UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
(Amendment No. 1)
For the Quarterly Period Ended
March 31, 2011
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File Number: 1-14106
DAVITA INC.
1551 Wewatta Street
Denver, CO 80202
Telephone number (303) 405-2100
| Delaware | 51-0354549 | |
| (State of incorporation) | (I.R.S. Employer Identification No.) |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
As of April 29, 2011, the number of shares of the Registrant’s common stock outstanding was approximately 95.5 million shares and the aggregate market value of the common stock outstanding held by non-affiliates based upon the closing price of these shares on the New York Stock Exchange was approximately $8.4 billion.
EXPLANATORY NOTE
We are filing this Amendment No. 1 to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2011 only to re-file Exhibit 10.1 and to file a new Exhibit 10.2 in response to comments we received from the Securities and Exchange Commission on our original filing and on a confidential treatment request we made for certain portions of such exhibit in our original Form 10-Q. The refiled Exhibit 10.1 contains Schedule 7.2(b) and Exhibits F-1 and F-2, which were not included in the original filing. Consistent with this change, Item 6(a) of Part II and new Exhibits 31.1 and 31.2 are being filed, as required by the Securities and Exchange Commission regulations.
This Amendment No. 1 to our Form 10-Q for the quarter ended March 31, 2011 does not reflect events occurring after the filing of our original Form 10-Q. No other modifications or changes have been made to our Form 10-Q for the quarter ended March 31, 2011 as originally filed or the exhibits filed therewith.
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PART II
OTHER INFORMATION
| Item 6. Exhibits |
| (a) | Exhibits |
| Exhibit |
||
| 3.1 | Amended and Restated Bylaws, amended March 10, 2011. (1) | |
| 4.1 | First Amendment to Rights Agreement, dated as of March 10, 2011, between DaVita Inc. and The Bank of New York Mellon Trust Company, N.A., as Rights Agent. (2) | |
| 10.1 | Credit Agreement, dated as of October 20, 2010, by and among DaVita Inc., the guarantors party thereto, the lenders party thereto, Credit Suisse AG, Barclays Bank PLC, Goldman Sachs Bank USA, Wells Fargo Bank, National Association, Credit Agricole Corporate and Investment Bank, RBC Capital Markets, Scotia Capital (USA) Inc., SunTrust Robinson Humphrey, Inc. and Union Bank, N.A., as Co-Documentation Agents, Bank of America, N.A., as Syndication Agent, JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent, and J.P. Morgan Securities LLC, Banc of America Securities LLC, Credit Suisse Securities (USA) LLC, Barclays Capital, Goldman Sachs Bank USA and Wells Fargo Securities, LLC, as Joint Lead Arrangers and Joint Bookrunners. ü** | |
| 10.2 | Perfection Certificate executed as of October 20, 2010 and delivered in connection with the closing of the Credit Agreement filed as Exhibit 10.1. ü** | |
| 12.1 | Ratio of earnings to fixed charges. (2) | |
| 31.1 | Certification of the Chief Executive Officer, dated January 17, 2012, pursuant to Rule 13a-14(a) or 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. ü | |
| 31.2 | Certification of the Chief Financial Officer, dated January 17, 2012, pursuant to Rule 13a-14(a) or 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. ü | |
| 32.1 | Certification of the Chief Executive Officer, dated May 6, 2011, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.(2) | |
| 32.2 | Certification of the Chief Financial Officer, dated May 6, 2011, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.(2) | |
| 101.INS | XBRL Instance Document. * | |
| 101.SCH | XBRL Taxonomy Extension Schema Document. * | |
| 101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document. * | |
| 101.DEF | XBRL Taxonomy Extension Definition Linkbase Document. * | |
| 101.LAB | XBRL Taxonomy Extension Label Linkbase Document. * | |
| 101.PRE | XBRL Taxonomy Extension Presentation, Linkbase Document. * | |
| ü | Filed herewith. |
| * | XBRL information is furnished and not filed or a part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities and Exchange Act of 1933, is deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, and otherwise is not subject to liability under these sections. |
| ** | Portions of this exhibit are subject to a request for confidential treatment and have been redacted and filed separately with the SEC. |
| (1) | Filed on March 17, 2011 as an exhibit to the Company’s Current Report on Form 8-K/A. |
| (2) | Filed on May 6, 2011 as an exhibit to the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2011. |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| DAVITA INC. | ||
| BY: | /S/ JAMES K. HILGER | |
| James K. Hilger Chief Accounting Officer* | ||
Date: January 17, 2012
| * | Mr. Hilger has signed both on behalf of the Registrant as a duly authorized officer and as the Registrant’s principal accounting officer. |
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