Amended and Restated Severance Plan



 Exhibit 10.38 
 DAVITA INC. 
 SEVERANCE PLAN 
 DaVita Inc., a Delaware corporation (the “Company”), hereby adopts the DaVita Inc. Severance Plan (this “Plan”) for the benefit of
certain Teammates of the Company and its subsidiaries. 
 This Plan is intended to secure the continued services and ensure the continued
dedication of the Teammates (as defined in Section 1(c)) by providing to such Teammates certain protections in the event of a Qualifying Termination (as defined in Section 1(d)). 
 This Plan is intended to qualify as a Teammate welfare benefit plan as described in section 3(1) of the Teammate Retirement Income Security Act of 1974,
as amended (“ERISA”). 
 1. Definitions. As used in this Plan, the following terms shall have the respective meanings set
forth below: 
 (a) “Code” means the Internal Revenue Code of 1986, as amended. 
 (b) “Company” means DaVita Inc., a Delaware corporation. 
 (c) “Teammate” means any person who is employed by the Company in an position of Vice President or Director. 
 (d) “Qualifying Termination” means the involuntary termination of a Teammate’s employment by the Company under circumstances for which the payment of severance payments and benefits under this Plan is
approved by the Senior Vice President of People Services and the Assistant General Counsel – Labor of the Company; provided, however, that a Teammate will not incur a Qualifying Termination and will not receive severance payments
and benefits under this Plan if (i) the Teammate’s employment is terminated by the Company for any action which the Company, in its sole discretion, determines is for material cause, including, but not limited to, failure to perform job
responsibilities, violation of the Company’s policies and procedures, an act of fraud or dishonesty affecting or involving the Company, or a breach of a material provision of the Teammate’s employment agreement or other similar agreement
with the Company, or (ii) a Teammate in the position of Director is terminated during the first year of the Teammate’s employment with the Company. 
 (e) “Termination Date” with respect to a Teammate means the date on which the Teammate incurs a “separation from service” within the meaning of Section 409A(a)(2)(A) of the Code. 

(f) by reason of a Qualifying Termination. 







 2. Payments and Benefits Upon Qualifying Termination. If a Teammate shall incur a Qualifying
Termination, and the Teammate (or the Teammate’s executor or other legal representative in the case of the Teammate’s death or disability following such termination) executes and does not revoke a waiver and release agreement substantially
in the form of Exhibit A hereto (the “Waiver and Release”) and a noncompetition, nonsolicitation, confidentiality and cooperation agreement substantially in the form of Exhibit B hereto (the “Noncompetition Agreement”) within 28
days following the Termination Date, the Company shall provide to the Teammate, as compensation for services rendered to the Company, and in consideration of the covenants set forth in the Waiver and Release and Noncompetition Agreement, the
payments and benefits described in this Section 2. Notwithstanding the foregoing provisions of this Section 2, if, as a result of a Teammate’s termination of employment on the Termination Date, a Teammate is entitled to severance
payments and benefits from the Company or any of its subsidiaries which are not payable pursuant to this Plan, but are payable pursuant to an employment agreement or other compensation arrangement entered into between such Teammate and the Company
or any of its subsidiaries (“Other Severance Payments and Benefits”), the payments and benefits to be received by the Teammate pursuant to this Section 2 shall be reduced by the amount of the Other Severance Payments and Benefits, if
any, received by the Teammate. 
 (a) The Company shall continue to pay to the Teammate (or the Teammate’s beneficiary or estate, as the
case may be), commencing within 14 days following the date of execution of the Waiver and Release and Noncompetition Agreement, the Teammate’s base salary for the applicable period set forth below based on the Teammate’s job classification
and period of service: 
  

					
	 Job Classification
	 	 Period of Service
	 	 Salary Continuation Period

	Vice President	 	Less than one year	 	6 months
	Vice President	 	One year or more	 	12 months
	Director	 	Less than 3 months	 	0-3 months
	Director	 	3 to 24 months	 	3 months
	Director	 	More than 24 months	 	6 months

 The applicable salary continuation period set forth above may be extended in the sole discretion of the Chief
Executive Officer or Chief Operating Officer of the Company. 
 (b) The Company shall provide outplacement assistance to the Teammate, the
nature of which will be at the Company’s discretion, and which shall, in no event be provided after the last day of the second calendar year following the calendar year in which the termination date occurs. 
 (c) The Teammate’s stock options, restricted stock units, other stock-based awards, and other long-term incentives shall be treated in accordance
with the terms of any agreements that Teammate has previously entered into with the Company concerning these benefits. 
 3. Plan 409A of
the Code. This Plan is intended to meet the requirements of Section 409A of the Code, and shall be interpreted and construed consistent with that intent. 

