GENTIVA HEALTH SERVICES, INC.
STOCK & DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
(As Amended and Restated as of April 1, 2000)
SECTION 1. Introduction.
The Gentiva Health Services, Inc. Stock & Deferred Compensation Plan for
Non-Employee Directors (the "Plan") provides for the payment of annual retainer
fees of non-employee directors of Gentiva Health Services, Inc. in the form of
Shares or, at the election of a non-employee director, in up to 50% in cash and
the remainder in the form of Shares. It also provides an opportunity for the
non-employee directors to defer the portion of their annual retainer fees
payable in Shares and have them deemed invested in Shares. The Plan is intended
to encourage qualified individuals to accept nominations as directors of Gentiva
Health Services, Inc. and to strengthen the mutuality of interest between the
non-employee directors and Gentiva Health Services, Inc.'s other shareholders.
SECTION 2. Definitions.
For purposes of the Plan, the following terms shall be defined as set forth
below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended from time to
time. References to any provision of the Code shall be deemed to include
successor provisions thereto and regulations thereunder.
(c) "Company" means Gentiva Health Services, Inc., a corporation organized
under the laws of Delaware, or any successor corporation.
(d) "Director" means a member of the Board who is not employed by the
Company or any of its subsidiaries.
(e) "Plan" means this Stock & Deferred Compensation Plan for Non-Employee
Directors.
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(f) "Plan Benefits" means the benefits payable in Shares described in
Sections 5 and 6 hereof.
(g) "Plan Year" means a period of approximately twelve months beginning on
the date of the Company's annual general meeting of shareholders for a year and
ending on the day immediately preceding the Company's annual general meeting of
shareholders for the following year; provided, however, that the first Plan Year
shall begin on the Effective Date and end on the day immediately preceding the
Company's annual general meeting of shareholders during calendar year 2001.
(h) "Shares" means Common Stock, $0.10 par value per share, of the Company.
SECTION 3. Administration.
The Plan shall be administered by the Board. The Board shall have full
authority to construe and interpret the Plan, and any action of the Board with
respect to the Plan shall be final, conclusive, and binding on all persons.
Subject to adjustment as provided in Section 7(g) hereof, the total number of
Shares reserved for issuance under the Plan shall be 150,000.
SECTION 4. Annual Retainer.
(a) On and after the Effective Date of this Plan, each Director's annual
retainer fee for a Plan Year shall, subject to any deferral election made
pursuant to Section 5 below and subject to any election to be paid currently in
cash under Section 4(c) below, be the number of Shares (rounded to the nearest
100 Shares) determined by dividing $25,000 by the average closing price of
Shares on the principal stock exchange or stock market on which the Shares may
be listed or admitted to trading for the ten trading days immediately preceding
the date of the Company's annual general meeting of shareholders on the first
day of the Plan Year at which Directors are elected or reelected. Such annual
retainer fee shall be payable on an annual basis 30 days following such annual
general meeting of shareholders. The annual retainer fee payable to a person who
becomes a Director other than at an annual general meeting of shareholders
shall, subject to any deferral election made pursuant to Section 5 below and
subject to any election to be paid currently in cash under Section 4(c) below,
be the number of Shares (rounded up to the nearest Share) determined by
multiplying the number of Shares determined pursuant to the first sentence of
this Section 4(a) for the Plan Year during which such person becomes a Director
by a fraction, the numerator of which is 365 minus the number of days elapsed
since the last annual general meeting of shareholders and the denominator of
which is 365. Such Shares shall be payable on the 30th day following the day on
which the person becomes a Director.
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(b) Shares distributed to a Director shall be vested in full at the time of
distribution.
