SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K/A
REPORT OF FOREIGN PRIVATE ISSUER
Pursuant to Rule 13a-16 or 15d-16 of the
Securities Exchange Act of 1934
For the month of October 2019
FRESENIUS MEDICAL CARE AG & Co. KGaA
(Translation of registrants name into English)
Else-Kröner Strasse 1
61346 Bad Homburg
Germany
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F x Form 40-F o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): o
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes o No x
If Yes is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82
EXPLANATORY NOTE
This Report on Form 6-K/A (Amendment) amends the Report on Form 6-K furnished to the U.S. Securities and Exchange Commission by Fresenius Medical Care AG & Co. KGaA (the Company) on July 30, 2019 (Original Report). The purpose of this Amendment is to revise the information set forth under the heading Controls and Procedures to reflect managements conclusion that our internal control over financial reporting and disclosure controls and procedures were not effective at June 30, 2019 due to a material weakness in our internal control over financial reporting identified subsequent to the issuance of the Original Report. Except as expressly set forth herein, this Amendment provides disclosures as of July 30, 2019 (the Original Filing Date) and does not reflect events or disclosures after the submission of the Original Report, other than to revise managements assessment on internal control as discussed above. The following paragraphs amend and supersede in their entirety the paragraphs under the caption Controls and Procedures.
Controls and procedures
The Company is a foreign private issuer within the meaning of Rule 3b-4(c) under the Securities Exchange Act of 1934, as amended (the Exchange Act). As such, the Company is not required to file quarterly reports with the Securities and Exchange Commission and is required to provide an evaluation of the effectiveness of its disclosure controls and procedures, to disclose significant changes in its internal control over financial reporting and to provide certifications of its Chief Executive Officer and Chief Financial Officer under Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 only in its Annual Report on Form 20-F. The Company furnishes quarterly financial information to the Securities and Exchange Commission (the Commission) and such certifications under cover of Form 6-K on a voluntary basis and pursuant to the provisions of the Companys pooling agreement entered into for the benefit of the public holders of our shares. In connection with such voluntary reporting, the Companys management, including the Chief Executive Officer and the Chief Financial Officer of the Companys General Partner, has conducted an evaluation of the effectiveness of the Companys disclosure controls and procedures as of the end of the period covered by the Original Report, of the type contemplated by Securities Exchange Act Rule 13a-15. During the third quarter of fiscal 2019, we identified a material weakness in internal control relating to revenue recognition, specifically for estimating the transaction price and constraining the variable consideration of the transaction price for certain fee-for-service revenue arrangements under legal consideration and timely adjusting the constraint of variable consideration when new information arises and determined that this material weakness existed as of December 31, 2018 and continues to exist as of the date of this 6-K/A (for further detail regarding this material weakness, see Amendment No. 1 to our Annual Report on Form 20-F/A for the year ended December 31, 2018). As a result, the Chief Executive Officer and the Chief Financial Officer concluded that the Companys disclosure controls and procedures were not effective as of June 30, 2019.
We have advised our audit committee of this deficiency in our internal control over financial reporting, and the fact that this deficiency constitutes a material weakness. A material weakness in internal control over financial reporting is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis by our internal controls.
Because a material weakness was determined to exist, we performed additional procedures to ensure our consolidated financial statements included in this quarterly report on Form 6-K are presented fairly, in all material respects, our financial condition, results of operations and cash flows for the periods presented in conformity with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB). This control deficiency resulted in immaterial errors to accounts receivable and revenue from specific fee-for-service arrangements in the Companys consolidated financial statements for the six months ended June 30, 2019. These errors did not, individually or in the aggregate, result in a material misstatement of the Companys consolidated financial statements and disclosures for any periods through and including the six months ended June 30, 2019.
Remediation efforts have begun and the material weakness will not be considered remediated until the applicable controls operate for a sufficient period of time and management has concluded, through testing, that these controls are operating effectively.
We are undertaking steps to strengthen our controls relating to revenue recognition, specifically for estimating the transaction price and constraining the variable consideration of the transaction price for certain fee-for-service revenue arrangements under legal consideration and its related accounts receivable, including:
· Increasing oversight by management over revenue recognition and the accounting and reporting of the related receivable balances;
· Enhancing policies and procedures;
· Strengthening communication and information flows between the legal and finance departments; and
· Increasing the role of the finance function in its oversight of revenue recognition specific to fee-for-service matters in legal consideration and their related accounts receivable balances, including responsibility for the final estimation and reporting.