  

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Notwithstanding any other provision of this Plan, to the extent that the right to any payment (including the provision of benefits) to a Teammate hereunder
provides for the “deferral of compensation” within the meaning of Section 409A(d)(1) of the Code, the payment shall be made (or provided) in accordance with the following: 
 If the Teammate is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code on the date of the Teammate’s Termination Date, then no such payment shall be made during the
period beginning on the Termination Date and ending on the date that is six months following the Termination Date or, if earlier, on the date of the Teammate’s death, if the earlier making of such payment would result in tax penalties being
imposed on the Teammate under Section 409A of the Code. The amount of any payment that would otherwise be made during this period shall instead be made on the first business day following the date that is six months following the Termination
Date or, if earlier, the date of the Teammate’s death. Each payment and benefit hereunder shall constitute a “separately identified” amount within the meaning of Treasury Regulation §1.409A-2(b)(2). 
 4. Plan Administration; Claims Procedure. 
 (a) This Plan shall be interpreted and administered by the Company, or if the Company has delegated its authority to interpret and administer this Plan, by the person or persons appointed by the Company from time to time to interpret and
administer this Plan (the “Plan Administrator”), who shall have complete authority, in his or her sole discretion subject to the express provisions of this Plan, to make all determinations necessary or advisable for the administration of
this Plan. All questions arising in connection with the interpretation of this Plan or its administration shall be submitted to and determined by the Plan Administrator in a fair and equitable manner in accordance with the procedure for claims and
appeals described in Section 4(b). 
 (b) Any Teammate whose employment has been terminated who believes that he or she is entitled to
receive benefits under this Plan, including benefits other than those initially determined by the Plan Administrator to be payable, may file a claim in writing with the Plan Administrator, specifying the reasons for such claim. The Plan
Administrator shall, within 90 days after receipt of such written claim (unless special circumstances require an extension of time, but in no event more than 180 days after such receipt), send a written notification to the Teammate as to the
disposition of such claim. Such notification shall be written in a manner calculated to be understood by the claimant and in the event that such claim is denied in whole or in part, shall (i) state the specific reasons for the denial,
(ii) make specific reference to the pertinent Plan provisions on which the denial is based, (iii) provide a description of any additional material or information necessary for the Teammate to perfect the claim and an explanation of why
such material or information is necessary, and (iv) set forth the procedure by which the Teammate may appeal the denial of such claim. The Teammate (or his or her duly authorized representative) may request a review of the denial of any such
claim or portion thereof by making application in writing to the Plan Administrator within 60 days after receipt of such denial. Such Teammate (or his or her duly authorized representative) may, upon written 

  

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request to the Plan Administrator, review any documents pertinent to such claim, and submit in writing issues and comments in support of such claim. Within
60 days after receipt of a written appeal (unless special circumstances require an extension of time, but in no event more than 120 days after such receipt), the Plan Administrator shall notify the Teammate of the final decision with respect to such
claim. Such decision shall be written in a manner calculated to be understood by the claimant and shall state the specific reasons for such decision and make specific references to the pertinent Plan provision on which the decision is based.

 (c) The Plan Administrator may from time to time delegate any of his or her duties hereunder to such person or persons as the Plan
Administrator may designate. The Plan Administrator is empowered, on behalf of this Plan, to engage accountants, legal counsel and such other persons as the Plan Administrator deems necessary or advisable for the performance of his or her duties
under this Plan. The functions of any such persons engaged by the Plan Administrator shall be limited to the specified services and duties for which they are engaged, and such persons shall have no other duties, obligations or responsibilities under
this Plan. Such persons shall exercise no discretionary authority or discretionary control respecting the administration of this Plan. All reasonable fees and expenses of such persons shall be borne by the Company. 
 5. Withholding Taxes. The Company will withhold from all payments due under this Plan to each Teammate (or the Teammate’s beneficiary or
estate) all taxes which, by applicable federal, state, local or other law, the Company is required to withhold therefrom. 
 6.
Amendment. The Company shall have the right, in its sole discretion, pursuant to action by the Chief Executive Officer of the Company, to amend this Plan in any respect; provided, however, that no amendment may reduce any
severance payments or benefits due hereunder with respect to a Teammate who previously incurred a Qualifying Termination and who has not forfeited such payments and benefits pursuant to the Noncompetition Agreement. In the event that this Plan is
determined to be a “deferred compensation plan” subject to Section 409A of the Code, the Committee shall, as necessary, adopt such conforming amendments as are necessary to comply with Section 409A of the Code without reducing
the payments and benefits due to the Teammates hereunder. 
 7. Effect of Plan. Any amount payable pursuant to this Plan shall be
reduced by any other amount of severance relating to salary continuation or any other continuation of medical coverage to be received by the Teammate upon termination of employment of the Teammate under any severance plan, policy or arrangement of
the Company. Subject to the foregoing and to the provisions of Sections 2 and 8 hereof, the rights of, and benefits payable to, a Teammate pursuant to this Plan are in addition to any rights of, or benefits payable to, a Teammate under any other
Teammate benefit plan or compensation program of the Company. All rights of a Teammate under any such plan or program shall be determined in accordance with the provisions of such plan or program. 
  

