EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of March 22, 2004, by and between
GENTIVA HEALTH SERVICES, INC., a Delaware corporation (the "Company"), and
RONALD A. MALONE ("Executive").
WITNESSETH:
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WHEREAS, the Company desires that Executive continue to serve as
Chairman and Chief Executive Officer of the Company and Executive is willing to
continue to serve in that capacity;
WHEREAS, the Company and Executive wish to enter into a new agreement
embodying the terms of his continued employment as Chairman and Chief Executive
Officer (the "Agreement"); and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and Executive hereby agree as follows:
1. Employment. Upon the terms and subject to the conditions of this
Agreement, the Company hereby agrees to employ Executive and Executive hereby
agrees to his employment by the Company until the fourth anniversary of the
Effective Date (as defined below) of this Agreement unless this Agreement is
extended or sooner terminated as set forth herein. The period during which
Executive is employed pursuant to this Agreement shall be referred to as the
"Employment Period." The Employment Period shall be extended automatically for
consecutive periods of one year unless either party shall provide notice to the
other of its intention not to so extend, such notice to be given not less than
six months prior to the end of the initial four year term or any extension
thereof, as the case may be.
2. Position and Duties.
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(a) Position. During the Employment Period, Executive shall serve
as Chairman and Chief Executive Officer of the Company and shall be nominated
for election, and if so elected, shall serve as a member of the Board of
Directors of the Company (the "Board"). In addition, Executive shall serve in
such other position or positions with the Company and its subsidiaries
commensurate with his position and experience, as the Board shall from time to
time specify. Subject to Section 5 hereof, the Executive's services will be
performed principally in Melville, New York or such other location in the New
York metropolitan area at which the principal office of the Company may be
relocated. Executive acknowledges that the nature of his duties shall require
reasonable domestic travel from time to time.
(b) Duties. During the Employment Period, Executive shall have
the duties, responsibilities and obligations customarily assigned to individuals
serving as the chairman and chief executive officer of comparable companies, and
such other duties, responsibilities and obligations as the Board shall from time
to time specify. Executive shall devote his full time to the services required
of him hereunder, except for vacation time and reasonable periods of absence due
to sickness, personal injury or other disability, and shall use his best
efforts, judgment, skill and energy to perform such services in a manner
consonant with the duties of his position and to improve and advance the
business and interests of the Company and its subsidiaries. Nothing contained in
this Section 2 shall preclude Executive from (i) serving on the board of
directors of any business corporation, unless such service would be contrary to
applicable law, with prior approval from the Board, (ii) serving on the board
of, or working for, any charitable or community organization, or (iii) pursuing
his personal financial and legal affairs, so long as such activities,
individually or collectively, do not interfere with the performance of
Executive's duties hereunder or violate any of the provisions of Section 6
hereof.
3. Compensation.
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(a) Base Salary. During the Employment Period, the Company shall
pay Executive a base salary at the annual rate of $525,000 per annum. The annual
base salary payable under this section shall be reduced, however, to the extent
Executive elects to defer such salary under the terms of any deferred
compensation or savings plan or arrangement maintained or established by the
Company or any other arrangement acceptable to the Company. The Board (or the
appropriate committee of the Board) shall annually review Executive's base
salary in light of competitive practices, the base salaries paid to other
executive officers of the Company and the performance of Executive and the
Company, and may, in its discretion, increase such base salary by an amount it
determines to be appropriate. Any such increase shall not reduce or limit any
other obligation of the Company hereunder. Executive's base salary (as set forth
or as may be increased from time to time) shall not be reduced, except that
Executive's base salary may be reduced in proportion to comparable reductions in
the base salaries of the Company's other executive officers (as determined for
purposes of Section 16(b) of the Securities Exchange Act of 1934, as amended).
Executive's annual base salary payable hereunder, as it may be increased from
time to time and without reduction for any amounts deferred as described above,
is referred to herein as "Base Salary." The Company shall pay Executive the
portion of his Base Salary not deferred in accordance with the Company's payroll
practices applicable to its other executive officers.
