[Letterhead of Fresenius AG]
May 3, 2005
Renal Care Group, Inc.
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Dear Xxxx:
Reference is made to the Agreement dated as of the date hereof (the
"Merger Agreement") among Fresenius Medical Care AG, a corporation organized
under the laws of the Federal Republic of Germany and majority owned and
controlled subsidiary of Fresenius AG ("FME AG"), Fresenius Medical Care
Holdings, Inc., a corporation organized under the laws of the State of New York
("FME"), Xxxxxxxx Acquisition, Inc., a corporation organized under the laws of
the State of Delaware ("Sub" and, together with FME AG and FME, the "Xxxxxxxx
Parties"), and Renal Care Group, Inc., a corporation organized under the laws of
the State of Delaware ("RCI"). Capitalized terms used in this letter agreement
without definition shall have the meanings assigned thereto in the Merger
Agreement.
Xxxxxxxxx AG acknowledges that RCI has been induced by, and is relying on,
this letter agreement in entering into the Merger Agreement.
Xxxxxxxxx AG hereby confirms to RCI that each of the Supervisory Board of
Fresenius AG and the Management Board of Fresenius AG has at a meeting of such
body duly called and held, or pursuant to a written consent in lieu of such
meeting, as the case may be, duly adopted resolutions approving the Merger and
authorizing FME AG to enter into and deliver the Merger Agreement. Xxxxxxxxx AG
hereby also confirms that it is duly authorized to enter into and deliver this
letter agreement. No other approvals are required by Xxxxxxxxx AG in connection
with the execution and delivery by the Xxxxxxxx Parties of the Merger Agreement
or the execution and delivery by Xxxxxxxxx AG and the Xxxxxxxx Parties of this
letter agreement.
Xxxxxxxxx AG hereby agrees that it shall cooperate in all respects with
the Xxxxxxxx Parties and RCI in satisfying the conditions precedent to the
consummation of the Merger and the other Transactions. Fresenius AG shall
provide any approvals as may be required from it after the date hereof in order
to consummate the Merger and the Transactions, including any approval from it
that may be required to consummate any divestiture which the Xxxxxxxx Parties
may be required to make in order to obtain necessary approvals under Antitrust
Laws. In addition, Xxxxxxxxx AG shall take each of the actions that the Xxxxxxxx
Parties are required to cause Xxxxxxxxx AG to take pursuant to Section 6.03(b)
of the Merger Agreement, including without limitation making an appropriate
filing of a notification and report form pursuant to the HSR Act and shall
supply as promptly as practicable any additional information and documentary
material that may be requested pursuant to Antitrust Laws.
RCI hereby waives any claim against Xxxxxxxxx AG directly for monetary
damages as a result of any breach by Xxxxxxxxx AG of its obligations or
representations under this letter agreement; provided that (a) the Xxxxxxxx
Parties shall jointly and severally indemnify RCI against any and all losses and
damages incurred by RCI resulting from or arising out of any such breach by
Xxxxxxxxx AG hereunder and (b) the parties agree that RCI would incur
irreparable damage if any of the provisions of this letter agreement were not
performed in accordance with their specific terms or were otherwise breached by
Xxxxxxxxx AG and that RCI shall be entitled, in addition to any other remedy at
law or in equity, to an injunction or injunctions specifically enforcing against
Xxxxxxxxx AG the terms and provisions of this letter agreement.
This letter agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall be governed by,
and construed in accordance with, the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof. Each of the parties hereto consents to submit itself to the
personal jurisdiction of any federal court located in the State of Delaware or
the Court of Chancery of the State of Delaware in the event any dispute arises
out of this letter agreement.
If the foregoing accurately reflects your understanding, please execute
the acknowledgement to this letter agreement, whereupon the foregoing will
become a binding agreement among us.
FRESENIUS AG,
by
/s/ Xx. Xxxx Xxxxx
---------------------------------
Name: Xx. Xxxx Xxxxx
Title: Member of Management Board
by
/s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: CFO
Accepted and Agreed:
FRESENIUS MEDICAL CARE AG,
by
/s/ Xx. Xxxxxx Xxxxx
---------------------------------
Name: Xx. Xxxxxx Xxxxx
Title: Member of Management Board
by
/s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: Member of Management Board
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
by
/s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Co-Chief Executive Officer
XXXXXXXX ACQUISITION, INC.,
by
/s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: Co-Chief Executive Officer
Accepted and Agreed:
RENAL CARE GROUP, INC.
by
/s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President and Secretary
