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28. Fresenius SE & Co. KGaA shareholders’ equity

Subscribed capital

Development of subscribed capital

On May 15, 2012, Fresenius SE & Co. KGaA successfully completed a capital increase upon registration with the commercial register. In connection with the capital increase, 13.8 million new ordinary shares were issued at a price of €73.50. The transaction generated gross proceeds of €1,014.3 million and increased the subscribed capital by €13.8 million. The new shares have full dividend entitlement for the fiscal year 2012.

During the fiscal year 2012, 1,150,924 stock options were exercised. Consequently, as of December 31, 2012, the subscribed capital of Fresenius SE & Co. KGaA, including the new shares of the capital increase, consisted of 178,188,260 bearer ordinary shares. The shares are issued as non-par value shares. The proportionate amount of the subscribed capital is €1.00 per share.

Notification by shareholders

The following table shows the notifications disclosed in 2012 in accordance with Section 26 (1) of the German Securities Trading Act (WpHG). They reflect the corresponding level of investments held in Fresenius SE & Co. KGaA:


Notifying party Date of reaching, exceeding or falling below Reporting threshold Attribution pursuant to Section 22 WpHG Percentage of voting rights Number of voting rights
1 Attribution of voting rights via: BlackRock International Holdings, Inc., BR Jersey International Holdings LP, BlackRock Group Limited 2 Attribution of voting rights via: BlackRock Holdco 2, Inc., BlackRock Financial Management, Inc., BlackRock International Holdings, Inc., BR Jersey International Holdings LP, BlackRock Group Limited 3 Attribution of voting rights via: Capital Research and Management Company
BlackRock, Inc., New York, United States1 April 25, 2012 Falling below 5% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 4.88 7,974,870
BlackRock, Inc., New York, United States2 May 4, 2012 Exceeding 5% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 5.36 8,756,380
Deutsche Bank AG, Frankfurt am Main, Germany May 15, 2012 Exceeding 3% and 5%   6.34 11,228,068
      thereof pursuant to Sections 21 and 22 5.79 10,250,631
      thereof pursuant to Section 25 0.17 300,000
      thereof pursuant to Section 25a 0.38 677,437
Deutsche Bank AG, Frankfurt am Main, Germany May 16, 2012 Falling below 3% and 5%   0.45 793,326
      thereof pursuant to Sections 21 and 22 0.00 0
      thereof pursuant to Section 25 0.00 0
      thereof pursuant to Section 25a 0.45 793,326
BlackRock Advisors Holdings, Inc., New York, United States July 23, 2012 Exceeding 5% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 5.05 8,954,443
BlackRock Advisors Holdings, Inc., New York, United States August 28, 2012 Falling below 5% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 4.98 8,847,524
The Capital Group Companies, Inc., Los Angeles, United States3 November 2, 2012 Exceeding 3% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 and 3 3.12 5,557,985
BlackRock Group Limited, London, Great Britain November 9, 2012 Falling below 3% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 2.91 5,185,231

Notifying party Date of reaching, exceeding or falling below Reporting threshold Attribution pursuant to Section 22 WpHG Percentage of voting rights Number of voting rights
1 Attribution of voting rights via: BlackRock International Holdings, Inc., BR Jersey International Holdings LP, BlackRock Group Limited 2 Attribution of voting rights via: BlackRock Holdco 2, Inc., BlackRock Financial Management, Inc., BlackRock International Holdings, Inc., BR Jersey International Holdings LP, BlackRock Group Limited 3 Attribution of voting rights via: Capital Research and Management Company
BlackRock, Inc., New York, United States1 April 25, 2012 Falling below 5% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 4.88 7,974,870
BlackRock, Inc., New York, United States2 May 4, 2012 Exceeding 5% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 5.36 8,756,380
Deutsche Bank AG, Frankfurt am Main, Germany May 15, 2012 Exceeding 3% and 5%   6.34 11,228,068
      thereof pursuant to Sections 21 and 22 5.79 10,250,631
      thereof pursuant to Section 25 0.17 300,000
      thereof pursuant to Section 25a 0.38 677,437
Deutsche Bank AG, Frankfurt am Main, Germany May 16, 2012 Falling below 3% and 5%   0.45 793,326
      thereof pursuant to Sections 21 and 22 0.00 0
      thereof pursuant to Section 25 0.00 0
      thereof pursuant to Section 25a 0.45 793,326
BlackRock Advisors Holdings, Inc., New York, United States July 23, 2012 Exceeding 5% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 5.05 8,954,443
BlackRock Advisors Holdings, Inc., New York, United States August 28, 2012 Falling below 5% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 4.98 8,847,524
The Capital Group Companies, Inc., Los Angeles, United States3 November 2, 2012 Exceeding 3% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 and 3 3.12 5,557,985
BlackRock Group Limited, London, Great Britain November 9, 2012 Falling below 3% Section 22 (1) sentence 1 No. 6 in connection with (1) sentence 2 2.91 5,185,231

The Else Kröner-Fresenius-Stiftung as major shareholder informed Fresenius SE & Co. KGaA on December 19, 2012, that it holds 48,231,698 ordinary shares of Fresenius SE & Co. KGaA representing 27.07% of the subscribed capital on December 31, 2012.

All WpHG-notifications by shareholders are published on the website of the Company www.fresenius.com under Investor Relations – Fresenius Share / ADR – Shareholder Structure.

