EX-10.1 2 dex101.htm EMPLOYMENT AGREEMENT - LUIS BORGEN EMPLOYMENT AGREEMENT
EXHIBIT 10.1
This Employment Agreement (this “Agreement”) is entered into upon the date of full execution by the parties and approval as to form as provided herein (the “Effective Date”), by and between DaVita Inc. (“Employer”) and Xxxx Xxxxxx (“Employee”).
In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Employment and Duties. Employer hereby employs Employee to serve as Chief Financial Officer beginning on March 29, 2010. Employee accepts such employment on the terms and conditions set forth in this Agreement. Employee shall perform the duties of Chief Financial Officer or any additional duties as Employer deems appropriate, provided, however, that Employer shall not change Employee’s title without Employee’s written consent. Employee shall work out of Denver, Colorado. Employee agrees to relocate to Denver, Colorado with his immediate family no later than September 6, 2010. Employee agrees to devote substantially all of his time, energy, and ability to the business of Employer on a full-time basis and shall not engage in any other business activities during the term of this Agreement, including but not limited to providing consulting services to any investment firm, such as a hedge fund, provided however, Employee may pursue normal charitable activities so long as such activities do not require a substantial amount of time and do not interfere with his ability to perform his duties. Employee agrees that he shall not serve on the board of directors of any not-for-profit or for-profit company without the express written approval of the Chief Executive Officer or the Board of Directors. Employee shall at all times observe and abide by the Employer’s policies and procedures as in effect from time to time.
2.2 Signing Bonus. Employer shall pay Employee a signing bonus in the amount of $250,000.00, less standard withholdings and authorized deductions, which will be payable on Employee’s first paycheck. If Employee fails to relocate to Denver, Colorado with his immediate family by September 6, 2010, Employee will promptly repay to Employer the entire amount of the signing bonus.
(a) Employee shall be eligible to receive an annual discretionary performance bonus (the “Bonus”) between zero and $225,000.00, payable in a manner consistent with Employer’s practices and procedures. The amount of the Bonus, if any, will be decided by the Chief Executive Officer and/or the Board of Directors or the Compensation Committee of the Board in his/her/its sole discretion.
(b) In deciding on the amount of the Annual Performance Bonus, if any, the Chief Executive Officer and/or the Board of Directors or the Compensation Committee of the Board may consider the competitive market for the services provided by employees who are performing the same or similar duties as Employee is providing Employer and who have similar background and experience.
(c) Employee must be employed by Employer (or an affiliate) on the date any Bonus is paid to be eligible to receive such Bonus and, if Employee is not employed by Employer (or an affiliate) on the date any Bonus is paid for any reason whatsoever, Employee shall not be entitled to receive such Bonus.
2.5 Vacation. Employee shall have vacation, subject to the approval of the Chief Executive Officer.
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on the third anniversary date of the grant, 11.11% at 40th month of the grant, then 11.11% every 4 months thereafter until the 60th month. The terms of the restricted stock units will be reflected in a separate Restricted Stock Units Agreement to be signed by Employer and Employee.
Section 3. Provisions Relating to Termination of Employment.
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least 12 months, then Employer will pay the premium for Employee’s continued coverage under Employer’s medical and dental plans under COBRA for 12 months. In no event, however, will Employee receive less than one year of base salary, paid on a schedule consistent with Employer’s normal payroll practices, and 12 months of COBRA premiums for Employee’s continued coverage under Employer’s medical and dental plans paid by Employer. Said salary and benefits continuation will be reduced by any other severance payments received from Employer and any income or health and dental benefits obtained by Employee through subsequent employment during the one-year period. 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 would permanently decrease to no more than 20% of the average level of bona fide services performed over the immediately preceding thirty-six month period (or the full period of service if Employee was employed for less than thirty-six months).
(a) “Disability” shall mean the inability, for a period of six (6) months, to adequately perform Employee’s regular duties, with or without reasonable accommodation, due to a physical or mental illness, condition, or disability.
