Exhibit 10.29
DAVITA INC. EXECUTIVE RETIREMENT
PLAN
AMENDMENT #1
WHEREAS, on February 2, 2006, the
Board of Directors of DaVita Inc. (the “Board”) has
authorized the amendment of the Gambro Healthcare, Inc. Executive
Retirement Plan (the “Plan”) to change the name of the
Plan to the DaVita Inc. Executive Retirement Plan and to cease all
future benefit accruals under the Plan.
NOW, THEREFORE, the Plan is hereby
amended as follows as follows:
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1
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Effective
February 2, 2006, the name of the Plan shall be the “DaVita
Inc. Executive Retirement Plan.”
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2
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Effective
February 2, 2006, Article 5.2 of the Plan is hereby amended to read
in its entirety as follows:
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“ 5.2 As of February 2,
2006, the Employer shall cease all future benefit accruals under
the Plan and shall cease crediting the accounts of each participant
in the Plan with additional contributions.”
1
Gambro Healthcare, Inc.
Executive Retirement Plan
Article
1. Establishment, Purpose, and
Duration
1.1 Establishment of the
Plan. Gambro Healthcare,
Inc. (the “Company”) establishes this executive
retirement plan for key management Employees as described herein,
known as the “Gambro Healthcare, Inc. Executive Retirement
Plan” (the “Plan”), effective the day before the
closing of the sale of Gambro Healthcare, Inc. to DaVita Inc. This
Plan is a spinoff of the Gambro, Inc. Executive Retirement Plan
(“GERP”).
Except as otherwise provided herein,
the provisions of this Plan apply to amounts deferred after
December 31, 2004 into this Plan and amounts deferred after
December 31, 2004 into the GERP, pursuant to Section 409A
of the Code (as defined below in Section 2(e)). Amounts
deferred after December 31, 2004 shall include the 2003 and
2004 Annual Contributions (as defined below in Section 2(b))
made to the GERP (adjusted for hypothetical earnings and losses
thereon) for Participants who are not vested in such 2003 and 2004
Annual Contributions as of December 31, 2004. The provisions
of this Plan shall be construed and administered in accordance with
Code Section 409A and shall be deemed to be modified to the
extent necessary to comply with Code Section 409A.
The Plan provides for the
contribution by the Employer of certain amounts into the
Participants’ accounts, as described herein. In addition, a
one-time Transition Contribution was made to the accounts of
certain Participants, pursuant to the terms of Section 5.1
herein.
1.2 Purpose of the
Plan. The purpose of the
Plan is to: (a) provide Employees with the opportunity to
receive contributions from the Employer on a tax-deferred basis;
(b) replace benefits for certain Employees who have previously
participated in the Supplemental Retirement Income Plan of COBE
Laboratories, Inc. (As Amended and Restated Effective April 1,
1992) (the “SERP”); (c) promote the achievement of
long-term objectives of the Employer by attracting and retaining
key Employees of outstanding competence; and (d) assist in
providing competitive total compensation opportunities. This Plan
is an unfunded deferred compensation plan for a select group of
management, highly compensated employees, and persons who have been
part of a select group of management and/or highly compensated
employees. It is intended that the Plan constitute an unfunded
“top hat plan” for purposes of the Employee Retirement
Income Security Act of 1974, as amended.
1.3 Duration of the
Plan. The Plan remains in
effect indefinitely, subject to the right of the Board of Directors
to terminate the Plan at any time pursuant to Article 7.
2
Article 2.
Definitions
Whenever used in this Plan, the
following terms shall have the meanings set forth below and, when
the defined meaning is intended, the initial letter of the word is
capitalized:
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(a)
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“Adoption Agreement”
means an application for
participation in the Plan, execution of which by an eligible
employee is required for Plan participation, as described in
Section 4.2 herein.
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(b)
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“Annual Contribution”
means an annual contribution made by
the Employer into the Participant’s Deferral Account, as
described in Section 5.2 herein.
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(c)
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“Base
Salary” means an
Employee’s total annual base salary, including any
commissions that may be paid to the Employee. For 2005, Base Salary
shall include an Employee’s total annual base salary
including any commission that may be paid to the employee from
Gambro, Inc. or a subsidiary of Gambro, Inc., earned prior to the
establishment of this Plan.
