EXHIBIT 4.5
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL AND
OTHER SPECIAL RIGHTS OF PREFERRED
STOCK AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
SERIES A CUMULATIVE
NON-VOTING REDEEMABLE PREFERRED STOCK
OF
GENTIVA HEALTH SERVICES, INC.
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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Gentiva Health Services, Inc., a Delaware corporation (the "CORPORATION")
certifies that pursuant to the authority contained in Article IV of its
Certificate of Incorporation (the "CERTIFICATE OF INCORPORATION") and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors of the Corporation by unanimous
written consent dated December 21, 1999 adopted the following resolution which
resolution remains in full force and effect on the date hereof:
RESOLVED, that there is hereby established a series of authorized preferred
stock having a par value of $ 0.01 per share, which series shall be designated
as "Series A Cumulative Non-Voting Redeemable Preferred Stock" (the "SERIES A
PREFERRED STOCK"), shall consist of 1,000 shares and shall have the following
voting powers, preferences and relative, participating, optional and other
special rights, and qualifications, limitations and restrictions thereof as
follows:
1 Certain Definitions; Number of Shares and Designation.
(a) DEFINITIONS. Unless the context otherwise requires, the terms
defined in this paragraph 1 shall have, for all purposes of this resolution, the
meanings herein specified (with terms defined in the singular having comparable
meanings when used in the plural).
APPROPRIATELY ADJUSTED shall mean appropriately adjusted for
stock splits, stock dividends, combinations, recapitalization and the like with
respect to the Series A Preferred Stock.
BUSINESS DAY shall mean a day other than a Saturday or Sunday or
a bank holiday in New York.
COMMON EQUITY shall mean all shares now or hereafter authorized
of any class of common stock of the Corporation, including the Common Stock, and
any other stock of the Corporation, howsoever designated, which has the right
(subject to prior rights of any class or series of preferred stock) to
participate in the distribution of the assets and earnings of the Corporation
without limit as to per share amount.
COMMON STOCK shall mean the common stock, par value $.10 per
share, of the Corporation.
CORPORATION REDEMPTION DATE shall have the meaning set forth in
subparagraph 5(a).
DIVIDEND PAYMENT DATE shall have the meaning set forth in
subparagraph 2(c).
DIVIDEND PERIOD shall mean the period from, and including, the
Initial Issue Date to, but not including, the first Dividend Payment Date and
thereafter, each quarterly period from, and including, the Dividend Payment Date
to, but not including the next Dividend Payment Date.
DIVIDEND RATE shall mean LIBOR plus 2%.
INITIAL ISSUE DATE shall mean February , 2000.
JUNIOR STOCK shall mean, for purposes of paragraph 2 below,
Common Equity and any class or series of stock of the Corporation which is not
entitled to receive any dividends in any Dividend Period unless all dividends
required to have been paid or declared and set apart for payment on the Series A
Preferred Stock shall have been so paid or declared and set apart for payment,
and for purposes of paragraph 3 below, shall mean Common Equity and any class or
series of stock of the Corporation which is not entitled to receive any assets
upon liquidation, dissolution or winding up of the affairs of the Corporation
until the Series A Preferred Stock shall have received the entire amount to
which such stock is entitled upon such liquidation, dissolution or winding up.
LIBOR shall mean the three (3) month London InterBank Offered
Rate (as reported by the Wall Street Journal) as in effect on the first Business
Day of the month in which the Dividend Payment Date occurs.
LIQUIDATION PREFERENCE shall mean $1,000 per share, as
Appropriately Adjusted.
MANDATORY REDEMPTION DATE shall have the meaning set forth in
subparagraph 6(a).
PARITY STOCK shall mean, for purposes of paragraph 2 below, any
class or series of stock of the Corporation which is entitled to receive payment
of dividends on a parity with the Series A Preferred Stock, and for purposes of
paragraph 3 below, shall mean any class or series of stock of the Corporation
which is entitled to receive assets upon liquidation, dissolution or winding up
of the affairs of the Corporation on a parity with the Series A Preferred Stock.
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RECORD DATE shall mean the date designated by the Board of
Directors of the Corporation at the time a dividend is declared; provided,
however, that such Record Date shall not be more than thirty (30) days nor less
than ten (10) days prior to the respective Dividend Payment Date or such other
date designated by the Board of Directors for the payment of dividends.
REDEMPTION PRICE shall mean a price per share equal to the
Liquidation Preference, together with accrued and unpaid dividends thereon to
the Redemption Date.