(b) Annual Bonus. For each fiscal year ending during the
Employment Period, Executive shall have the opportunity to receive an annual
bonus ("Annual Target Bonus Opportunity"), based on the achievement of target
levels of performance, equal to 100% of his Base Salary, so long as Executive is
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employed on the last day of the fiscal-year. Depending on actual results as
measured against the performance objectives established, Executive's actual
bonus payment may range from zero to a maximum of 150% (or such other greater
amount as determined by the Board or a committee thereof) of Executive's Base
Salary for each full fiscal year during the Employment Period. In the event the
Employment Period is not extended due to the Company's giving a notice of
nonextension pursuant to Section 1 above, the Company shall pay Executive a
bonus payment for the final fiscal year of such Employment Period of no less
than a pro rata amount equal to the number of months during which Executive was
employed multiplied by Executive's Annual Target Bonus Opportunity for the year.
The actual bonus, if any, payable for any such year shall be determined
in accordance with the terms of the Company's Executive Officers' Bonus Plan
(the "Annual Plan") or any successor plan, based upon the performance of the
Company and/or Executive against target objectives established under such Annual
Plan. The determination of whether and to what extent the requisite performance
objectives have been met shall be made by the Board or the Board committee
responsible for administering the Annual Plan, whose determination shall be
final. Subject to Executive's election to defer all or a portion of any annual
bonus payable hereunder pursuant to the terms of any deferred compensation or
savings plan or arrangement maintained or established by the Company, any annual
bonus payable under this Section 3(b) shall be paid to Executive in accordance
with the terms of the Annual Plan, provided, however, that, regardless of the
terms of such Annual Plan, Executive shall have the right to defer payment of up
to that portion of his annual bonus which, when coupled with any portion of his
Base Salary deferred for the same year of service, does not exceed 50% (or such
greater percentage as the Company shall permit) of the sum of his Base Salary
and his annual bonus, provided, however, any portion of Executive's annual bonus
which would not be deductible to the Company pursuant to the provisions of
Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"),
shall be deferred. Unless Executive shall otherwise elect a different payment
date or dates or a different number of payments, any portion of Executive's
annual bonus and/or Base Salary which is deferred in accordance with this
Section 3 (whether at Executive's election or by reason of Section 162(m)) shall
be payable to Executive in a single lump sum as soon as practicable following
the end of the Employment Period for any reason and shall be credited with
interest, on a compounded basis, on the last day of each calendar quarter, at 1%
above the prime rate (as reported in The Wall Street Journal, Eastern Edition),
as in effect on the first day of each such calendar quarter. Any election by
Executive to change the timing of the distribution of the deferred amounts
and/or the number of payments to be made shall be made in writing in a calendar
year prior to the date payment is to be made, and shall only be effective if
Executive completes at least six months' additional service as an employee
following the date any such election is filed with the Secretary of the Company.
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4. Benefits, Perquisites and Expenses.
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(a) Benefits. During the Employment Period, Executive shall be
eligible to participate in (i) each welfare benefit plan sponsored or maintained
by the Company, including, without limitation, each group life, hospitalization,
medical, dental, health, accident or disability insurance or similar plan or
program of the Company, and (ii) each pension, retirement, deferred
compensation, savings or employee stock purchase plan sponsored or maintained by
the Company, and (iii) to the extent of any awards made from time to time by the
Board committee administering the plan, each stock option, restricted stock,
stock bonus or similar equity-based compensation plan sponsored or maintained by
the Company, in each case, whether now existing or established hereafter, and
(iv) any other plans sponsored or maintained by the Company in which other
executive officers are eligible to participate, to the extent that Executive is
eligible to participate in any such plan under the generally applicable
provisions thereof. Nothing in this Section 4(a) shall limit the Company's right
to amend or terminate any such plan in accordance with the procedures set forth
therein.
(b) Perquisites. During the Employment Period, Executive shall be
entitled to at least four weeks' paid vacation annually and shall also be
entitled to receive such perquisites as are generally provided to other
executive officers of the Company in accordance with the then current policies
and practices of the Company.
(c) Business Expenses. During the Employment Period, the Company
shall pay or reimburse Executive for all reasonable expenses incurred or paid by
Executive in the performance of Executive's duties hereunder, upon presentation
of expense statements or vouchers and such other information as the Company may
require and in accordance with the generally applicable policies and procedures
of the Company.
(d) Indemnification. The Company shall defend Executive,
indemnify Executive and hold Executive harmless from and against any claim, loss
or cause of action arising from or out of Executive's good faith performance as
an officer, director or employee of the Company or any of its subsidiaries or in
any other capacity, including any fiduciary capacity, in which Executive serves
at the request of the Company to the maximum extent permitted by applicable law
and the Company's Restated Certificate of Incorporation and By-Laws. Such
obligations shall include payment of all fees, costs and expenses, including
attorney's fees, incurred or to be incurred as a result of such claim, loss or
cause of action. The Company shall also maintain D&O insurance for the benefit
of Executive with the same coverage, limits; terms and conditions as maintained
for other directors and officers of the Company.
