dva-202306060000927066false12-3100009270662023-06-062023-06-06
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): June 6, 2023
DAVITA INC.
(Exact name of registrant as specified in its charter)
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| DE | 1-14106 | 51-0354549 |
(State or other jurisdiction
of incorporation) | (Commission File Number) | (IRS Employer
Identification No.) |
| | | | | | | | |
| 2000 16th Street |
| Denver, | CO | 80202 |
(Address of principal executive offices including Zip Code)
(720) 631-2100
(Registrant’s telephone number, including area code)
Not applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 240.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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| Title of each class: | | Trading symbol(s): | | Name of each exchange on which registered: |
| Common Stock, $0.001 par value | | DVA | | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
☐ Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On June 6, 2023, DaVita Inc. (the “Company”) held its virtual 2023 Annual Meeting of Stockholders (the “Annual Meeting”). At the Annual Meeting, the stockholders of the Company approved the amendment and restatement of the Company’s Restated Certificate of Incorporation to provide for the exculpation of certain officers of the Company from liability as permitted by Delaware law (the “Amendment”), as further described in the Company’s Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on April 25, 2023 (the “Proxy Statement”). The Amendment became effective upon the filing of the Amended and Restated Certificate of Incorporation (the “A&R Certificate of Incorporation”) with the Secretary of State of the State of Delaware following the Annual Meeting on June 6, 2023. The foregoing summary of the Amendment does not purport to be complete and is qualified in its entirety by reference to the complete text of the A&R Certificate of Incorporation, which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
Represented virtually or by proxy at the Annual Meeting were 80,835,570 shares of the Company’s common stock, or 89.16% of its outstanding shares of common stock as of April 14, 2023, the record date of the Annual Meeting. The proposals presented at the Annual Meeting are described in detail in the Company’s Proxy Statement. The vote results detailed below represent final results as certified by the Inspector of Elections.
Proposal 1. Election of Directors.
The Company’s stockholders elected the nine director nominees named below to the Company’s Board of Directors (“Board”) for a term expiring at the 2024 Annual Meeting of Stockholders or until their respective successors are duly elected and qualified. The voting results are as follows:
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Name of Nominee | | For | | Against | | Abstain | | Broker non-votes |
Pamela M. Arway | | 69,931,446 | | 3,844,340 | | 29,712 | | 7,030,072 |
Charles G. Berg | | 73,049,317 | | 723,565 | | 32,616 | | 7,030,072 |
Barbara J. Desoer | | 72,535,958 | | 1,239,118 | | 30,422 | | 7,030,072 |
Jason M. Hollar | | 73,225,701 | | 549,096 | | 30,701 | | 7,030,072 |
Gregory J. Moore, MD, PhD | | 73,016,596 | | 758,428 | | 30,474 | | 7,030,072 |
John M. Nehra | | 70,143,985 | | 3,629,997 | | 31,516 | | 7,030,072 |
Javier J. Rodriguez | | 73,483,804 | | 290,514 | | 31,180 | | 7,030,072 |
Adam H. Schechter | | 73,667,968 | | 106,048 | | 31,482 | | 7,030,072 |
Phyllis R. Yale | | 72,679,791 | | 1,095,878 | | 29,829 | | 7,030,072 |
Proposal 2. Ratification of the appointment of KPMG LLP as the Company's independent registered public accounting firm.
The Company’s stockholders ratified the appointment of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023. The voting results are as follows:
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| For | | Against | | Abstain |
| 78,179,976 | | 2,609,300 | | 46,294 |
Proposal 3. Advisory vote to approve named executive officer compensation.
The Company’s stockholders approved, on an advisory basis, the compensation of the Company’s named executive officers. The voting results are as follows:
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| For | | Against | | Abstain | | Broker non-votes |
| 70,087,651 | | 3,646,453 | | 71,394 | | 7,030,072 |
Proposal 4. Advisory vote to approve the frequency of future advisory votes on named executive officer compensation.
The Company’s stockholders approved, on an advisory basis, holding future advisory say-on-pay votes on an annual basis. The voting results are as follows:
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One Year | | Two Years | | Three Years | | Abstain |
| 72,480,479 | | 20,702 | | 1,248,836 | | 55,481 |
In accordance with the recommendation of the Board of Directors of the Company (the “Board”), and based on the results of the stockholder advisory vote as reported above, the Board has determined that the Company will hold a stockholder advisory vote to approve the compensation of the Company’s named executive officers on an annual basis until the next stockholder advisory vote on the frequency of such votes.
Proposal 5. Amendment and Restatement of the Company’s Restated Certificate of Incorporation to provide for the exculpation of officers as permitted under Delaware law.
