exv10w4



 




EXHIBIT 10.4




UNITED STATES OF AMERICA




BEFORE FEDERAL TRADE COMMISSION




	 	 	 
	
    
    COMMISSIONERS:

    	 	
    Deborah Platt Majoras, Chairman

    Pamela Jones Harbour

    Jon Leibowitz

    William E. Kovacic

    J. Thomas Rosch





	 	 	 	 
	 	
    
    In the Matter of

    	 	
    Docket No. C-
	 
	
    FRESENIUS AG,	 	 
	 
	 	
    
    a corporation.

    	 	 





ORDER TO MAINTAIN ASSETS



     
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 that is wholly owned by Fresenius Medical
Care Holdings, Inc., and Fresenius AG (hereafter referred to as
“Respondent”) having been furnished thereafter with a
copy of a draft of Complaint that the Bureau of Competition
proposed to present to the Commission for its consideration and
which, if issued by the Commission, would charge Respondent with
violations of Section 7 of the Clayton Act, as amended,
15 U.S.C. § 18, and Section 5 of the Federal
Trade Commission Act, as amended, 15 U.S.C. § 45;
and



     
Respondent, its attorneys, and counsel for the Commission having
thereafter executed an Agreement Containing Consent Orders
(“Consent Agreement”), containing an admission by
Respondent of all the jurisdictional facts set forth in the
aforesaid draft of Complaint, a statement that the signing of
said Consent Agreement is for settlement purposes only and does
not constitute an admission by Respondent that the law has been
violated as alleged in such Complaint, or that the facts as
alleged in such Complaint, other than jurisdictional facts, are
true, and waivers and other provisions as required by the
Commission’s Rules; and



     
The Commission, having thereafter considered the matter and
having determined that it had reason to believe that Respondent
has violated the said Acts, and that a Complaint should issue
stating its charges in that respect, and having accepted the
executed Consent Agreement







 




and placed such Consent Agreement on the public record for a
period of thirty (30) days for the receipt and
consideration of public comments, now in further conformity with
the procedure described in Commission Rule 2.34,
16 C.F.R. § 2.34, the Commission hereby issues
its Complaint, makes the following jurisdictional findings, and
issues the following Order to Maintain Assets:






		
	1.	
    Respondent Fresenius AG is a corporation organized, existing and
    doing business under and by virtue of the laws of the 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 that
    is 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.	
    The Federal Trade Commission has jurisdiction of the subject
    matter of this proceeding and of Respondent, and the proceeding
    is in the public interest.




ORDER




I.



     
IT IS ORDERED that, all capitalized terms used in this
Order to Maintain Assets, but not defined herein, shall have the
meanings attributed to such terms in the Decision and Order
contained in the Consent Agreement.




II.



     
IT IS FURTHER ORDERED that:






		
	A.	
    From the date Respondent signs the Consent Agreement until the
    Time of Divestiture of each Joint Venture Equity Interest and
    each Clinic To Be Divested and until all Assets Associated with
    each Clinic To Be Divested are divested pursuant to the Consent
    Agreement, Respondent shall:



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	 	1.	
    maintain (a) each Clinic To Be Divested and all Assets
    Associated with it, and (b) each Clinic and all Assets
    Associated with it owned by a joint venture in which the Joint
    Venture Equity Interest is being divested (“JV Clinic
    Assets”) in substantially the same condition (except for
    normal wear and tear) existing at the time Fresenius signs the
    Consent Agreement;
	 
	 	2.	
    take such actions that are consistent with the past practices of
    Fresenius or RCG, respectively, in connection with the JV Clinic
    Assets and such Clinic To Be Divested and the Assets Associated
    with it and that are taken in the Ordinary Course Of Business
    and in the normal day-to-day operations of Fresenius or RCG;
	 
	 	3.	
    keep available the services of the current officers, employees,
    and agents of Fresenius; and maintain the relations and good
    will with Suppliers, Payors, Physicians, landlords, patients,
    employees, agents, and others having business relations with the
    JV Clinic Assets and the Clinic To Be Divested and the Assets
    Associated with it in the Ordinary Course Of Business; and
	 
	 	4.	
    preserve the JV Clinic Assets and the Clinic To Be Divested and
    all Assets Associated with it as an ongoing business and not
    take any affirmative action, or fail to take any action within
    Fresenius’s control, as a result of which the viability,
    competitiveness, and marketability of the JV Clinic Assets and
    the Clinic To Be Divested or all Assets Associated with it would
    be diminished.






