Exhibit 5.1
October 21, 2010
Gentiva Health Services, Inc.
3350 Riverwood Parkway
Suite 1400
Atlanta, Georgia 30339-3314
| Re: | Gentiva Health Services, Inc. Shelf Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as legal counsel for Gentiva Health Services, Inc., a Delaware corporation (the “Company”), and certain direct and indirect subsidiaries of the Company (collectively, the “Guarantors”), in connection with the preparation of a Shelf Registration Statement on Form S-3, including the prospectus constituting a part thereof (the “Registration Statement”), being filed by the Company and the Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to an unspecified number of: (i) shares of common stock, par value $0.10 per share, of the Company (“Common Stock”); (ii) one or more classes or series of shares of preferred stock, par value $0.01 per share, of the Company (“Preferred Stock”); (iii) one or more series of debt securities of the Company (“Debt Securities”); (iv) guarantees of the Debt Securities by some or all of the Guarantors (“Guarantees”); (v) warrants to purchase Common Stock, Preferred Stock, Debt Securities or any combination of those securities (“Warrants”); and (vi) the Common Stock, Preferred Stock or Debt Securities that may be issued upon the exercise of the Warrants. The Common Stock, Preferred Stock, Debt Securities, Guarantees, and Warrants are referred to herein collectively as the “Securities.” The Securities may be issued and sold or delivered from time to time as set forth in the Registration Statement, any amendment thereto, the prospectus contained therein (the “Prospectus”) and supplements to the prospectus (the “Prospectus Supplements”), all pursuant to Rule 415 under the Securities Act.
The Debt Securities and the Guarantees will be issued pursuant to that certain Indenture, dated September 25, 2007 (as may be amended or supplemented from time to time, the “Indenture”), between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee (the “Trustee”).
The Warrants will be issued under one or more Warrant Agreements (each, a “Warrant Agreement”), each to be between the Company and a counterparty or counterparties identified therein (each, a “Counterparty”).
In connection with our representation of the Company and the Guarantors, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following:
| (1) | the Registration Statement; |
| (2) | the Company’s Certificate of Incorporation, as amended to the date hereof and charter or equivalent governing documents of each of the Guarantors, as amended to the date hereof; |
| (3) | the Company’s Bylaws, as amended to the date hereof, and the bylaws or equivalent governing instrument of each of the Guarantors; |
| (4) | resolutions adopted by the board of directors of the Company and the board of directors or other equivalent managing body of each Guarantor relating to the approval of the filing of the Registration Statement, together with the exhibits thereto, and other related matters; and |
| (5) | such other documents and records and other certificates and instruments and matters of law as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein. |
In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We have also assumed that (i) at the time of execution, authentication, issuance and delivery of the Debt Securities and the Guarantees, the Indenture will be the valid and legally binding
Gentiva Health Services, Inc.
October 21, 2010
Page 2
obligation of the Trustee, and (ii) at the time of execution, countersignature, issuance and delivery of any Warrants, each Warrant Agreement will be the valid and legally binding obligation of each Counterparty thereto.
As to matters of fact material to this opinion, we have relied to the extent we deemed reasonably appropriate upon representations or certificates of officers or directors of the Company, without independently verifying the accuracy of such documents, records and instruments.
In connection with the issuance of the Debt Securities and the Guarantees, we have assumed further that (i) at the time of execution, authentication, issuance and delivery of the Debt Securities, the Guarantees and any supplemental indenture to the Indenture, that such Debt Securities, Guarantees and supplemental indenture will have been duly authorized, executed and delivered by the Company and the Guarantors, as the case may be, and (ii) execution, delivery and performance by the Company and the Guarantors of such supplemental indenture, the Debt Securities and the Guarantees, as the case may be, will not violate the laws of any jurisdiction (provided that as to the laws of the State of Delaware and the federal laws of the United States we make no such assumption).
In connection with the issuance of Warrants, we have assumed further that (i) at the time of execution, countersignature, issuance and delivery of any Warrant Agreement, such Warrant Agreement will have been duly authorized, executed and delivered by the Company, and (ii) execution, delivery and performance by the Company of such Warrant Agreement will not violate the laws of any jurisdiction (provided that as to the laws of the State of Delaware, the laws of the State of New York and the federal laws of the United States we make no such assumption).
