exv10w1



 







    Exhibit 10.1



 



    EXECUTION VERSION



 


 




    REGISTRATION
    RIGHTS AGREEMENT

    by
    and among

    FMC Finance III S.A.

    Fresenius Medical Care AG & Co. KGaA

    Fresenius Medical Care Holdings, Inc.

    Fresenius Medical Care Deutschland GmbH

    and

    Banc of America Securities LLC

    Deutsche Bank Securities Inc.

    Morgan Stanley & Co. Incorporated

    Dated as of July 2, 2007
    



 












 







    REGISTRATION
    RIGHTS AGREEMENT



 



    This Registration Rights Agreement (this “Agreement”)
    is made and entered into as of July 26, 2007, by and among
    FMC Finance III S.A., a public limited company organized
    under the laws of the Grand Duchy of Luxembourg (the
    “Company”), Fresenius Medical Care AG & Co.
    KGaA (“FMC-KGaA”), Fresenius Medical Care Holdings,
    Inc. and Fresenius Medical Care Deutschland GmbH (the
    “Guarantors” and, together with the Company, the
    “Issuers”), and Banc of America Securities LLC,
    Deutsche Bank Securities Inc. and Morgan Stanley & Co.
    Incorporated (collectively, the “Initial Purchasers”),
    each of which has agreed to purchase the Company’s
    67/8% Senior
    Notes due 2017 (the “Initial Notes”) fully and
    unconditionally guaranteed by the Guarantors (the
    “Guarantees”) pursuant to the Purchase Agreement (as
    defined below). The Initial Notes and the Guarantees attached
    thereto are herein collectively referred to as the “Initial
    Securities.”



 



    This Agreement is made pursuant to the Purchase Agreement, dated
    June 26, 2007 (the “Purchase Agreement”), among
    the Issuers and the Initial Purchasers (i) for the benefit
    of the Initial Purchasers and (ii) for the benefit of the
    holders from time to time of the Initial Securities, including
    the Initial Purchasers. In order to induce the Initial
    Purchasers to purchase the Initial Securities, the Issuers have
    agreed to provide the registration rights set forth in this
    Agreement. The execution and delivery of this Agreement is a
    condition to the obligations of the Initial Purchasers set forth
    in Section 5(g) of the Purchase Agreement.



 



    The parties hereby agree as follows:



 



    Section 1.  Definitions.  As
    used in this Agreement, the following capitalized terms shall
    have the following meanings:



 



    Additional Interest Payment Date:  With respect
    to the Initial Securities, each Interest Payment Date.



 



    Broker-Dealer:  Any broker or dealer registered
    under the Exchange Act.



 



    Business Day:  Any day other than a Saturday,
    Sunday or U.S. federal holiday or a day on which banking
    institutions or trust companies located in New York, New York or
    Frankfurt am Main or the jurisdiction of organization of the
    Company or a “Successor” (as defined in the Indenture)
    to the Company are authorized or obligated to be closed.



 



    Closing Date:  The date of this Agreement.



 



    Commission:  The Securities and Exchange
    Commission.



 



    Consummate:  A registered Exchange Offer shall
    be deemed “Consummated” for purposes of this Agreement
    upon the occurrence of (i) the filing and effectiveness
    under the Securities Act of the Exchange Offer Registration
    Statement relating to the Exchange Securities to be issued in
    the Exchange Offer, (ii) the maintenance of such
    Registration Statement continuously effective and the keeping of
    the Exchange Offer open for a period not less than the minimum
    period required pursuant to Section 3(b) hereof, and
    (iii) the delivery by the Issuers to the Registrar under
    the Indenture of Exchange Securities in the same aggregate
    principal amount as the aggregate principal amount of Initial
    Securities that were tendered by Holders thereof pursuant to the
    Exchange Offer.



 



    Effectiveness Target Date:  As defined in
    Section 5 hereof.



 



    Exchange Act:  The Securities Exchange Act of
    1934, as amended.



 



    Exchange Offer:  The registration by the
    Issuers under the Securities Act of the Exchange Securities
    pursuant to a Registration Statement pursuant to which the
    Issuers offer the Holders of all outstanding Transfer Restricted
    Securities the opportunity to exchange all such outstanding
    Transfer Restricted Securities held by such Holders for Exchange
    Securities in an aggregate principal amount equal to the
    aggregate principal amount of the Transfer Restricted Securities
    tendered in such exchange offer by such Holders.



 



    Exchange Offer Registration Statement:  The
    Registration Statement relating to the Exchange Offer, including
    the related Prospectus.













 






    Exempt Resales:  The transactions in which the
    Initial Purchasers propose to sell the Initial Securities to
    certain “qualified institutional buyers,” as such term
    is defined in Rule 144A under the Securities Act and to
    certain
    non-U.S. persons
    pursuant to Regulation S under the Securities Act.



 



    Exchange Securities:  The Company’s
    67/8% Senior
    Notes due 2017, of the same series under the Indenture as the
    Initial Notes and the Guarantees attached thereto, to be issued
    to Holders in exchange for Transfer Restricted Securities
    pursuant to this Agreement.



 



    Holders:  As defined in Section 2(b)
    hereof.



 



    Indemnified Holder:  As defined in
    Section 8(a) hereof.



 



    Indenture:  The Indenture, dated as of
    July 2, 2007, by and among the Issuers and U.S. Bank
    National Association, as trustee (the “Trustee”),
    pursuant to which the Securities are to be issued, as such
    Indenture is amended or supplemented from time to time in
    accordance with the terms thereof.



 



    Initial Purchasers:  As defined in the preamble
    hereto.



 



    Initial Notes:  As defined in the preamble
    hereto.



 



    Initial Placement:  The issuance and sale by
    the Issuers of the Initial Securities to the Initial Purchasers
    pursuant to the Purchase Agreement.



 



    Initial Securities:  As defined in the preamble
    hereto.



 



    Interest Payment Date:  As defined in the
    Indenture and the Securities.



 



    Issuers:  As defined in the preamble hereto.



 



    NASD:  National Association of Securities
    Dealers, Inc.



 



    Person:  An individual, partnership,
    corporation, limited liability company, trust or unincorporated
    organization, or a government or agency or political subdivision
    thereof.



 



    Prospectus:  The prospectus included in a
    Registration Statement, as amended or supplemented by any
    prospectus supplement and by all other amendments thereto,
    including post-effective amendments, and all material
    incorporated by reference into such Prospectus.



 



    Registration Default:  As defined in
    Section 5 hereof.



 



    Registration Statement:  Any registration
    statement of the Issuers relating to (a) an offering of
    Exchange Securities pursuant to an Exchange Offer or
    (b) the registration for resale of Transfer Restricted
    Securities pursuant to the Shelf Registration Statement, which
    is filed pursuant to the provisions of this Agreement, in each
    case, including the Prospectus included therein, all amendments
    and supplements thereto (including post-effective amendments)
    and all exhibits and material incorporated by reference therein.



 



    Securities:  The Initial Securities and the
    Exchange Securities issued pursuant to the Indenture.



 



    Securities Act:  The Securities Act of 1933, as
    amended.



 



    Shelf Filing Deadline:  As defined in
    Section 4(a) hereof.



 



    Shelf Registration Statement:  As defined in
    Section 4(a) hereof.



 



    Trust Indenture Act:  The
    Trust Indenture Act of 1939, as in effect on the date of
    the Indenture.



 



    Transfer Restricted Securities:  Each Initial
    Security, until the earliest to occur of (a) the date on
    which such Initial Security is exchanged in the Exchange Offer
    for an Exchange Security entitled to be resold to the public by
    the Holder thereof without complying with the prospectus
    delivery requirements of the Securities Act, (b) the date
    on which such Initial Security has been effectively registered
    under the Securities Act and disposed of in accordance with a
    Shelf Registration Statement and (c) the date on which such
    Initial Security is distributed to the public pursuant to
    Rule 144 under the Securities Act or by a Broker-Dealer
    pursuant to the




    

    2








 






    “Plan of Distribution” contemplated by the Exchange
    Offer Registration Statement (including delivery of the
    Prospectus contained therein).