Authorized Capital

By resolution of the Annual General Meeting on May 13, 2011, the previous Authorized Capitals I to V were revoked and a new Authorized Capital I was created.

In accordance with the new provision in the articles of association of Fresenius SE & Co. KGaA, the general partner, Fresenius Management SE, is authorized, with the approval of the Supervisory Board, until May 12, 2016, to increase Fresenius SE & Co. KGaA’s subscribed capital by a total amount of up to €40,320,000 through a single issue or multiple issues of new bearer ordinary shares against cash contributions and / or contributions in kind (Authorized Capital I). A subscription right must be granted to the shareholders in principle. In defined cases, the general partner is authorized, with the consent of the Supervisory Board, to decide on the exclusion of the shareholders’ subscription right (e. g. to eliminate fractional amounts). For cash contributions, the authorization can only be exercised if the issue price is not significantly below the stock exchange price of the already listed shares at the time the issue price is fixed with final effect by the general partner. Furthermore, the proportionate amount of the shares issued with exclusion of subscription rights may not exceed 10% of the subscribed capital neither at the time of the resolution on the authorization nor at the time of the utilization of the authorization. In the case of a contribution in kind, the subscription right can be excluded only in order to acquire a company, parts of a company or a participation in a company. The authorizations granted concerning the exclusion of subscription rights can be used by the general partner only to such extent that the proportional amount of the total number of shares issued with exclusion of the subscription rights does not exceed 20% of the subscribed capital, neither at the time of the resolution on the authorization nor at the time of the utilization of the authorization.

The changes to the Authorized Capital became effective upon registration of the amendments to the articles of association with the commercial register on July 11, 2011.

Due to the capital increase, the Authorized Capital I decreased by €13.8 million to €26,520,000 at December 31, 2012.

Conditional capital

Corresponding to the stock option plans, the Conditional Capital of Fresenius SE & Co. KGaA is divided into Conditional Capital I, Conditional Capital II and Conditional Capital III. These are used to satisfy the subscription rights in connection with previously issued stock options or convertible bonds, as the case may be, for bearer ordinary shares under the stock option plans of 1998, 2003 and 2008 (see note 35, Stock options).

By resolution on May 11, 2012, the Annual General Meeting of Fresenius SE & Co. KGaA authorized the general partner, with the approval of the Supervisory Board, until May 10, 2017, to issue option bearer bonds and / or convertible bearer bonds, once or several times, for a total nominal amount of up to €2.5 billion. To fulfill the granted subscription rights, the subscribed capital of Fresenius SE & Co. KGaA was increased conditionally by up to €16,323,734 through issuing of up to 16,323,734 new bearer ordinary shares (Conditional Capital IV). The change of Fresenius SE & Co. KGaA’s articles of association with regard to the Conditional Capital IV became effective upon registration with the commercial register on July 4, 2012. The conditional capital increase shall only be implemented to the extent that the holders of convertible bonds issued for cash or of warrants from option bonds issued for cash exercise their conversion or option rights and as long as no other forms of settlement are used (Conditional Capital IV). The new bearer ordinary shares shall participate in the profits from the start of the fiscal year in which they are issued.

The following table shows the development of the Conditional Capital:

in € Ordinary shares
Conditional Capital I Fresenius AG Stock Option Plan 1998 888,428
Conditional Capital II Fresenius AG Stock Option Plan 2003 2,976,630
Conditional Capital III Fresenius SE Stock Option Plan 2008 6,024,524
Total Conditional Capital as of January 1, 2012 9,889,582
Fresenius AG Stock Option Plan 1998 – options exercised -30,458
Fresenius AG Stock Option Plan 2003 – options exercised -479,376
Fresenius SE Stock Option Plan 2008 – options exercised -641,090
Conditional Capital IV, approved on May 11, 2012 16,323,734
Total Conditional Capital as of December 31, 2012 25,062,392

in € Ordinary shares
Conditional Capital I Fresenius AG Stock Option Plan 1998 888,428
Conditional Capital II Fresenius AG Stock Option Plan 2003 2,976,630
Conditional Capital III Fresenius SE Stock Option Plan 2008 6,024,524
Total Conditional Capital as of January 1, 2012 9,889,582
Fresenius AG Stock Option Plan 1998 – options exercised -30,458
Fresenius AG Stock Option Plan 2003 – options exercised -479,376
Fresenius SE Stock Option Plan 2008 – options exercised -641,090
Conditional Capital IV, approved on May 11, 2012 16,323,734
Total Conditional Capital as of December 31, 2012 25,062,392

Capital reserves

Capital reserves comprise the premium paid on the issue of shares and the exercise of stock options (additional paid-in capital).

In the second quarter of 2012, the capital reserves increased by €989 million in connection with Fresenius SE & Co. KGaA’s capital increase. The accrued expenses less applicable tax benefit were charged in an amount of €11 million against the capital reserves.

Other reserves

Other reserves comprise earnings generated by Group entities in prior years to the extent that they have not been distributed.

Dividends

Under the German Stock Corporation Act (AktG), the amount of dividends available for distribution to shareholders is based upon the unconsolidated retained earnings of Fresenius SE & Co. KGaA as reported in its statement of financial position determined in accordance with the German Commercial Code (HGB).

In May 2012, a dividend of €0.95 per bearer ordinary share was approved by Fresenius SE & Co. KGaA’s shareholders at the Annual General Meeting and paid. The total dividend payment was €155 million.

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