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Exhibit 10.40
DaVita Inc.
Change in Control Bonus
Program
The purpose of the bonus program is
to ensure the continued dedication of employees to DaVita Inc. (the
“Company”) and its subsidiaries, through additional
assurances of financial and employment security in the event of a
Change in Control of the Company.
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a.
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Only Eligible
Employees may participate in the bonus program.
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b.
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Eligible
Employees are those employees who were either full-time or
part-time benefit eligible employees for the entire 12-month period
preceding the Change in Control and who are employed by the Company
on the date of the Change in Control. An approved leave of absence
will count towards the 12-month period for eligibility. Employees
who have received stock options for a total of 50,000 or more
shares of the Company’s stock (without regard to vesting) are
disqualified as Eligible Employees.
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c.
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Employees who
are represented by a union are not Eligible Employees unless this
bonus program is expressly included within their collective
bargaining agreement.
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d.
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Employees
employed in units we manage but do not own are eligible to
participate in this program if they meet the above
criteria.
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e.
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Employees
employed in units in which we are a minority partner are eligible
to participate in this program if they meet the above
criteria.
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III.
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Qualifying
Change in Control
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“Change in Control”
shall mean:
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a.
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Any transaction
or series of transactions in which any person or group (within the
meaning of Rule 13d-5 under the Securities Exchange Act of 1934
(the “Exchange Act”) and Sections 13(d) and 14(d) under
the Exchange Act) becomes the direct or indirect “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), by
way of a stock issuance, tender offer, merger, consolidation, other
business combination or otherwise, of greater than 50% of the total
voting power (on a fully diluted basis as if all convertible
securities had been converted and all warrants and options had been
exercised) entitled to vote in the election of directors of the
Company (including any transaction in which the Company becomes a
wholly-owned or majority-owned subsidiary of another corporation),
or
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b.
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Any merger or
consolidation or reorganization in which the Company does not
survive, or
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c.
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Any merger or
consolidation in which the Company survives, but the shares of the
Company’s common stock outstanding immediately prior to such
merger or consolidation represent 50% or less of the voting power
of the Company after such merger or consolidation, or
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d.
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Any transaction
in which more than 50% of the Company’s assets are
sold,
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provided, however, that no
transaction contemplated by clauses a through d above shall
constitute a Change of Control if both (x) the person acting
as the Chief Executive Officer of
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