Davita Inc SC TO-I, filed Aug 17, 2020

DAVITA INC.

Date: August 17, 2020

/s/ Joel Ackerman

Name: Joel Ackerman

Title: Chief Financial Officer and Treasurer

Davita Inc. (DVA)

SC TO-I 2020-08-17

View Original

Added on October 21, 2026

Search and read filings like this one from Claude or ChatGPT with the SEC filings MCP server →



Transaction valuation⁽¹⁾		Amount of filing fee⁽²⁾
$1,000,000,000		$129,800


Amount Previously Paid: N/A		Filing Party: N/A
Form or Registration No.: N/A		Date Filed: N/A


Exhibit Number		Description

(a)(1)(A)✓		Offer to Purchase, dated August 17, 2020.

(a)(1)(B)✓		Letter of Transmittal.

(a)(1)(C)✓		Notice of Guaranteed Delivery.

(a)(1)(D)✓		Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, dated August 17, 2020.

(a)(1)(E)✓		Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, dated August 17, 2020.

(a)(1)(F)✓		Summary Advertisement, dated August 17, 2020.

(a)(1)(G)✓		Email Communication to Employees of DaVita Inc. and its Subsidiaries

(a)(1)(H)✓		Letter to SSAR Holders


Exhibit Number		Description

(a)(2)		Not applicable.

(a)(3)		Not applicable.

(a)(4)		Not applicable.

(a)(5)(A)✓		Press release, dated August 17, 2020, announcing the commencement of the tender offer.

(b)(1)		Credit Agreement, dated as of August 12, 2019, by and among DaVita Inc., certain subsidiary guarantors party thereto, the lenders party thereto, Credit Agricole Corporate and Investment Bank, JPMorgan Chase Bank, N.A. and MUFG Bank Ltd., as co-syndication agents, Bank of America, N.A., Barclays Bank PLC, Credit Suisse Loan Funding LLC, Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc. and Suntrust Bank, as co-documentation agents, and Wells Fargo Bank, National Association, as administrative agent, collateral agent and swingline lender.(1)

(b)(2)		First Amendment, dated as of February 13, 2020, to that certain Credit Agreement, dated as of August 12, 2019, by and among DaVita Inc., certain subsidiary guarantors party thereto, the lenders party thereto, and Wells Fargo Bank, National Association, as administrative agent, collateral agent and swingline lender. (2)

(c)		None.

(d)(1)*		Employment Agreement, effective April 29, 2019, by and between Javier J. Rodriguez and DaVita Inc. (4)

(d)(2)*		Employment Agreement, effective February 21, 2017, by and between DaVita Inc. and Joel Ackerman. (5)

(d)(3)*		Employment Agreement, effective April 27, 2016, by and between DaVita HealthCare Partners Inc. and Kathleen A. Waters. (6)

(d)(4)*		Employment Agreement, effective April 29, 2015, by and between DaVita HealthCare Partners Inc. and Michael D. Staffieri. (6)

(d)(5)*		Executive Incentive Plan (as Amended and Restated effective January 1, 2009). (8)

(d)(6)*		DaVita Inc. Severance Plan for Directors and Above. (3)

(d)(7)*		Amended and Restated DaVita Inc. 2011 Incentive Award Plan. (9)

(d)(8)*		Form of 2014 Long Term Incentive Program Stock Appreciation Rights Agreement under the DaVita Inc. 2011 Incentive Award Plan and Long-Term Incentive Program. (10)

(d)(9)*		Form of 2014 Long Term Incentive Program Restricted Stock Units Agreement under the DaVita Inc. 2011 Incentive Award Plan and Long-Term Incentive Program. (10)

(d)(10)*		Form of Stock Appreciation Rights Agreement-Board members (DaVita Inc. 2011 Incentive Award Plan). (11)

(d)(11)*		Form of Stock Appreciation Rights Agreement-Executives (DaVita Inc. 2011 Incentive Award Plan). (7)

(d)(12)*		Form of Restricted Stock Units Agreement-Executives (DaVita Inc. 2011 Incentive Award Plan) (11)

(d)(13)*		Form of Long-Term Incentive Program Award Agreement (For 162(m) designated teammates) (DaVita Inc. 2011 Incentive Award Plan). (7)

(d)(14)*		Form of Long-Term Incentive Program Award Agreement (DaVita Inc. 2011 Incentive Award Plan). (7)