		
	B.	
    From the date Fresenius signs the Consent Agreement until the
    date this Order to Maintain Assets terminates pursuant to
    Paragraph VII, Fresenius shall do the following:






			
	 	1.	
    Until sixty (60) days after the Time Of Divestiture of each
    Clinic To Be Divested, Fresenius shall not interfere in
    employment negotiations between each Fresenius Employee Of A
    Clinic To Be Divested and the Acquirer of the Clinic.
	 
	 	2.	
    With respect to each Fresenius Employee Of A Clinic To Be
    Divested who receives, within sixty (60) days of the Time
    Of Divestiture of any Clinic at which he or she is employed, an
    offer of employment from the Acquirer of that Clinic, Fresenius
    shall not prevent, prohibit or restrict or threaten to prevent,
    prohibit or restrict the Fresenius Employee Of The Clinic To Be
    Divested from being employed by the Acquirer of the Clinic, and
    shall not offer any incentive to the Fresenius Employee Of The
    Clinic To Be Divested to decline employment with the Acquirer of
    the Clinic.
	 
	 	3.	
    For a period of two (2) years following the Time Of
    Divestiture of each Clinic To Be Divested, Fresenius shall not,
    directly or indirectly, solicit, induce, or attempt to solicit
    or induce any Employee Of A Clinic To Be Divested who is
    employed by the Acquirer to terminate his or her employment
    relationship with the Acquirer, unless that employment
    relationship has already been terminated by the Acquirer;
    PROVIDED,



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    HOWEVER, Fresenius may make general advertisements for
    employees including, but not limited to, in newspapers, trade
    publications, websites, or other media not targeted specifically
    at the Acquirer’s employees; PROVIDED, FURTHER, HOWEVER,
    Fresenius may hire employees who apply for employment with
    Fresenius, as long as such employees were not solicited by
    Fresenius in violation of this Paragraph II.C.3.;
    PROVIDED, FURTHER, HOWEVER, Fresenius may offer
    employment to an Employee Of A Clinic To Be Divested who is
    employed by the Acquirer in only a part-time capacity, if the
    employment offered by Fresenius would not, in any way, interfere
    with the employee’s ability to fulfill his or her
    employment responsibilities to the Acquirer.






			
	 	4.	
    For a period of not less than forty-five (45) days, which
    period may begin prior to the signing of the Consent Agreement
    and which shall end no earlier than ten (10) days after the
    Time Of Divestiture of each Clinic To Be Divested
    (“Forty-Five Day Hiring Period”), Fresenius shall not
    interfere in employment negotiations between each Regional
    Manager Of A Clinic To Be Divested and the Acquirer of the
    Clinic; PROVIDED, HOWEVER, the terms of this
    Paragraph II.C.4. shall not apply after Acquirers have
    hired ten (10) Regional Managers who were each previously
    employed by Fresenius or RCG at any time since October 1,
    2005.
	 
	 	5.	
    With respect to each Regional Manager Of A Clinic To Be Divested
    who receives, within the Forty-Five Day Hiring Period required
    by Paragraph II.C.4. of this Order to Maintain Assets an offer
    of employment from the Acquirer of that Clinic, for a period of
    two (2) years following the Time Of Divestiture of the
    Clinic To Be Divested, Fresenius shall not, directly or
    indirectly, solicit, induce, or attempt to solicit or induce any
    Regional Manager of the Acquirer who was previously a Regional
    Manager of A Clinic To Be Divested to terminate his or her
    employment relationship with the Acquirer unless the individual
    has been terminated by the Acquirer; PROVIDED, HOWEVER,
    Fresenius may make general advertisements for Regional Managers
    including, but not limited to, in newspapers, trade
    publications, websites, or other media not targeted specifically
    at Acquirer’s Regional Managers; PROVIDED, FURTHER,
    HOWEVER, Fresenius may hire Regional Managers who apply for
    employment with Fresenius, as long as such Regional Managers
    were not solicited by Fresenius in violation of this
    Paragraph II.C.5.; PROVIDED, HOWEVER, after
    Acquirers have hired ten (10) Regional Managers who were
    each previously employed by Fresenius or RCG at any time since
    October 1, 2005, the terms of this Paragraph II.C.5.
    shall apply only to those ten (10) Regional Managers hired
    by the Acquirers.
	 