(b) “Good Reason” shall mean the occurrence, without Employee’s written consent, of any of the following events or circumstances:
(i) A reduction in Employee’s annual base salary in a percentage greater than concurrent base salary reductions for similarly-situated executives;
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(ii) Employer’s failure to pay compensation on a timely basis or continue benefits in accordance with the terms hereof;
(iii) Assignment of Employee to a new work location more than thirty-five miles from Employee’s assignment to Employer’s current offices in Denver, Colorado;
(iv) Any material breach by Employer of this agreement.
(c) “Material Cause” shall mean any of the following: (i) conviction of a felony or plea of no contest to a felony; (ii) any act of fraud or dishonesty in connection with the performance of his duties; (iii) repeated failure or refusal by Employee to follow policies or directives reasonably established by the Chief Executive Officer of Employer or his/her designee that goes uncorrected for a period of ten (10) consecutive days after written notice has been provided to Employee; (iv) a material breach of this Agreement; (v) any gross or willful misconduct or gross negligence by Employee in the performance of his duties; (vi) egregious conduct by Employee that brings Employer or any of its subsidiaries or affiliates into public disgrace or disrepute; (vii) an act of unlawful discrimination, including sexual harassment; (viii) a violation of the duty of loyalty or of any fiduciary duty; (ix) exclusion or notice of exclusion of Employee from participating in any federal health care program; or (x) Employee’s failure to relocate to Denver, Colorado with his immediate family by September 6, 2010.
3.9 Notwithstanding any provision herein to the contrary, in the event that any payment to be made to Employee hereunder (whether pursuant to this Section 3 or any other Section) as a result of Employee’s termination of employment is determined to constitute “deferred compensation” subject to Section 409A of the Internal Revenue Code, and Employee is a “Key Employee” under the DaVita Inc. Key Employee Policy for 409A Arrangements at the time of Employee’s termination of employment, all such deferred compensation payments payable during the first six (6) months following Employee’s termination of employment shall be delayed and paid in a lump sum during the seventh calendar month following the calendar month during which Employee’s termination of employment occurs.
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Section 4: Noncompetition, Nonsolicitation, and Confidentiality. Employee, contemporaneously herewith, shall enter into a Noncompetition, Nonsolicitation, and Confidentiality Agreement, the terms of which are incorporated herein and made a part hereof as though set forth in this Agreement.
5.1 Entire Agreement; Amendment. This Agreement represents the entire understanding of the parties hereto with respect to the employment of Employee and supersedes all prior agreements with respect thereto. This Agreement may not be altered or amended except in writing executed by both parties hereto.
5.2 Assignment; Benefit. This Agreement is personal and may not be assigned by Employee. This Agreement may be assigned by Employer and shall inure to the benefit of and be binding upon the successors and assigns of Employer.
5.3. Applicable Law; Venue. This Agreement shall be governed by the laws of the State of Colorado, without regard to the principles of conflicts of laws. Both parties agree that any action relating to this Agreement shall be brought in a state or federal court of competent jurisdiction located in the State of Colorado and both parties agree to exclusive venue in the State of Colorado.
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5.10 Approval by DaVita Inc. as to Form. The parties acknowledge and agree that this Agreement shall take effect and be legally binding upon the parties only upon full execution hereof by the parties and upon approval by DaVita Inc. as to the form of hereof.
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DAVITA INC. | EMPLOYEE | |||||||
By | /s/ Xxxx Xxxxx | By | /s/ Xxxx Xxxxxx | |||||
Xxxx Xxxxx | Xxxx Xxxxxx | |||||||
Chief Executive Officer | ||||||||
Date | 2/26/10 | Date | 2/22/10 |
Approved by DaVita Inc. as to Form: | ||
/s/ Xxxxxxx Xxxxxxx | ||
Xxxxxxx Xxxxxxx | ||
Assistant General Counsel – Labor and Employment | ||
Date | 2/26/10 |
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