exv10w1



 




EXHIBIT 10.1




UNITED STATES OF AMERICA




BEFORE FEDERAL TRADE COMMISSION




	 	 	 
	
         In the Matter of	 	
    File No. 051-0154
	
    
    FRESENIUS AG,

    	 	 
	
    
         a corporation.

    	 	 





AGREEMENT CONTAINING CONSENT ORDERS



     
The Federal Trade Commission (“Commission”) having
initiated an investigation of the proposed acquisition of Renal
Care Group, Inc. by Fresenius AG and entities controlled by
Fresenius AG, including (1) Fresenius Medical Care AG &
Co. KGaA, a partnership limited by shares organized under the
laws of the Federal Republic of Germany the general partner of
which is majority owned by Fresenius AG, (2) Fresenius
Medical Care Holdings, Inc., a New York corporation majority
owned by Fresenius Medical Care AG & Co. KGaA, a partnership
limited by shares organized under the laws of the Federal
Republic of Germany, and (3) Florence Acquisition, Inc., a
Delaware corporation wholly owned by Fresenius Medical Care
Holdings, Inc., and Fresenius AG (hereafter referred to as
“Proposed Respondent”), and it now appearing that
Proposed Respondent is willing to enter into this Agreement
Containing Consent Orders (“Consent Agreement”) to
divest certain assets and providing for other relief:



     
IT IS HEREBY AGREED by and between Proposed Respondent,
by its duly authorized officers and attorneys, and counsel for
the Commission that:






		
	1.	
    Fresenius AG is a corporation organized, existing and doing
    business under and by virtue of the laws of Federal Republic of
    Germany, with its office and principal place of business located
    at Else-Kröner-Straße 1, 61352 Bad Homburg,
    Germany. Fresenius AG is the ultimate parent of
    (1) Fresenius Medical Care AG & Co. KGaA, a
    partnership limited by shares organized under the laws of the
    Federal Republic of Germany, the general partner of which is
    majority owned by Fresenius AG, with its office and principal
    place of business located at
    Else-Kröner-Straße 1, 61352 Bad Homburg, Germany,
    (2) Fresenius Medical Care Holdings, Inc., a New York
    corporation majority owned by Fresenius Medical Care
    AG & Co. KGaA, a partnership limited by shares
    organized under the laws of the Federal Republic of Germany,
    with its office and principal place of business located at
    95 Hayden Avenue, Lexington, MA 02420, and
    (3) Florence Acquisition, Inc., a Delaware corporation
    wholly owned by Fresenius Medical Care Holdings, Inc, with its
    office and principal place of business located at 95 Hayden
    Avenue, Lexington, MA 02420.
	 
	2.	
    Proposed Respondent admits all the jurisdictional facts set
    forth in the draft of Complaint here attached.
	 
	3.	
    Proposed Respondent waives:







 






			
	 	a.	
    any further procedural steps;
	 
	 	b.	
    the requirement that the Commission’s Decision and Order
    and Order to Maintain Assets, both of which are attached hereto
    and made a part hereof, contain a statement of findings of fact
    and conclusions of law;
	 
	 	c.	
    all rights to seek judicial review or otherwise challenge or
    contest the validity of the Decision and Order or the Order to
    Maintain Assets entered pursuant to this Consent Agreement; and
	 
	 	d.	
    any claim under the Equal Access to Justice Act.






		
	4.	
    Because there may be interim competitive harm, the Commission
    may issue its Complaint and the Order to Maintain Assets in this
    matter at any time after it accepts the Consent Agreement for
    public comment.
	 
	5.	
    The Proposed Respondent shall submit an initial report, pursuant
    to Section 2.33 of the Commission’s Rules, 16 C.F.R.
    § 2.33, within fifteen (15) days of the date on
    which it executes this Consent Agreement and every thirty
    (30) days thereafter until the Decision and Order becomes
    final or the divestitures required pursuant to
    Paragraph II.A. of the Decision and Order are accomplished,
    whichever is earlier. Each such report shall be signed by the
    Proposed Respondent and shall set forth in detail the manner in
    which the Proposed Respondent has to date complied or has
    prepared to comply, is complying, and will comply with the Order
    to Maintain Assets and the Decision and Order. Such reports will
    not become part of the public record unless and until the
    Consent Agreement and Decision and Order are accepted by the
    Commission for public comment.
	 
	6.	
    This Consent Agreement shall not become part of the public
    record of the proceeding unless and until it is accepted by the
    Commission. If this Consent Agreement is accepted by the
    Commission, it, together with the draft of Complaint
    contemplated thereby, will be placed on the public record for a
    period of thirty (30) days and information in respect
    thereto publicly released. The Commission thereafter may either
    withdraw its acceptance of this Consent Agreement and so notify
    Proposed Respondent, in which event it will take such action as
    it may consider appropriate, or issue or amend its Complaint (in
    such form as the circumstances may require) and issue its
    Decision and Order, in disposition of the proceeding.
	 