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 8. Offset; Mitigation. 
 (a) If the Company is obligated by law or contract to pay severance pay, notice pay or other similar benefits, or if the Company is obligated by law to
provide advance notice of separation (“Notice Period”), then any payments hereunder shall be reduced by the amount of any such severance pay, notice pay or other similar benefits, as applicable, and by the amount of any severance pay,
notice pay or other similar benefits received during any Notice Period. 
 (b) Any amount payable pursuant to this Plan shall also be reduced
by any amount of compensation received by the Teammate from another employer (as a Teammate, consultant, or independent contractor) during the applicable salary continuation period set forth in Section 2(a) hereof. Teammate may not defer
compensation with his new employer or client or take any other action in an effort to avoid the dollar-for-dollar reduction required by this Plan, and that if Teammate does take such action, the benefits under this Plan may be reduced by the Plan
Administrator in its sole discretion. 
 (c) A Teammate who is entitled to receive severance payments and benefits hereunder shall be
obligated to seek other employment and to take all other reasonable actions so as to mitigate the amounts payable and the benefits to be provided to such Teammate under any of the provisions of this Plan. 
 9. Unfunded Plan. This Plan shall not be funded. No Teammate entitled to benefits hereunder shall have any right to, or interest in, any specific
assets of the Company, but a Teammate shall have only the rights of a general creditor of the Company to receive benefits on the terms and subject to the conditions provided in this Plan. 
 10. Payments to Minors, Incompetents and Beneficiaries. Any benefit payable to or for the benefit of a minor, an incompetent person or other
person incapable of giving a receipt therefor shall be deemed paid when paid to such person’s guardian or to the party providing or reasonably appearing to provide for the care of such person, and such payment shall fully discharge the Company,
the Plan Administrator and all other parties with respect thereto. If a Teammate shall die while any amounts would be payable to the Teammate under this Plan had the Teammate continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Plan to such person or persons appointed in writing by the Teammate to receive such amounts or, if no person is so appointed, to the estate of the Teammate. 
 11. Non-Assignability. None of the payments, benefits or rights of any Teammate shall be subject to any claim of any creditor, and, in particular,
to the fullest extent permitted by law, all such payments, benefits and rights shall be free from attachment, garnishment, trustee’s process or any other legal or equitable process available to any creditor of such Teammate. Except as otherwise
provided herein or by law, no right or interest of any Teammate under this Plan shall be assignable or transferable, in whole or in part, either directly 

  

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or by operation of law or otherwise, including without limitation by execution, levy, garnishment, attachment or pledge; no attempted assignment or transfer
thereof shall be effective; and no right or interest of any Teammate under this Plan shall be subject to any obligation or liability of such Teammate. 
 12. No Rights to Continued Employment. Neither the adoption of this Plan, nor any amendment hereof, nor the creation of any fund, trust or account, nor the payment of any benefits, shall be construed as giving
any Teammate the right to be retained in the service of the Company, and all Teammates shall remain subject to discharge to the same extent as if this Plan had not been adopted. 
 13. Successors; Binding Agreement. This Plan shall inure to the benefit of and be binding upon the beneficiaries, heirs, executors,
administrators, successors and assigns of the parties, including each Teammate, present and future, and any successor to the Company or one of its subsidiaries. This Plan shall not be terminated by any merger or consolidation of the Company whereby
the Company is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation or transfer of assets, the provisions of this
Plan shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred. The Company agrees that concurrently with any merger, consolidation or transfer of assets referred to in this
Section 16, it will cause any surviving or resulting corporation or transferee unconditionally to assume all of the obligations of the Company hereunder. 
 14. Headings. The headings and captions herein are provided for reference and convenience only, shall not be considered part of this Plan and shall not be employed in the construction of this Plan. 

15. Notices. Any notice or other communication required or permitted pursuant to the terms hereof shall have been duly given when delivered or
mailed by United States mail, first class, postage prepaid, addressed to the intended recipient at his, her or its last known address. 
 16.
Effective Date and Term. This Plan shall be effective as of the date hereof and shall end on the date on which this Plan is terminated by the Company; provided that this Plan and the obligations of the Company hereunder shall not terminate
with respect any severance payments or benefits due hereunder with respect to a Teammate who previously incurred a Qualifying Termination and who has not forfeited such payments and benefits pursuant to the Noncompetition Agreement until such
obligations have been fully satisfied by the Company. 
 17. Employment with, and Action by, Subsidiaries. For purposes of this Plan,
employment with the Company or actions taken by the Company with respect to the Teammate shall include employment with or actions taken by any corporation or other entity in which the Company has a direct or indirect ownership interest of 50% or
more of the total combined voting power of the then outstanding securities of such corporation or other entity entitled to vote generally in the election of directors. 
  


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 18. Governing Law; Validity. This Plan shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Delaware (without regard to principles of conflicts of laws) to the extent not preempted by ERISA or other Federal law, which shall otherwise control. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, and this Plan shall be construed and enforced as if such provision had not been included.