 



    Underwritten Registration or Underwritten
    Offering:  A registration in which securities of
    the Issuers are sold to an underwriter for reoffering to the
    public.



 



    Section 2.  Securities
    Subject to this Agreement.



 



    (a) Transfer Restricted Securities.  The
    securities entitled to the benefits of this Agreement are the
    Transfer Restricted Securities.



 



    (b) Holders of Transfer Restricted
    Securities.  A Person is deemed to be a holder of
    Transfer Restricted Securities (each, a “Holder”)
    whenever such Person owns Transfer Restricted Securities.



 



    Section 3.  Registered
    Exchange Offer.



 



    (a) Unless the Exchange Offer shall not be permissible
    under applicable law or Commission policy (after the procedures
    set forth in Section 6(a) hereof have been complied with),
    each of the Issuers shall (i) cause to be filed with the
    Commission as soon as practicable after the Closing Date, but in
    no event later than 180 days after the Closing Date (or if
    such 180th day is not a Business Day, the next succeeding
    Business Day), a Registration Statement under the Securities Act
    relating to the Exchange Securities and the Exchange Offer,
    (ii) use their reasonable best efforts to cause such
    Registration Statement to become effective at the earliest
    possible time, but in no event later than 240 days after
    the Closing Date (or if such 240th day is not a Business
    Day, the next succeeding Business Day), (iii) in connection
    with the foregoing, file (A) all pre-effective amendments
    to such Registration Statement as may be necessary in order to
    cause such Registration Statement to become effective,
    (B) if applicable, a post-effective amendment to such
    Registration Statement pursuant to Rule 430A under the
    Securities Act and (C) cause all necessary filings in
    connection with the registration and qualification of the
    Exchange Securities to be made under the state securities or
    blue sky laws of such jurisdictions as are necessary to permit
    Consummation of the Exchange Offer, and (iv) upon the
    effectiveness of such Registration Statement, commence the
    Exchange Offer. The Exchange Offer shall be on the appropriate
    form permitting registration of the Exchange Securities to be
    offered in exchange for the Transfer Restricted Securities and
    to permit resales of Initial Securities held by Broker-Dealers
    as contemplated by Section 3(c) hereof.



 



    (b) The Issuers shall cause the Exchange Offer Registration
    Statement to be effective continuously and shall keep the
    Exchange Offer open for a period of not less than the minimum
    period required under applicable federal and state securities
    laws to Consummate the Exchange Offer; provided, however,
    that in no event shall such period be less than 30 days
    after the date notice of the Exchange Offer is mailed to the
    Holders. The Issuers shall cause the Exchange Offer to comply
    with all applicable federal and state securities laws. No
    securities other than the Exchange Securities shall be included
    in the Exchange Offer Registration Statement. The Issuers shall
    use their reasonable best efforts to cause the Exchange Offer to
    be Consummated on the earliest practicable date after the
    Exchange Offer Registration Statement has become effective, but
    in no event later than 280 days after the Closing Date (or
    if such 280th day is not a Business Day, the next
    succeeding Business Day).



 



    (c) The Issuers shall indicate in a “Plan of
    Distribution” section contained in the Prospectus forming a
    part of the Exchange Offer Registration Statement that any
    Broker-Dealer who holds Initial Securities that are Transfer
    Restricted Securities and that were acquired for its own account
    as a result of market-making activities or other trading
    activities (other than Transfer Restricted Securities acquired
    directly from the Issuers), may exchange such Initial Securities
    pursuant to the Exchange Offer; however, such Broker-Dealer may
    be deemed to be an “underwriter” within the meaning of
    the Securities Act and must, therefore, deliver a prospectus
    meeting the requirements of the Securities Act in connection
    with any resales of the Exchange Securities received by such
    Broker-Dealer in the Exchange Offer, which prospectus delivery
    requirement may be satisfied by the delivery by such
    Broker-Dealer of the Prospectus contained in the Exchange Offer
    Registration Statement. Such “Plan of Distribution”
    section shall also contain all other information with respect to
    such resales by Broker-Dealers that the Commission may require
    in order to permit such resales pursuant thereto, but such
    “Plan of Distribution” shall not name any such
    Broker-Dealer or disclose the amount of Initial Securities held
    by any such Broker-Dealer except to the extent required by the
    Commission as a result of a change in policy after the date of
    this Agreement.




    

    3








 






    Each of the Issuers shall use its reasonable best efforts to
    keep the Exchange Offer Registration Statement continuously
    effective, supplemented and amended as required by the
    provisions of Section 6(c) hereof to the extent necessary
    to ensure that it is available for resales of Initial Securities
    acquired by Broker-Dealers for their own accounts as a result of
    market-making activities or other trading activities, and to
    ensure that it conforms with the requirements of this Agreement,
    the Securities Act and the policies, rules and regulations of
    the Commission as announced from time to time, for a period
    ending on the earlier of (i) 180 days from the date on
    which the Exchange Offer Registration Statement is declared
    effective and (ii) the date on which a Broker-Dealer is no
    longer required to deliver a prospectus in connection with
    market-making or other trading activities.



 



    The Issuers shall provide sufficient copies of the latest
    version of such Prospectus to Broker-Dealers promptly upon
    request at any time during such
    180-day (or
    shorter as provided in the foregoing sentence) period in order
    to facilitate such resales.



 



    Section 4.  Shelf
    Registration.



 



    (a) Shelf Registration.  If (i) the
    Issuers are not required to file an Exchange Offer Registration
    Statement or to consummate the Exchange Offer because the
    Exchange Offer is not permitted by applicable law or Commission
    policy (after the procedures set forth in Section 6(a)
    hereof have been complied with), (ii) for any reason the
    Exchange Offer is not Consummated within 280 days after the
    Closing Date (or if such 280th day is not a Business Day,
    the next succeeding Business Day), (iii) prior to the
    20th day
    following consummation of the Exchange Offer (A) the
    Initial Purchasers so request with respect to Initial Securities
    not eligible to be exchanged for Exchange Securities in the
    Exchange Offer, (B) any holder of Initial Securities
    notifies the Issuers that it is not eligible to participate in
    the Exchange Offer or (3) an Initial Purchaser notifies the
    Issuers that it will not receive freely tradable Exchange
    Securities in exchange for Initial Securities constituting any
    portion of an unsold allotment, or (iv) with respect to any
    Holder of Transfer Restricted Securities (A) such Holder is
    prohibited by applicable law or Commission policy from
    participating in the Exchange Offer, or (B) such Holder may
    not resell the Exchange Securities acquired by it in the
    Exchange Offer to the public without delivering a prospectus and
    that the Prospectus contained in the Exchange Offer Registration
    Statement is not appropriate or available for such resales by
    such Holder, or (C) such Holder is a Broker-Dealer and
    holds Initial Securities acquired directly from the Issuers or
    one of their affiliates, then, upon such Holder’s request,
    the Issuers shall



 



    (x) cause to be filed a shelf registration statement
    pursuant to Rule 415 under the Securities Act, which may be
    an amendment to the Exchange Offer Registration Statement (in
    either event, the “Shelf Registration Statement”) on
    or prior to the earliest to occur of (1) the 30th day
    after the date on which the Issuers determine that they are not
    required to file the Exchange Offer Registration Statement,
    (2) the 30th day after the date on which the Issuers
    receive notice from a Holder of Transfer Restricted Securities
    as contemplated by clause (ii) above, and (3) the
    90th day after the Closing Date (or if such 90th day
    is not a Business Day, the next succeeding Business Day) (such
    earliest date being the “Shelf Filing Deadline”),
    which Shelf Registration Statement shall provide for resales of
    all Transfer Restricted Securities the Holders of which shall
    have provided the information required pursuant to
    Section 4(b) hereof; and



 



    (y) use their reasonable best efforts to cause such Shelf
    Registration Statement to be declared effective by the
    Commission on or before the 280th day after the Closing
    Date (or if such 280th day is not a Business Day, the next
    succeeding Business Day).