The Company’s stockholders approved the Amendment of the Company’s Restated Certificate of Incorporation to provide for the exculpation of certain officers of the Company from liability as permitted by Delaware law. The voting results are as follows:
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| For | | Against | | Abstain | | Broker non-votes |
| 69,041,684 | | 4,703,320 | | 60,494 | | 7,030,072 |
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit
Number | Description |
| Amended and Restated Certificate of Incorporation of DaVita Inc. |
| 104.0 | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| DAVITA INC. |
| | |
| Date: June 8, 2023 | By: | /s/ Samantha Caldwell |
| | Samantha Caldwell |
| | Corporate Secretary |
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
Pursuant to Section 242 and 245 of the
| | |
| Delaware General Corporation Law |
DaVita Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”), does hereby certify:
FIRST: That the name of the Corporation is DaVita Inc. The date of filing its original Certificate of Incorporation with the Secretary of State of the State of Delaware (“Delaware Secretary of State”) was April 4, 1994, under the name Medical Ambulatory Care Delaware, Inc. A Certificate of Amendment was filed with the Delaware Secretary of State on July 5, 1994, changing the name of the Corporation to Total Renal Care, Inc. A Certificate of Amendment was filed with the Delaware Secretary of State on December 21, 1994, changing the name of the Corporation to Total Renal Care Holdings, Inc. A Certificate of Amendment was filed with the Delaware Secretary of State on October 5, 2000, changing the name of the Corporation to DaVita Inc. A Certificate of Ownership and Merger was filed with the Delaware Secretary of State on November 1, 2012, changing the name of the Corporation to DaVita HealthCare Partners Inc. A Certificate of Amendment was filed with the Delaware Secretary of State on August 12, 2016, changing the name of the Corporation to DaVita Inc. A Restated Certificate of Incorporation was filed with the Delaware Secretary of State on November 1, 2016, restating and integrating but not further amending, except as permitted under Section 242(a)(1) of the Delaware General Corporation Law, the provisions of the Certificate of Incorporation of the Corporation as theretofore amended or supplemented (the “Restated Certificate”).
SECOND: That this Amended and Restated Certificate of Incorporation has been duly adopted by the Corporation in accordance with Sections 242 and 245 of the Delaware General Corporation Law and has been adopted by the requisite vote of the stockholders of the Corporation and restates, integrates and further amends the provisions of the Restated Certificate. The text of the Restated Certificate is hereby amended and restated to read in its entirety as follows:
I. NAME
The name of the Corporation is DaVita Inc.
II. ADDRESS AND AGENT
The address of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New Castle, 19808. The name of the Corporation’s registered agent at such address is Corporation Service Company.
III. BUSINESS PURPOSE
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law.
IV. STOCK
A. Shares Authorized. The total number of shares of all classes of stock which the Corporation shall have the authority to issue is Four Hundred Fifty-Five Million (455,000,000) shares, consisting of Four Hundred Fifty Million (450,000,000) shares of Common Stock, par value $0.001 per share (the “Common Stock”), and Five Million (5,000,000) shares of Preferred Stock, par value $0.001 per share (the “Preferred Stock”).
B.Voting Rights. The holders of Common Stock shall be entitled to one (1) vote per share on all matters to be voted on by the stockholders of the Corporation.
C.Preferred Stock. The Board of Directors of the Corporation (the “Board”) is authorized to determine the number of series into which shares of Preferred Stock may be divided, and the Board is authorized to determine the rights, preferences, privileges and restrictions granted to or imposed upon the Preferred Stock or any series thereof or any holders thereof, to determine and alter the rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Stock or the holders thereof, to fix the number of shares constituting any series prior to the issue of shares of that series, and to increase or decrease, within the limits stated in any resolution or resolutions of the Board originally fixing the number of shares constituting any series (but not below the number of shares of such series then outstanding), the number of shares of any such series subsequent to the issue of shares of that series.
D.Vesting of Voting Rights. Except as required by law, all voting rights of the Corporation shall be vested exclusively in the holders of the Common Stock who shall be entitled to vote as described above.
E.Dividends. When and if dividends are declared on the Common Stock, whether payable in cash, in property or in securities of the Corporation, the holders of Common Stock shall be entitled to share equally, share for share, in such dividends; provided that if dividends or distributions are declared that are payable in shares of, or in subscription or other rights to acquire shares of, Common Stock, such dividends or distributions to
holders of Common Stock shall be payable in shares of, or in subscription or other rights to acquire shares of, Common Stock.
F.Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, holders of Common Stock shall receive a pro rata distribution of any remaining assets after payment or provision for liabilities.
G.Written Consent. No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied.
V.BYLAWS
The Board is authorized to make, alter or repeal the Bylaws of the Corporation. Election of Directors need not be by written ballot.
VI.INCORPORATOR
[Omitted Pursuant to Delaware General Corporation Law Section 245(c)]
VII.Indemnification
A director or officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, provided that this provision shall not eliminate or limit the liability of a director or an officer (i) for any breach of the director’s or officer’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for a director under Section 174 of the Delaware General Corporation Law, as the same exists or hereafter may be amended, (iv) for any transaction from which the director or officer derived any improper personal benefit; or (v) an officer in any action by or in the right of the Corporation. For purposes of this Article VII, “officer” shall have the meaning provided in Section 102(b)(7) of the Delaware General Corporation Law as the same exists or may hereafter be amended. If the Delaware General Corporation Law is hereafter amended to authorize corporate action further limiting or eliminating the personal liability of directors or officers, then the liability of the directors or officers of the Corporation shall be limited or eliminated to the fullest extent permitted by the Delaware General Corporation Law, as so amended from time to time.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by its duly authorized officer and the foregoing facts stated herein are true and correct.
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| DaVita Inc. |
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| Date: June 6, 2023 | | /s/ Kathleen A. Waters |
| By: | Kathleen A. Waters |
| Title: | Chief Legal and Public Affairs Officer |