(c) Each Director may make an irrevocable election on or before the
December 31 immediately preceding the beginning of a Plan Year by written notice
to the Company to receive payment in cash of up to 50% (in increments of 5%) of
the compensation otherwise payable during the Plan Year as his or her annual
retainer fee for service as a Director. Notwithstanding the foregoing, a
Director may make such an election within ten days after the later of the
Effective Date or first becoming eligible to participate in the Plan, with
respect to compensation payable after the effective date of the election. An
election under this Section 4(c) shall continue in effect until the Director
notifies the Company in writing, on or prior to the December 31 immediately
preceding the commencement of any Plan Year, that the Director wishes to change
his or her election hereunder for compensation payable during such Plan Year and
succeeding periods. All compensation which a Director elects to be paid in cash
pursuant to this Section 4(c) shall be payable quarterly in advance. If a
Director elects to receive a portion of his or her annual retainer fee in cash
hereunder, the remainder of the annual retainer fee shall be payable, subject to
any deferral election made pursuant to Section 5 below, in Shares in accordance
with Section 4(a) above, with the number of such Shares determined and set forth
in Section 4(a) above but substituting the amount of the annual retainer fee not
payable in cash for $25,000 therein.
SECTION 5. Share Unit Accounts.
The Company shall maintain a Share unit account (an "Account") for each
Director. Share units will be credited to each such Account as follows:
(a) Each Director may make an irrevocable election on or before the
December 31 immediately preceding the beginning of a Plan Year by written notice
to the Company, to defer payment of all of the compensation otherwise payable in
the form of Shares pursuant to Section 4 above during the Plan Year as his or
her annual retainer fee for service as a Director. Notwithstanding the
foregoing, a Director may make such an election within 10 days after the later
of the Effective Date or first becoming eligible to participate in the Plan,
with respect to compensation payable after the effective date of the election.
All compensation which a Director elects to defer pursuant to this Section 5(a)
shall be credited in the form of Share units to the Director's Account. The
number of units so credited will be equal to the number of Shares deferred by
the Director in his or her deferral election. Deferrals of compensation
hereunder shall continue until the Director notifies the Company in writing, on
or prior to the December 31 immediately preceding the commencement of any Plan
Year, that the Director wishes his or her compensation payable during such Plan
Year and succeeding periods to be distributed as Shares or, in part, cash on a
current basis, as provided above.
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(b) If any dividends are payable on Shares during the deferral period,
dividend equivalents equal to the dividend that would have been payable on the
units credited to a Director's Account if such units had constituted Shares
shall be paid to the Director in cash at the time the corresponding dividends
are paid on Shares.
SECTION 6. Plan Benefits.
(a) Form. The Plan Benefit of a Director shall consist of Shares equal in
number to the Share units in the Director's Account. Such Share units shall be
fully vested at all times. Any fractional Share unit shall be paid in cash.
(b) Distribution.
(i) The Plan Benefit of a Director shall be distributed either (x) in
single lump sum at the time of termination of the Director's service on the
Board or (y) in up to three annual installments beginning at the time of
termination of the Director's service on the Board. Each Director may elect
the form of distribution, and such election must be made in the form
designated by the Company from time to time, must be made within 10 days
after the Director first becomes eligible to participate in the Plan, and
shall be irrevocable once filed with the Company; provided, however, that
Director may file a new election as to the form of distribution if such
election is filed at least one year in advance of termination of service on
the Board. In the absence of a timely election by a Director hereunder, the
Director shall be deemed to have elected to have his or her Plan Benefit
distributed in a single lump sum at the time of termination of the
Director's service on the Board.
(ii) In the case of the death of a Director, the Director's Plan
Benefit shall be distributed, within a reasonable time as determined by the
Company, after the Director's death to the Director's beneficiary or
beneficiaries, as specified by the Director on a form furnished by and
filed with the Secretary of the Company. If no beneficiary has been
designated by the Director or if no beneficiary survives the Director, the
undistributed balance of his or her Plan Benefit shall be distributed to
the Director's surviving spouse as beneficiary if such spouse is still
living or, if not living, in equal shares to the then living children of
the Director as beneficiaries or, if none, to the Director's estate as
beneficiary.
SECTION 7. General.
