stock Option Plan, the holders of these subscription rights exercise their rights, and the Company does not use its own treasury shares to service the subscription rights or does not exercise its right to make payment in cash, whereby the granting of subscription rights to the Management Board of the General Partner, and their settlement, shall be solely and exclusively the responsibility of its Supervisory Board.

Fresenius SE & Co. KGaA does not have a share buyback program.

Direct and indirect ownership interests in Fresenius SE & Co. KGaA are listed here. The Else Kröner-Fresenius-Stiftung, as the largest shareholder, informed the Company that it held 46,871,154 ordinary shares of Fresenius SE & Co. KGaA on January 28, 2011. This corresponds to an equity interest of 28.85%.

Amendments to the articles of association are made in accordance with Section 278 (3), Section 179 (2) of the German Stock Corporation Act (AktG) in conjunction with Section 17 (3) of the articles of association of Fresenius SE & Co. KGaA. Unless mandatory legal provisions require otherwise, amendments of the articles of association require a simple majority of the subscribed capital represented in the resolution. If the voting results in a tie, a motion is deemed rejected. Furthermore, in accordance with Section 285 (2) sentence 1 of the German Stock Corporation Act (AktG), amendments to the articles of association require the consent of the General Partner, Fresenius Management SE. The Supervisory Board is entitled to make such amendments to the articles of association which only concern their wording without a resolution of the General Meeting.

A change of control as the result of a takeover bid under certain circumstances could impact some of our long-term financing agreements embodying change of control agreements. These agreements are customary change of control clauses that grant creditors the right of premature call in the event of a change of control. However, the right of premature call usually only becomes effective if the change of control is followed by a downgrading of the Company’s rating.

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