	 	6.	
    With respect to each Physician who has provided services to a
    Clinic To Be Divested pursuant to any of the Clinic’s
    Physician Contracts in effect at any time during the four
    (4) months preceding the Time Of Divestiture of the Clinic
    (“Contract Physician”):






			
	 	a.	
    Fresenius shall not offer any incentive to the Contract
    Physician, the Contract Physician’s practice group, or
    other members of the Contract Physician’s practice



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    group to decline to provide services to the Clinic To Be
    Divested, and shall eliminate any confidentiality restrictions
    that would prevent the Contract Physician, the Contract
    Physician’s practice group, or other members of the
    Contract Physician’s practice group from using or
    transferring to the Acquirer of the Clinic To Be Divested any
    information Relating To the Operation Of The Clinic; and






			
	 	b.	
    For a period of three (3) years following the Time Of
    Divestiture of each Clinic To Be Divested, Fresenius shall not
    contract for the services of the Contract Physician, the
    Contract Physician’s practice group, or other members of
    the Contract Physician’s practice group for the provision
    of Contract Services to be performed in any of the areas listed
    in Appendix B of this Order that correspond to such Clinic.
    PROVIDED, HOWEVER, if the Contract Physician, or the
    Contract Physician’s practice group, or other members of
    the Contract Physician’s practice group were providing
    services to one or more Clinics, other than or in addition to a
    Clinic To Be Divested, pursuant to a contract with Fresenius or
    RCG in effect as of October 1, 2005, then Fresenius may
    continue to contract with such Contract Physicians, or the
    Contract Physician’s practice group, or other members of
    the Contract Physician’s practice group for services to be
    provided to such other or additional Clinics.






			
	 	7.	
    With respect to Material Confidential Information relating
    exclusively to any of the Clinics To Be Divested, Fresenius
    shall:






			
	 	a.	
    not disclose such information to any Person other than the
    Acquirer of such Clinic;
	 
	 	b.	
    after the Time Of Divestiture of such Clinic:






			
	 	(1)	
    not use such information for any purpose other than complying
    with the terms of the Consent Agreement or with any law; and
	 
	 	(2)	
    destroy all records of such information, except to the extent
    that: (1) Fresenius is required by law to retain such
    information, and (2) Fresenius’s inside or outside
    attorneys may keep one copy solely for archival purposes, but
    may not disclose such copy to the rest of Fresenius.






			
	 	8.	
    For two (2) years following the Time Of Divestiture of each
    Clinic To Be Divested, Fresenius shall not solicit the business
    of any patients that received any goods or services from such
    Clinic between October 1, 2005, and the date of such
    divestiture, PROVIDED, HOWEVER, Fresenius may
    (i) make general advertisements for the business of such
    patients including, but not limited to, in newspapers, trade
    publications, websites, or other media not targeted specifically
    at such patients, and (ii) provide advertising and
    promotions directly to any patient that initiates discussions
    with, or makes a request to, any Fresenius employee.



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	 	9.	
    Fresenius shall do nothing to prevent or discourage Suppliers
    that, prior to the Time Of Divestiture of any Clinic To Be
    Divested, supplied goods and services for use in any Clinic To
    Be Divested from continuing to supply goods and services for use
    in such Clinic.






		
	C.	
    The purpose of Paragraph II of this Order to Maintain
    Assets is:






			
	 	1.	
    to preserve the Clinics To Be Divested and the Assets To Be
    Divested as viable, competitive, and ongoing businesses, to
    prevent their destruction, removal, wasting, deterioration, or
    impairment, and to prevent interim harm to competition, pending
    the relevant divestitures and other relief;
	 
	 	2.	
    to preserve the good will of the employees and Regional Managers
    of the Clinics To Be Divested and of the Physicians, Suppliers,
    and patients that do business with those Clinics; and
	 
	 	3.	
    to prevent Material Confidential Information relating
    exclusively to the Clinics To Be Divested from being exchanged
    with Fresenius’s retained dialysis businesses.




III.



