27. Fresenius SE shareholders’ equity

Subscribed capital

Development of subscribed capital

On August 15, 2008, Fresenius SE successfully closed a capital increase to finance part of the acquisition of APP. In connection with the capital increase, 2,748,057 new ordinary shares and 2,748,057 new preference shares were issued. The transaction generated gross proceeds of approximately € 289 million and increased the subscribed capital by € 5.5 million. The new shares had full dividend entitlement for the fiscal year 2008.

During the fiscal year 2009, 171,642 stock options were exercised.

Accordingly, at December 31, 2009, the subscribed capital of Fresenius SE was divided into 80,657,688 bearer ordinary shares and 80,657,688 non-voting bearer preference shares. The shares are issued as non-par value shares. The proportionate amount of the subscribed capital is € 1.00 per share.

Notification by shareholders

The following notifications disclosed in accordance with Section 26 (1) of the German Securities Trading Act (WpHG) reflect the level of investments held in Fresenius SE at the date of the statement of financial position:

The Else Kröner-Fresenius-Stiftung notified Fresenius SE on December 23, 2009, that it still holds 46,871,154 ordinary shares of Fresenius SE representing 58.11 % of the voting rights.

On October 1, 2009, the voting rights held by FIL Limited, Hamilton, Bermuda, fell below the threshold of 3 % of the voting rights in Fresenius SE, Else-Kröner-Straße 1, 61352 Bad Homburg v. d. H., Germany. On that date, FIL Limited held 2.90 % of the voting rights in Fresenius SE, arising from 2,340,841 voting rights. All voting rights in Fresenius SE were attributed to FIL Limited pursuant to Section 22 (1) sentence 1 No. 6 WpHG in connection with sentence 2 WpHG.

On May 28, 2009 the voting rights held by FMR LLC, Boston, Massachusetts, United States, crossed above the threshold of 3 % of the voting rights in Fresenius SE, Else-Kröner-Straße 1, 61352 Bad Homburg v. d. H., Germany. On that date, FMR LLC held 4.50 % of the voting rights in Fresenius SE, arising from 3,623,808 voting rights. All voting rights in Fresenius SE were attributed to FMR LLC pursuant to Section 22 (1) sentence 1 No. 6 in connection with sentence 2 WpHG. The voting rights were attributed to FMR LLC inter alia from Fidelity Investment Trust, being a shareholder holding 3 % or more of the voting rights in Fresenius SE.

All notifications by shareholders in the fiscal year 2009 are published on the website of the Company www.fresenius.com under Investor Relations / The Fresenius Shares / Shareholder Structure.

Approved Capital

By resolution of the Annual General Meeting on May 8, 2009, the previous Approved Capital I and II were revoked and the Management Board of Fresenius SE was authorized, with the approval of the Supervisory Board, until May 7, 2014,

  • to increase Fresenius SE’s subscribed capital by a total amount of up to
    € 12,800,000 through a single or multiple issue of new bearer ordinary shares and / or non-voting bearer preference shares against cash contributions (Approved Capital I). A subscription right must be granted to shareholders.
  • to increase Fresenius SE’s subscribed capital by a total amount of up to
    € 6,400,000 through a single or multiple issue of new bearer ordinary shares and / or non-voting bearer preference shares against cash contributions and / or contributions in kind (Approved Capital II). The Management Board is authorized, in each case with the consent of the Supervisory Board, to decide on the exclusion of the shareholders’ subscription right.

The resolved changes to the Approved Capital became effective after their registration in the commercial register in July 2009.

Against the resolutions of the Annual General Meeting dated May 8, 2009 creating Approved Capitals I and II, two challenging complaints (Anfechtungsklagen) were lodged. The Frankfurt Regional Court has decided in favor of one complaint through judgment dated February 2, 2010, the other complaint was rejected. The judgment of the Frankfurt Regional Court dated February 2, 2010 is not yet final and binding. The clearance procedure (Freigabeverfahren) pursuant to Section 246a of the German Stock Corporation Act (AktG) initiated by Fresenius SE is pending before the Higher Regional Court (Oberlandesgericht) in Frankfurt / Main with the view of securing the validity of the Approved Capital which has already been registered in the commercial register.

Conditional capital

Corresponding to the stock option plans, the Conditional Capital of Fresenius SE is divided into Conditional Capital I, Conditional Capital II and Conditional Capital III which exist to secure the subscription rights in connection with already issued stock options on bearer ordinary shares and bearer preference shares of the stock option plans of 1998, 2003 and 2008 (see note 34, Stock options).

On May 21, 2008, Fresenius SE’s Annual General Meeting has resolved upon the Fresenius SE Stock Option Plan 2008 (2008 Plan) by authorizing the granting of subscription rights to members of the Management Board and managerial employees of Fresenius SE and affiliated companies. To fulfill the subscription rights under the 2008 Plan, the subscribed capital of Fresenius SE was increased conditionally by up to € 6.2 million through the issue of up to 3.1 million no par value bearer ordinary shares and 3.1 million no par value bearer preference shares (Conditional Capital III). The relevant change in Fresenius SE’s Articles of Association became effective after its registration in the commercial register on July 11, 2008.

The following table shows the development of the Conditional Capital:

in € Ordinary shares Preference shares Total
Conditional Capital I Fresenius AG Stock Option Plan 1998 682,467 682,467 1,364,934
Conditional Capital II Fresenius AG Stock Option Plan 2003 2,209,125 2,209,125 4,418,250
Conditional Capital III Fresenius SE Stock Option Plan 2008 3,100,000 3,100,000 6,200,000
Total Conditional Capital as of January 1, 2009 5,991,592 5,991,592 11,983,184
Fresenius AG Stock Option Plan 1998 – options exercised - 25,917 - 25,917 - 51,834
Fresenius AG Stock Option Plan 2003 – options exercised - 59,904 - 59,904 - 119,808
Total Conditional Capital as of December 31, 2009 5,905,771 5,905,771 11,811,542

in € Ordinary shares Preference shares Total
Conditional Capital I Fresenius AG Stock Option Plan 1998 682,467 682,467 1,364,934
Conditional Capital II Fresenius AG Stock Option Plan 2003 2,209,125 2,209,125 4,418,250
Conditional Capital III Fresenius SE Stock Option Plan 2008 3,100,000 3,100,000 6,200,000
Total Conditional Capital as of January 1, 2009 5,991,592 5,991,592 11,983,184
Fresenius AG Stock Option Plan 1998 – options exercised - 25,917 - 25,917 - 51,834
Fresenius AG Stock Option Plan 2003 – options exercised - 59,904 - 59,904 - 119,808
Total Conditional Capital as of December 31, 2009 5,905,771 5,905,771 11,811,542

Capital reserves

Capital reserves comprise the premium paid on the issue of shares and the exercise of stock options (additional paid-in capital).

In the third quarter of 2008, the capital reserves increased by € 284 million in connection with Fresenius SE’s capital increase to finance part of the acquisition of APP. The accrued expenses in an amount of € 6 million were charged against the capital reserves.

Other reserves

Other reserves comprise earnings generated by Group entities in prior years to the extent that they have not been distributed.

Dividends

Under the German Stock Corporation Act (AktG), the amount of dividends available for distribution to shareholders is based upon the unconsolidated retained earnings of Fresenius SE as reported in its statement of financial position determined in accordance with the German Commercial Code (HGB).

In May 2009, a dividend of € 0.70 per bearer ordinary share and € 0.71 per bearer preference share was approved by Fresenius SE’s shareholders at the Annual General Meeting and paid. The total dividend payment was € 114 million.

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