Securities Registration: Employee Benefit Plan (s-8)
August 12 2016 - 5:25PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on August 12, 2016
Registration
No. [ ]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
DaVita HealthCare Partners Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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51-0354549
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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2000 16
th
Street
Denver, CO 80202
(Address
of Principal Executive Offices)
DaVita HealthCare Partners Inc.
Employee Stock Purchase Plan
(Full Title of the Plan)
Kathleen A.
Waters
2000 16
th
Street
Denver, CO 80202
Telephone: (303) 405-2100
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
Insert by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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x
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Accelerated Filer
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¨
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Non-accelerated filer
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¨
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities
To Be Registered
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Amount
To Be
Registered (1)
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Proposed
Maximum
Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, par value $0.001 per share
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7,500,000(2)
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$70.04(3)
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$525,300,000(3)
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$52,897.71
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional shares of the Company’s common stock that may become
issuable under the DaVita HealthCare Partners Inc. Employee Stock Purchase Plan by reason of any stock split, recapitalization, or other similar transaction effected without the receipt of consideration that results in an increase or decrease in the
number of outstanding shares of common stock of DaVita HealthCare Partners Inc. (the “Company”).
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(2)
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Represents additional shares that are available for grant under the DaVita HealthCare Partners Inc. Employee Stock Purchase Plan which are being registered pursuant to General Instruction E to Form S-8.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) under the Securities Act based upon the average of the high and low prices of the Company’s common stock
on August 11, 2016 as reported on the New York Stock Exchange.
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EXPLANATORY NOTE
We are registering an additional 7,500,000 shares of our common stock under the DaVita HealthCare Partners Inc. Employee Stock Purchase Plan
(the “ESPP”), approved by the Board of Directors (the “Board”) of DaVita HealthCare Partners Inc. (the “Company”) on March 31, 2016, subject to stockholder approval, and subsequently approved by the Company’s
stockholders at the Annual Meeting of Stockholders held on June 20, 2016. Prior to that, the Board adjusted the total number of shares available for issuance under the ESPP to 5,000,000 shares to reflect a two-for-one stock split of the
Company’s common stock on August 12, 2013. The Company’s stockholders approved the addition of 800,001 shares to the ESPP at the Company’s Annual Meeting of Stockholders held on May 29, 2007. The Board adjusted the total
number of shares available for issuance under the ESPP to 1,699,999 shares to reflect a three-for-two stock split of the Company’s common stock on May 21, 2004. The Company’s stockholders approved the addition of 800,000 shares to the
ESPP on December 17, 1999. The Company’s Board adjusted the total of number of shares available for issuance under the ESPP to 333,333 shares, to reflect the payment of a dividend on the Company’s common stock of two shares for every
three shares then outstanding on September 26, 1997. The ESPP was approved by the Company’s stockholders at the Annual Meeting of Stockholders held on June 6, 1996.
The contents of the Company’s previously filed Registration Statements on Form S-8 (Registration Number 333-99862, Registration Number
333-30736 and Registration Number 333-144097) filed with the Securities and Exchange Commission (the “Commission”) on November 29, 1995, February 18, 2000 and June 27, 2007, respectively, relating to the Plan, is hereby
incorporated by reference herein to the extent not otherwise amended or superseded by the contents hereof.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1.
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Plan Information.*
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Item 2.
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Registrant Information and Employee Plan Annual Information.*
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*
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Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended, and the Note to Part I
of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents filed by the Company
with the Commission are incorporated by reference herein:
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(a)
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The Company’s Annual Report on Form 10-K for the year ended December 31, 2015, filed on February 26, 2016;
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(b)
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The Company’s Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2016, filed on May 4, 2016 and the Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2016,
filed on August 8, 2016;
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(c)
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The Company’s Current Reports on Form 8-K, filed on April 6, 2016, May 4, 2016, May 18, 2016, June 24, 2016, July 13, 2016, and August 8, 2016; and
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(d)
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The description of the common stock contained in the Company’s Registration Statement on Form S-8 (File No. 33-99862), filed with the Commission on November 29, 1995, including any subsequent
amendment or report to such registration statement filed for the purpose of updating such description.
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All documents subsequently filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents.
Any statement contained in an incorporated document shall be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently filed incorporated document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Notwithstanding the foregoing provisions of this Item 3, no document, or portion
of or exhibit to a document, that is “furnished” to (rather than “filed” with) the Commission shall be incorporated or deemed to be incorporated by reference in this registration statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Certain legal matters in connection with the
Common Stock offered hereby will be passed upon for the Company by Kathleen A. Waters, Chief Legal Officer to the Company. Ms. Waters is eligible to participate in the DaVita HealthCare Partners Inc. Employee Stock Purchase Plan and also has
been awarded Restricted Stock Units and Stock Appreciation Rights in the Company’s Common Stock.
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Item 6.
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Indemnification of Directors and Officers.
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The Company is a Delaware corporation.
Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any person against expenses, judgments, fines and settlements actually and reasonably incurred by any such person in connection with a
threatened, pending or completed action, suit or proceeding in which such person is involved by reason of the fact that he or she is or was a director, officer, employee or agent of such corporation, provided that (i) such person acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and (ii) with respect to any criminal action or proceeding, such person had no reasonable cause to believe his or her conduct
was unlawful. If the action or suit is by or in the name of the corporation, the corporation may indemnify any such person against expenses actually and reasonably incurred by him or her in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which the action or suit is brought determines upon application that, despite the adjudication of
liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Delaware Court of Chancery or such other court deems proper.