 



    Each of the Issuers shall use its reasonable best efforts to
    keep such Shelf Registration Statement continuously effective,
    supplemented and amended as required by the provisions of
    Sections 6(b) and (c) hereof to the extent necessary
    to ensure that it is available for resales of Initial Securities
    by the Holders of Transfer Restricted Securities entitled to the
    benefit of this Section 4(a), and to ensure that it
    conforms with the requirements of this Agreement, the Securities
    Act and the policies, rules and regulations of the Commission as
    announced from time to time, for a period of two years following
    the Closing Date.



 



    (b) Provision by Holders of Certain Information in
    Connection with the Shelf Registration
    Statement.  No Holder of Transfer Restricted
    Securities may include any of its Transfer Restricted Securities
    in any Shelf Registration Statement pursuant to this Agreement
    unless and until such Holder furnishes to the Issuers in
    writing, within 20 Business Days after receipt of a request
    therefor, such information as the Issuers may reasonably request




    

    4








 






    for use in connection with any Shelf Registration Statement or
    Prospectus or preliminary Prospectus included therein. Each
    Holder as to which any Shelf Registration Statement is being
    effected agrees to furnish promptly to the Issuers all
    information required to be disclosed in order to make the
    information previously furnished to the Issuers by such Holder
    not materially misleading.



 



    Section 5.  Additional
    Interest.  If (i) any of the Registration
    Statements required by this Agreement is not filed with the
    Commission on or prior to the date specified for such filing in
    this Agreement, (ii) any of such Registration Statements
    has not been declared effective by the Commission on or prior to
    the date specified for such effectiveness in this Agreement (the
    “Effectiveness Target Date”), (iii) the Exchange
    Offer has not been Consummated within 280 days after the
    Closing Date with respect to the Exchange Offer Registration
    Statement or (iv) any Registration Statement required by
    this Agreement is filed and declared effective but shall
    thereafter cease to be effective or fail to be usable for its
    intended purpose without being succeeded immediately by a
    post-effective amendment to such Registration Statement that
    cures such failure and that is itself immediately declared
    effective (each such event referred to in clauses (i)
    through (iv), a “Registration Default”), the Issuers
    hereby agree that the interest rate borne by the Transfer
    Restricted Securities shall be increased by 0.25% per annum
    during the
    90-day
    period immediately following the occurrence of any Registration
    Default and shall increase by 0.25% per annum at the end of each
    subsequent
    90-day
    period, but in no event shall such increase exceed 0.50% per
    annum. Following the cure of all Registration Defaults relating
    to any particular Transfer Restricted Securities, the interest
    rate borne by the relevant Transfer Restricted Securities will
    be reduced to the original interest rate borne by such Transfer
    Restricted Securities; provided, however, that, if after
    any such reduction in interest rate, a different Registration
    Default occurs, the interest rate borne by the relevant Transfer
    Restricted Securities shall again be increased pursuant to the
    foregoing provisions.



 



    All obligations of the Issuers set forth in the preceding
    paragraph that are outstanding with respect to any Transfer
    Restricted Security at the time such security ceases to be a
    Transfer Restricted Security shall survive until such time as
    all such obligations with respect to such security shall have
    been satisfied in full.



 



    Section 6.  Registration
    Procedures.



 



    (a) Exchange Offer Registration
    Statement.  In connection with the Exchange Offer,
    the Issuers shall comply with all of the provisions of
    Section 6(c) hereof, shall use their reasonable best
    efforts to effect such exchange to permit the sale of Transfer
    Restricted Securities being sold in accordance with the intended
    method or methods of distribution thereof, and shall comply with
    all of the following provisions:



 



    (i) If in the reasonable opinion of counsel to the Issuers
    there is a question as to whether the Exchange Offer is
    permitted by applicable law, the Issuers hereby agree to seek a
    no-action letter or other favorable decision from the Commission
    allowing the Issuers to Consummate an Exchange Offer for such
    Initial Securities. The Issuers hereby agree to pursue the
    issuance of such a decision to the Commission staff level but
    shall not be required to take commercially unreasonable action
    to effect a change of Commission policy. The Issuers agree,
    however, to (A) participate in telephonic conferences with
    the Commission, (B) deliver to the Commission staff an
    analysis prepared by counsel to the Issuers setting forth the
    legal bases, if any, upon which such counsel has concluded that
    such an Exchange Offer should be permitted and
    (C) diligently pursue a favorable resolution by the
    Commission staff of such submission.



 



    (ii) As a condition to its participation in the Exchange
    Offer pursuant to the terms of this Agreement, each Holder of
    Transfer Restricted Securities shall furnish, upon the request
    of the Issuers, prior to the Consummation thereof, a written
    representation to the Issuers (which may be contained in the
    letter of transmittal contemplated by the Exchange Offer
    Registration Statement) to the effect that (A) it is not an
    affiliate of the Issuers, (B) it is not engaged in, and
    does not intend to engage in, and has no arrangement or
    understanding with any Person to participate in, a distribution
    of the Exchange Securities to be issued in the Exchange Offer
    and (C) it is acquiring the Exchange Securities in its
    ordinary course of business. In addition, all such Holders of
    Transfer Restricted Securities shall otherwise cooperate in the
    Issuers’ preparations for the Exchange Offer. Each Holder
    hereby acknowledges and agrees that any Broker-Dealer and any
    such Holder using the Exchange Offer to participate in a
    distribution of the securities to be acquired in the Exchange
    Offer (1) could not under Commission policy as in effect on
    the date of this Agreement rely on the position of the
    Commission enunciated in Morgan Stanley and Co., Inc.
    (available June 5, 1991) and Exxon Capital Holdings
    Corporation




    

    5








 






    (available May 13, 1988), as interpreted in the
    Commission’s letter to Shearman & Sterling dated
    July 2, 1993, and similar no-action letters (which may
    include any no-action letter obtained pursuant to
    clause (i) above), and (2) must comply with the
    registration and prospectus delivery requirements of the
    Securities Act in connection with a secondary resale transaction
    and that such a secondary resale transaction should be covered
    by an effective registration statement containing the selling
    security holder information required by Item 507 or 508, as
    applicable, of
    Regulation S-K
    if the resales are of Exchange Securities obtained by such
    Holder in exchange for Initial Securities acquired by such
    Holder directly from the Issuers.



 



    (b) Shelf Registration Statement.  In
    connection with the Shelf Registration Statement, each of the
    Issuers shall comply with all the provisions of
    Section 6(c) hereof and shall use its reasonable best
    efforts to effect such registration to permit the sale of the
    Transfer Restricted Securities being sold in accordance with the
    intended method or methods of distribution thereof, and pursuant
    thereto each of the Issuers will as expeditiously as possible
    prepare and file with the Commission a Registration Statement
    relating to the registration on any appropriate form under the
    Securities Act, which form shall be available for the sale of
    the Transfer Restricted Securities in accordance with the
    intended method or methods of distribution thereof.