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(d)
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“Board” or “Board of Directors” means
the Board of Directors of the Company.
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(e)
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“Code” means the Internal Revenue Code of 1986, as
amended, Treasury Regulations and administrative guidance issued
thereunder.
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(f)
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“Company” means Gambro Healthcare, Inc., a Tennessee
corporation.
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(g)
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“Deferral Account”
means an account established and
maintained by the Participant’s Employer for each Participant
which shall include the following sub-accounts:
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(1)
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Post-2004
Annual Contributions Sub-Account;
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(2)
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Pre-2005 Annual
Contributions Sub-Account;
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(3)
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Pre-2005
Company Contributions Sub-Account; and
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(4)
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Pre-2005
Transition Sub-Account.
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(h)
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“Deferred Amounts”
means, individually or collectively,
contributions made under this Plan and maintained in the Deferral
Accounts.
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(i)
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“Disabled” refers to a Participant who ceases service with
the Employer because he or she:
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(1)
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is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months; or
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(2)
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is, by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months under
an accident and health plan covering employees of the
Participant’s Employer.
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3
This definition shall be construed
and administered in accordance with the requirements of Code
Section 409A(a)(2)(C).
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(j)
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“Employee” means any regular status, nonunion, salaried
employee of the Employer.
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(k)
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“Employer” means Gambro Healthcare, Inc., a Tennessee
corporation, together with any and all Subsidiaries incorporated in
the United States, as listed in Appendix I.
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(1)
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“Participant”
means an Employee of the Employer
who has been notified by the Plan Administrator of his or her
selection to participate in the Plan and who executes an Adoption
Agreement as provided in Section 4.2.
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(m)
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“Plan
Administrator” means an individual designated by the Company to
administer this Plan.
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(n)
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“Retirement” means that an Employee has voluntarily
terminated employment with the Employer on or after his or her
attainment of age sixty (60) and does not continue to provide
services to the Employer.
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(o)
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“Separation from Service”
means the cessation of an
Employee’s service with the Employer.
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This definition shall be construed
and administered in accordance with the requirements of Code
Section 409A(a)(2)(A)(i).
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(p)
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“SERP” means the Supplemental Retirement Income Plan of
COBE Laboratories, Inc. (As Amended and Restated Effective
April 1, 1992).
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(q)
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“Service” means the period of time from the
Employee’s date of employment by the Employer to the
Employee’s date of termination of employment with the
Employer. An Employee’s period of employment with Gambro,
Inc., or a subsidiary thereof, prior to the establishment of this
Plan shall also constitute Service under this Plan. The Plan
Administrator may, in its sole discretion determine all issues
regarding Service, including whether to include in Service all or
part of any period of time during which the Participant was
employed by a corporation or entity which was acquired by, merged
into, or consolidated with the Employer. The definition of Service
includes leave pursuant to the Family and Medical Leave Act of
1993.
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(r)
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“Specified Employee”
means a key employee as described in
Code Section 416(i), without regard to paragraph
(5) thereof, of:
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(1)
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Gambro AB
(prior to the closing of the sale of Gambro Healthcare, Inc. to
DaVita Inc.); and
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(2)
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DaVita Inc. (on
or after the closing of the sale of Gambro Healthcare, Inc. to
DaVita Inc.)
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for so long as, any of the
applicable corporation’s stock is publicly traded on an
established securities market or otherwise.
This definition shall be construed
and administered in accordance with the requirements of Code
Section 409A(a)(2)(B)(i).
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(s)
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“Subsidiary” means any corporation in which the Company owns
directly, or indirectly through subsidiaries, at least fifty
percent (50%) of the total combined voting power of all
classes of stock, or any other entity (including, but not limited
to, partnerships and joint ventures) of which the Company owns at
least fifty percent (50%) of the combined equity.
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(t)
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“Transition Contribution”
means the contribution made by
Gambro, Inc. into the Participant’s Deferral Account as
consideration for removal from participation in the SERP, as
described in Section 5.1 herein.