Exhibit Number		Description

(d)(15)*		Form of Stock Appreciation Rights Agreement-Board members (DaVita Inc. 2011 Incentive Award Plan). (12)

(d)(16)*		Form of Restricted Stock Units Agreement-Executives (DaVita Inc. 2011 Incentive Award Plan). (14)

(d)(17)*		Form of Performance Stock Units Agreement-Executives (DaVita Inc. 2011 Incentive Award Plan). (14)

(d)(18)*		Form of Stock Appreciation Rights Agreement-Executives (DaVita Inc. 2011 Incentive Award Plan). (14)

(d)(19)*		Form of Restricted Stock Units Agreement-Executives (DaVita Inc. 2011 Incentive Award Plan). (14)

(d)(20)*		Form of Performance Stock Units Agreement-Executives (DaVita Inc. 2011 Incentive Award Plan). (14)

(d)(21)*		Form of Stock Appreciation Rights Agreement-Executives (DaVita Inc. 2011 Incentive Award Plan). (14)

(d)(22)		Form of 5.000% Senior Note due 2025 and related Guarantee. (13)

(d)(23)		Indenture, dated as of April 17, 2015, by and among DaVita Inc., the subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as Trustee. (13)

(d)(24)*		Non-Employee Director Compensation Policy. (15)

(d)(25)*		Form of 4.625% Senior Note due 2030 and related Guarantee. (16)

(d)(26)*		Indenture, dated as of June 9, 2020, by and among DaVita Inc., the subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, as Trustee. (16)

(d)(27)*		DaVita Inc. 2020 Incentive Award Plan (17)

(d)(28)*		Amendment to Stock Appreciation Rights Agreements, effective June 11, 2020, by and between DaVita Inc. and William L. Roper, M.D. (18)

(d)(29)		Form of 3.750% Senior Note due 2031 and related Guarantee. (19)

(d)(30)		Indenture, dated as of August 11, 2020, by and among DaVita Inc., the subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, as Trustee. (19)

(d)(31)* ✓		Form of Stock Appreciation Rights Agreement (DaVita Inc. 2020 Incentive Award Plan)

(d)(32)* ✓		Form of Performance-Based Restricted Stock Unit Agreement (DaVita Inc. 2020 Incentive Award Plan)

(d)(33)* ✓		Form of Restricted Stock Unit Agreement (DaVita Inc. 2020 Incentive Award Plan)

(g)		Not applicable.

(h)		Not applicable.


	Page
SUMMARY TERM SHEET		1
FORWARD-LOOKING STATEMENTS		12
INTRODUCTION		14
THE OFFER		17
1. Number of Shares; Purchase Price; Proration		17
2. Purpose of the Offer; Certain Effects of the Offer		19
3. Procedures for Tendering Shares		21
4. Withdrawal Rights		27
5. Purchase of Shares and Payment of Purchase Price		28
6. Conditional Tender of Shares		29
7. Conditions of the Offer		30
8. Price Range of Shares; Dividends		32
9. Source and Amount of Funds		33
10. Certain Information Concerning the Company		34
11. Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares		36
12. Effects of the Offer on the Market for Shares; Registration under the Exchange Act		40
13. Legal Matters; Regulatory Approvals		40
14. Material U.S. Federal Income Tax Consequences		41
15. ERISA Considerations		46
16. Extension of the Offer; Termination; Amendment		47
17. Fees and Expenses		48
18. Miscellaneous		49


	Price of Common Stock
	High		Low
Fiscal Year Ending December 31, 2020
First Quarter – March 31, 2020	$	90.15	$	62.20
Second Quarter – June 30, 2020		89.39		64.51
Third Quarter (through August 14, 2020)(1)		92.16		78.65

Fiscal Year Ended December 31, 2019
First Quarter – March 31, 2019	$	59.97	$	49.48
Second Quarter – June 30, 2019		57.96		43.40
Third Quarter – September 30, 2019		63.50		50.68
Fourth Quarter – December 31, 2019		75.30		54.09

Fiscal Year Ended December 31, 2018
First Quarter – March 31, 2018	$	80.71	$	64.62
Second Quarter – June 30, 2018		73.50		61.72
Third Quarter – September 30, 2018		74.72		65.54
Fourth Quarter – December 31, 2018		79.11		48.25