5. Termination of Employment.
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(a) Early Termination of the Employment Period. Notwithstanding
Section 1, the Employment Period shall end upon the earliest to occur of (i) a
termination of Executive's employment on account of Executive's death, (ii) a
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termination due to Executive's Disability, (iii) Termination for Cause, (iv) a
Termination Without Cause, or (v) a Termination for Good Reason.
(b) Benefits Payable Upon Early Termination. Following the end of
the Employment Period pursuant to Section 5(a), Executive (or, in the event of
his death, his surviving spouse, if any, or his estate) shall be paid the type
or types of compensation determined to be payable in accordance with the
following table at the times established pursuant to Section 5(c):
Severance Additional
Earned Salary Vested Benefits Benefits Benefits
------------- --------------- ----------- -------------
Termination due Payable Payable Not payable Available
to death
Termination due Payable Payable Not payable Available
to Disability
Termination for Payable Payable Not payable Not available
Cause
Termination for Payable Payable Payable Available
Good Reason
Termination Payable Payable Payable Available
Without Cause
In the event that his employment terminates due to death, his widow will receive
six months base compensation to be paid in a lump sum as soon as practical but
in no event more than 10 days following the end of his Employment Period.
(c) Timing of Payments. Earned Salary shall be paid in cash in a
single lump sum as soon as practicable, but in no event more than 10 days
following the end of the Employment Period, unless otherwise agreed to in
writing by Executive. Vested Benefits shall be payable in accordance with the
terms of the plan, policy, practice, program, contract or agreement under which
such benefits have been awarded or accrued. Severance Benefits shall be paid in
a single lump sum cash payment as soon as practicable, but in no event later
than 10 days after the Executive's termination, unless otherwise agreed to in
writing by Executive. Additional Benefits shall be provided or made available at
the times specified below as to each such Additional Benefit.
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(d) Definitions. For purposes of Sections 5 and 6, capitalized
terms have the following meanings:
"Additional Benefits" means, if Executive's employment terminates due
to death or in a Termination due to Disability, the benefits described in
subclause (i) below, or if the Executive's employment is terminated in a
Termination Without Cause or a Termination for Good Reason, the benefits
described in subclauses (i), (ii) and (iii):
(i) All of the Executive's benefits accrued under any pension,
retirement, savings and deferred compensation plans of the Company shall
become vested in full; provided, however, that to the extent such
accelerated vesting of benefits cannot be provided under one or more of
such plans consistent with applicable provisions of the Code, such benefits
shall be paid to the Executive in a lump sum within 10 days after the end
of the Employment Period outside the applicable plan;
(ii) Executive (and, to the extent applicable, his dependents) will
be entitled to continue participation in all of the Company's medical,
dental and vision care plans (the "Health Benefit Plans"), until the 24
month anniversary (or, in the case of a "Termination for Good Reason" (as
defined below) due to clause (E) of such definition, the 18 month
anniversary) of the end of the Employment Period; provided that Executive's
participation in the Company's Health Benefit Plans shall cease on any
earlier date that Executive becomes eligible for comparable benefits from a
subsequent employer. Executive's participation in the Health Benefit Plans
will be on the same terms and conditions (including, without limitation,
any contributions that would have been required from Executive) that would
have applied had Executive continued to be employed by the Company. To the
extent any such benefits cannot be provided under the terms of the
applicable plan, policy or program, the Company shall provide a comparable
benefit under another plan or from the Company's general assets; and
(iii) In the case of any options to purchase Company stock or other
equity-based awards granted to Executive by the Company after the Effective
Date of this Agreement, the portion (if any) of such stock options or
awards that would have become exercisable or vested solely due to his
continued employment if the Executive's employment by the Company had
continued for an additional two years shall become exercisable or vested at
the time of termination of the Executive's employment.
"Disability" means long-term disability within the meaning of the
Company's long-term disability plan or program, or, in the absence of such a
plan or program, as defined in Section 22 of the Code.
"Earned Salary" means any Base Salary earned, but unpaid, for services
rendered to the Company on or prior to the date on which the Employment Period
ends pursuant to Section 5(a) (other than Base Salary deferred pursuant to
Executive's election, as provided in Section 3(a) of (b) hereof).