SHAREHOLDER REDEMPTION DATE shall have the meaning set forth in
subparagraph 4(a).
SHAREHOLDER REDEMPTION NOTICE shall have the meaning set forth in
subparagraph 4(a).
(b) NUMBER OF SHARES AND DESIGNATION. 1,000 shares of the preferred
stock, $0.01 par value per share, of the Corporation are hereby constituted as a
series of the preferred stock designated as "Series A Cumulative Non-Voting
Redeemable Preferred Stock" (the "SERIES A PREFERRED STOCK").
2 Dividends.
(a) The record holders of Series A Preferred Stock shall be entitled
to receive dividends, when and as declared by the Board of Directors of the
Corporation, out of funds legally available for payment of dividends.
(b) When and as declared, quarterly cash dividends shall be payable in
an amount per share equal to the amount determined by multiplying the Dividend
Rate times the Liquidation Preference times a fraction the numerator of which is
the number of days in such Dividend Period and the denominator of which is three
hundred and sixty five (365).
(c) Such quarterly cash dividends on shares of Series A Preferred
Stock shall accrue and be cumulative from the date of issuance of such shares.
Dividends shall be payable quarterly in arrears when and as declared by the
Board of Directors of the Corporation on March 31, June 30, September 30 and
December 31 of each year (a "DIVIDEND PAYMENT DATE"), commencing on June 30,
2000. If any Dividend Payment Date occurs on a day that is not a Business Day,
any accrued dividends otherwise payable on such Dividend Payment Date shall be
paid on the next succeeding Business Day. Dividends shall be paid to the holders
of record of the Series A Preferred Stock as their names shall appear on the
share register of the Corporation on the Record Date for such dividend.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time to holders of record on the Record Date therefor.
(d) So long as any shares of Series A Preferred Stock shall be
outstanding, the Corporation shall not declare, pay or set apart for payment on
any Junior Stock any dividends whatsoever, whether in cash, property or
otherwise (other than dividends payable in shares of the class or series upon
which such dividends are declared or paid, or payable in shares of Common Stock
with respect to Junior Stock), nor shall the Corporation make any distribution
on any Junior Stock, nor shall any Junior Stock be purchased, redeemed or
otherwise acquired by the Corporation or any of its subsidiaries of which it
owns not less than a majority of the outstanding voting power, nor shall any
monies be paid or made available for a sinking fund for the purchase or
redemption of any Junior Stock, unless all dividends to which the holders of
Series A Preferred Stock shall have been entitled for all
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previous Dividend Periods shall have been paid or declared and a sum of money
sufficient for the payment thereto has been set apart.
(e) In the event that full dividends are not paid or made available to
the holders of all outstanding shares of Series A Preferred Stock and of any
Parity Stock and funds available for payment of dividends shall be insufficient
to permit payment in full to holders of all such stock of the full preferential
amounts to which they are then entitled, then the entire amount available for
payment of dividends shall be distributed ratably among all such holders of
Series A Preferred Stock and of any Parity Stock in proportion to the full
amount to which they would otherwise be respectively entitled.
3 Distributions Upon Liquidation, Dissolution or Winding Up.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or other winding up of the affairs of the Corporation, before any
payment or distribution shall be made to the holders of Junior Stock, the
holders of Series A Preferred Stock shall be entitled to be paid out of the
assets of the Corporation in cash or property at its fair market value as
determined by the Board of Directors of the Corporation the Liquidation
Preference per share plus an amount equal to all dividends accrued and unpaid
thereon to the date of such liquidation or dissolution or such other winding up.
Except as provided in this paragraph, holders of Series A Preferred Stock shall
not be entitled to any distribution in the event of liquidation, dissolution or
winding up of the affairs of the Corporation.
(b) If, upon any such liquidation, dissolution or other winding up of
the affairs of the Corporation the assets of the Corporation shall be
insufficient to permit the payment in full of the Liquidation Preference per
share plus an amount equal to all dividends accrued and unpaid on the Series A
Preferred Stock and full liquidating payments on all Parity Stock, then the
assets of the Corporation shall be ratably distributed among the holders of
Series A Preferred Stock and of any Parity Stock in proportion to the full
amounts to which they would otherwise be respectively entitled if all amounts
thereon were paid in full.