 



    (c) General Provisions.  In connection
    with any Registration Statement and any Prospectus required by
    this Agreement to permit the sale or resale of Transfer
    Restricted Securities (including, without limitation, any
    Registration Statement and the related Prospectus required to
    permit resales of Initial Securities by Broker-Dealers in
    compliance with the requirements and conditions of
    Section 3(c) hereof), each of the Issuers shall:



 



    (i) use its reasonable best efforts to keep such
    Registration Statement continuously effective and provide all
    requisite financial statements (including, if required by the
    Securities Act or any regulation thereunder, taking into account
    the provisions of
    Rule 3-10
    of
    Regulation S-X,
    financial statements of the Guarantors for the period specified
    in Section 3 or 4 hereof, as applicable; upon the
    occurrence of any event that would cause any such Registration
    Statement or the Prospectus contained therein (A) to
    contain a material misstatement or omission or (B) not to
    be effective and usable for resale of Transfer Restricted
    Securities during the period required by this Agreement, the
    Issuers shall file promptly an appropriate amendment to such
    Registration Statement, in the case of clause (A), correcting
    any such misstatement or omission, and, in the case of either
    clause (A) or (B), use its reasonable best efforts to cause
    such amendment to be declared effective and such Registration
    Statement and the related Prospectus to become usable for their
    intended purpose(s) as soon as practicable thereafter;



 



    (ii) prepare and file with the Commission such amendments
    and post-effective amendments to the applicable Registration
    Statement as may be necessary to keep the Registration Statement
    effective for the applicable period set forth in Section 3
    or 4 hereof, as applicable, or such shorter period as will
    terminate when all Transfer Restricted Securities covered by
    such Registration Statement have been sold; cause the Prospectus
    to be supplemented by any required Prospectus supplement, and as
    so supplemented to be filed pursuant to Rule 424 under the
    Securities Act, and to comply fully with the applicable
    provisions of Rules 424 and 430A under the Securities Act
    in a timely manner; and comply with the provisions of the
    Securities Act with respect to the disposition of all securities
    covered by such Registration Statement during the applicable
    period in accordance with the intended method or methods of
    distribution by the sellers thereof set forth in such
    Registration Statement or supplement to the Prospectus;



 



    (iii) advise the underwriter(s), if any, and selling
    Holders promptly and, if requested by such Persons, to confirm
    such advice in writing, (A) when the Prospectus or any
    Prospectus supplement or post-effective amendment has been
    filed, and, with respect to any Registration Statement or any
    post-effective amendment thereto, when the same has become
    effective, (B) of any request by the Commission for
    amendments to the Registration Statement or amendments or
    supplements to the Prospectus or for additional information
    relating thereto, (C) of the issuance by the Commission of
    any stop order suspending the effectiveness of the Registration
    Statement under the Securities Act or of the suspension by any
    state securities commission of the qualification of the Transfer
    Restricted Securities for offering or sale in any jurisdiction,
    or the initiation of any proceeding for any of the preceding
    purposes, (D) of the existence of any fact or the happening
    of any event that makes any statement of a material fact made in
    the Registration Statement, the Prospectus, any amendment or
    supplement thereto, or any document incorporated by reference
    therein untrue, or that requires




    

    6








 






    the making of any additions to or changes in the Registration
    Statement or the Prospectus in order to make the statements
    therein not misleading. If at any time the Commission shall
    issue any stop order suspending the effectiveness of the
    Registration Statement, or any state securities commission or
    other regulatory authority shall issue an order suspending the
    qualification or exemption from qualification of the Transfer
    Restricted Securities under state securities or blue sky laws,
    each of the Issuers shall use its reasoanble best efforts to
    obtain the withdrawal or lifting of such order at the earliest
    possible time;



 



    (iv) furnish without charge to each of the Initial
    Purchasers, each selling Holder named in any Registration
    Statement, and each of the underwriter(s), if any, before filing
    with the Commission, copies of any Registration Statement or any
    Prospectus included therein or any amendments or supplements to
    any such Registration Statement or Prospectus (including all
    documents incorporated by reference after the initial filing of
    such Registration Statement), which documents will be subject to
    the review and comment of such Holders and underwriter(s) in
    connection with such sale, if any, for a period of at least
    three Business Days, and the Issuers will not file any such
    Registration Statement or Prospectus or any amendment or
    supplement to any such Registration Statement or Prospectus
    (including all such documents incorporated by reference) to
    which an Initial Purchaser of Transfer Restricted Securities
    covered by such Registration Statement or the underwriter(s), if
    any, shall reasonably object in writing within three Business
    Days after the receipt thereof (such objection to be deemed
    timely made upon confirmation of telecopy transmission within
    such period). The objection of an Initial Purchaser or
    underwriter, if any, shall be deemed to be reasonable if, upon
    the advice of counsel to the Initial Purchasers, the Initial
    Purchasers believe that such Registration Statement, amendment,
    Prospectus or supplement, as applicable, as proposed to be
    filed, contains a material misstatement or omission;



 



    (v) promptly prior to the filing of any document that is to
    be incorporated by reference into a Registration Statement or
    Prospectus, provide copies of such document to the Initial
    Purchasers, each selling Holder named in any Registration
    Statement, and to the underwriter(s), if any, make the
    Issuers’ representatives available for discussion of such
    document and other customary due diligence matters, and include
    such information in such document prior to the filing thereof as
    such Initial Purchasers or selling Holders or underwriter(s), if
    any, reasonably may request;



 



    (vi) make available at reasonable times for inspection by
    the Initial Purchasers, the managing underwriter(s), if any,
    participating in any disposition pursuant to such Registration
    Statement and any attorney or accountant retained by, and except
    as provided in Section 7(c), at the expense of such Initial
    Purchasers or any of the underwriter(s), all financial and other
    records, pertinent corporate documents and properties of each of
    the Issuers and cause the Issuers’ officers, directors and
    employees to supply all information reasonably requested by any
    such Holder, underwriter, attorney or accountant in connection
    with such Registration Statement or any post-effective amendment
    thereto subsequent to the filing thereof and prior to its
    effectiveness and to participate in meetings with investors to
    the extent requested by the managing underwriter(s), if any;



 



    (vii) if requested by any selling Holders or the
    underwriter(s), if any, promptly incorporate in any Registration
    Statement or Prospectus, pursuant to a supplement or
    post-effective amendment if necessary, such information as such
    selling Holders and underwriter(s), if any, may reasonably
    request to have included therein, including, without limitation,
    information relating to the “Plan of Distribution” of
    the Transfer Restricted Securities, information with respect to
    the principal amount of Transfer Restricted Securities being
    sold to such underwriter(s), the purchase price being paid
    therefor and any other terms of the offering of the Transfer
    Restricted Securities to be sold in such offering; and make all
    required filings of such Prospectus supplement or post-effective
    amendment as soon as practicable after the Issuers are notified
    of the matters to be incorporated in such Prospectus supplement
    or post-effective amendment;



 



    (viii) cause the Transfer Restricted Securities covered by
    the Registration Statement, if not already rated, to be rated
    with not more than two appropriate rating agencies, if so
    requested by the Holders of a majority in aggregate principal
    amount of Securities covered thereby or the underwriter(s), if
    any;



 



    (ix) furnish to each Initial Purchaser, each selling Holder
    and each of the underwriter(s), if any, without charge, at least
    one copy of the Shelf Registration Statement, as first filed
    with the Commission, and of each




    

    7








 






    amendment thereto, including financial statements and schedules,
    all documents incorporated by reference therein and all exhibits
    (including exhibits incorporated therein by reference);



 



    (x) deliver to each selling Holder and each of the
    underwriter(s), if any, without charge, as many copies of the
    Prospectus (including each preliminary prospectus) and any
    amendment or supplement thereto as such Persons reasonably may
    request; each of the Issuers hereby consents to the use of the
    Prospectus and any amendment or supplement thereto by each of
    the selling Holders and each of the underwriter(s), if any, in
    connection with the offering and the sale of the Transfer
    Restricted Securities covered by the Prospectus or any amendment
    or supplement thereto;



 



    (xi) enter into such agreements (including an underwriting
    agreement), and make such representations and warranties, and
    take all such other actions in connection therewith in order to
    expedite or facilitate the disposition of the Transfer
    Restricted Securities pursuant to any Registration Statement
    contemplated by this Agreement, all to such extent as may be
    requested by any Initial Purchaser or by any Holder of Transfer
    Restricted Securities or underwriter in connection with any sale
    or resale pursuant to any Registration Statement contemplated by
    this Agreement; and whether or not an underwriting agreement is
    entered into and whether or not the registration is an
    Underwritten Registration, each of the Issuers shall:



 



    (A) furnish to each Initial Purchaser, each selling Holder
    and each underwriter, if any, in such substance and scope as
    they may request and as are customarily made by issuers to
    underwriters in primary underwritten offerings, upon the date of
    the Consummation of the Exchange Offer or, if applicable, the
    effectiveness of the Shelf Registration Statement:



 



    (1) a certificate, dated the date of Consummation of the
    Exchange Offer or the date of effectiveness of the Shelf
    Registration Statement, as the case may be, signed by
    (y) the President or any Vice President and (z) a
    principal financial or accounting officer of each of the
    Issuers, confirming, as of the date thereof, the matters set
    forth in paragraphs (i), (ii) and (iii) of
    Section 5(e) of the Purchase Agreement and such other
    matters as such parties may reasonably request, provided that
    the Issuers shall not be deemed to have failed to comply with
    this paragraph if the certificate delivered hereunder is
    qualified by reference to matters and events occurring
    subsequent to the Closing Date and disclosed in the prospectus
    or a document incorporated by reference into the prospectus
    included in a Shelf Registration Statement;



 



    (2) an opinion, dated the date of Consummation of the
    Exchange Offer or the date of effectiveness of the Shelf
    Registration Statement, as the case may be, of counsel for the
    Issuers, covering the matters set forth in Section 5(c) of
    the Purchase Agreement and such other matter as such parties may
    reasonably request, and in any event including a statement to
    the effect that such counsel has participated in conferences
    with officers and other representatives of the Issuers,
    representatives of the independent public accountants for the
    Issuers, representatives of the underwriter(s), if any, and
    counsel to the underwriter(s), if any, in connection with the
    preparation of such Registration Statement and the related
    Prospectus and have considered the matters required to be stated
    therein and the statements contained therein, although such
    counsel has not independently verified the accuracy,
    completeness or fairness of such statements; and that such
    counsel advises that, on the basis of the foregoing, no facts
    came to such counsel’s attention that caused such counsel
    to believe that the applicable Registration Statement, at the
    time such Registration Statement or any post-effective amendment
    thereto became effective, and, in the case of the Exchange Offer
    Registration Statement, as of the date of Consummation,
    contained an untrue statement of a material fact or omitted to
    state a material fact required to be stated therein or necessary
    to make the statements therein not misleading, or that the
    Prospectus contained in such Registration Statement as of its
    date and, in the case of the opinion dated the date of
    Consummation of the Exchange Offer, as of the date of
    Consummation, contained an untrue statement of a material fact
    or omitted to state a material fact necessary in order to make
    the statements therein not misleading. Without limiting the
    foregoing, such counsel may state further that such counsel
    assumes no responsibility for, and has not independently
    verified, the accuracy, completeness or fairness of the
    financial statements, notes




    

    8








 






    and schedules and other financial data included in any
    Registration Statement contemplated by this Agreement or the
    related Prospectus; and



 



    (3) a customary comfort letter, dated the date of
    effectiveness of the Shelf Registration Statement, from the
    Issuers’ independent accountants, in the customary form and
    covering matters of the type customarily requested to be covered
    in comfort letters by underwriters in connection with primary
    underwritten offerings, and covering or affirming the matters
    set forth in the comfort letters delivered pursuant to
    Section 5(a) of the Purchase Agreement, without exception;



 



    (B) if the underwriting agreement does not contain
    indemnification provisions and procedures customarily included
    in underwriting agreements for underwritten offerings of
    securities, set forth in full or incorporate by reference in the
    underwriting agreement, if any, the indemnification provisions
    and procedures of Section 8 hereof with respect to all
    parties to be indemnified pursuant to said Section; and



 



    (C) deliver such other documents and certificates as may be
    reasonably requested by such parties to evidence compliance with
    Section 6(c)(xi)(A) hereof and with any customary
    conditions contained in the underwriting agreement or other
    agreement entered into by the Issuers pursuant to this
    Section 6(c)(xi), if any.



 



    If at any time the representations and warranties of the Issuers
    contemplated in Section 6(c)(xi)(A)(1) hereof cease to be
    true and correct and such matter shall not previously have been
    disclosed in the manner referred to in Section 6(c)(xi)(A)(1),
    the Issuers shall so advise the Initial Purchasers and the
    underwriter(s), if any, and each selling Holder promptly and, if
    requested by such Persons, shall confirm such advice in writing;



 



    (xii) prior to any public offering of Transfer Restricted
    Securities, cooperate with the selling Holders, the
    underwriter(s), if any, and their respective counsel in
    connection with the registration and qualification of the
    Transfer Restricted Securities under the state securities or
    blue sky laws of such jurisdictions as the selling Holders or
    underwriter(s), if any, may request and do any and all other
    acts or things necessary or advisable to enable the disposition
    in such jurisdictions of the Transfer Restricted Securities
    covered by the Shelf Registration Statement; provided,
    however, that none of the Issuers shall be required to
    register or qualify as a foreign corporation where it is not
    then so qualified or to take any action that would subject it to
    the service of process in suits or to taxation, other than as to
    matters and transactions relating to the Registration Statement,
    in any jurisdiction where it is not then so subject;



 



    (xiii) shall issue, upon the request of any Holder of
    Initial Securities covered by the Shelf Registration Statement,
    Exchange Securities having an aggregate principal amount equal
    to the aggregate principal amount of Initial Securities
    surrendered to the Issuers by such Holder in exchange therefor
    or being sold by such Holder; such Exchange Securities to be
    registered in the name of such Holder or in the name of the
    purchaser(s) of such Securities, as the case may be; in return,
    the Initial Securities held by such Holder shall be surrendered
    to the Issuers for cancellation;



 



    (xiv) cooperate with the selling Holders and the
    underwriter(s), if any, to facilitate the timely preparation and
    delivery of certificates representing Transfer Restricted
    Securities to be sold and not bearing any restrictive legends;
    and enable such Transfer Restricted Securities to be in such
    denominations and registered in such names as the Holders or the
    underwriter(s), if any, may request at least two Business Days
    prior to any sale of Transfer Restricted Securities made by such
    Holders or underwriter(s);



 



    (xv) use its reasonable best efforts to cause the Transfer
    Restricted Securities covered by the Registration Statement to
    be registered with or approved by such other governmental
    agencies or authorities as may be necessary to enable the seller
    or sellers thereof or the underwriter(s), if any, to consummate
    the disposition of such Transfer Restricted Securities, subject
    to the proviso contained in Section 6(c)(xii) hereof;



 



    (xvi) if any fact or event contemplated by
    Section 6(c)(iii)(D) hereof shall exist or have occurred,
    prepare a supplement or post-effective amendment to the
    Registration Statement or related Prospectus or any document
    incorporated therein by reference or file any other required
    document so that, as thereafter delivered to the purchasers of
    Transfer Restricted Securities, the Prospectus will not contain
    an untrue statement of a material fact or omit to state any
    material fact necessary in order to make the statements therein
    not misleading;




    

    9








 






    (xvii) provide a CUSIP number for all Securities not later
    than the effective date of the Registration Statement covering
    such Securities and provide the Trustee under the Indenture with
    printed certificates for such Securities which are in a form
    eligible for deposit with the Depository Trust Company and
    take all other action necessary to ensure that all such
    Securities are eligible for deposit with the Depository
    Trust Company;



 



    (xviii) cooperate and assist in any filings required to be
    made with the NASD and in the performance of any due diligence
    investigation by any underwriter (including any “qualified
    independent underwriter”) that is required to be retained
    in accordance with the rules and regulations of the NASD;



 



    (xix) otherwise use its reasonable best efforts to comply
    with all applicable rules and regulations of the Commission, and
    make generally available to its security holders, as soon as
    practicable, a consolidated earnings statement meeting the
    requirements of Rule 158 (which need not be audited) for
    the twelve-month period (A) commencing at the end of any
    fiscal quarter in which Transfer Restricted Securities are sold
    to underwriters in a firm commitment or best efforts
    Underwritten Offering or (B) if not sold to underwriters in
    such an offering, beginning with the first month of
    FMC-KGaA’s first fiscal quarter commencing after the
    effective date of the Registration Statement;



 



    (xx) cause the Indenture to be qualified under the
    Trust Indenture Act not later than the effective date of
    the first Registration Statement required by this Agreement,
    and, in connection therewith, cooperate with the Trustee and the
    Holders of Securities to effect such changes to the Indenture as
    may be required for such Indenture to be so qualified in
    accordance with the terms of the Trust Indenture Act; and
    to execute and use its reasonable best efforts to cause the
    Trustee to execute, all documents that may be required to effect
    such changes and all other forms and documents required to be
    filed with the Commission to enable such Indenture to be so
    qualified in a timely manner;



 



    (xxi) apply to list all Securities covered by the
    Registration Statement on any securities exchange or automated
    quotation system on which the Initial Securities are then listed
    or to which application to list the Initial Securities has been
    made if requested by the Holders of a majority in aggregate
    principal amount of Initial Securities; and



 



    (xxii) provide promptly to each Holder upon request each
    document filed with the Commission pursuant to the requirements
    of Section 13 and Section 15 of the Exchange Act.