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"Severance Benefits" means an amount equal to two (2) times (or, in the
case of a "Termination for Good Reason" (as defined below) due to clause (E) of
such definition, one and one half (1.5) times) the sum of (i) the Executive's
Base Salary, and (ii) the Executive's Annual Target Bonus Oppportunity for the
year of termination; provided, however, that Severance Benefits shall not be
payable under this Agreement to the Executive if the termination of the
Executive's employment results in the payment of severance benefits under the
Executive's Change in Control Agreement with the Company dated of even date
herewith.
"Termination for Cause" means a termination of Executive's employment
by the Company due to (i) Executive's conviction of a felony or (ii) any act of
willful fraud, dishonesty or moral turpitude.
"Termination for Good Reason" means a termination of Executive's
employment by Executive (i) within 90 days following (A) a material diminution
in Executive's positions, duties and responsibilities from those described in
Section 2 hereof, (B) the removal of Executive from, or the failure to re-elect
Executive as a member of, the Board, (C) a reduction in Executive's annual Base
Salary (other than any reduction therein which is in proportion to reductions in
the base salaries of all of the Company's executive officers, as contemplated by
Section 3(a) hereof, unless, however, such proportionate reduction exceeds 20%
of Executive's Base Salary), (D) a decision by the Company without the written
consent of Executive to relocate its principal office more than 40 miles from
Melville, New York, (E) the Company giving Executive notice of nonextension in
accordance with Section 1 above at least six months in advance of the end of the
initial four year term, or (F) a material breach by the Company of any other
provision of this Agreement.
"Termination Without Cause" means any termination of Executive's
employment by the Company other than a Termination for Cause, a Termination on
account of Executive's death, or a Termination due to Executive's Disability.
"Vested Benefits" means amounts which are vested or which Executive is
otherwise entitled to receive under the terms of or in accordance with any plan,
policy, practice or program of, or any contract or agreement with, the Company
or any of its subsidiaries, at or subsequent to the end of the Employment Period
without regard to the performance by Executive of further services or the
resolution of a contingency.
(e) Full Discharge of Company Obligations. Except as expressly
provided in the last sentence of this Section 5(e), the amounts payable to
Executive pursuant to this Section 5 following termination of his employment
(including amounts payable with respect to Vested Benefits) shall be in full and
complete satisfaction of Executive's rights under this Agreement and any other
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claims he may have in respect of his employment by the Company or any of its
subsidiaries. Such amounts shall constitute liquidated damages with respect to
any and all such rights and claims and, upon Executive's receipt of such
amounts, the Company shall be released and discharged from any and all liability
to Executive in connection with this Agreement or otherwise in connection with
Executive's employment with the Company and its subsidiaries. Executive shall
execute a release following termination of his employment, in form and substance
satisfactory to the Company (but not inconsistent with the terms of this
Agreement), as a prior condition to the receipt of the benefits payable pursuant
to this Section 5. Nothing in this Section 5(e) shall be construed to release
the Company from its commitment to indemnify Executive and hold Executive
harmless from and against any claim, loss or cause of action as described in
Section 4(d).
6. Noncompetition and Confidentiality. By and in consideration of the
Base Salary and miscellaneous benefits to be provided by the Company hereunder,
including particularly the severance arrangements set forth herein, Executive
agrees that:
(a) Noncompetition. Executive acknowledges that the Company and
its subsidiaries conduct business throughout the United States and the District
of Columbia and that his duties to Company relate to some or all of these
territories and to some or all business lines of the Company. During the
Employment Period and during the twenty-four (24) month period following the end
of the Employment Period, Executive shall not directly or indirectly: (i)
perform or provide any services to any individual or business which is engaged
in the type of business(es) similar to the type of business(es) conducted by the
Company or any of its subsidiaries; and/or (ii) own, manage, operate, control,
be employed by, participate in, provide services or financial assistance to, or
be connected in any manner with, the ownership, management, operation or control
of any business which directly competes with Company or any of its subsidiaries
or engages in the type of business(es) principally conducted by the Company or
any of its subsidiaries, except that Executive may own for investment purposes
up to 1% of the capital stock of any such company whose stock is publicly
traded.
