RENEWED POST-CLOSING COVENANT AGREEMENT
Exhibit 4.4
RENEWED POST-CLOSING COVENANT AGREEMENT
RENEWED POST-CLOSING COVENANT AGREEMENT effective as of
January 1, 2007 (hereinafter referred to as “the
Effective Time”) among Fresenius AG, an
Aktiengesellschaft organized under the laws of the Federal
Republic of Germany (“FAG”) and Fresenius
Medical Care AG & Co KGaA, a Kommanditgesellschaft
auf Aktien organized under the laws of the Federal Republic of
Germany (“FMC”).
RECITALS
Whereas, as part of the formation of Fresenius Medical
Care in 1996, FAG and FMC — being at that time
organized as an Aktiengesellschaft under the laws of the Federal
Republic of Germany and then transformed into a
Kommanditgesellschaft auf Aktien in 2006 — hereinafter
together referred to as “the Parties”) have entered
into a Post Closing Covenant Agreement, including among others,
a non-compete provision as set forth in Section 2 of the
Post Closing Covenant Agreement;
Whereas, the Post Closing Covenant Agreement had a
10-year term and
expired therefore September 30, 2006;
Whereas, by executing a Memorandum of Understanding,
dated September 26, 2006, the Parties have already
expressed their mutual desire to renew the Post Closing Covenant
Agreement on comparable terms for a new term of 10 years;
Now, Therefore, the Parties hereto agree as follows:
Section 1. Definitions.
“Affiliate” shall mean with respect to any
Person, any entity which directly or indirectly
(i) controls not less than 50% of the equity securities of
the specified Person, (ii) not less than 50% of the equity
securities of which entity are controlled by the specified
Person, or (iii) not less than 50% of the equity securities
of which entity and not less than 50% of the equity securities
of the specified Person are under common control; provided,
however, that for purposes of this Agreement neither FMC nor any
of its subsidiaries (collectively, the “FMC Entities”)
shall be deemed to be an Affiliate of FAG or any of its
subsidiaries, other than the FMC Entities (collectively, the
“FAG Entities”), and not FAG Entity shall be deemed an
Affiliate of any FMC Entity.
“Renal Business” as used herein means the
business of supplying renal care related goods and services,
including laboratories, provided, that any kind of
commercialization of pharmaceutical substances to be used in the
Renal Business, but which are also used in other businesses
(hereinafter defined as “Pharmaceutical Substances”)
shall only be deemed to be part of the Renal Business as long as
the medical indication of the Pharmaceutical Substance (as
defined in the respective registration dossiers) is
predominately for the treatment of patients suffering from renal
kidney failure at Chronic Kidney Disease Xxxxx 0
(“CKD 5” — “ESRD” and acute
Dialysis —), with the exception of nutritional
substances, including, but not limited to, intradialytic
parenteral nutrition (“IDPN”) and Ketosteril
(hereinafter nutritional substances, IDPN and Ketosteril each
are referred to as “Nutritional Substances”) which
shall not be deemed to be part of the Renal Business;
provided, further, that it is expressly acknowledged by
the Parties hereto that the home care business of FAG is not,
and also shall not be deemed to be, a Renal Business.
Section 2. Noncompetition.
Until the tenth anniversary of the Effective Time, (A)
neither FMC or any Affiliate of FMC shall compete with FAG in
the commercialization of (i) Nutritional Substances and
(ii) Pharmaceutical Substances outside of the Renal
Business, (B) neither FAG nor any Affiliate of FAG shall
compete with FMC in the Renal Business.
Therefore, as to FMC, neither FMC or any Affiliate of FMC
shall own, manage, operate, control or have an aggregate
interest equal to greater than 5% of the voting stock or 25% of
the total equity in any enterprise which
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competes with FAG in the commercialization of
(i) Nutritional Substances and/or (ii) Pharmaceutical
Substances outside the Renal Business; provided, however,
that nothing contained herein shall prohibit FMC or any
Affiliate of FMC from (A) manufacturing and selling any
products or rendering any services to FAG or any of its
subsidiaries, (B) manufacturing and selling any products
or rendering any services which are used in the
commercialization of (i) Nutritional Substances and/or
(ii) Pharmaceutical Substances outside of the Renal
Business, but which are also used in the Renal Business, so long
as such products and services are not sold or rendered by FMC or
any Affiliate of FMC, as the case may be, in competition with
FAG, or (C) acquiring and then engaging in the business
of a corporation or any other entity or affiliated group of
corporations or other entities (an “Acquired Person”)
that in the twelve month period ending on the last day of the
month immediately preceding the date of such acquisition did not
earn more than 50% of its consolidated revenues from the
commercialization of (i) Nutritional Substances and/or
(ii) Pharmaceutical Substances outside of the Renal
Business, so long as promptly following such acquisition
(a) the Acquired Person offers to FAG, at the Acquired
Person’s election, either the right to acquire for fair
market value that portion of the assets and liabilities of the
Acquired Person that are used in the commercialization of
(i) Nutritional Substances and/or (ii) Pharmaceutical
Substances outside of the Renal Business or the right to enter
into supply agreements or other appropriate agreements relating
to the commercialization of (i) Nutritional Substances
and/or (ii) Pharmaceutical Substances outside of the Renal
Business of the Acquired Person, with supply agreements or other
appropriate agreements at cost, plus a reasonable amount to
cover overhead expenses, or (b) FAG waives its entitlement
as set forth above under (a).