 



    Each Holder agrees by acquisition of a Transfer Restricted
    Security that, upon receipt of any notice from the Issuers of
    the existence of any fact of the kind described in
    Section 6(c)(iii)(D) hereof, such Holder will forthwith
    discontinue disposition of Transfer Restricted Securities
    pursuant to the applicable Registration Statement until such
    Holder’s receipt of the copies of the supplemented or
    amended Prospectus contemplated by Section 6(c)(xvi)
    hereof, or until it is advised in writing (the
    “Advice”) by the Issuers that the use of the
    Prospectus may be resumed, and has received copies of any
    additional or supplemental filings that are incorporated by
    reference in the Prospectus. If so directed by the Issuers, each
    Holder will deliver to the Issuers (at the Issuers’
    expense) all copies, other than permanent file copies then in
    such Holder’s possession, of the Prospectus covering such
    Transfer Restricted Securities that was current at the time of
    receipt of such notice. In the event the Issuers shall give any
    such notice, the time period regarding the effectiveness of such
    Registration Statement set forth in Section 3 or 4 hereof,
    as applicable, shall be extended by the number of days during
    the period from and including the date of the giving of such
    notice pursuant to Section 6(c)(iii)(D) hereof to and
    including the date when each selling Holder covered by such
    Registration Statement shall have received the copies of the
    supplemented or amended Prospectus contemplated by
    Section 6(c)(xvi) hereof or shall have received the Advice;
    provided, however, that no such extension shall be taken
    into account in determining whether Additional Interest is due
    pursuant to Section 5 hereof or the amount of such
    Additional Interest, it being agreed that the Issuers’
    option to suspend use of a Registration Statement pursuant to
    this paragraph shall be treated as a Registration Default for
    purposes of Section 5 hereof.



 



    Section 7.  Registration
    Expenses.



 



    (a) All expenses incident to the Issuers’ performance
    of or compliance with this Agreement will be borne by the
    Issuers, jointly and severally, regardless of whether a
    Registration Statement becomes effective, including, without
    limitation: (i) all registration and filing fees and
    expenses (including filings made by any Initial Purchaser or
    Holder with the NASD (and, if applicable, the fees and expenses
    of any “qualified independent underwriter” and




    

    10








 






    its counsel that may be required by the rules and regulations of
    the NASD)); (ii) all fees and expenses of compliance with
    federal securities and state securities or blue sky laws;
    (iii) all expenses of printing (including printing
    certificates for the Exchange Securities to be issued in the
    Exchange Offer and printing of Prospectuses), messenger and
    delivery services and telephone; (iv) all fees and
    disbursements of counsel for the Issuers and, subject to
    Section 7(b) hereof, the Holders of Transfer Restricted
    Securities; (v) all application and filing fees in
    connection with listing the Exchange Securities on a securities
    exchange or automated quotation system pursuant to the
    requirements thereof; and (vi) all fees and disbursements
    of independent certified public accountants of the Issuers
    (including the expenses of any special audit and comfort letters
    required by or incident to such performance).



 



    Each of the Issuers will, in any event, bear its internal
    expenses (including, without limitation, all salaries and
    expenses of its officers and employees performing legal or
    accounting duties), the expenses of any annual audit and the
    fees and expenses of any Person, including special experts,
    retained by the Issuers.



 



    (b) In connection with any Registration Statement required
    by this Agreement (including, without limitation, the Exchange
    Offer Registration Statement and the Shelf Registration
    Statement), the Issuers, jointly and severally, will reimburse
    the Initial Purchasers and the Holders of Transfer Restricted
    Securities being tendered in the Exchange Offer
    and/or
    resold pursuant to the “Plan of Distribution”
    contained in the Exchange Offer Registration Statement or
    registered pursuant to the Shelf Registration Statement, as
    applicable, for the reasonable fees and disbursements of not
    more than one counsel, who shall be Cahill Gordon &
    Reindel llp or
    such other counsel as may be chosen by the Holders of a majority
    in principal amount of the Transfer Restricted Securities for
    whose benefit such Registration Statement is being prepared.



 



    Section 8.  Indemnification.



 



    (a) The Issuers, jointly and severally, agree to indemnify
    and hold harmless (i) each Holder and (ii) each
    Person, if any, who controls (within the meaning of
    Section 15 of the Securities Act or Section 20 of the
    Exchange Act) any Holder (any of the Persons referred to in this
    clause (ii) being hereinafter referred to as a
    “controlling person”) and (iii) the respective
    officers, directors, partners, employees, representatives and
    agents of any Holder or any controlling person (any Person
    referred to in clause (i), (ii) or (iii) may
    hereinafter be referred to as an “Indemnified
    Holder”), to the fullest extent lawful, from and against
    any and all losses, claims, damages, liabilities, judgments,
    actions and expenses (including, without limitation, and as
    incurred, reimbursement of all reasonable costs of
    investigating, preparing, pursuing, settling, compromising,
    paying or defending any claim or action, or any investigation or
    proceeding by any governmental agency or body, commenced or
    threatened, including the reasonable fees and expenses of
    counsel to any Indemnified Holder), joint or several, directly
    or indirectly caused by, related to, based upon, arising out of
    or in connection with any untrue statement or alleged untrue
    statement of a material fact contained in any Registration
    Statement or Prospectus (or any amendment or supplement
    thereto), or any omission or alleged omission to state therein a
    material fact required to be stated therein or necessary to make
    the statements therein not misleading, except insofar as such
    losses, claims, damages, liabilities or expenses are caused by
    an untrue statement or omission or alleged untrue statement or
    omission that is made in reliance upon and in conformity with
    information relating to any of the Holders furnished in writing
    to the Issuers by any of the Holders expressly for use therein.
    This indemnity agreement shall be in addition to any liability
    which the Issuers may otherwise have.



 



    In case any action or proceeding (including any governmental or
    regulatory investigation or proceeding) shall be brought or
    asserted against any of the Indemnified Holders with respect to
    which indemnity may be sought against the Issuers, such
    Indemnified Holder (or the Indemnified Holder controlled by such
    controlling person) shall promptly notify the Issuers in
    writing; provided, however, that the failure to give such
    notice shall not relieve any of the Issuers of their obligations
    pursuant to this Agreement except and to the extent that they
    are prejudiced as a proximate result of such failure. In case
    any such action is brought against any indemnified party and
    such indemnified party seeks or intends to seek indemnity from
    an indemnifying party, the indemnifying party will be entitled
    to participate in and, to the extent that it shall elect,
    jointly with all other indemnifying parties similarly notified,
    by written notice delivered to the indemnified party promptly
    after receiving the aforesaid notice from such indemnified
    party, to assume the defense thereof with counsel reasonably
    satisfactory to such indemnified party; provided, however, if
    the defendants in any such action include both the indemnified
    party and the indemnifying party and the indemnified party shall
    have reasonably concluded that a conflict may arise between the
    positions of




    