(a) Nontransferability. Except as provided in Section 6(b)(ii), no payment
of any Plan Benefit of a Director shall be anticipated, assigned, attached,
garnished, optioned, transferred or made subject to any creditor's process,
whether voluntarily or involuntarily or by operation of law. Any act in
violation of this subsection shall be void.
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(b) Compliance with Legal and Trading Requirements. The Plan shall be
subject to all applicable laws, rules and regulations, including, but not
limited to, federal and state laws, rules and regulations, and to such approvals
by any regulatory or governmental agency as may be required. No provision of the
Plan shall be interpreted or construed to obligate the Company to register any
Shares under federal or state securities laws. The transfer by a Director of
Shares distributed pursuant to the Plan will be subject to such restrictions as
the Company deems necessary or desirable in connection with federal or state
securities laws, and Share certificates will bear a legend setting forth any
such restriction.
(c) Taxes. The Company is authorized to withhold from any payment made
under this Plan any amounts of withholding and other taxes due in connection
therewith, and to take such other action as the Company may deem advisable to
enable the Company and a Director to satisfy obligations for the payment of any
withholding taxes and other tax obligations relating thereto.
(d) Amendment. The Board may amend, alter, suspend, discontinue, or
terminate the Plan (including, without limitation, amending the dollar amount
set forth in Section 4(a) hereof) without the consent of shareholders of the
Company or individual Directors; provided, however, that, without the consent of
an affected Director, no amendment, alteration, suspension, discontinuation, or
termination of the Plan may materially impair the rights or, in any other
manner, materially and adversely affect the rights of such Director hereunder.
(e) Unfunded Status of Awards. This Plan (other than Section 4 hereof) is
intended to constitute an "unfunded" plan of deferred compensation. With respect
to any payments not yet made to a Director, nothing contained in the Plan shall
give any such Director any rights that are greater than those of a general
creditor of the Company; provided, however, that the Company may authorize the
creation of trusts or make other arrangements to meet the Company's obligations
under the Plan to deliver Shares, or other property pursuant to any award, which
trusts or other arrangements shall be consistent with the "unfunded" status of
the Plan unless the Company otherwise determines with the consent of each
affected Director.
(f) Nonexclusivity of the Plan. The adoption of the Plan by the Board shall
not be construed as creating any limitations on the power of the Board to adopt
such other compensation arrangements as it may deem desirable, including,
without limitation, the granting of options on Shares and other awards otherwise
than under the Plan, and such arrangements may be either applicable generally or
only in specific cases.
(g) Adjustments. In the event that subsequent to the Effective Date any
dividend in Shares, recapitalization, Share split, reverse split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or
share exchange, or other such change, affects the Shares such that they are
increased or decreased or changed into or exchanged for a different number or
kind of Shares, other securities of the Company or of another corporation or
other
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consideration, then in order to maintain the proportionate interest of the
Directors and preserve the value of the Directors' Share units and to maintain
the value of the Plan, there shall automatically be substituted (i) for each
Share unit a new unit and (ii) for the number of Shares set forth in Section 3
above a number of Shares or other consideration, in the case of (i) and (ii)
above, representing the number and kind of Shares, other securities or other
consideration into which each outstanding Share shall be changed or for which
each such Share shall be exchanged. The substituted units shall be subject to
the same terms and conditions as the original Share units.
(h) No Right to Remain on the Board. Neither the Plan nor the crediting of
Share units under the Plan shall be deemed to give any individual a right to
remain a director of the Company or create any obligation on the part of the
Board to nominate any Director for reelection by the shareholders of the
Company.
(i) Governing Law. The validity, construction, and effect of the Plan shall
be determined in accordance with the laws of the State of New York, without
giving effect to principles of conflict of laws thereof.
(j) Effective Date. The Plan shall become effective on April 1, 2000 (the
"Effective Date").
(k) Titles and Headings. The titles and headings of the Sections in the
Plan are for convenience of reference only. In the event of any conflict, the
text of the Plan, rather than such titles or headings, shall control.