EXHIBIT 10.8
GENTIVA HEALTH SERVICES, INC.
STOCK & DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
(As Amended and Restated as of January 1, 2004)
SECTION 1. INTRODUCTION.
The Gentiva Health Services, Inc. Stock & Deferred Compensation Plan for
Non-Employee Directors (the "Plan") provides for the deferral of a portion of
the annual retainer fees payable to non-employee directors of Gentiva Health
Services, Inc. into Units which are 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) "Annual Shareholders Meeting" means the annual general meeting of the
Company's shareholders.
(b) "Board" means the Board of Directors of the Company.
(c) "Calculation Date" means the date as of which the number of Units to
be credited to an Account is to be calculated. Generally, the
Calculation Dates shall be March 1, June 1, September 1 and December
1; PROVIDED, HOWEVER, that if a person shall become a Director other
than at an Annual Shareholders Meeting, the first Calculation Date
applicable to such Director shall be the Director's first day of
service; and PROVIDED, FURTHER, that for purposes of calculating the
number of Units allocable to the $11,250 additional retainer described
in Section 4(a), the Calculation Date shall be January 2, 2004.
(d) "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.
(e) "Company" means Gentiva Health Services, Inc., a corporation organized
under the laws of Delaware, or any successor corporation.
(f) "Director" means a member of the Board who is not employed by the
Company or any of its subsidiaries.
(g) "Plan" means this Stock & Deferred Compensation Plan for Non-Employee
Directors.
(h) "Plan Benefits" means the benefits described in Section 6 hereof.
(i) "Plan Year" means a period of approximately twelve months beginning on
the date of the Annual Shareholders Meeting for a year and ending on
the day immediately preceding the Annual Shareholders Meeting in the
following year.
(j) "Shares" means Common Stock, $0.10 par value per share, of the
Company.
(k) "Unit" means a contractual right, denominated in Shares, to receive
Shares of the Company, as described in this Plan.
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 DEFERRED INTO UNITS.
(a) GENERAL. Beginning with the first Annual Shareholders Meeting held
after the Effective Date of this Plan, the portion of each Director's annual
retainer fee to be deferred into Units for a Plan Year shall be $30,000. For the
period from the Effective Date until the date of the first Annual Shareholders
Meeting held after the Effective Date, each Director shall receive an additional
retainer equal to $11,250. The additional retainer shall be deferred into Units
as described in this Section 4.
(b) CALCULATING THE NUMBER OF UNITS. The number of Units to be deferred and
credited to a Director's Account as of any Calculation Date shall be $7,500 (or
in the case of a person who becomes a Director other than at an Annual
Shareholder Meeting, a pro-rated amount based on the number of days in the
calculation period the person will be a Director) divided 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 Calculation Date, and the resulting quotient shall be rounded to
the nearest whole Unit.
SECTION 5. UNIT ACCOUNTS.
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The Company shall maintain a Unit account (an "Account") for each Director.
Units will be credited to each such Account as follows:
(a) CREDITING OF UNITS. Units shall be credited as of the Calculation Date.
(b) DIVIDEND EQUIVALENTS. If any dividends are payable on Shares, dividend
equivalents, equal to the dividend that would have been payable on the Units
credited to a Director's Account as 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 Units in the Director's Account. Any fractional Unit shall be paid
in cash.
(b) DISTRIBUTION.
(i) The Plan Benefit of a Director shall be distributed either (A) in
a single lump sum at the time of termination of the Director's
service on the Board, (B) in a single lump sum up to one year
after termination of the Director's service on the Board, or (C)
with respect to Units credited prior to January 1, 2004 only, 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 time of distribution in accordance with the
previous sentence, and such election must be made in the form
designated by the Company from time to time and must be made
within 10 days after the Director first becomes eligible to
participate in the Plan (and with respect to Units credited after
January 1, 2004 within 10 days after such date). A Director's
election shall be irrevocable once filed with the Company;
PROVIDED, HOWEVER, that a Director may file a new election as to
the time 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.
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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.
(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 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
cash, 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
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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 consideration, then in order to maintain the proportionate interest of the
Directors and preserve the value of the Directors' Units and to maintain the
value of the Plan, there shall automatically be substituted (i) for each 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 Units.
(h) NO RIGHT TO REMAIN ON THE BOARD. Neither the Plan nor the crediting of
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, as amended and
restated, on January 1, 2004 (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.
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