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(u)
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“Year
of Service” means a
twelve (12) consecutive month period beginning on a
Participant’s date of employment with the Employer (or date
of latest re-employment) and each anniversary thereof during which
the Participant is employed on a regular basis by the Employer. An
Employee’s period of employment with Gambro, Inc., or a
subsidiary thereof, prior to the establishment of this Plan shall
also constitute Service under this Plan.
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Article
3. Administration
3.1 General.
The Plan Administrator shall
administer the Plan. The Plan Administrator shall be appointed by,
and shall serve at the discretion of, the Company. The Board may
delegate to the Plan Administrator any or all of the administration
of the Plan. To the extent that the Board has delegated to the Plan
Administrator any authority and responsibility under the Plan, all
applicable references to the Board in the Plan shall be to the Plan
Administrator.
3.2 Administration by the Plan
Administrator. The Plan
Administrator shall have the full power, discretion, and authority
to interpret and administer the Plan in a manner which is
consistent with the Plan’s provisions. However, in no event
shall the Plan Administrator have the power to determine Plan
design.
3.3 Decisions Binding.
All determinations and decisions
made by the Plan Administrator pursuant to the Plan, and all
related orders or resolutions of the Plan Administrator, shall be
final, conclusive, and binding on all persons, including the
Employer, its shareholders, Employees, Participants, and their
estates and beneficiaries.
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Article 4. Eligibility
and Participation
4.1 Eligibility.
Persons eligible to participate in
the Plan are limited to Employees who are executives in
International Bands 2, 3, and 4 or any other person of equivalent
authority and reporting relationship, as determined by the Plan
Administrator. Also, eligibility in the Plan shall further be
limited to Employees who are active Employees.
4.2 Actual
Participation.
For any amounts deferred after
December 31, 2004, an Employee is eligible to participate in
the Plan when selected by the Plan Administrator, in its sole
discretion, based upon the criteria set forth in Section 4.1
herein or other relevant considerations, but not before the
Employee is entered into the Employer’s payroll system. If an
Employee first becomes eligible to participate in the Plan during
the calendar year, the Employer may allow such Employee to enter
the Plan within thirty (30) days of becoming eligible,
provided the Employer’s Annual Contribution is based on Base
Salary earned after the Adoption Agreement is entered into between
the Employee and the Company. Such thirty (30) day period
shall commence when the Employee is first eligible to participate
in this Plan (or the GERP) or in the Gambro Healthcare Voluntary
Deferral Plan (known as the DaVita Voluntary Deferral Plan
effective the day of closing of the sale of Gambro Healthcare, Inc.
to DaVita Inc.) (or the Gambro Voluntary Deferral Plan); provided,
however, this provision shall be construed and interpreted in
accordance with Treasury Regulations and other guidance issued by
the Treasury and/or the Internal Revenue Service under Code
Section 409A. Employees who are selected and approved to
participate in the Plan in any given year shall enroll in the Plan
by entering into an Adoption Agreement with the Company, which
shall specify that the Employee shall participate in this Plan, and
completing such other forms and furnishing such other information
as the Company may reasonably require. The administrative documents
completed by GERP Participants, such as the Adoption Agreement and
other administrative forms, shall be deemed for purposes of this
Plan to also have been completed under this Plan.
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(b)
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Pre-2005
Deferrals Under GERP
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For amounts deferred prior to 2005
under the GERP (which were earned and vested as of
December 31, 2004), participants in the GERP were selected by
the GERP Plan Administrator, in its sole discretion, based upon the
criteria set forth in Section 4.1 herein or other relevant
considerations. Employees who were selected and approved to
participate in the GERP enrolled in the GERP by entering into an
Adoption Agreement with Gambro, Inc., which specified that the
employee would participate in the GERP, and complete such other
forms and furnish such other information as Gambro, Inc.
required.
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Article 5.
Contributions
5.1 Transition
Contribution. Subject to
selection by the GERP Plan Administrator and approval of the
Gambro, Inc. Board of Directors, Participants who were also
participants in the SERP and employed by Gambro, Inc., or a
subsidiary t