On March 29, 2019, the Company entered into a non-prosecution agreement with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the governments claims against the Company arising from the investigations, see note 12 of the notes to the consolidated financial statements (unaudited) presented elsewhere in the Original Report. The Company continues to implement enhancements to its anti-corruption compliance program, including internal controls related to compliance with international anti-bribery laws. The Company continues to be fully committed to compliance with the Foreign Corrupt Practices Act and other applicable anti-bribery laws.
Except as noted in the preceding paragraphs, there has not been any change in our system of internal control over financial reporting during the quarter ended June 30, 2019 that has materially affected, or is reasonably likely to materially affect, internal control over financial reporting.
Exhibits
Exhibit No. |
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**10.1 |
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Indenture dated as of June 20, 2019 by and among Fresenius Medical Care US Finance III, Inc., the Company and Fresenius Medical Care Holdings, Inc., as Guarantors, and U.S. Bank National Association, as Trustee, related to the 3.750% Notes due 2029 of Fresenius Medical Care US Finance III, Inc. |
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**10.2 |
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Guarantee for 3.750% Notes due 2029 (included in Exhibit 10.1). |
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31.1 |
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Certification of Chief Executive Officer and Chairman of the Management Board of the Companys General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith). |
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31.2 |
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Certification of Chief Financial Officer and member of the Management Board of the Companys General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith). |
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32.1 |
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Certification of Chief Executive Officer and Chairman of the Management Board of the Companys General Partner and Chief Financial Officer and member of the Management Board of the Companys General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (this exhibit accompanies this report as required by the Sarbanes-Oxley Act of 2002 and is not to be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended) (filed herewith). |
** Previously filed with the Report on Form 6-K for the month of July 2019 originally filed on July 30, 2019
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
DATE:
July 30, 2019
October 31, 2019
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FRESENIUS MEDICAL CARE AG & Co. KGaA, | ||
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a partnership limited by shares, represented by: | ||
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FRESENIUS MEDICAL CARE MANAGEMENT AG, its | ||
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General Partner | ||
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By: |
/s/ RICE POWELL | |
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Name: |
Rice Powell |
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Title: |
Chief Executive Officer and |
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Chairman of the Management Board |
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of the General Partner |
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By: |
/s/ MICHAEL BROSNAN | |
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Name: |
Michael Brosnan |
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Title: |
Chief Financial Officer and |
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Member of the Management Board |
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of the General Partner |
CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Rice Powell, certify that:
1. I have reviewed this report on Form 6-K/A of Fresenius Medical Care AG & Co. KGaA (the Report).
2. Based on my knowledge, this Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Report;
3. Based on my knowledge, the financial statements, and other financial information included in this Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Report based on such evaluation; and
d) disclosed in this Report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date:
July 30, 2019
October 31, 2019
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By: |
/s/ RICE POWELL |
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Rice Powell | |
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Chief Executive Officer and | |
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Chairman of the Management Board of the | |
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General Partner |
CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Michael Brosnan, certify that:
1. I have reviewed this report on Form 6-K/A of Fresenius Medical Care AG & Co. KGaA (the Report);
2. Based on my knowledge, this Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Report;
3. Based on my knowledge, the financial statements, and other financial information included in this Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Report based on such evaluation; and
d) disclosed in this Report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent function):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date:
July 30, 2019
October 31, 2019
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By: |
/s/ MICHAEL BROSNAN |
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Michael Brosnan | |
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Chief Financial Officer and member of the | |
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Management Board of the | |
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General Partner |
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the report of Fresenius Medical Care AG & Co. KGaA (the Company) on Form 6-K/A furnished for the month of October 2019 containing its unaudited financial statements as of June 30, 2019 and for the six-month periods ending June 30, 2019 and 2018, as submitted to the Securities and Exchange Commission on the date hereof (the Report), the undersigned, Rice Powell, Chief Executive Officer and Michael Brosnan, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
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By: |
/s/ RICE POWELL |
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Rice Powell | |
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Chief Executive Officer and | |
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Chairman of the Management Board of the | |
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General Partner | |
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July 30, 2019 | |
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October 31, 2019 | |
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By: |
/s/ MICHAEL BROSNAN |
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Michael Brosnan | |
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Chief Financial Officer and | |
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member of the Management Board of the | |
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General Partner | |
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July 30, 2019 | |
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October 31, 2019 |