Exhibit 10.31
DAVITA INC. POST-RETIREMENT
DEFERRED COMPENSATION ARRANGEMENT
AMENDMENT #1
WHEREAS, Section 7.1 of the
DaVita Inc. Post-Retirement Deferred Compensation Arrangement (the
“Plan”) provides that the DaVita Inc. (the
“Company”) has the right to amend the Plan at any
time;
WHEREAS, the Company desires to
amend the Plan to comply with the final regulations issued under
Section 409A of the Internal Revenue Code of 1986, as
amended;
WHEREAS, the Company desires to
preserve the grandfathered status of those Plan benefits that were
earned and vested as of December 31, 2004, so that those
grandfathered amounts will not be subject to Code
Section 409A, but will remain subject to the terms of the Plan
in effect prior to this Amendment, and this Amendment is intended
to not constitute a material modification of the Plan with respect
to those grandfathered amounts;
NOW THEREFORE, the Company hereby
amends the Plan as follows:
1. Effective January 1,
2009, Section 2.2 of the Plan hereby is amended by the
addition of the following sentence at the end of such
Section:
With respect to amounts that are
subject to Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”), for purposes of determining
whether a Change of Control has occurred under this
Section 2.2, “Company” shall mean DaVita
Inc.
2. Effective January 1,
2009, the first sentence of Section 3.2 of the Plan hereby is
amended to read as follows:
In the event it is subsequently
determined that a Participant does not constitute a Top-Hat
Employee, contributions on behalf of such Participant shall cease
and his benefit shall be payable only as provided under this Plan,
unless otherwise permitted under Code Section 409A.
3. Effective January 1,
2009, Section 5.1 of the Plan hereby is amended to read in its
entirety as follows:
5.1 Distributions following
Termination of Employment . Participants shall receive the
vested portion of their benefits determined pursuant to the rules
of Article III within 90 days after the Participant’s
termination of employment, regardless of the reason for termination
of employment (