(b) Confidentiality. Except as may be required by the lawful
order of a court or agency of competent jurisdiction, or applicable law, or
except to the extent that Executive has express authorization from the Company,
Executive agrees to keep secret and confidential indefinitely all non-public
information (including, without limitation, information regarding litigation and
pending litigation and any information that may be subject to attorney-client
privilege) concerning the Company, its subsidiaries and affiliates
(collectively, the "Company Group") which was acquired by or disclosed to
Executive during the course of Executive's employment with the Company, and not
to disclose the same, either directly or indirectly, to any other person, firm,
or business entity, or to use it in any way. Such non-public information shall
include, but not be limited to, the following:
(i) Confidential and proprietary information which the
Company Group has compiled to identify, develop and
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service its clients and customers, including "negative
research" to identify those entities who have not
subscribed to the services of the Company and its
subsidiaries;
(ii) information which the Company Group has compiled
concerning the operations of the clients and customers
of the Company and its subsidiaries, including key
contacts within the clients' and customers' business,
familiarity with special needs and customer
characteristics, workers' compensation information,
billing rates, profit margins, sales volumes, and
other sensitive financial information; and
(iii) information which the Company Group has compiled
concerning the employees and labor force at the
Company and its subsidiaries, including compilations
of their names, addresses, job skills, employment
histories and employment records to the extent such
information constitutes a "trade secret" of the
Company under applicable law and is not otherwise
readily available to the general public.
Upon termination of Executive's employment, Executive shall promptly deliver to
the Company all materials of a confidential nature relating to the business of
the Company and its subsidiaries and which are Executive's possession or
control. To the extent that Executive obtained information on behalf of the
Company or any subsidiary or affiliate that may be subject to attorney-client
privilege, Executive shall take reasonable steps to maintain the confidentiality
of such information and to preserve such privilege.
(c) Non-Solicitation of Employees. During the Employment Period
and the two-year period following the end of the Employment Period, Executive
shall not directly or indirectly, for his own benefit or that of any other
person, offer any employment in a similar field or business association to any
of the Company's employees, agents or representatives or suggest or in any way
encourage, any of the Company's employees, agents or representatives to
terminate their employment or business association with the Company. For
purposes of this subparagraph, the term "employees, agents or representatives"
includes only individuals who are or were employees, agents or representatives
of the Company during the six month period ending at the end of the Employment
Period.
(d) Non-Solicitation of Clients and Customers. During the
Employment Period and the twenty-four (24) month period following the end of the
Employment Period, Executive shall not solicit or accept for Executive's own
benefit or the benefit of any other person any of the Company's customers and/or
clients with a view to selling or providing any product or service competitive
with any product or service sold or provided or identified as a product that
will be sold or provided within the aforesaid twenty-four (24) month period by
the Company. For the purposes of this Section 6(d), the term "customers" and/or
clients shall include any person or entity to whom the Company has sold,
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provided or been obligated to provide, any service or product, or who has
otherwise received any service or benefit from the Company within the last 24
months or within the 24-month period preceding the date Executive's employment
terminates.
(e) Company Property. Except as expressly provided herein,
promptly following the end of the Employment Period, Executive shall return to
the Company all property of the Company.
(f) Injunctive Relief and Other Remedies with Respect to
Covenants. Executive acknowledges and agrees that the covenants and obligations
of Executive with respect to noncompetition, nonsolicitation, confidentiality
and Company property, relate to special, unique and extraordinary matters and
that a violation of any of the terms of such covenants and obligations may cause
the Company irreparable injury for which adequate remedies are not available at
law. Therefore, Executive agrees that the Company shall be entitled to seek an
injunction, restraining order or such other equitable relief (without the
requirement to post bond) restraining Executive from committing any violation of
the covenants and obligations contained in this Section 6. This remedy is in
addition to any other rights and remedies the Company may have at law or in
equity.
7. Miscellaneous.
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(a) Effective Date. This Agreement shall become effective for all
purposes on the date set forth above (the "Effective Date").
(b) Survival. Sections 4(d) relating to indemnification, 5
(relating to early termination), 6 (relating to noncompetition, nonsolicitation
and confidentiality), 7(c) (relating to arbitration), 7(d) (relating to binding
effect) and 7(n) (relating to governing law) shall survive the termination
hereof.
