Exhibit 10.9
AMENDMENT TO EMPLOYMENT
AGREEMENT
This document is to amend the
Employment Agreement (the “Agreement”), entered into as
of October 31, 2005, by and between DaVita Inc.
(“Employer”) and Dennis Kogod (“Employee”).
Specifically, effective December 12, 2008, the parties agree
to amend the Agreement as follows:
|
|
1.
|
Section 3.3 is hereby deleted in its
entirety and replaced with the following:
|
“ Other Termination .
Employer may terminate the employment of Employee for any reason or
for no reason at any time upon at least thirty
(30) days’ advance written notice. If Employer
terminates the employment of Employee for reasons other than for
death, Material Cause, or Disability or if Employee resigns within
sixty (60) days following a Good Cause Event unrelated to a
Change of Control (as those terms are defined below), Employee
shall (i) be entitled to receive the base salary and benefits
as set forth in Section 2.1 and Section 2.2
, respectively, through the effective date of such termination or
resignation, (ii) be entitled to continue to receive his
salary for the one-year period following the termination of his
employment (the “Severance Period”), paid in accordance
with Employer’s usual payroll practices, (iii) be
entitled to receive a lump-sum payment payable within 90 days after
the effective date of Employee’s termination of employment
equivalent to the Bonus that he had been paid in the year before
the termination of his employment, and (iv) not be entitled to
receive any other compensation, benefits, or payments of any kind,
except as otherwise required by law or by the terms of any benefit
or retirement plan or other arrangement that would, by its terms,
apply. If Employee resigns within sixty (60) days following a
Good Cause Event after a Change of Control (as those terms are
defined below), Employee shall receive the severance benefits set
forth above except that the Severance Period, i.e., the time in
which Employee is entitled to continue to receive his salary, shall
increase from one year to two years.
“During the Severance Period,
Employee agrees (1) to make himself available to answer
questions and to cooperate in the transition of his duties,
(2) to respond to any inquiries from the compliance
department, including making himself available for interviews, and
(3) to cooperate with Employer in the prosecution and/or
defense of any claim, including making himself available for any
interviews, appearing at depositions, and producing requested
documents. Employer shall reimburse Employee for any out-of-pocket
expenses he may incur, including travel costs, provided that
Employee used Employer’s travel department to arrange and
purchase all travel-related expense.
“Employee must execute a
standard Severance and General Release Agreement within
twenty-eight (28) days of the termination of Employee’s
employment before being eligible to receive the severance benefits
set forth above. The Severance and General Release Agreement shall
indicate that Employee is not releasing his right, if any, to
indemnification pursuant to any agreement, article or by-law
provision of Employer or his right, if any, to coverage under any
applicable directors and officers insurance or other insurance, as
Employer has in place from time to time.
“All severance arrangements
shall comply with the American Jobs Creation Act of 2004, all
related regulations, and all other laws and regulations governing
the payment of severance.
“For purposes of this
provision, an Employee’s employment has been terminated when
Employee is no longer providing services for Employer after a
specific date or the level of bona fide services that Employee
would perform (as an employee or independent contractor) after a
specific date wo