	Common Stock
Name and Address of Beneficial Owner¹	Number of shares beneficially owned		Percentage of shares beneficially owned
Warren E. Buffett²		38,095,570		31.23	%
Berkshire Hathaway Inc. 3555 Farnam St. Omaha, NE 68131
The Vanguard Group³		10,481,457		8.59	%
100 Vanguard Blvd.
Malvern, PA 19355
BlackRock, Inc.⁴		7,302,299		5.99	%
55 East 52nd St.
New York, NY 10055
Javier J. Rodriguez⁵		147,675			*
Joel Ackerman⁶		28,209			*
James O. Hearty⁷		3,119			*
Michael D. Staffieri⁸		66,359			*
Kathleen A. Waters⁹		33,914			*
John D. Winstel		—			*
LeAnne Zumwalt¹⁰		9,642			*
Pamela M. Arway¹¹		22,497			*
Charles G. Berg¹²		20,607			*
Barbara J. Desoer¹³		12,636			*
Pascal Desroches¹⁴		10,406			*
Paul J. Diaz¹⁵		9,551			*
John M. Nehra¹⁶		58,665			*
Phyllis R. Yale¹⁷		10,797			*
All directors and executive officers as a group (14 persons)¹⁸		434,077			*


By First Class Mail:		By Registered, Certified or Express Mail, or Overnight Courier:

Computershare c/o Voluntary Corporate Actions P.O. Box 43011 Providence, RI 02940-3011		Computershare c/o Voluntary Corporate Actions 150 Royall Street, Suite V Canton, MA 02021



➊ DESCRIPTION OF SHARES TENDERED (See Instructions 1, 13 and 14):
Name(s) and Address(es) of Registered Owner(s) (If blank, please fill in exactly as name(s) appear(s) on share certificate(s))	Shares Tendered (attach additional list if necessary)
	Certificated Shares*
	Certificate Number(s)	Total Number of Shares Represented by Certificate(s)	Book-Entry Shares Tendered	Number of Shares Tendered*











	Total Shares
	* If you wish to tender fewer than all shares represented by any above, please indicate in this column the number of shares you wish to tender. Unless otherwise indicated, it will be assumed that all shares represented by Certificates or book-entry shares described above are being tendered hereby.


➋ Signature (See Instructions 2 and 12): This form must be signed by the registered holder(s) exactly as their name(s) appears above or by person(s) authorized to sign on behalf of the registered holder(s) by documents transmitted herewith.		➌ Form W-9 (Backup Withholding) (See Instruction 3): PLEASE SEE THE SECTION ENTITLED “IMPORTANT U.S. TAX INFORMATION FOR HOLDERS” AND THE ACCOMPANYING FORM W-9 AND INSTRUCTIONS THERETO TO CERTIFY YOUR EMPLOYER IDENTIFICATION NUMBER OR SOCIAL SECURITY NUMBER IF YOU ARE A U.S. TAXPAYER. Please note that the Depositary or other withholding agent may withhold a portion of the proceeds (currently at a 24% rate) as required by the Internal Revenue Service (“IRS”) if the Employer Identification Number or Social Security Number is not properly certified on our records. If you are a non-U.S. taxpayer, in order to establish an exemption from backup withholding, please complete and submit an IRS Form W-8BEN, W-8BEN-E, W-8IMY (with any required attachments), W-8ECI, or W8EXP, as applicable (which may be obtained on the IRS website (www.irs.gov)). The Depositary or other withholding agent may withhold tax at a 30% rate (subject to certain exceptions) on payments made to non-U.S. shareholders pursuant to the Offer, unless the Depositary or other withholding agent determines that a reduced rate under an applicable income tax treaty or exemption from withholding is applicable.
X
Signature of Shareholder Date Daytime Telephone #
X
Signature of Shareholder Date Daytime Telephone #
I/we understand that the tender of shares constitutes a representation and warranty to the Company that the undersigned has/have a NET LONG POSITION in the shares or other securities exercisable or exchangeable therefor and that such tender complies with Rule 14e-4 promulgated under the Securities Exchange Act of 1934, as amended. I/we authorize the Company to withhold all applicable taxes and tax-related items legally payable by the undersigned.