    11








 






    the indemnifying party and the indemnified party in conducting
    the defense of any such action or that there may be legal
    defenses available to it
    and/or other
    indemnified parties which are different from or additional to
    those available to the indemnifying party, the indemnified party
    or parties shall have the right to select separate counsel to
    assume such legal defenses and to otherwise participate in the
    defense of such action on behalf of such indemnified party or
    parties. Upon receipt of notice from the indemnifying party to
    such indemnified party of such indemnifying party’s
    election so to assume the defense of such action and approval by
    the indemnified party of counsel, the indemnifying party will
    not be liable to such indemnified party under this
    Section 8 for any legal or other expenses subsequently
    incurred by such indemnified party in connection with the
    defense thereof unless (i) the indemnified party shall have
    employed separate counsel in accordance with the proviso to the
    next preceding sentence (it being understood, however, that the
    indemnifying party shall not be liable for the expenses of more
    than one separate counsel (together with local counsel),
    approved by the indemnifying party representing the indemnified
    parties who are parties to such action) or (ii) the
    indemnifying party shall not have employed counsel satisfactory
    to the indemnified party to represent the indemnified party
    within a reasonable time after notice of commencement of the
    action, in each of which cases the fees and expenses of counsel
    shall be at the expense of the indemnifying party and shall be
    paid, as incurred, by the Issuers (regardless of whether it is
    ultimately determined that an Indemnified Holder is not entitled
    to indemnification hereunder). The Issuers shall be liable for
    any settlement of any such action or proceeding effected with
    the Issuers’ prior written consent, which consent shall not
    be withheld unreasonably, and each of the Issuers agrees to
    indemnify and hold harmless any Indemnified Holder from and
    against any loss, claim, damage, liability or expense by reason
    of any settlement of any action effected with the written
    consent of the Issuers. The Issuers shall not, without the prior
    written consent of each Indemnified Holder, settle or compromise
    or consent to the entry of judgment in or otherwise seek to
    terminate any pending or threatened action, claim, litigation or
    proceeding in respect of which indemnification or contribution
    may be sought hereunder (whether or not any Indemnified Holder
    is a party thereto), unless such settlement, compromise, consent
    or termination includes an unconditional release of each
    Indemnified Holder from all liability arising out of such
    action, claim, litigation or proceeding.



 



    (b) Each Holder of Transfer Restricted Securities agrees,
    severally and not jointly, to indemnify and hold harmless the
    Issuers and their respective directors, officers of the Issuers
    who sign a Registration Statement, and any Person controlling
    (within the meaning of Section 15 of the Securities Act or
    Section 20 of the Exchange Act) the Issuers, and the
    respective officers, directors, partners, employees,
    representatives and agents of each such Person, to the same
    extent as the foregoing indemnity from the Issuers to each of
    the Indemnified Holders, but only with respect to claims and
    actions based on information relating to such Holder furnished
    in writing by such Holder expressly for use in any Registration
    Statement. In case any action or proceeding shall be brought
    against the Issuers or their respective directors or officers or
    any such controlling person in respect of which indemnity may be
    sought against a Holder of Transfer Restricted Securities, such
    Holder shall have the rights and duties given the Issuers, and
    the Issuers, their respective directors and officers and such
    controlling person shall have the rights and duties given to
    each Holder by the preceding paragraph.



 



    (c) If the indemnification provided for in this
    Section 8 is unavailable to an indemnified party under
    Section 8(a) or (b) hereof (other than by reason of
    exceptions provided in those Sections) in respect of any losses,
    claims, damages, liabilities, judgments, actions or expenses
    referred to therein, then each applicable indemnifying party, in
    lieu of indemnifying such indemnified party, shall contribute to
    the amount paid or payable by such indemnified party as a result
    of such losses, claims, damages, liabilities or expenses in such
    proportion as is appropriate to reflect the relative benefits
    received by the Issuers, on the one hand, and the Holders, on
    the other hand, from the Initial Placement (which in the case of
    the Issuers shall be deemed to be equal to the total gross
    proceeds to the Issuers from the Initial Placement), or if such
    allocation is not permitted by applicable law, the relative
    fault of the Issuers, on the one hand, and the Holders, on the
    other hand, in connection with the statements or omissions which
    resulted in such losses, claims, damages, liabilities or
    expenses, as well as any other relevant equitable
    considerations. The relative fault of the Issuers on the one
    hand and of the Indemnified Holder on the other shall be
    determined by reference to, among other things, whether the
    untrue or alleged untrue statement of a material fact or the
    omission or alleged omission to state a material fact relates to
    information supplied by the Issuers, on the one hand, or the
    Indemnified Holders, on the other hand, and the parties’
    relative intent, knowledge, access to information and
    opportunity to correct or prevent such statement or omission.
    The amount paid or payable by a party as a result of the losses,
    claims, damages, liabilities and expenses referred to above
    shall be deemed to




    

    12








 






    include, subject to the limitations set forth in the second
    paragraph of Section 8(a) hereof, any legal or other fees
    or expenses reasonably incurred by such party in connection with
    investigating or defending any action or claim.



 



    The Issuers and each Holder of Transfer Restricted Securities
    agree that it would not be just and equitable if contribution
    pursuant to this Section 8(c) were determined by pro rata
    allocation (even if the Holders were treated as one entity for
    such purpose) or by any other method of allocation which does
    not take account of the equitable considerations referred to in
    the immediately preceding paragraph. The amount paid or payable
    by an indemnified party as a result of the losses, claims,
    damages, liabilities or expenses referred to in the immediately
    preceding paragraph shall be deemed to include, subject to the
    limitations set forth above, any legal or other expenses
    reasonably incurred by such indemnified party in connection with
    investigating or defending any such action or claim.
    Notwithstanding the provisions of this Section 8, none of
    the Holders (and its related Indemnified Holders) shall be
    required to contribute, in the aggregate, any amount in excess
    of the amount by which the total discount received by such
    Holder with respect to the Initial Securities exceeds the amount
    of any damages which such Holder has otherwise been required to
    pay by reason of such untrue or alleged untrue statement or
    omission or alleged omission. No Person guilty of fraudulent
    misrepresentation (within the meaning of Section 11(f) of
    the Securities Act) shall be entitled to contribution from any
    Person who was not guilty of such fraudulent misrepresentation.
    The Holders’ obligations to contribute pursuant to this
    Section 8(c) are several in proportion to the respective
    principal amount of Initial Securities held by each of the
    Holders hereunder and not joint.



 



    Section 9.  Rule 144A.  Each
    of the Issuers hereby agrees with each Holder, for so long as
    any Transfer Restricted Securities remain outstanding, to make
    available to any Holder or beneficial owner of Transfer
    Restricted Securities in connection with any sale thereof and
    any prospective purchaser of such Transfer Restricted Securities
    from such Holder or beneficial owner at a time when FMC-KGaA is
    not subject to the reporting requirements of Section 13(a)
    or Section 15(d) of the Exchange Act, the information
    required by Rule 144A(d)(4) under the Securities Act in
    order to permit resales of such Transfer Restricted Securities
    pursuant to Rule 144A under the Securities Act.



 



    Section 10.  Participation
    in Underwritten Registrations.  No Holder may
    participate in any Underwritten Registration hereunder unless
    such Holder (a) agrees to sell such Holder’s Transfer
    Restricted Securities on the basis provided in any underwriting
    arrangements approved by the Persons entitled hereunder to
    approve such arrangements and (b) completes and executes
    all reasonable questionnaires, powers of attorney, indemnities,
    underwriting agreements,
    lock-up
    letters and other documents required under the terms of such
    underwriting arrangements.



 



    Section 11.  Selection
    of Underwriters.  The Holders of Transfer
    Restricted Securities covered by the Shelf Registration
    Statement who desire to do so may sell such Transfer Restricted
    Securities in an Underwritten Offering. In any such Underwritten
    Offering, the investment banker(s) and managing underwriter(s)
    that will administer such offering will be selected by the
    Holders of a majority in aggregate principal amount of the
    Transfer Restricted Securities included in such offering;
    provided, however, that such investment banker(s) and
    managing underwriter(s) must be reasonably satisfactory to the
    Issuers.



 



    Section 12.  Miscellaneous.