     
IT IS FURTHER ORDERED that:






		
	A.	
    Richard Shermer, of R. Shermer & Co., shall be appointed
    Monitor to assure that Fresenius expeditiously complies with all
    of its obligations and performs all of its responsibilities as
    required by the Consent Agreement and this Order to Maintain
    Assets.
	 
	B.	
    No later than one (1) day after this Order to Maintain
    Assets is made final, Fresenius shall, pursuant to the Monitor
    Agreement and to this Order to Maintain Assets, transfer to the
    Monitor all the rights, powers, and authorities necessary to
    permit the Monitor to perform his duties and responsibilities in
    a manner consistent with the purposes of the Consent Agreement
    and this Order to Maintain Assets.
	 
	C.	
    In the event a substitute Monitor is required, the Commission
    shall select the Monitor, subject to the consent of Fresenius,
    which consent shall not be unreasonably withheld. If Fresenius
    has not opposed, in writing, including the reasons for opposing,
    the selection of a proposed Monitor within ten (10) days
    after notice by the staff of the Commission to Fresenius of the
    identity of any proposed Monitor, Fresenius shall be deemed to
    have consented to the selection of the proposed Monitor. Not
    later than ten (10) days after appointment of a substitute
    Monitor, Fresenius shall execute an agreement that, subject to
    the prior approval of the Commission, confers on the Monitor all
    the rights, powers, and authorities necessary to permit the
    Monitor to monitor Fresenius’s compliance with the



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    terms of the Consent Agreement and this Order to Maintain
    Assets, in a manner consistent with the purposes of this Order
    to Maintain Assets.






		
	D.	
    Fresenius shall consent to the following terms and conditions
    regarding the powers, duties, authorities, and responsibilities
    of the Monitor:






			
	 	1.	
    The Monitor shall have the power and authority to monitor
    Fresenius’s compliance with the terms of the Consent
    Agreement and this Order to Maintain Assets, and shall exercise
    such power and authority and carry out the duties and
    responsibilities of the Monitor in a manner consistent with the
    purposes of the Consent Agreement and this Order to Maintain
    Assets and in consultation with the Commission, including, but
    not limited to:






			
	 	a.	
    Assuring that Fresenius expeditiously complies with all of its
    obligations and perform all of its responsibilities as required
    by the Consent Agreement and this Order to Maintain Assets;
	 
	 	b.	
    Monitoring any transition services agreements; and
	 
	 	c.	
    Assuring that Material Confidential Information is not received
    or used by Fresenius or the Acquirers, except as allowed in the
    Consent Agreement and this Order to Maintain Assets.






			
	 	2.	
    The Monitor shall act in a fiduciary capacity for the benefit of
    the Commission.
	 
	 	3.	
    The Monitor shall serve for such time as is necessary to monitor
    Fresenius’s compliance with the provisions of the Consent
    Agreement and the Order to Maintain Assets.
	 
	 	4.	
    Subject to any demonstrated legally recognized privilege, the
    Monitor shall have full and complete access to Fresenius’s
    personnel, books, documents, records kept in the Ordinary Course
    Of Business, facilities and technical information, and such
    other relevant information as the Monitors may reasonably
    request, related to Fresenius’s compliance with its
    obligations under the Consent Agreement and this Order to
    Maintain Assets. Fresenius shall cooperate with any reasonable
    request of the Monitors and shall take no action to interfere
    with or impede the Monitor’s ability to monitor
    Fresenius’s compliance with the Consent Agreement and this
    Order to Maintain Assets.
	 
	 	5.	
    The Monitor shall serve, without bond or other security, at the
    expense of Fresenius on such reasonable and customary terms and
    conditions as the Commission may set. The Monitor shall have
    authority to employ, at the expense of Fresenius, such
    consultants, accountants, attorneys and other representatives
    and assistants as are reasonably necessary to carry out the
    Monitors’ duties and responsibilities. The Monitor shall



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    account for all expenses incurred, including fees for services
    rendered, subject to the approval of the Commission.






			
	 	6.	
    Fresenius shall indemnify the Monitor and hold the Monitor
    harmless against any losses, claims, damages, liabilities, or
    expenses arising out of, or in connection with, the performance
    of the Monitor’s duties, including all reasonable fees of
    counsel and other reasonable expenses incurred in connection
    with the preparations for, or defense of, any claim, whether or
    not resulting in any liability, except to the extent that such
    losses, claims, damages, liabilities, or expenses result from
    misfeasance, gross negligence, willful or wanton acts, or bad
    faith by the Monitor.
	 