(c) Neither the consolidation or merger of the Corporation into or
with another corporation or corporations, nor the sale, lease, transfer or
conveyance of all or substantially all of the assets of the Corporation to
another corporation or any other entity shall be deemed a liquidation,
dissolution or winding up of the affairs of the Corporation within the meaning
of this paragraph 3.
4 Redemption at the Option of the Stockholder.
(a) On or after May , 2005, any holder of Series A Preferred Stock may
demand that the Corporation redeem such holder's shares of Series A Preferred
Stock, in whole or from time to time in part, at the Redemption Price. Such
right may be exercised by delivery to the Corporation of a notice (a
"Shareholder Redemption Notice") requesting such redemption. The Corporation
shall redeem such shares of Series A Preferred Stock on a date (a "Shareholder
Redemption Date") that is not more than one hundred twenty (120) days after the
date of delivery of a Redemption Notice.
(b) Notice of any redemption pursuant to subparagraph 4(a) shall be
sent by or on behalf of the Corporation no less than fifteen (15) days prior to
a Shareholder Redemption Date, by first class mail, postage prepaid, to the
holders of record of the Series A Preferred Stock to be redeemed on such
Shareholder Redemption Date at their respective last addresses as they shall
appear on the books of the Corporation. In addition to any information required
by law or by the applicable rules of any exchange upon which Series A Preferred
Stock may be listed or admitted to trading, such notice shall
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state: (i) the Shareholder Redemption Date; (ii) the Redemption Price; (iii) the
place or places where certificates for such shares are to be surrendered for
payment of the Redemption Price; and (iv) that dividends on the shares to be
redeemed will cease to accrue on the Shareholder Redemption Date.
(c) From and after the Shareholder Redemption Date, dividends on the
shares of the Series A Preferred Stock so called for redemption shall cease to
accrue, and such shares shall no longer be deemed to be outstanding and shall
not have the status of shares of Series A Preferred Stock, and all rights of the
holders thereof as shareholders of the Corporation (except the right to receive
from the Corporation the Redemption Price) shall cease; provided, however, that
such dividend shall continue to accrue and such rights shall continue to exist
with respect to shares of Series A Preferred Stock called for redemption that
are not otherwise redeemed pursuant to the provisions of subparagraph 4(d) until
such time that such shares of Series A Preferred Stock are redeemed by the
Corporation. Upon surrender, in accordance with such notice, of the certificates
for any shares so redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state), the Corporation
shall pay the applicable Redemption Price. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed shares without cost to
the holder thereof.
(d) No Series A Preferred Stock may be redeemed pursuant to
subparagraph 4(a) except with funds legally available for the payment of the
Redemption Price. If the Corporation has insufficient funds legally available to
redeem all shares of Series A Preferred Stock to be redeemed on a Shareholder
Redemption Date, those funds legally available for such purpose shall be used to
redeem the number of such shares which may be redeemed. The holders of Series A
Preferred Stock whose shares of Series A Preferred Stock are to be redeemed on
such Shareholder Redemption Date shall participate in any such partial
redemption pro rata according to the number of shares with respect to which a
Shareholder Redemption Notice had been delivered by each such holder.
5 Redemption at the Option of the Corporation.
(a) On or after February , 2005, the Series A Preferred Stock shall be
redeemable, in whole or from time to time in part, at the option of the
Corporation at the Redemption Price. Each date fixed for redemption pursuant to
this subparagraph 5(a) is called a "Corporation Redemption Date."
(b) In case of redemption pursuant to subparagraph 5(a) of less than
all shares of Series A Preferred Stock at the time outstanding, the shares shall
be redeemed pro rata by the Corporation.
(c) Notice of any redemption pursuant to subparagraph 5(a) shall be
sent by or on behalf of the Corporation not more than sixty (60) days nor less
than thirty (30) days prior to the Corporation Redemption Date, by first class
mail, postage prepaid, to all holders of record of the Series A Preferred Stock
at their respective last addresses as they shall appear on the books of the
Corporation; provided, however, that no failure to give such notice or any
defect therein or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any shares of Series A Preferred Stock except
as to the holder to whom the Corporation has failed to give notice or except as
to the holder to whom notice was defective. In addition to any information
required by law or by the applicable rules of any exchange upon which Series A
Preferred Stock may be listed or admitted to trading, such notice shall state:
(i) the Corporation Redemption Date; (ii) the Redemption Price; (iii) the number
of shares of Series A Preferred Stock to be redeemed and, if less than all
shares held by such holder are to be redeemed, the number of such shares to be
redeemed; (iv) the place or places where certificates for such shares are to be
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surrendered for payment of the Redemption Price; and (v) that dividends on the
shares to be redeemed will cease to accrue on the Corporation Redemption Date.