➍ Auction Tender: Price (in Dollars) per Share at Which Shares are Being Tendered (See Instruction 4):
By checking one of the following boxes below instead of the box under Section 5, “Purchase Price Tender,” you are tendering shares pursuant to an Auction Tender at the price checked. This election could result in none of your shares being purchased if the Purchase Price selected by the Company for the shares is less than the price checked below. If you wish to tender shares at more than one price, you must complete a separate Letter of Transmittal for each price at which you tender shares. The same shares cannot be tendered at more than one price, unless previously and validly withdrawn. (See Section 3 and Section 4 of the Offer to Purchase and Instruction 4 to this Letter of Transmittal). PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED CHECK ONLY ONE BOX IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS CHECKED, THERE IS NO PROPER TENDER OF SHARES (Shareholders who desire to tender shares at more than one price must complete a separate Letter of Transmittal for each price at which shares are tendered.)

☐ $77.00 ☐ $77.25 ☐ $77.50 ☐ $77.75 ☐ $78.00 ☐ $78.25 ☐ $78.50 ☐ $78.75 ☐ $79.00	☐ $79.25 ☐ $79.50 ☐ $79.75 ☐ $80.00 ☐ $80.25 ☐ $80.50 ☐ $80.75 ☐ $81.00 ☐ $81.25	☐ $81.50 ☐ $81.75 ☐ $82.00 ☐ $82.25 ☐ $82.50 ☐ $82.75 ☐ $83.00 ☐ $83.25 ☐ $83.50	☐ $83.75 ☐ $84.00 ☐ $84.25 ☐ $84.50 ☐ $84.75 ☐ $85.00 ☐ $85.25 ☐ $85.50 ☐ $85.75	☐ $86.00 ☐ $86.25 ☐ $86.50 ☐ $86.75 ☐ $87.00 ☐ $87.25 ☐ $87.50 ☐ $87.75 ☐ $88.00


➐ Special Payment Instructions (See Instruction 7): If you want your check for cash and/or Certificate(s) for shares not tendered or not purchased to be issued in another name, fill in this section with the information for the new account name. A Signature Guarantee is required here	Signature Guarantee Medallion Apply Medallion Guarantee Stamp Below Apply Medallion Guarantee Stamp Below	➑ Special Delivery Instructions (See Instruction 8): Fill in ONLY if mailing check for cash and/or Certificate(s) for shares not tendered or not purchased to be sent to someone other than the undersigned or to the undersigned at an address other than that shown on the front of this form. A Signature Guarantee is required here. Mailing certificate(s) and/or check(s) to:
Name (Please Print First, Middle & Last Name)		Name (Please Print First, Middle & Last Name)



	(Title of Officer Signing this Guarantee)
Address (Number and Street)	(Title of Officer Signing this Guarantee)	Address (Number and Street)



	(Name of Guarantor — Please Print)
(City, State & Zip Code)	(Name of Guarantor — Please Print)	(City, State & Zip Code)
(Employer Identification Number or Social Security Number)	(Address of Guarantor Firm)	(Employer Identification Number or Social Security Number)


IF the entity/person on line 1 is a(n) . . .		THEN check the box for . . .
^● Corporation		Corporation
^● Individual ^● Sole proprietorship, or ^● Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes.		Individual/sole proprietor or single-member LLC


^● LLC treated as a partnership for U.S. federal tax purposes, ^● LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or ^● LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes.		Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation)


^● Partnership		Partnership
^● Trust/estate		Trust/estate


IF the payment is for . . .		THEN the payment is exempt for . . .
Interest and dividend payments		All exempt payees except for 7
Broker transactions		Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012.
Barter exchange transactions and patronage dividends		Exempt payees 1 through 4
Payments over $600 required to be reported and direct sales over $5,000¹		Generally, exempt payees 1 through 5²
Payments made in settlement of payment card or third party network transactions		Exempt payees 1 through 4



For this type of account:			Give name and SSN of:

	1.	Individual	The individual

	2.	Two or more individuals (joint account) other than an account maintained by an FFI	The actual owner of the account or, if combined funds, the first individual on the account¹

	3.	Two or more U.S. persons (joint account maintained by an FFI)	Each holder of the account

	4.	Custodial account of a minor (Uniform Gift to Minors Act)	The minor²

	5.	a. The usual revocable savings trust (grantor is also trustee)	The grantor-trustee¹
		b. So-called trust account that is not a legal or valid trust under state law	The actual owner¹