We have further assumed that: (i) the Registration Statement and any amendments thereto will be effective under the Securities Act, that no stop orders will have been issued by the Commission with respect to the Registration Statement and that the Registration Statement will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; (ii) an appropriate Prospectus Supplement, free writing prospectus or term sheet relating to the Securities offered thereby will have been prepared and filed with the Commission in compliance with the Securities Act and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; (iii) all Securities will be issued and sold in compliance with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as applicable, and the securities or blue sky laws of various states and in the manner stated in the Registration Statement and the applicable Prospectus Supplement, together with any free writing prospectus; (iv) any purchase, underwriting or similar agreement relating to Securities being offered will have been duly authorized, executed and delivered by the Company and the other parties thereto; and (v) in connection with the issuance of any Securities, an adequate number of authorized and unissued shares of Common Stock or Preferred Stock, as applicable, will be available for issuance under the Company’s Certificate of Incorporation, as amended.
Based solely upon and subject to the foregoing, and subject to the assumptions, limitations and qualifications stated herein, we are of the opinion that:
| (1) | With respect to the Common Stock, assuming (i) the taking by the board of directors of the Company of all necessary corporate action to authorize and approve the issuance of the Common Stock and (ii) due issuance and delivery of the Common Stock upon payment therefor in accordance with the applicable definitive purchase, underwriting or similar agreement, as applicable, or the Prospectus or a Prospectus Supplement approved by the board of directors of the Company, the Common Stock will be validly issued, fully paid and nonassessable. |
| (2) | With respect to the Preferred Stock, assuming (i) the taking by the board of directors of the Company of all necessary corporate action to authorize and approve the issuance and terms of the Preferred Stock and the terms of the offering thereof, (ii) due filing of the Certificate of Designation with the Delaware Secretary of State setting forth the terms of such Preferred Stock and (iii) due issuance and delivery of the Preferred Stock upon payment therefor in accordance with the applicable definitive purchase, underwriting or similar agreement, as applicable, or the Prospectus or a Prospectus Supplement approved by the board of directors of the Company, the Preferred Stock will be validly issued, fully paid and nonassessable. |
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October 21, 2010
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| (3) | With respect to the Debt Securities and the Guarantees, assuming (i) the taking of all necessary corporate or equivalent action to approve the issuance and terms of the Debt Securities and the Guarantees, the terms of the offering thereof and related matters by the Board of Directors of the Company and the board of directors or other equivalent managing body of each applicable Guarantor and (ii) the due execution, authentication, issuance and delivery of such Debt Securities and the Guarantees, upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement, as applicable, or the Prospectus or a Prospectus Supplement approved by the board of directors of the Company and the board of directors or other equivalent managing body of each applicable Guarantor otherwise in accordance with the provisions of the Indenture and such agreement, such Debt Securities and Guarantees will constitute valid and legally binding obligations of the Company and the applicable Guarantors, as the case may be, enforceable against the Company and the applicable Guarantors, as the case may be, in accordance with their respective terms. |
| (4) | With respect to the Warrants, assuming (i) the taking of all necessary corporate action by the board of directors of the Company to approve the execution and delivery of a Warrant Agreement and (ii) the due execution, countersignature, issuance and delivery of such Warrant Agreement upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement, as applicable, or the Prospectus or a Prospectus Supplement approved by the board of directors of the Company and otherwise in accordance with the provisions of the applicable Warrant Agreement and such agreement, such Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms. |
The opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) the effects of general equitable principles, whether enforcement is considered in a proceeding in equity or law, (iii) an implied covenant of good faith and fair dealing, (iv) the discretion of the court before which any proceeding for enforcement may be brought and (v) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to the public policy.
This opinion letter is limited to the matters stated herein, and no opinions may be implied or inferred beyond the matters expressly stated herein. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.
This opinion letter is being furnished to the Company solely for submission to the Commission as an exhibit to the Registration Statement and, accordingly, may not be relied upon by, quoted in any manner to or delivered to any other person or entity without, in each instance, our prior written consent.
We do not express any opinion herein concerning any law other than the laws of the State of Delaware, the laws of the State of New York and the federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
GREENBERG TRAURIG, LLP
/s/ Greenberg Traurig, LLP