Therefore, as to FAG, neither FAG or any Affiliate of FAG
shall own, manage, operate, control or have an aggregate
interest equal to greater than 5% of the voting stock or 25% of
the total equity in any enterprise which competes with FMC in
the Renal Business; provided, however, that nothing
contained herein shall prohibit FAG or any Affiliate of FAG from
(A) manufacturing and selling any products or rendering
any services to FMC or any of its subsidiaries, (B)
manufacturing and selling any products or rendering any services
which are used in the Renal Business, but which are also used in
other businesses, so long as such products and services are not
sold or rendered by FAG or any Affiliate of FAG, as the case may
be, in the Renal Business in competition with FMC, or (C)
acquiring and then engaging in the business of a corporation or
any other entity or affiliated group of corporations or other
entities (an “Acquired Person”) that in the twelve
month period ending on the last day of the month immediately
preceding the date of such acquisition did not earn more than
50% of its consolidated revenues from the Renal Business, so
long as promptly following such acquisition (a) the
Acquired Person offers to FMC, at the Acquired Person’s
election, either the right to acquire for fair market value that
portion of the assets and liabilities of the Acquired Person
that are used predominately in the Renal Business or the right
to enter into supply agreements or other appropriate agreements
relating to the Renal Business of the Acquired Person, with
supply agreements or other appropriate agreements at cost, plus
a reasonable amount to cover overhead expenses, or (b) FMC
waives their entitlement as set forth above under (a),
provided, that in the event, the Acquired Person is a
hospital or a polyclinic, the stipulation set forth in (C), (a)
and (b), above, shall apply only to chronic dialysis centers
(other that in-hospital acute dialysis clinic departments)
operated by the Acquired Person.
Moreover, FAG and FMC shall grant each other a right of
first refusal for the commercialization (e.g. co-marketing,
co-promotion) of a Pharmaceutical Substance for their respective
business segment as set out in this agreement in the event that
the medical indication of the Pharmaceutical Substance (as
defined in the respective registration dossiers) covers an
application in the Renal Business as well as outside the Renal
Business. FAG and FMC shall also co-ordinate in good faith their
commercialization activities in regard of those Pharmaceutical
Substances, that cover an application in the Renal Business as
well as outside the Renal Business, and shall not interfere in
existing contracts either FAG or FMC may have with third parties.
Section 3. Right
of First Negotiation.
If at any time prior to the tenth anniversary of the Effective
Time, (A) FMC or any Affiliate of FMC shall develop any
new technology, whether patented or a trade secret (such party
developing such new technology, hereinafter referred to as the
“inventor”), and the Inventor intends to sell or
license such technology to a third party for applications in, or
with a material special relationship to, Nutritional Substances
and/or Pharmaceutical
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Substances outside of the Renal Business, the Inventor shall
first advise FAG of its intent to sell or license such
technology and shall negotiate with FAG in good faith for the
purpose of agreeing with FAG on either terms of a sale to FAG of
such technology or of a license granting FAG rights to use such
technology for the commercialization of Nutritional Substances
and/or Pharmaceutical Substances outside of the Renal Business.
If the Inventor and FAG are unable to agree on mutually
satisfactory terms of such sale or license, as the case may be,
after good faith negotiations, FAG shall have no further rights
in or to such technology and the Inventor shall be free to sell
or license such technology to third parties free and clear of
any rights of FAG therein; (B) FAG or any Affiliate of
FAG shall develop any new technology, whether patented or a
trade secret (such party developing such new technology,
hereinafter referred to as the “inventor”), and the
Inventor intends to sell or license such technology to a third
party for applications in, or with a material special
relationship to, the Renal Business, the Inventor shall first
advise FMC of its intent to sell or license such technology and
shall negotiate with FMC in good faith for the purpose of
agreeing with FMC on either terms of a sale to FMC of such
technology or of a license granting FMC rights to use such
technology in the Real Business. If the Inventor and FMC are
unable to agree on mutually satisfactory terms of such sale or
license, as the case may be, after good faith negotiations, FMC
shall have no further rights in or to such technology and the
Inventor shall be free to sell or license such technology to
third parties free and clear of any rights of FMC therein.
Section 4. Notices.
All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in
person, by fax or other standard form of telecommunications, or
by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
| (i) if to FAG: | |
| Fresenius AG | |
| Xxxx-Xxxxxxx-Xxx. 0 | |
| 00000 Xxx Xxxxxxx | |
| Xxxxxxx | |
| Attention: Chairman of the Management Board | |
| Fax: 00-0000-000-0000 | |
| (ii) if to FMC: | |
| Fresenius Medical Care AG & Co. KGaA | |
| Xxxx-Xxxxxxx-Xxx. 0 | |
| 00000 Xxx Xxxxxxx | |
| Xxxxxxx | |
| Attention: Chairman of the Management Board | |
| Fax: 00-0000-000-0000 |
Section 5. Governing
Law.
This agreement shall be governed by the laws of the Federal
Republic of Germany.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto
on the date first hereinabove written.
Bad Homburg v.d.H., January 2, 2007
| Fresenius AG |
Fresenius Medical Care AG & Co. KGaA represented by Fresenius Medical Care Management AG |
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