	6.	Sole proprietorship or disregarded entity owned by an individual	The owner³

	7.	Grantor trust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i) (A))	The grantor*

For this type of account:			Give name and EIN of:

	8.	Disregarded entity not owned by an individual	The owner

	9.	A valid trust, estate, or pension trust	Legal entity⁴

	10.	Corporation or LLC electing corporate status on Form 8832 or Form 2553	The corporation

	11.	Association, club, religious, charitable, educational, or other tax-exempt organization	The organization

	12.	Partnership or multi-member LLC	The partnership

	13.	A broker or registered nominee	The broker or nominee



For this type of account:			Give name and EIN of:

	14.	Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments	The public entity

	15.	Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B))	The trust


By First Class Mail:		By Registered, Certified or Express Mail, or Overnight Courier:

Computershare c/o Voluntary Corporate Actions P.O. Box 43011 Providence, RI 02940-3011		Computershare c/o Voluntary Corporate Actions 150 Royall Street, Suite V Canton, MA 02021
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.


By First Class Mail:		By Registered, Certified or
		Express Mail, or Overnight Courier:
Computershare		Computershare
c/o Voluntary Corporate Actions		c/o Voluntary Corporate Actions
P.O. Box 43011		150 Royall Street, Suite V
Providence, RI 02940-3011		Canton, MA 02021


Certificate Nos. (if available):
Name(s) of Record Holder(s):
(Please Type or Print)
Address(es):
Zip Code(s):
Daytime Area Code and Telephone Number:
Signature(s):
Dated: , 2020
If shares will be tendered by book-entry transfer, check this box and provide the following information:
Name of Tendering Institution:
Account Number at DTC:


Name of Firm:
Authorized Signature:
Name:
(Please Type or Print)
Title:
Address:
Zip Code:
Area Code and Telephone Number:
Dated: , 2020


☐ $77.00	☐ $79.25	☐ $81.50	☐ $83.75	☐ $86.00
☐ $77.25	☐ $79.50	☐ $81.75	☐ $84.00	☐ $86.25
☐ $77.50	☐ $79.75	☐ $82.00	☐ $84.25	☐ $86.50
☐ $77.75	☐ $80.00	☐ $82.25	☐ $84.50	☐ $86.75
☐ $78.00	☐ $80.25	☐ $82.50	☐ $84.75	☐ $87.00
☐ $78.25	☐ $80.50	☐ $82.75	☐ $85.00	☐ $87.25
☐ $78.50	☐ $80.75	☐ $83.00	☐ $85.25	☐ $87.50
☐ $78.75	☐ $81.00	☐ $83.25	☐ $85.50	☐ $87.75
☐ $79.00	☐ $81.25	☐ $83.50	☐ $85.75	☐ $88.00


By First Class Mail:		By Mail, or Overnight Courier:
Computershare		Computershare
c/o Voluntary Corporate Actions		c/o Voluntary Corporate Actions
P.O. Box 43011		150 Royall Street, Suite V
Providence, RI 02940-3011		Canton, MA 02021

The Information Agent for the Offer is:		The Dealer Manager for the Offer is:


		BofA Securities
1290 Avenue of the Americas, 9th Floor		BofA Securities, Inc. Bank of America Tower at One Bryant Park
New York, NY 10104		New York, NY 10036
Toll-Free: (888) 206-5896		Toll-Free: (888) 803-9655


Grantee:		«Grantee»

Address:		«Address_1»
		«City», «State» «Zip»


Grant Date:		«Grant_Date»

Base Shares:		«SSAR_Award»

Base Price per Share:		$«Base_Price»

Vesting Schedule:		«SSAR_Vesting_1»
		«SSAR_Vesting_2»

Expiration Date:		«Expiration_Date»

Plan Name:		2020 Incentive Award Plan

Plan ID#:		[ ]


Grantee:		«Grantee»

Address:		«Address_1»
		«City», «State» «Zip»

Grant Date:		«Grant_Date»

Performance Conditions:		As indicated on Exhibit B

Vesting Conditions:		As indicated on Exhibit B

Vesting Dates:		As indicated on Exhibit B

Target Number of Units:		«PSU_Award»

Plan Name:		2020 Incentive Award Plan

Plan ID#:		[ ]