(c) Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be resolved by binding arbitration. This
arbitration shall be held in New York City and except to the extent inconsistent
with this Agreement, shall be conducted in accordance with the Expedited
Employment Arbitration Rules of the American Arbitration Association then in
effect at the time of the arbitration, and otherwise in accordance with
principles which would be applied by a court of law or equity. Executive shall
be entitled to discovery in any such proceeding. All fees, costs and expenses of
the arbitration, with the exception of Executive's attorney's fees, costs and
expenses, shall be borne by the Company. The arbitrator shall be acceptable to
both the Company and Executive. If the parties cannot agree on an acceptable
arbitrator, the dispute shall he held by a panel of three arbitrators, one
appointed by each of the parties and the third appointed by the other two
arbitrators. The arbitrator(s) shall not have the power to commit substantive
errors of law, legal reasoning or fact, shall set forth their factual and legal
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reasoning in any award or determination, and any such award or determination may
be vacated or corrected as a result.
(d) Binding Effect. This Agreement shall be binding on, and shall
inure to the benefit of, the Company and any person or entity that succeeds to
the interest of the Company (regardless of whether such succession does or does
not occur by operation of law) by reason of the sale of all or a portion of the
Company's stock, a merger, consolidation or reorganization involving the Company
or unless the Company otherwise elects in writing, a sale of the assets of the
business of the Company (or portion thereof) in which Executive performs a
majority of his services. This Agreement shall also inure to the benefit of
Executive's heirs, executors, administrators and legal representatives.
(e) Assignment. Except as provided under Section 7(d), neither
this Agreement nor any of the rights or obligations hereunder shall be assigned
or delegated by any party hereto without the prior written consent of the other
party.
(f) Entire Agreement. This Agreement, together with the Change in
Control Agreement between the Company and the Executive of even date herewith,
constitute the entire agreement between the parties hereto with respect to the
matters referred to herein. No other agreement (other than awards made in
accordance with the terms of one of the Company's applicable compensatory plans,
programs or arrangements) relating to the terms of Executive's employment by the
Company, oral or otherwise, including, without limitation, the Severance Letter
dated March 14, 2000, the Employment Agreement dated as of June 10, 2002, and
the Change in Control Agreements dated March 15, 2000 and June 14, 2002, between
the Executive and the Company, shall be binding between the parties. The Company
and the Executive acknowledge that both parties have signed or will sign
contemporaneously with this Agreement a new and separate Change in Control
Agreement, and that the terms of such Change in Control Agreement are not
superseded by this Agreement and may be enforced notwithstanding any terms of
this Agreement to the contrary. There are no promises, representations,
inducements or statements between the parties other than those that are
expressly contained herein. Executive acknowledges that he is entering into this
Agreement of his own free will and accord, and with no duress, that he has read
this Agreement and that he understands it and its legal consequences.
(g) Severability; Reformation. In the event that one or more of
the provisions of this Agreement shall become invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby. In the event that any
of the provisions of Section 6 hereof are not enforceable in accordance with
their terms, Executive and the Company agree that such provisions shall be
reformed to make such Section enforceable in a manner which provides the Company
the maximum rights permitted at law.
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(h) Waiver. Waiver by any party hereto of any breach or default
by the other party of any of the terms of this Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different from the
breach or default waived. No waiver of any provision of this Agreement shall be
implied from any course of dealing between the parties hereto or from any
failure by either party hereto to assert its or his rights hereunder on any
occasion or series of occasions.
(i) Notices. Any notice required or desired to be delivered under
this Agreement shall be in writing and shall be delivered personally, by courier
service, by certified mail, return receipt requested, or by telecopy and shall
be effective upon actual receipt by the party to which such notice shall be
directed, and shall be addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
If to the Company:
Gentiva Health Services, Inc.
3 Huntington Quadrangle 2S
Melville, NY 11747
Attention: General Counsel
If to Executive:
Ronald A. Malone
6 Target Rock Drive
Lloyd Harbor, NY 11743
(j) Amendments. This Agreement may not be altered, modified or
amended except by a written instrument signed by each of the parties hereto.
(k) Headings. Headings to paragraphs in this Agreement are for
the convenience of the parties only and are not intended to be part of or to
affect the meaning or interpretation hereof.
(l) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
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(m) Withholding. Any payments provided for herein shall be
reduced by any amounts required to be withheld by the Company from time to time
under applicable Federal, State or local income tax laws or similar statutes
then in effect.
(n) Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to principles of conflict of laws thereof.
[Next Page is Signature Page]
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IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed as of the day and year first above written.
GENTIVA HEALTH SERVICES, INC.
By: /s/ STUART R. LEVINE
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Stuart R. Levine, Chairman,
Compensation, Corporate Governance
and Nominating Committee of the
Board of Directors
/s/ RONALD A. MALONE
----------------------------------
Ronald A. Malone
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