As filed with the Securities and Exchange Commission on April 18, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
____________________
DAVITA INC.
(Exact name of registrant as specified in its charter)
Delaware 51-0354549
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503-5517
(310) 792-2600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
_____________________
DaVita Inc. 2002 Equity Compensation Plan
(Full title of the plan)
Steven J. Udicious
Vice President, General Counsel and Secretary
DaVita Inc.
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503-5517
(310) 792-2600
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
___________________
Copies to:
Ronn S. Davids, Esq.
Riordan & McKinzie
300 S. Grand Ave., 29th Floor
Los Angeles, California 90071-3109
(213) 229-8562
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of each class of Amount Maximum Maximum Amount of
securities to be to be Offering Price Aggregate Registration
registered Registered Per Share/(1)/ Offering Price Fee
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Common Stock 8,500,000 $25.12 $213,520,000 $19,643.84
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/(1)/ Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based on the average of the high and low sales prices of
the Company's Common Stock on April 16, 2002, as reported on the New York Stock
Exchange.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by DaVita Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(1) Annual Report of the Company on Form 10-K for the fiscal year ended
December 31, 2001.
(2) All other reports filed by the Company pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 2001, the end of the Company's most recently completed
fiscal year for which an Annual Report on Form 10-K was filed.
(3) The description of the common stock of the Company (the "Common
Stock") contained in the Company's Registration Statement on Form 8-A, filed
October 21, 1995.
(4) All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of 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 herein or in any document incorporated or deemed to be
incorporated by reference herein 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 document which also is or is
deemed to be incorporated by reference herein 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock registered
hereby (the "Shares") has been passed upon for the Company by Steven J.
Udicious, General Counsel of the Company. Mr. Udicious is also a Vice President
and Secretary of the Company and holds stock and options to purchase stock
granted under the Company's employee stock plans which in the aggregate
represent less than 1% of the Company's outstanding Common Stock.
Item 6. Indemnification of Directors and Officers.
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 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
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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 court deems proper.
Article XI, 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 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.
In addition, the Company has agreed to indemnify some of its directors
and officers to the maximum extent of the law pursuant to Employment or
Indemnification Agreements.
Item 7. Exemptions from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 2002 Equity Compensation Plan of the Company.
5.1 Opinion of Steven J. Udicious, General Counsel, DaVita Inc.
23.1 Consent of Steven J. Udicious, General Counsel, DaVita Inc. (included
in Exhibit 5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included on page II-4).
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Item 9. Undertakings.
The 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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 the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided however, that paragraphs (i) and (ii) above shall 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 the 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.
(4) 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 the 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.
Insofar as indemnification for liabilities 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.
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SIGNATURES,
Pursuant to the requirements of the Securities Act, 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 Torrance, State of California, on April 17, 2002.
DAVITA INC.
By: /s/ Kent J. Thiry
____________________________
Kent J. Thiry
Chairman and Chief Executive
Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature
appears below constitutes and appoints Kent J. Thiry and Steven J. Udicious, and
each of them, his true and lawful attorneys-in-fact and agents with full 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 to this registration
statement, 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 or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
--------- ----- ----
/s/ Kent J. Thiry
__________________________________ Chairman and Chief Executive Officer April 17, 2002
Kent J. Thiry (Principal Executive Officer)
/s/ Richard K. Whitney
___________________________________ Chief Financial Officer (Principal April 17, 2002
Richard K. Whitney Financial Officer)
/s/ Gary W. Beil
___________________________________ Vice President and Controller April 17, 2002
Gary W. Beil (Principal Accounting Officer)
/s/ Nancy-Ann DeParle
___________________________________ Director April 17, 2002
Nancy-Ann DeParle
/s/ Richard B. Fontaine
___________________________________ Director April 17, 2002
Richard B. Fontaine
/s/ Peter T. Grauer
___________________________________ Director April 17, 2002
Peter T. Grauer
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/s/ C. Raymond Larkin, Jr. Director April 17, 2002
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C. Raymond Larkin, Jr.
/s/ John M. Nehra Director April 17, 2002
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John M. Nehra
/s/ William L. Roper Director April 17, 2002
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William L. Roper
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Index To Exhibits
Sequentially
Numbered
Exhibit Description Page Number
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4.1 2002 Equity Compensation Plan of the Company.
5.1 Opinion of Steven J. Udicious, General Counsel, DaVita Inc.
23.1 Consent of Steven J. Udicious, General Counsel, DaVita Inc. (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included on page II-4).