	 	7.	
    Fresenius shall report to the Monitor in accordance with the
    requirements of this Order and/or as otherwise provided in any
    agreement approved by the Commission. The Monitor shall evaluate
    the reports submitted to the Monitor by Fresenius, and any
    reports submitted by the Acquirer with respect to the
    performance of Fresenius’s obligations under the Consent
    Agreement and this Order to Maintain Assets.
	 
	 	8.	
    Within one (1) month from the date the Monitor is appointed
    pursuant to this paragraph, every sixty (60) days
    thereafter, and otherwise as requested by the Commission, the
    Monitor shall report in writing to the Commission concerning
    performance by Fresenius of its obligations under the Consent
    Agreement and this Order to Maintain Assets.
	 
	 	9.	
    Fresenius may require the Monitor and each of the Monitor’s
    consultants, accountants, attorneys, and other representatives
    and assistants to sign a customary confidentiality agreement;
    PROVIDED, HOWEVER, such agreement shall not restrict the
    Monitor from providing any information to the Commission.






		
	E.	
    The Commission may, among other things, require the Monitor and
    each of the Monitor’s consultants, accountants, attorneys,
    and other representatives and assistants to sign an appropriate
    confidentiality agreement Relating To Commission materials and
    information received in connection with the performance of the
    Monitor’s duties.
	 
	F.	
    If the Commission determines that the Monitor has ceased to act
    or failed to act diligently, the Commission may appoint a
    substitute Monitor in the same manner as provided in this
    Paragraph III.
	 
	G.	
    The Commission may on its own initiative, or at the request of
    the Monitor, issue such additional orders or directions as may
    be necessary or appropriate to assure compliance with the
    requirements of the Consent Agreement and this Order to Maintain
    Assets.



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IV.



     
IT IS FURTHER ORDERED that, beginning fifteen
(15) days after the date on which Fresenius signs the
Consent Agreement and every thirty (30) days thereafter
until this Order to Maintain Assets terminates pursuant to
Paragraph VII, Fresenius shall submit to the Commission a
verified written report setting forth in detail the manner and
form in which it intends to comply, is complying, and has
complied with the terms of this Order to Maintain Assets.
Fresenius shall submit at the same time a copy of these reports
to the Monitor.




V.



     
IT IS FURTHER ORDERED that Fresenius shall notify the
Commission at least thirty (30) days prior to:






		
	A.	
    Any proposed dissolution of Fresenius,






		
	B.	
    Any proposed acquisition, merger or consolidation of Fresenius,
    or






		
	C.	
    Any other change in Fresenius that may affect compliance
    obligations arising out of this Order to Maintain Assets,
    including but not limited to assignment, the creation or
    dissolution of subsidiaries, or any other change in Fresenius.




VI.



     
IT IS FURTHER ORDERED that, for the purpose of
determining or securing compliance with this Order to Maintain
Assets, and subject to any legally recognized privilege, and
upon written request with reasonable notice to Fresenius,
Fresenius shall permit any duly authorized representative of the
Commission:






		
	A.	
    Access, during office hours of Fresenius and in the presence of
    counsel, to all facilities and access to inspect and copy all
    books, ledgers, accounts, correspondence, memoranda, and all
    other records and documents in the possession or under the
    control of Fresenius related to compliance with this Order to
    Maintain Assets; and






		
	B.	
    Upon five (5) days’ notice to Fresenius and without
    restraint or interference from Fresenius, to interview officers,
    directors, or employees of Fresenius, who may have counsel
    present, regarding such matters.



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VII.



     
IT IS FURTHER ORDERED that this Order to Maintain Assets
shall terminate at the earlier of:




A.  three (3) business days after the Commission
withdraws its acceptance of the Consent Agreement pursuant to
the provisions of Commission Rule 2.34, 16 C.F.R. §
2.34; or




B.  such time as (1) all Assets To Be Divested
have been divested pursuant to the terms of the Consent
Agreement, and (2) the Decision and Order has been made
final.






		
	 	
    By the Commission.






		
	 	
    Donald S. Clark
	 	
    Secretary




SEAL




ISSUED:



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