 



    (a) Remedies.  Each of the Issuers hereby
    agrees that monetary damages would not be adequate compensation
    for any loss incurred by reason of a breach by it of the
    provisions of this Agreement and hereby agree to waive the
    defense in any action for specific performance that a remedy at
    law would be adequate.



 



    (b) No Inconsistent Agreements.  Each of
    the Issuers will not on or after the date of this Agreement
    enter into any agreement with respect to its securities that is
    inconsistent with the rights granted to the Holders in this
    Agreement or otherwise conflicts with the provisions hereof. The
    rights granted to the Holders hereunder do not in any way
    conflict with and are not inconsistent with the rights granted
    to the holders of the Issuers’ securities under any
    agreement in effect on the date hereof.



 



    (c) Adjustments Affecting the
    Securities.  The Issuers will not knowingly take
    any action, or knowingly permit any change to occur, with
    respect to the Securities that would materially and adversely
    affect the ability of the Holders to Consummate any Exchange
    Offer.




    

    13








 






    (d) Amendments and Waivers.  The
    provisions of this Agreement may not be amended, modified or
    supplemented, and waivers or consents to or departures from the
    provisions hereof may not be given unless the Issuers have
    (i) in the case of Section 5 hereof and this
    Section 12(d)(i), obtained the written consent of Holders
    of all outstanding Transfer Restricted Securities and
    (ii) in the case of all other provisions hereof, obtained
    the written consent of Holders of a majority of the outstanding
    principal amount of Transfer Restricted Securities (excluding
    any Transfer Restricted Securities held by the Issuers or their
    Affiliates). Notwithstanding the foregoing, a waiver or consent
    to departure from the provisions hereof that relates exclusively
    to the rights of Holders whose securities are being tendered
    pursuant to the Exchange Offer and that does not affect directly
    or indirectly the rights of other Holders whose securities are
    not being tendered pursuant to such Exchange Offer may be given
    by the Holders of a majority of the outstanding principal amount
    of Transfer Restricted Securities being tendered or registered;
    provided, however, that, with respect to any matter that
    directly or indirectly affects the rights of any Initial
    Purchaser hereunder, the Issuers shall obtain the written
    consent of each such Initial Purchaser with respect to which
    such amendment, qualification, supplement, waiver, consent or
    departure is to be effective.



 



    (e) Notices.  All notices and other
    communications provided for or permitted hereunder shall be made
    in writing by hand-delivery, first-class mail (registered or
    certified, return receipt requested), telex, telecopier, or air
    courier guaranteeing overnight delivery:



 



    (i) if to a Holder, at the address set forth on the records
    of the Registrar under the Indenture, with a copy to the
    Registrar under the Indenture; and



 



    (ii) if to FMC-KGaA or to Fresenius Medical Care
    Deutschland GmbH, to it at:



 



    Else-Kröner Strasse 1

    61352 Bad Homburg

    Germany

    Facsimile:
    011-49-6172-609-2280

    Attention: Chief Financial Officer



 



    (iii) If to the Company:



 



    FMC Finance III S.A.

    28-30, Val
    St. André,

    L-1128 Luxembourg

    Facsimile:

    Attention: Mrs. Gabriele Dux



 



    (iv) If to Fresenius Medical Care Holdings, Inc.:



 



    920 Winter Street

    Waltham MA
    02451-1457

    Facsimile: 781
    402-9713

    Attn: Ronald J. Kuerbitz, Esq.



 



    With copies to in the case of (ii), (iii) and
    (iv) above to:



 



    Fresenius Medical Care AG & Co. KGaA

    Else-Kröner Strasse 1

    61352 Bad Homburg

    Germany

    Facsimile:
    011-49-6172-609-2422

    Attention: Dr. Rainer Runte



 



    and to:



 



    Baker & McKenzie LLP

    1114 Avenue of the Americas

    New York, New York 10036

    Telecopier No.:
    (212) 310-1687

    Attention: Robert A. Grauman




    

    14








 





 



    All such notices and communications shall be deemed to have been
    duly given: at the time delivered by hand, if personally
    delivered; five Business Days after being deposited in the mail,
    postage prepaid, if mailed; when answered back, if telexed; when
    receipt acknowledged, if telecopied; and on the next Business
    Day, if timely delivered to an air courier guaranteeing
    overnight delivery.



 



    Copies of all such notices, demands or other communications
    shall be concurrently delivered by the Person giving the same to
    the Trustee at the address specified in the Indenture.



 



    (f) Successors and Assigns.  This
    Agreement shall inure to the benefit of and be binding upon the
    successors and assigns of each of the parties, including,
    without limitation, and without the need for an express
    assignment, subsequent Holders of Transfer Restricted
    Securities; provided, however, that this Agreement shall
    not inure to the benefit of or be binding upon a successor or
    assign of a Holder unless and to the extent such successor or
    assign acquired Transfer Restricted Securities from such Holder.



 



    (g) Counterparts.  This Agreement may be
    executed in any number of counterparts and by the parties hereto
    in separate counterparts, each of which when so executed shall
    be deemed to be an original and all of which taken together
    shall constitute one and the same agreement.



 



    (h) Headings.  The headings in this
    Agreement are for convenience of reference only and shall not
    limit or otherwise affect the meaning hereof.



 



    (i) Governing Law.  THIS AGREEMENT SHALL
    BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
    STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW
    RULES THEREOF.



 



    (j) Severability.  In the event that any
    one or more of the provisions contained herein, or the
    application thereof in any circumstance, is held invalid,
    illegal or unenforceable, the validity, legality and
    enforceability of any such provision in every other respect and
    of the remaining provisions contained herein shall not be
    affected or impaired thereby.



 



    (k) Entire Agreement.  This Agreement is
    intended by the parties as a final expression of their agreement
    and intended to be a complete and exclusive statement of the
    agreement and understanding of the parties hereto in respect of
    the subject matter contained herein. There are no restrictions,
    promises, warranties or undertakings, other than those set forth
    or referred to herein with respect to the registration rights
    granted by the Issuers with respect to the Transfer Restricted
    Securities. This Agreement supersedes all prior agreements and
    understandings between the parties with respect to such subject
    matter.




    

    15








 





 



    IN WITNESS WHEREOF, the parties have executed this Agreement as
    of the date first written above.



 



    FMC FINANCE III S.A.



 


			
	 	    By: 
	
    /s/  Gabriele
    Dux









    Name: Gabriele Dux



			
	 	    Title: 
	
    Director




 



    FRESENIUS MEDICAL CARE AG & CO. KGaA, a partnership
    limited by shares, represented by FRESENIUS MEDICAL CARE
    MANAGEMENT AG, its general partner



 


			
	 	    By: 
	
    /s/  Emanuele
    Gatti









    Name: Dr. Emanuele Gatti



			
	 	    Title: 
	
    Member of the Management Board




 


			
	 	    By: 
	
    /s/  Rainer
    Runte









    Name: Dr. Rainer Runte



			
	 	    Title: 
	
    Member of the Management Board




 



    FRESENIUS MEDICAL CARE HOLDINGS, INC.



 


			
	 	    By: 
	
    /s/  Mark
    Fawcett









    Name: Mark Fawcett



			
	 	    Title: 
	
    Assistant Treasurer




 



    FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH



 


			
	 	    By: 
	
    /s/  Robert
    Fusté









    Name: Roberto Fusté



			
	 	    Title: 
	
    Managing Director




 


			
	 	    By: 
	
    /s/  Rolf
    Groos









    Name: Rolf Groos



			
	 	    Title: 
	
    Managing Director





    

    16








 





 



    The foregoing Registration Rights Agreement is hereby confirmed
    and accepted as of the date first above written:



 



    BANC OF AMERICA SECURITIES LLC DEUTSCHE BANK SECURITIES INC.
    MORGAN STANLEY & CO. INCORPORATED



 


			
	 	    By: 
	
    /s/  Banc
    of America Securities LLC


	 
	 	    By: 
	
    /s/  Lex
    Maultsby









    Managing Director




    

    17