Article IX, Section 1 of the Company’s By-Laws provides for indemnification of persons to the fullest extent permitted by the
Delaware General Corporation Law.
In accordance with the Delaware General Corporation Law, the Company’s Certificate of
Incorporation, as amended, limits the personal liability of its directors for violations of their fiduciary duty. The Certificate of
Incorporation eliminates each director’s liability to the Company or its stockholders for monetary damages except (i) for any breach of the director’s duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law providing for liability
of directors for unlawful payment of dividends or unlawful stock purchases or redemptions, or (iv) for any transaction from which a director derived an improper personal benefit. The effect of this provision is to eliminate the personal
liability of directors for monetary damages for actions involving a breach of their fiduciary duty of care, including any such actions involving gross negligence. This provision will not, however, limit in any way the liability of directors for
violations of the federal securities laws.
From time to time, the Company has entered into and may enter into employment agreements or
indemnification agreements pursuant to which the Company agrees to indemnify some of its directors and officers to the fullest extent authorized by applicable law.
The directors and officers of the Company and its subsidiaries are insured under certain insurance policies against claims made during the
period of the policies against liabilities arising out of claims for certain acts in their capacities as directors and officers of the Company and its subsidiaries.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
The Exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the
“Securities Act”);
(ii) To reflect in the prospectus any facts or events arising after the effective date of
this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Denver, State of Colorado, as of August 12,
2016.
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DAVITA HEALTHCARE PARTNERS INC.
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By:
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/s/ Kent J. Thiry
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Name:
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Kent J. Thiry
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Title:
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Chairman and Chief Executive Officer
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Each person whose signature appears below constitutes and appoints each of Kent J. Thiry, James K. Hilger and Kathleen
A. Waters, with full power to act without the other, his true and lawful attorneys-in-fact and agents, with full and several power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post effective amendments) to this Registration Statement on Form S-8, and to sign any related registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of
1933, and all post-effective amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they or he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents as his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities
indicated as of August 12, 2016.
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Signature
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Title
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By:
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/s/ Kent J. Thiry
Kent J. Thiry
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Chairman and Chief Executive Officer
(Principal
Executive Officer)
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By:
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/s/ James K. Hilger
James K. Hilger
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Interim Chief Financial Officer and
Chief
Accounting Officer
(Principal Accounting Officer)
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By:
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/s/ Pamela M. Arway
Pamela M. Arway
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Director
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By:
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/s/ Charles G. Berg
Charles G. Berg
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Director
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By:
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/s/ Carol A. Davidson
Carol A. Davidson
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Director
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By:
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/s/ Barbara J. Desoer
Barbara J. Desoer
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Director
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By:
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/s/ Paul J. Diaz
Paul J. Diaz
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Director
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Signature
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Title
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By:
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/s/ Peter T. Grauer
Peter T. Grauer
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Director
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By:
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/s/ John M. Nehra
John M. Nehra
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Director
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By:
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/s/ William L. Roper
William L. Roper
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Director
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By:
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/s/ Roger J. Valine
Roger J. Valine
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Director
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By:
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/s/ Phyllis R. Yale
Phyllis R. Yale
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Director
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EXHIBIT INDEX
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Exhibit
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Description
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Page
Number
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4.1(1)
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Amended and Restated Certificate of Incorporation of Total Renal Care Holdings, Inc., or TRCH, dated December 4, 1995.
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4.2(2)
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Certificate of Amendment of Certificate of Incorporation of TRCH, dated February 26, 1998.
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4.3(3)
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Certificate of Amendment of Certificate of Incorporation of DaVita Inc. (formerly Total Renal Care Holdings, Inc.), dated October 5, 2000.
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4.4(4)
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Certificate of Amendment of Amended and Restated Certificate of Incorporation of DaVita Inc., as amended dated May 30, 2007.
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4.5(5)
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Certificate of Ownership and Merger Merging DaVita Name Change, Inc. with and into DaVita Inc., as filed with Secretary of State of the State of Delaware on November 1, 2012.
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5.1*
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Opinion of Kathleen A. Waters, Chief Legal Officer to the Company.
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10.1(6)
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Amended and Restated Employee Stock Purchase Plan.
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23.1*
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Consent of Kathleen A. Waters, Chief Legal Officer to the Company (included in Exhibit 5.1).
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23.2*
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Consent of KPMG LLP.
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24*
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Powers of Attorney (included in the signature page of this Registration Statement).
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(1)
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Incorporated herein by reference to Exhibit 3.1 of the Company’s Transitional Report on Form 10-K for the transition period from June 1, 1995 to December 31, 1995 filed on March 18, 1996.
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(2)
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Incorporated herein by reference to Exhibit 3.2 of the Company’s Annual Report on Form 10-K for the year ended December 31, 1997 filed on March 31, 1998.
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(3)
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Incorporated herein by reference to Exhibit 3.3 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2000 filed on March 20, 2001.
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(4)
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Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2007, filed on August 6, 2007.
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(5)
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Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on November 1, 2012.
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(6)
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Incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement on Schedule 14A, filed on May 10, 2016.
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