	7.	
    This Consent Agreement is for settlement purposes only and does
    not constitute an admission by Proposed Respondent that the law
    has been violated as alleged in the draft of Complaint here
    attached, or that the facts as alleged in the draft of
    Complaint, other than jurisdictional facts, are true.
	 
	8.	
    This Consent Agreement contemplates that, if it is accepted by
    the Commission, the Commission may (a) issue and serve its
    Complaint corresponding in form and substance with the draft of
    Complaint here attached, (b) issue and serve its Order to
    Maintain Assets, and (c) make information public with
    respect thereto. If such acceptance is not subsequently
    withdrawn by the Commission pursuant to the provisions of
    Commission Rule 2.34, 16 C.F.R. § 2.34, the
    Commission may, without further notice to the Proposed
    Respondent, issue the attached Decision and Order



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    containing an order to divest and providing for other relief in
    disposition of the proceeding.






		
	9.	
    When final, the Decision and Order and the Order to Maintain
    Assets shall have the same force and effect and may be altered,
    modified or set aside in the same manner and within the same
    time provided by statute for other orders. The Decision and
    Order and the Order to Maintain Assets shall become final upon
    service. Delivery of the Complaint, the Decision and Order, and
    the Order to Maintain Assets to Proposed Respondent by any means
    provided in Commission Rule 4.4(a), 16 C.F.R.
    § 4.4(a), shall constitute service. Proposed
    Respondent waives any right it may have to any other manner of
    service. Proposed Respondent also waives any right it may
    otherwise have to service of any Appendices incorporated by
    reference into the Decision and Order, and agrees that it is
    bound to comply with and will comply with the Decision and Order
    and the Order to Maintain Assets to the same extent as if it had
    been served with copies of the Appendices, where Proposed
    Respondent is already in possession of copies of such Appendices.
	 
	10.	
    The Complaint may be used in construing the terms of the
    Decision and Order and the Order to Maintain Assets, and no
    agreement, understanding, representation, or interpretation not
    contained in the Decision and Order, the Order to Maintain
    Assets, or the Consent Agreement may be used to vary or
    contradict the terms of the Decision and Order or the Order to
    Maintain Assets.
	 
	11.	
    By signing this Consent Agreement, Proposed Respondent
    represents and warrants that it can accomplish the full relief
    contemplated by the attached Decision and Order (including
    effectuating all required divestitures, assignments, and
    transfers) and that all parents, subsidiaries, affiliates, and
    successors necessary to effectuate the full relief contemplated
    by this Consent Agreement are parties to this Consent Agreement.
	 
	12.	
    By signing this Consent Agreement, Proposed Respondent
    represents and warrants that it has obtained all third-party
    approvals necessary for Proposed Respondent to comply with the
    Decision and Order, including, but not limited to:






			
	 	a.	
    all governmental approvals required by Paragraph II.C.1 of
    the Decision and Order;
	 
	 	b.	
    all third-party approvals required by Paragraph II.C.2 of
    the Decision and Order for the assignment of leases;
	 
	 	c.	
    all third-party approvals required by II.C.3 of the Decision and
    Order for the assignment of contracts with physicians; and
	 
	 	d.	
    all joint venture partner approvals required by
    Paragraph II.C.4 of the Decision and Order.






		
	13.	
    By signing this Consent Agreement, Proposed Respondent
    represents and warrants that the Divestiture Agreements, as
    defined in the Decision and Order, require Proposed Respondent
    to divest all assets required to be divested pursuant to the
    Decision and Order and require Proposed Respondent to comply
    with Paragraph II of the Decision and Order and
    Paragraph II of the Order to Maintain Assets.



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	14.	
    Proposed Respondent has read the draft of the Complaint, the
    Decision and Order, and the Order to Maintain Assets
    contemplated hereby. Proposed Respondent understands that once
    the Decision and Order and the Order to Maintain Assets have
    been issued, it will be required to file one or more compliance
    reports showing that it has fully complied with the Decision and
    Order and the Order to Maintain Assets. Proposed Respondent
    agrees to comply with the terms of the proposed Decision and
    Order and the Order to Maintain Assets from the date it signs
    this Consent Agreement. Proposed Respondent further understands
    that it may be liable for civil penalties in the amount provided
    by law for each violation of the Decision and Order and of the
    Order to Maintain Assets after they become final.




Signed this 14th day of March, 2006.



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    FRESENIUS AG

    
   

    By:  
Dr.
    Ulf M. Schneider

    President and C.E.O.

    Fresenius AG

    

    

     
Stephan
    Sturm

    Chief Financial Officer

    Fresenius AG

    

    

     
Robert
    E. Bloch

    Mayer Brown Rowe & Maw LLP

    Counsel for Fresenius AG	 	
    FEDERAL TRADE COMMISSION

    

     
Gary
    H. Schorr

    Robert S. Canterman

    Linda Blumenreich

    Martha H. Oppenheim

    Attorneys

    Bureau of Competition

    

     APPROVED:

    

     
David
    R. Pender

    Acting Assistant Director

    Bureau of Competition

     
Jeffrey
    Schmidt

    Director

    Bureau of Competition




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