(d) From and after the Corporation Redemption Date, dividends on the
shares of the Series A Preferred Stock so called for redemption shall cease to
accrue, and such shares shall no longer be deemed to be outstanding and shall
not have the status of shares of Series A Preferred Stock, and all rights of the
holders thereof as shareholders of the Corporation (except the right to receive
from the Corporation the Redemption Price) shall cease; provided, however, such
dividend shall continue to accrue and such rights shall continue to exist with
respect to shares of Series A Preferred Stock called for redemption that are not
otherwise redeemed pursuant to the provisions of subparagraph 5(e) until such
time that such shares of Series A Preferred Stock are redeemed by the
Corporation. Upon surrender, in accordance with such notice, of the certificates
for any shares so redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state), the Corporation
shall pay the applicable Redemption Price. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed shares without cost to
the holder thereof.
(e) No Series A Preferred Stock may be redeemed pursuant to
subparagraph 5(a) except with funds legally available for the payment of the
Redemption Price.
6 Mandatory Redemption.
(a) The Corporation shall redeem all remaining shares of Series A
Preferred Stock then outstanding at the Redemption Price on the date (the
"MANDATORY REDEMPTION DATE") immediately prior to (i) a merger, or consolidation
of the Corporation into or with one or more corporations that results in a
change in control of the Corporation such that immediately after the merger or
consolidation, less than 50% of the common equity of the surviving corporation
is held by the persons who held the Common Stock of the Corporation immediately
prior to such merger or consolidation or (ii) sale of all or substantially all
of the assets of the Corporation.
(b) Notice of redemption pursuant to subparagraph 6(a) shall be sent
by or on behalf of the Corporation not more than sixty (60) days nor less than
thirty (15) days prior to the Mandatory Redemption Date, by first class mail,
postage prepaid, to all holders of record of the Series A Preferred Stock at
their respective last addresses as they shall appear on the books of the
Corporation; provided, however, that no failure to give such notice or any
defect therein or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any shares of Series A Preferred Stock. In
addition to any information required by law or by the applicable rules of any
exchange upon which Series A Preferred Stock may be listed or admitted to
trading, such notice shall state: (i) the Mandatory Redemption Date; (ii) the
Redemption Price; (iii) the place or places where certificates for such shares
are to be surrendered for payment of the Redemption Price; and (iv) that
dividends on the shares to be redeemed will cease to accrue on the Mandatory
Redemption Date.
(c) From and after the Mandatory Redemption Date, dividends on the
shares of the Series A Preferred Stock shall cease to accrue, and such shares
shall no longer be deemed to be outstanding and shall not have the status of
shares of Series A Preferred Stock, and all rights of the holders thereof as
shareholders of the Corporation (except the right to receive from the
Corporation the Redemption Price) shall cease; provided, however, such dividend
shall continue to accrue and such rights shall continue to exist with respect to
shares of Series A Preferred Stock called that are not otherwise redeemed
pursuant to the provisions of subparagraph 6(d) until such time that such shares
of Series A
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Preferred Stock are redeemed by the Corporation. Upon surrender, in accordance
with such notice, of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and the
notice shall so state), the Corporation shall pay the applicable Redemption
Price. In case fewer than all the shares represented by any such certificate are
redeemed, a new certificate or certificates shall be issued representing the
unredeemed shares without cost to the holder thereof.
(d) No Series A Preferred Stock may be redeemed pursuant to
subparagraph 6(a) except with funds legally available for the payment of the
Redemption Price.
7 Voting Rights.
The holders of record of shares of Series A Preferred Stock shall not
be entitled to any voting rights except as required by law.
8 Exclusion of Other Rights.
Except as may otherwise be required by law, the shares of Series A
Preferred Stock shall not have any voting powers, preferences and relative,
participating, optional or other special rights, other than those specifically
set forth in this resolution (as such resolution may be amended from time to
time) and in the Certificate of Incorporation, as amended from time to time.
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
duly executed by _____, Chief Executive Officer and attested by ______, its
Secretary, this __ day of January, 2000.
GENTIVA HEALTH SERVICES, INC.
By:____________________________________
_________, Chief Executive Officer
ATTEST:
By:_____________________________
______, Secretary
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